John Warner

Mr. WARNER

Mr. WARNER. Mr. President, I believe from reading this report--not in the words of the Senator from Massachusetts that no one was trying to stop these tragic situations--that it was generally a positive command climate. There were some isolated instances of harassment, sexual in nature. I concede that is in the Record. But the total quantity of these incidents, in my judgment, was not indicative of a breakdown in the command responsibilities under General Clark. General Clark, as I said, came to the committee on two occasions and subjected himself quite willingly--indeed, under oath; I put him under oath at the second hearing--and he responded to the cross-examination, much of which the distinguished colleague from Massachusetts has raised today. In conclusion, he has an extremely impressive record of military service stretching back to 1970. Much of that has been covered by my colleague from Kentucky. Mind you, Fort Campbell is an installation that can at times host a daily population of 24,000 military personnel and over 200 company- sized units. In July of 1999, this brutal murder was committed at Fort Campbell by an intoxicated 18-year-old soldier who used frightful force against PFC Barry Winchell. This resulted in his death, allegedly while he was sleeping. No one underestimates the seriousness of this crime. Senator Levin and I met in May of this year with the parents of Private First Class Winchell. Like General Clark, we extended our sympathy and sorrow for their loss. The committee listened very closely to the assertions they made about a lack of appropriate treatment by General Clark and shortfalls in discipline and a secure environment at Fort Campbell during the time their son was stationed there. At the conclusion of the meeting, Senator Levin and I asked Private First Class Winchell's parents to put the questions and concerns they had raised with us at that meeting in a letter, and we would obtain answers from the Department of Defense--specifically, the Department of the Army--and share those answers with them. That we did. The parents sent us a letter and Senator Levin and I forwarded these questions to the Department. In September, the Department responded to questions and expressed continued support for Major General Clark's nomination. I ask unanimous consent that all of these matters be printed in the Record at the end of my statement.

Mr. WARNER. Mr. President, may I express appreciation to my colleague from Kentucky again for his taking long hours to personally look into this case in a very objective way and in reaching his conclusions. I yield the floor.

Mr. WARNER. Mr. President, not only the steps taken by the Armed Services Committee, together with my distinguished colleague Senator Levin, but indeed by the Department of the Army into other areas overall reflect, I think, that our committee carefully looked into this matter and that the Department of the Army was responsive to the questions raised by my colleagues. Mr. President, MG Clark is highly qualified for promotion to the rank of lieutenant general assignment as Commander of the Fifth United States Army. He was first nominated for this position in the fall of 2002. He has appeared before the Senate Armed Services Committee in executive session on two separate occasions, and, on both occasions conducted himself with deferrence and respect for the members of the committee, and with appreciation for the Constitutionally-based advise and consent power--and responsibility--of the Senate. Not surprisingly, General Clark has the full support of the Chief of Staff of the Army, General Schoomaker, and the civilian leadership of the Army for this promotion. General Clark has an extremely impressive record of military service stretching back to his commissioning in 1970. General Clark's military record includes combat service in Viet Nam for which he was awarded the Bronze Star with Combat ``V.'' He has served as a Battalion Commander and a Brigade Commander with the renowned ``Screaming Eagles'' of the 101st Airborne Division. In this capacity, he participated in Operations Desert Shield and Desert Storm. Major General Clark later served as Chief of Staff for the 101st Airborne Division, and from 1998 through 2000 as Commanding General of the 101st Airborne Division and Fort Campbell, KY. Fort Campbell is an installation that can, at times, host a daily population of over 24,000 military personnel and over 200 company sized units. In July 1999, a brutal murder was committed at Fort Campbell by a drunken, 18-year-old soldier who bludgeoned Private First Class Barry Winchell to death in his sleep. This tragic and senseless crime was not foreseeable--not foreseeable by PFC Winchell's company commander and certainly not foreseeable by Major General Clark. General Clark capably and competently fulfilled his responsibility as General court-Martial convening authority in this murder trial and took steps necessary to ensure that the perpetrator of this crime and an accomplice were brought to justice. This was accomplished and the soldier who murdered PFC Winchell is serving a life sentence. Senator Levin and I met in May of this year with the parents of PFC Winchell. We, like General Clark, extended our sympathy and sorrow for their loss. As leaders of the committee, we listened very closely to the assertions they made about a lack of appropriate treatment by General Clark, and shortfalls in discipline and a secure environment at Fort Campbell during the time their son was stationed there. At the conclusion of our meeting, Senator Levin and I asked PFC Winchell's parents to put the questions and concerns that they had raised with us in a letter, and we would obtain answers from the department and share those answer with them. The parents did so, and we sent their questions to the department in June. In late September, the department responded to the questions, and expressed continued support for Major General Clark's nomination. The Army undertook to conduct inquiries through the Army Inspector General in response to the questions raised by the parents, and, I believe, did respond fully to the issues that were raised. In late September, Senator Levin and I forwarded the Department's response to PFC Winchell's parents inviting them to respond. They did so on October 8th. On October 10, Senator Levin and I forwarded their letter to the department together with additional questions from Senator Kennedy requesting comment. We received a response from secretary Abell and Acting Secretary Brownlee on October 21st and, shortly thereafter, we conducted our second executive session. The committee compiled a very thorough record about all the issues raised by Senator Kennedy and others. I will not go into specific details, but it is important to note that the Army Inspector General conducted an investigation into the circumstances surrounding the July 1999 death of PFC Winchell after the court-martial was completed, and the IG found no basis to support accusations of dereliction of duty and failure of leadership by General Clark. To the contrary, the investigation found a positive command climate at Fort Campbell and refuted the assertions that Major General Clark should have done more or could have prevented this tragedy. I am very concerned about ensuring accountability of military officers, and I have insisted at looking very closely at the actions of military leaders who are entrusted with command. I am satisfied that General Clark did not fail in his command responsibility and is fully deserving of promotion. I urge my colleagues to support this nomination. Exhibit I executive summary Background On 5 July 1999, Private First Class (PFC) Barry Winchell, D Company, 2nd Battalion, 502nd Infantry Regiment, Fort Campbell, Kentucky, was murdered by a fellow soldier. Following this incident, and amid claims that PFC Winchell was murdered because he was or was perceived to be a homosexual, allegations arose concerning the command climate at Fort Campbell particularly as it related to the command's enforcement of the Department of Defense (DOD) Homosexual Conduct Policy [hereinafter the Policy]. The Army pledged early on to assess the command climate and investigate the alleged violations of the Policy; however, to avoid interfering in the individual judicial proceedings underway, the Army could not begin that effort until the conclusion of the two courts-martial arising out of PFC Winchell's death. On 10 January 2000, the Secretary of the Army (SA) directed that the Department of the Army Inspector General (DAIG) conduct an investigation into the facts and circumstances surrounding the death of PFC Winchell as it related to the Policy (enclosed) [hereinafter referred to as directive]. In addition, the DAIG was tasked to conduct an assessment of the command climate then existing in PFC Winchell's unit prior to his death and an overall assessment of the command climate existing at Fort Campbell prior to PFC Winchell's death, specifically as it related to the Policy. Finally, the DAIG was directed to provide an overall assessment of the Department of the Army's (DA) implementation of the Policy. The Fort Campbell assessment provided the initial data for the Army assessment of the Policy. The Army IG will continue to assess these issues as part of their continuing inspection program. Task Force Composition, Training, and Methodology A Task Force of 27 individuals was established to conduct the investigation and assessment in accordance with the directive. The Task Force was composed of inspectors general (IGs), one legal advisor, and subject matter experts. During early February, the Task Force received training from the subject matter experts in the areas of the Policy itself, Equal Opportunity (EO), interview techniques, and group dynamics. Further, the Task Force conducted mock individual interviews and group sensing sessions in order to validate the assessment strategy. Finally, at the request of the Servicemembers Legal Defense Network (SLDN), key leaders of the Task Force met with representatives of the SLDN to identify specific concerns of the organization. The SLDN is a national legal aid organization that assists soldiers affected by the Policy. The scope of the assessment included the following: Interviews with the commanding general, 101st Airborne Division (Air Assault), both assistant division commanders who were occupying those positions in July 1999, and interviews with 47 brigade and battalion-level commanders from both divisional and nondivisional tenant units. In addition, the Task Force conducted 68 sensing sessions composed of soldiers randomly-selected by utilizing the last two digits of the social security number. In these sessions, 568 soldiers were interviewed and 1,385 command climate surveys were administered throughout Fort Campbell. With respect to the sensing sessions, it should be noted that all of these soldiers were assigned to Fort Campbell from the period of April 1999 through February 2000. In addition, participants who completed a command climate survey were informed that the responses would be anonymous. In addition to interviews conducted on Fort Campbell, the investigation team conducted on-site interviews at Fort Benning and Fort Leonard Wood, as well as telephonic interviews with soldiers assigned to Korea, Fort Drum, Fort Knox, Fort Jackson and the United States Military Academy. Civilian members of the Fort Campbell community as well as former members of the Army were also interviewed by the investigation team. Finally, Task Force members gathered relevant data through on-site inspections and additional periodic spot checks of unit recreation centers, public use areas, and barracks living areas. Finally, the Task Force secured information by directly observing on-post soldier events to include physical fitness training sessions. History and Background of the Policy On 29 January 1993, the President directed the Secretary of Defense (SecDef) to review DOD policy on homosexuals in the military. On 19 July 1993, the SecDef directed the following: applicants for military service as well as current servicemembers would not be asked nor required to reveal their sexual orientation; sexual orientation would not be a bar to entry into the service or continued service unless manifested by homosexual conduct; and commanders and investigating agencies would not initiate investigation solely to determine a member's sexual orientation. On 30 November 1993, Congress enacted 10 United States Code (USC), Section 654, policy concerning homosexuality in the armed forces. Assessment Results Finding 1 Objective: Examine alleged violations of the DOD Homosexual Conduct Policy during the period preceding PFC Winchell's death. Findings: 1. A preponderance of evidence indicated that two noncommissioned officers (NCOs) in PFC Winchell's chain of command and a fellow private (PVT) inquired into PFC Winchell's sexual orientation. In addition, at least one NCO referred to PFC Winchell as a ``faggot.'' 2. In spite of this, however, the evidence gathered demonstrated that the chain of command was proactive in terminating the sporadic incidents of derogatory or offensive cadences during unit marches and physical training (PT) formations. Summary: Evidence obtained from Fort Campbell indicated that in late May 1999 PFC Winchell asked an NCO from his unit, D Company, 2nd Battalion, 502nd Infantry Regiment, ``What would happen if a guy in the military was gay?'' In responding to that question, the NCO asked PFC Winchell if he was a homosexual. Testimony revealed that the NCO asked the question in an effort to offer assistance to PFC Winchell in getting professional guidance or assistance in addressing the issue. Evidence gathered indicated that an NCO in PFC Winchell's unit referred to PFC Winchell as well as other members of the unit as ``faggots'' in describing those who failed to perform to his standards. On one occasion, the NCO referred to PFC Winchell as a ``faggot'' after PFC Winchell reported to work in what appeared to be an intoxicated state. The preponderance of evidence demonstrated that PFC Winchell's chain of command did not condone demeaning or derogatory cadences made during the conduct of unit PT. In those instances where inappropriate remarks were made, company leaders made on-the-spot corrections. Finding 2 Objective: Determine whether the local IG's office responded appropriately to any complaints of violations of the DOD Policy it may have received prior to PFC Winchell's death. Finding: The Fort Campbell IG office properly responded to the only known complaint of a violation of the Policy prior to 5 July 1999 when they followed standard Army IG guidance by recommending PFC Winchell provide his commanders the opportunity to resolve his complaint prior to direct IG intervention with the command. Summary: Immediately after the NCO called PFC Winchell a ``faggot,'' another NCO escorted PFC Winchell to the IG office to file a complaint. Upon being advised that he should provide his commander the first opportunity to address the issue, PFC Winchell was then escorted to his company commander. Evidence obtained indicated that the company commander counseled the NCO regarding his inappropriate remarks. Finding 3 Objectives: 1. Conduct an overall assessment of the command climate existing at Fort Campbell prior to 5 July 1999, specifically as it relates to the application and enforcement of the DOD Policy. 2. Assess the degree to which PFC Winchell's chain of command understood the application and enforcement of the DOD Policy. 3. Conduct sensing sessions with randomly-selected members at Fort Campbell to determine the degree to which members felt they understood the Policy and the degree to which the Policy was being enforced. 4. Assess the command climate of D Company, 2nd Battalion, 502nd Infantry Regiment before 5 July 1999. Findings: 1. Through sensing sessions, interviews, and surveys across Fort Campbell, it was determined that the command climate at Fort Campbell before 5 July 1999 was a positive environment with exceptions related to medical support, on- and off-post housing, after-duty-hours recreation, and shortages of personnel in authorized grades. Most soldiers indicated satisfaction with their mission, training, and organizational leadership. 2. With respect to the Policy, it was clear that the chain of command, from commanding general (CG) through company leaders, responded appropriately to matters with respect to enforcement of the Policy. 3. The specific assessment of D Company, 2nd Battalion, 502nd Infantry Regiment's command climate prior to 5 July 1999 was determined to be poor due primarily to leadership failure of a senior NCO, perceptions pertaining to underage drinking, and other factors beyond the direct control of the company, such as shortages of personnel in authorized grades and quality of life (QOL) issues. Summary: In evaluating the overall command climate at Fort Campbell, personnel were asked to compare the command climate as it existed in February 2000 with the command climate the year prior. Overall, personnel indicated that the command climate was favorable. The majority of personnel questioned believed that the leadership at Fort Campbell was effective and concerned and treated personnel favorably. In addition, the majority of personnel questioned felt that the chain of command responded appropriately to issues presented to them. Finally, personnel believed that the leadership led by example. QOL issues contributed to low morale at Fort Campbell. Specifically, issues relating to the conditions in the barracks, problems associated with medical care at Fort Campbell, and treatment received by soldiers from the civilian employees and individuals in the surrounding civilian communities were the major areas of concern to those questioned. In general, the application and enforcement of the Policy did not appear to be a problem at Fort Campbell. Most leaders took appropriate action in instances where application of the Policy was warranted and appeared to be operating well within the confines of the Policy. Soldiers acknowledged, however, that the joking and bantering that had occurred prior to July 1999 on a regular basis could be viewed as harassment. Following training on the Policy and Consideration of Others (COO), soldiers are now more apt to reconsider uttering phrases that would likely be considered harassment. However, the command climate of D Company, 2nd Battalion, 502nd Infantry Regiment, in the period prior to PFC Winchell's murder was poor. In addition to the QOL issues identified above, soldiers in PFC Winchell's unit believed that personnel shortages and underage drinking in the barracks to the poor command climate. The most significant factor contributing to the poor command climate, however, was the presence of an abusive NCO in a leadership position in the unit. Finding 4 Objective: Review and resolve allegations by Private Second Class (PV2) Javier Torres and others of specific violations of the Policy. Summary of Findings: The preponderance of evidence did not support PV2 Torres' allegation that he was personally harassed at Fort Campbell; however, evidence does support his allegation of routine personal harassment at Fort Benning and occasional personal harassment at Fort Knox. The preponderance of evidence supported PV2 Torres' allegations that during initial entry training (IET) at Fort Benning, one drill sergeant improperly addressed or referred to him as a homosexual, and another PVT provoked a fight with him by routinely taunting him and referring to him as a homosexual. The evidence also supported PV2 Torres' allegation that at Fort Campbell a senior NCO improperly used terms derogatory to homosexuals while trying to motivate male soldiers to perform to standard and two NCOs improperly used terms derogatory to homosexuals while singing cadences during a physical training run. It did not support his allegations that an NCO in his unit at Fort Campbell improperly used anti-homosexual language while conducting training on the Homosexual Conduct Policy, that a soldier at Fort Knox improperly inquired into his sexual orientation, and that an NCO in his unit at Fort Campbell improperly inquired into his sexual orientation. The preponderance of evidence supported allegations that an NCO at Fort Campbell read a joke to soldiers that was demeaning to homosexuals; anti-homosexual graffiti was present on a wall of a latrine in a unit area, a latrine in a public recreation area, and a latrine in a work area at Fort Campbell; and a nongovernmental civilian, not a soldier, sent an e-mail containing anti-homosexual language to a former soldier at Fort Campbell. The preponderance of evidence did not support allegations that anti-homosexual comments made by soldiers at Fort Campbell were the ``norm,'' soldiers made threatening and inappropriate comments during training on the Policy, an e-mail with a sound wave file attached that contained language demeaning to homosexuals was circulated at Fort Campbell, and an NCO's chain of command improperly inquired into his sexual orientation. Finding 5 Objectives: 1. Assess the degree to which PFC Winchell's chain of command understood the application and enforcement of the Policy. 2. Conduct an overall assessment of the command climate that existed then at Fort Campbell, specifically as it relates to the application, enforcement, and training conducted on the Homosexual Conduct Policy. 3. Conduct sensing sessions with randomly-selected military members at Fort Campbell to determine the degree to which members felt they understood the Policy and the degree to which they believed the Policy was being enforced. Finding: There was no sustainment training conducted at Fort Campbell on the Policy before 5 July 1999 because there was no clearly articulated requirement on how often personnel were to be trained and who was to receive the training. The published guidance indicated: ``All officers and enlisted personnel of the Active Army and Reserve Components will receive briefings upon entry and periodically thereafter.'' Institutional training of personnel on the implementation and enforcement of the Policy was ineffective. Most officers, NCOs, and soldiers at Fort Campbell lacked an understanding and working knowledge of the Policy prior to 5 July 1999. Summary: Nearly all soldiers, NCOs, and officers at Fort Campbell had received training on the Policy at some point in their military career. The training that was conducted, however, did not contribute meaningfully to an understanding or working knowledge of the Policy. As a result, most personnel did not demonstrate a clear understanding of their responsibilities under the Policy and the standards contained within the Policy. Finding 6 Objective: Assess whether current training materials adequately convey the substance of the Policy. Findings: 1. Currently, commanders, leaders, and soldiers at Fort Campbell do not have a clear understanding of the Policy because training and informational materials do not adequately convey the substance of the Policy. 2. Training and informational guidance contain key words (Don't Ask, Don't Tell) that are not defined in doctrine. Summary: Based on interviews with commanders, leaders, and soldiers, the results of the command climate survey, and a review of records and files at Fort Campbell, it was determined that the training provided on the Policy is not clearly written, not tailored to specific audiences based on rank and duty positions, fails to adequately convey the substance of the Policy, and is presented in a format which does not foster open and meaningful discussion on the issues. Informational materials distributed to Army personnel, to include a Hot Topics pullout in Soldiers Magazine and a trifold pamphlet, suffered from the same defects according to personnel. The use of the terms ``Don't Ask'' and ``Don't Tell'' in the informational materials without providing definitions to explain these phrases created a large amount of anxiety and confusion. Finding 7 Objective: Provide an overall assessment of the DA's implementation of the DOD Policy by assessing: 1. Whether the Policy is being fairly applied within units. 2. Whether there are currently any other perceived deficiencies in the Policy which preclude effective training, application, and enforcement of the Policy. Findings: 1. The Policy is being fairly applied at Fort Campbell; however, the Policy with respect to discharges and substantial investigations is not being implemented as intended because commanders perceive an unacceptable risk to the unit and soldier by retaining soldiers who make admissions of homosexuality. 2. Commanders have difficulty in balancing their responsibility to maintain morale, unit cohesion, good order, and discipline while enforcing the Policy. They perceive that the current implementing instructions restrain their latitude to conduct inquiries and preclude them from exercising reasonable discretion in initiating inquiries. 3. AR 600-20 and subsequent Army guidance and messages regarding the reporting of harassment based on homosexual orientation do not adequately advise soldiers where or how to report harassment, and do not adequately advise commanders and agencies how to process these complaints. Summary: The Task Force determined that the Policy was being fairly applied by commanders at Fort Campbell. The soldiers discharged under Chapter 15 were overall satisfied with their treatment during the process. The Fort Campbell commanders expressed concern in complying with the Policy. They believe it places them in a professional dilemma by requiring them to choose between retention of a soldier who declares a propensity for homosexual conduct and discharge when the truthfulness of his statement of homosexuality is suspect. They are reluctant to conduct inquiries of the truthfulness of an admission because of the perceived risk to both the unit and the individual soldier. Commanders stated to the Task Force that they had difficulty in balancing the enforcement of the Policy and the requirement to maintain morale, unit cohesion, good order, and discipline. Commanders expressed concerns that the Policy precludes them from conducting an inquiry when presented with credible information of behavior that demonstrates a soldier may have a propensity to engage in homosexual conduct. They believe the Policy precludes them from exercising reasonable discretion in determining the necessity to conduct an inquiry. Information gathered by the Task Force determined that guidance on reporting harassment based on sexual orientation by soldiers and investigation into such harassment by leaders is unclear and confusing. Soldiers and leaders expressed frustration with knowing how and to whom to report harassment and how to handle incidents of this type of harassment. They expressed the belief that all harassment should be dealt with uniformly. In summary commanders and leaders at all levels have an inherent responsibility for establishing a command climate that promotes good order and discipline essential to accomplishing the Army's mission. This responsibility includes promoting unit cohesion by identifying and eliminating harassment before it occurs or results in reports of violations of Army Standards.

Mr. WARNER. Mr. President, the Senate had a comparison between how General Keane and General Clark handled problems within their respective commands. General Clark was the convening authority, and the tragedy that occurred to which the Senator referred, and which is the subject of some comments here today, came up through the military command, was handled by the military courts and the military authorities, and adjudicated. As the convening authority, I think he took some prudent steps to make certain that in no way could he be accused of command influence. The tragedy in General Keane's command was tried in the civilian courts, and as such he was not the convening authority. He then had the opportunity to do some things which I believe General Clark did not. Out of this tragedy, there were lessons learned in the Army. I think some important new policy matters were put into the regulations. Otherwise, not all was lost in this tragic situation. I ask unanimous consent to have printed in the Record the Army Inspector General's Report on Fort Campbell at the conclusion of my remarks. That is the first section of it that addresses a number of points that are raised by the Senator from Massachusetts.

Mr. WARNER. Mr. President, parliamentary question: We are on this nomination with 2 hours of debate and 1 hour each divided equally. I manage this side and Senator Kennedy manages that side. If the Senator wishes to go on to another matter, I am not sure how the Senator wishes to handle this.

Mr. WARNER. Yes.

Mr. WARNER. Mr. President, pursuant to the order of November 14, I ask that the Senate now proceed to executive session to begin consideration of Executive Calendar No. 418, the nomination of Maj. Gen. Robert T. Clark to be Lieutenant General.

Mr. WARNER. That is under the order. I didn't realize he just walked in the Chamber. I am trying to do the best I can to accommodate everybody and manage the time efficiently. But I do desire at this point in time an opportunity to reply to my colleague from Massachusetts.

Mr. WARNER

Mr. WARNER. Mr. President, I rise today to recognize a remarkable man, Mr. Mortimer M. Caplin, on his outstanding legal career as an academic, public servant and distinguished practitioner. Through the years, Mr. Caplin, has been an inspiration to us all and a shining example of what hard work, dedication and perseverance can accomplish. I feel a special connection with Mr. Caplin as we both graduated from University of Virginia School of Law and both served our country proudly during World War II in the United States Navy. As a undergraduate and law student at the University of Virginia, Mr. Caplin earned a reputation as a hard working student who always had time to lend a helping hand. During his undergraduate career at Mr. Jefferson's University, Mr. Caplin was elected to Phi Beta Kappa while becoming a standout on Johnny LaRowe's great boxing teams of the mid'30's. After earning his Bachelor of Science degree, Mr. Caplin went on to the University's law school where he continued his excellent academic career and his affiliation with the University's boxing team. As coach of the First Year team, Mr Caplin instilled in the newly arrived First Years the value of a well rounded education. He also managed to find the time to be selected and serve as Editor-in-Chief of the Virginia Law Review in 1940. Upon graduation in 1940, Mr. Caplin clerked for Judge Armistead M. Dobie on the United States Court of Appeals for the Fourth Circuit in Richmond. Upon completing his clerkship, he joined the New York law firm Paul, Weiss, Rifkind, Wharton & Garrison as an associate but, like so many of us during this era, interrupted his career to defend this country and the freedom we all enjoy. Mr. Caplin joined the Navy and on June 6, 1944, came ashore on Omaha Beach as a member of the initial landing force where he served as U.S. Navy beachmaster. After the war, Caplin returned to the legal profession and eventually made his way back to the University of Virginia in 1950 where he became a law professor concentrating on tax and corporate law. From 1950 to1962, he taught countless students the value of a legal education until he was again called into public service by President John F. Kennedy to head the Internal Revenue Service. After retiring from the post in 1964, Mr. Caplin received the Alexander Hamilton Award, the highest honor bestowed by the Treasury Department. Thereafter, he founded Caplin & Drysdale which became, and remains today, one of the leading tax firms in the United States. Mr. Caplin was the 2001 recipient of the Thomas Jefferson Foundation Medal in Law which is awarded to individuals that exemplify the Jeffersonian ideal of the lawyer as public citizen. He truly embodies this ideal and it is right to honor his accomplishments. On May 18, 2003, Mr. Caplin was invited to address the University of Virginia's 2003 graduating class. His words about the importance of public service are an inspiration to us all. As a tribute to his achievements and his contributions, I ask that his remarks be entered into the Record at this time. The remarks follow. A Debt of Service I must confess, in trying to recall who spoke and what was said at my own college graduation--``The Great Class of 1937''--my mind remains a blank. The one commencement I do remember was here at my law graduation in 1940. The speaker was the president of the United States--Franklin Delano Roosevelt. He came to the University to attend the law graduation of his son, Franklin Jr., one of our classmates. The Nazi armies of Adolph Hitler were then overrunning Europe and threatening the freedom of the entire world. On that very morning, Mussolini's fascist forces--joining Hitler--had invaded their neighbor France. Soon, every member of our class would be required to register under the vigorously debated Selective Service Act, the first peacetime military draft in our nation's history. In Memorial Gymnasium, the president delivered a historic speech--the most sensitive part inserted by him during his train ride from Washington, contrary to the State Department's specific pleas that America's neutrality would be compromised. FDR dramatically declared: ``On this tenth day of June 1940, the hand that held the dagger has struck it into the back of its neighbor. On this tenth day of June 1940, in this University founded by the first great American teacher of democracy, we send forth our prayers and our hopes to those beyond the seas who are maintaining with magnificent valor their battle for freedom.'' Remember, in 1940 there was no television, no cell phones, no Internet. Until then, we heard President Roosevelt only on the radio. To have the president of the United States before us in person, delivering to the world his famous ``dagger-in- the-back'' speech, is a moment I will never forget. That day, he also gave us a glimpse into what lay before us when he solemnly committed, for the first time and without congressional approval, to ``extend . . . the material resources of this nation'' to the embattled democracies. First Lady Eleanor Roosevelt later said: ``Franklin's address was not just a commencement address, it was a speech to the nation . . . that brought us one step nearer to total war.'' For us, World War II had begun. It was not at all what we graduates had been planning. As a law student, I spent many hours thinking about my postgraduation career and dreams. I had already accepted a legal clerkship with Judge Armistead Mason Dobie, our former Law School dean and, at that time, a U.S. Circuit Court of Appeals judge. Next, I would go to New York to begin the practice of law. With two U.Va. degrees in hand, I felt prepared to face and perhaps conquer the world. But on Dec. 7, 1941, the Japanese attacked Pearl Harbor and all our lives changed. I had hardly begun my Wall Street law practice, when I found myself in uniform, commissioned an ensign. U.S. Naval Reserve. When my training was completed, I said goodbye to Ruth, my wife of just one year, and set sail for duty as a beachmaster on Omaha Beach on June 6, 1944, for the D-Day landing on the Normandy coast of France. World War II and the Navy did teach me a number of important life skills--many still of help in my private career. Two, in particular, are worth remembering. First, avoid fixed and rigid plans. Instead, allow for flexibility, innovation and possible change--but always hold true to your personal values. Second, be willing to accept risk when necessary as you move forward toward your goals. Philosopher William James acutely observed: ``It is only by risking our persons from one hour to another that we live at all. And often enough our faith beforehand in an uncertified result is the only thing that makes the result come true.'' Simply put, have faith in your choices, and be at the ready to risk challenge as well as change. You will grow in strength as you do. We've heard a great deal of late about those involved in what has been dubbed ``The Greatest Generation''--glorifying our ordinary citizens who, through hard work, courage and sacrifice, successfully confronted the Great Depression and World War II. Let me confess, though--as a duly designated member of that body--I find the anointment somewhat overdone. Countless generations, both before and after--including today--have also faced challenging times and national crises. And, in each case, everyday Americans have always demonstrated equal patriotism, equal devotion, equal courage--all inherently part of our national culture, traditions and training. What may we expect of your generation? A former U. Va. Law School student of mine--who later became attorney general of the United States--Robert F. Kennedy, offered an answer in his 1966 Capetown University speech: ``Few will have the greatness to bend history; but each of us can work to change a small portion of events, and in the total of all these acts will be written the history of this generation.'' Mr. Jefferson consistently laid stress on, not just the rights of citizens of this country, but also on the responsibilities. Writing in 1796--shortly before he assumed the unhappy post of vice president--he stated strongly: ``There is a debt of service due from every man to his country, proportioned to the bounties which nature and fortune have measured to him.''

Mr. WARNER

Mr. WARNER. Mr. President, I ask unanimous consent that the Committee on Governmental Affairs be authorized to meet on Wednesday, November 12, 2003, at 2 p.m., for hearing to consider the nomination of Scott J. Bloch to be Special Counsel, Office of Special Counsel.

Mr. WARNER

Mr. WARNER. Mr. President, parliamentary inquiry: Can the distinguished Senator from Iowa--we were told to come here at certain times, and if he were to take as much as he wishes, that would preclude any other Senator speaking in the time period.

Mr. WARNER. I withdraw my parliamentary inquiry.

Mr. WARNER. I will sit down. The Senator may go ahead.

Mr. WARNER. Mr. President, I thank my good friend, my colleague from Iowa. Mr. President, what is the parliamentary situation, and what time remains under the control of my distinguished colleague from Iowa who is managing this set of debates at this time?

Mr. WARNER. So we have 10 minutes remaining.

Mr. WARNER. I thank the Chair. Mr. President, I commend my good friend from Iowa for a very statesmanlike coverage of the responsibilities of the Judiciary Committee on which he has served these many years. I turn to the following. If we look back in history in the summer of 1787, 55 individuals gathered in Philadelphia to write our Constitution. It was a very hot summer, and it was a long and arduous debate, many drafts back and forth, but careful consideration was given. Finally, in mid September, it was over. It was a monumental achievement. But the Framers did not know at that time what a great achievement they had made, one that would enable the United States, today, these 200-plus years later, to become the oldest continuously surviving Republic form of government on Earth today. Almost every other government in existence at the time of the Constitutional Convention has fallen into the dustbin of history. So we must ask ourselves, why? It is very clear to this humble Senator that it was due, in part, to the wisdom of the Framers to have three coequal branches of the Government. I view this debate as one to determine the survivability of the coequal stature of the three branches. I am not going to argue about all the things that have taken place back and forth, but just go to this magnificent document--the Constitution. The Presiding Officer has placed a copy of it on every desk in the Senate chamber, and many of us daily carry it in our pocket. The Constitution very clearly states that a simple majority vote is the regular order of business, with the exception of a few instances specifically enumerated in the Constitution that require super-majority votes. Had the Framers decided that we should require 60 votes for the confirmation process of the Senate, they would have explicitly written in such a requirement. It is quite interesting to note that: Two-thirds of the Senate must vote to ratify a treaty; two-thirds of the Senate must vote to convict on an article of impeachment; two- thirds of a House of Congress must vote to expel a Member of that body; two-thirds of each House of Congress must vote to override a President's veto; and two-thirds of each House must vote to propose an amendment to the Constitution. With regard to the advice and consent, clearly enunciated in the Constitution, and given to only one body of Congress, the Senate, there is no mention of a higher than simple majority vote. It is there to protect, again, the checks and balances. It is there to protect against an executive branch nominee which, in the fair judgment of the Senate, does not meet the high standards to become a member of the judicial branch. The case here is very simple: Are we going to abide by what the Framers laid out, what has kept this great Nation together these 200- plus years? Or are we going to devise and contrive in our own words some system by which to prevent a simple vote up and down on a judicial nominee? The Constitution does not include that super-majority. If the bar is to remain at 60 votes, as my colleagues on the other side have so vehemently argued in favor of, I say then the Senate would have far more power on questions of judicial nominees than was intended by the Framers. The checks and balances concept of our Constitution would be changed. And how would that affect our Republic? Well, when the Constitutional Convention was over in September 1787, Benjamin Franklin emerged and was greeted by a crowd, some were reporters. He was questioned, ``what have the Framers wrought?'' He replied, ``a Republic, if you can keep it.'' And that is what we are doing here in this historic debate. We are determining the rules by which we keep that Republic. Throughout this historic debate, this Chamber has resonated with the use of the word ``filibuster.'' I ask: Can any Senator point to use of that word in any of the rules of the U.S. Senate? In every desk, every Senator has their book on the rules of the Senate and procedures of the Senate. You can't find the word ``filibuster'' in that book because it is not there. But, should I be wrong, parliamentary inquiry to the Presiding Officer, can the Parliamentarian find the word ``filibuster'' in the rules of the Senate or any definition in the rules of the Senate?

Mr. WARNER. I thank the Presiding Officer. It is not in the rules. Where do you go to look for it? Webster's Dictionary. This dictionary has been in my office these 25 years since I have been privileged to serve in this body. And I use it often. I say to my colleagues, this is an interesting bit of history. The dictionary defines ``filibuster'' as, ``An irregular military adventure especially one in quest of plunder, a free-booter, applied to buccaneers infesting the Spanish American coast, later an organizer or member of a hostile expedition to some country or countries with which his own is at peace in contravention of international law.'' Go all the way down to the last definition, and you will find a reference that is most appropriate to this debate. I read: A member of a legislative or deliberative body who, in opposition to the proposed action of the majority, obstructs or prevents action by the extreme use of dilatory tactics such as speaking merely to consume time and so forth. It is about the fifth definitional use of this word. I say, most respectfully, that it is a word that is a slang word. It probably has been used to cover many types of procedures that both sides have followed under the rules for many years. I went back and did some research in this wonderful book. It is entitled ``Senate Cloture Rule, Limitation of Debate in the Congress of the United States, Legislative History of Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate.'' I do not find in this excellent treatise, put out in 1985 by the Library of Congress, printed by the direction of the Rules Committee and Administration of the United States Senate, any instance in which the situation we are faced with today with these nominees is covered. They do refer to the use of the word ``filibuster,'' but loosely. Ultimately, with all of the confusion surrounding the word ``filibuster,'' I think you have to come down to what it was the Framers intended, what is in this book--the Constitution, which has held this Nation together these 200-plus years, this great Republic of our's. I say to my colleagues, as Ben Franklin said, we have a Republic, and this debate is determining the ground rules by which we can or cannot keep it. Clearly, the President has the authority to nominate. Clearly, this body has the authority of advice and consent. But remember, it is to be in a balance of powers between the executive and the legislature. I say if we are to set a precedent here that it requires 60 votes to act upon a nominee, three nominees--

Mr. WARNER. I ask unanimous consent for 1 additional minute.

Mr. WARNER. If we were to set a precedent that nominees reported out of the Judiciary Committee were subjected to a 60 vote requirement, this precedent would disrupt the carefully crafted system of checks and balances embedded in our Constitution by giving the Senate far more power in the judicial selection process than the Executive Branch, the President. These nominees deserve a simple up-or-down vote as provided in the Constitution by the absence of any reference to a supermajority or a 60 vote requirement.

Mr. WARNER

Mr. WARNER. I would be happy to yield to my friend.

Mr. WARNER. Madam President, I thank my distinguished colleague for his steadfast service on our committee these many years, and particularly in this past year when we were confronted with a number of very serious issues. And I recognize the consideration of this conference report coincides with his markup in the Environment and Public Works Committee on which I am privileged to serve with him. But, I say to the Senator, you manage to do both quite well.

Mr. WARNER. Madam President, I encourage any and all Senators who desire to address this bill to avail themselves of the opportunity. To the extent that I have control over the 15 minutes, I am happy to accommodate Senators as they come to the floor. I yield such time as the distinguished Senator may require. I hope it will be around 5 or 6 minutes.

Mr. WARNER. Madam President, the distinguished minority leader is correct that the time has been extended. The vote is to occur, I understand, at 2:45. The 30 minutes intervening is under the control equally of the distinguished Senator from Michigan, Mr. Levin, and myself.

Mr. WARNER. I thank the Senator for his question. The answer is no. It was not the intent of the conference committee to make any modification to Title 10 Sec. 2460, Sec. 2464, and Sec. 2466 which address the requirements for the Department of Defense to maintain an organic core logistics capability and ensure that at least 50 percent of depot level maintenance is performed by employees of the Department of Defense. The Department of Defense must still abide by these statutory provisions when they make any decision or action provided for in section 336.

Mr. WARNER

Mr. WARNER. Will the Senator yield for a question?