John Warner

Mr. WARNER

Mr. WARNER. Mr. President, I'm glad Senator Kennedy drew attention to my amendment to the Militia Acts, sometimes referred to as the ``Insurrection Act.'' These statutes have not been amended for a half century. We urgently need a statute that clarifies when and how the President can use the Armed Forces in the homeland. This is not a new problem. The Second Congress passed a law in May 1792 giving the President power to call out the Armed Forces inside the United States. Congress carefully defined when the President could act. In certain cases, he had to get a judge's approval before calling forth the troops. When President Washington put down the Whiskey Rebellion, he used this 1792 statute. Congress made changes to this authorization in 1795, 1807, 1861 and 1871. Clearly, Congress was responding to threats of the day. These included Aaron Burr's conspiracy, the Civil War, and Reconstruction. The end result of all these amendments was a very sweeping statute with open-ended authorization in some situations, but ambiguous authority to use the Armed Forces in others. So we clearly needed to revisit this.

Mr. WARNER. The Senator from Massachusetts is correct about the provision. The Armed Forces have a legitimate role to play in responding to serious emergencies. That role benefits from clear definition. Bringing this statute to date and removing its ambiguities will help the Nation respond better to the next crisis.

Mr. WARNER

Mr. WARNER. No.

Mr. WARNER. I am going to give the Senator more than 10 seconds. I have to do a unanimous consent request on behalf of the leadership. Order Vitiated--S. 295 I ask unanimous consent that the order with respect to S. 295 be vitiated.

Mr. WARNER. Mr. President, very definitely. As soon as all time on this amendment is allocated or yielded back, my intention is to move to a vote.

Mr. WARNER. I move to reconsider the vote.

Mr. WARNER. Mr. President, the managers of the bill have been notified there are still three amendments remaining, one by Senator Rockefeller, one by Senator Kennedy, one from Senator Byrd. If I understand from my distinguished ranking member, we will proceed to the amendment of Senator Rockefeller.

Mr. WARNER. Mr. President, the ranking member is about to advise the Senator with regard to which amendment might be forthcoming.

Mr. WARNER. I understand there is no objection. Will the Chair kindly rule?

Mr. WARNER. Mr. President, I yield such time as Mr. Byrd wishes to take.

Mr. WARNER. I recognize that. It is in our mutual interests to the move ahead on the bill. There will be time after the vote for Senators to speak. You have 18 minutes on the bill. I have 47 under my control on general debate.

Mr. WARNER. Mr. President, the time for the Senator from California is under which category?

Mr. WARNER. Mr. President, I yield 5 minutes to our colleague from Missouri.

Mr. WARNER. Mr. President, in consultation with my distinguished ranking member, I would like to inquire if there is further debate desired on this amendment. If not, my understanding is the leadership will select a time--joint leadership--for votes on this amendment and others at some point this afternoon and with the full expectation that this matter will be voted on final passage. So at this time, could I inquire as to the time for the Senator from Virginia and the Senator from Michigan?

Mr. WARNER. Mr. President, I would make a similar request that the balance of my time be allocated to me for use on the bill.

Mr. WARNER. Therefore, I believe all time has been yielded back on both sides, and we can prepare the floor now for the receiving of an amendment from the distinguished Senator from Massachusetts. I yield the floor.

Mr. WARNER. Mr. President, I say to my good friend, I fully understand what you endeavor to do here, and I respectfully strongly disagree with it. I think many of us share this. This is going to be a very long war against those people whom we generically call terrorists. In the course of that war, this President and his successor must have the authority to continue to conduct these courts-martial--these trials under these commissions--and not send out a signal to terrorists: If you get under the time limit and you don't get caught, this thing may end.

Mr. WARNER. Mr. President, charged against the allocation under the proponent of the amendment.

Mr. WARNER. We are under fairly rigid time control, but I will give the Senator from Illinois a minute.

Mr. WARNER. Mr. President, I would now like to address the amendment offered by the senior Senator from Massachusetts. I have read this very carefully and I have studied it, I say to my good friend. There are certain aspects of this amendment that are well- intentioned. But I strongly oppose it, and I do encourage colleagues to oppose it, because the question of the separation of powers is involved here, and that is the subject on which this Chamber has resonated many times. But here I find the amendment invades the authority of the executive branch in the area of the conduct of its foreign affairs by requiring the Secretary of State to notify other state parties to the Geneva Conventions of certain U.S. interpretations of the Geneva Conventions, in particular Common Article 3 and the law of war. It is up to the executive branch in its discretion to take such actions in terms of its relations with other several states in this world--not the Congress directing that they must do so--such communications with foreign governments. But in the balance of powers, it is beyond the purview of the Congress to say to the Secretary of State: You shall do thus and so. This bill speaks for itself by defining grave breaches of Common Article 3 that amount to war crimes under U.S. law. Any congressional listing of specific techniques should be avoided simply because Congress cannot foresee all of the techniques considered to maybe fall within the category of cruel and inhuman conduct, and therefore, they would become violations of Article 3. We can't foresee all of those situations. Again, it is the responsibility of this body to administer, to see that this bill becomes law in a manner of oversight. Senator Kennedy's amendment, depending on how the vote comes--and I am of the opinion that this Chamber will reject it--I don't want that rejection to be misconstrued by the world in any way as asserting that the techniques mentioned in the amendment are consistent with the Geneva Conventions or that they could legitimately be employed against our troops or anyone else. We must not leave that impression as a consequence of the decision soon to be made by way of a vote on the Kennedy amendment. The types of conduct described in this amendment, in my opinion, are in the category of grave breaches of Common Article 3 of the Geneva Conventions. These are clearly prohibited by our bill. Rather than listing specific techniques, Congress has exercised its proper constitutional role by defining such conduct in broad terms as a crime under the War Crimes Act. The techniques in Senator Kennedy's amendment are not consistent with the Common Article 3 and would strongly protest their use against our troops or any others. So I say with respect to my good friend, this is not an amendment that I would in any way want to be a part of this bill.

Mr. WARNER. Mr. President, I wish to inform the Chamber that we are at that juncture where we will consider the statements of others, very important statements to be made. I listed them in a recitation of those who have indicated their desire to speak. But I also bring to the attention of the body that I have just been told by the leadership they are anxious to proceed to the votes. At this time I would ask--if I can get my colleague's attention--that there be yeas and nays on all of the pending amendments remaining.

Mr. WARNER. Surely. Mr. President, we will now put in a quorum call to accommodate the ranking member, such that the time is not charged to either side.

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

Mr. WARNER. That is correct, I say to the Senator.

Mr. WARNER. Mr. President, I may have misunderstood my colleague. That is the 3 minutes remaining on your amendment held in abeyance.