[Congressional Record Volume 141, Number 48 (Wednesday, March 15, 1995)]
[Senate]
[Pages S3964-S3992]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. DORGAN:
  S. 557. A bill to prohibit insured depository institutions and credit 
unions from engaging in certain activities involving derivative 
financial instruments; to the Committee on Banking, Housing, and Urban 
Affairs.


                 the derivatives limitation act of 1995

 Mr. DORGAN. Mr. President, today I reintroduce my legislation 
called the Derivatives Limitation Act to prohibit banks and other 
federally insured financial institutions from engaging in risky, 
speculative derivatives trading on their own accounts. In my judgment 
such proprietary trading involves a degree of risk that is totally out 
of step with safe banking practices.
  Last year, the General Accounting office [GAO] issued a major report 
raising a red flag about the risks of derivatives trading. Since this 
report, a number of financial institutions and other derivative 
investors have suffered enormous losses totaling billions of dollars. 
Because of tremendous growth of the derivatives market, which is now 
estimated at $35 billion worldwide, a major default, Fortune magazine 
said, could ignite a chain reaction that runs rampant through the 
financial markets in the United States and overseas. ``Inevitably, that 
would put deposit insurance funds, and the taxpayers behind it, at 
risk.''
  Most of us know that derivatives are essentially a form of gambling. 
Derivatives may be the most complicated financial device ever, 
contracts based on mathematical formulas, involving multiples and 
interwoven bets on currency and interest rates and more in a burgeoning 
galaxy of permutations. Generally, investors stake a position that 
interest rates, or the dollar, or commodities, or whatever, will rise 
or fall. Up to a point, this is simply a form of hedging risk. Some 
businesses including banks have hedged in this manner for many years, 
and my bill would not affect these traditional and conservative hedging 
transactions.
  Far from hedging, some of largest players speculating in the 
derivatives game are banks. Three New York banks are into this market 
for over $6 trillion alone. All of these banks have federal deposit 
insurance. The purpose of my bill is to ensure that the banks don't 
have to use it to cover losses on derivatives trading for their own 
accounts.
  The importance of preventing banks from gambling on risky derivatives 
is highlighted by the recent collapse of Barings PLC in London. As 
everyone knows, a 28-year-old trader for Barings Bank engaged in a 
speculative trading binge in the derivatives market. His actions have 
resulted in at least a $1 billion loss to Baring PLC, wiping out all of 
its capital and throwing it into insolvency. It is still unclear 
whether the failure of Barings will trigger others problems for the 
global financial markets.
  This is not an isolated problem affecting a single foreign 
institution. The list of U.S. companies that have suffered from 
derivative losses is impressive, and is still growing. For example, our 
regulators were recently forced to take over Capital Corporate Credit 
Union [CapCorp], a large corporate credit union, because it loaded up 
on derivatives called collateralized mortgage obligations [CMO's] which 
soured over the past year. The General Accounting Office attributed 
CapCorp's failure, in part, to its inappropriate investment strategy 
and poor regulatory oversight.
  We can't ignore the lessons to be learned from both Barings and 
CapCorp, or others hurt by derivatives like Orange County, CA, Piper 
Jaffray and Procter & Gamble. Banks, thrifts, and credit unions ought 
not be allowed to gamble on derivative investments because of the 
potential exposure to the deposit insurance fund. In my judgment, this 
financial roulette wheel is at odds with everything we know about sound 
banking principles.
  I think that yesterday's Washington Post op-ed piece on derivatives 
called ``Lessons from Barings'' also makes a strong case for my 
legislation. It correctly states that ``if banks are to be allowed to 
trade on their own accounts, with their own money--as Barings was doing 
in Singapore--that operation needs to be absolutely segregated from the 
part of the bank that takes insured deposits from the public.'' And my 
bill accomplishes this by prohibiting banks and other insured 
institutions from gambling with derivatives on their own accounts. It 
exempts derivatives activity that is conducted in separately 
capitalized affiliates operating without the protection of the deposit 
insurance safety net.
  Again, let me point out that not all derivatives are bad. Some are 
important to lower capital costs and reduce interest and other 
financial risks. That's why I do not cover traditional hedging 
transactions under my legislation.
  But, it's been clear to me that highly leveraged speculation by 
large, federally insured banks on price changes and the like is not 
healthy for our economy. It also threatens the long-term stability of 
the financial markets and to continued viability of the deposit 
insurance fund system.
  Of course, what individual investors knowingly do with their own 
money is their own business. But when financial institutions are 
setting up what amount to keno pits in their lobbies, it's something 
that should concern us all. I hope my colleagues will cosponsor this 
important legislation.
  Mr. President, I ask unanimous consent that a summary of the bill be 
printed in the Record.
  There being no objection, the summary was ordered to be printed in 
the Record, as follows:
           Summary of the Derivatives Limitation Act of 1995


                            I. Short Title.

       The act may be cited as the Derivatives Limitations Act of 
     1995.


                  II. Insured Depository institutions

       (1) General Prohibition--
       Except as provided below, the legislation prohibits any 
     bank, thrift or credit union and any affiliate of such 
     insured depository institution from engaging in any 
     transaction involving a derivative financial instrument for 
     the account of that institution or affiliate.
       [[Page S3965]] For this purpose, a ``derivative financial 
     instrument'' means an instrument of value which is derived 
     from the value of stocks, bonds, other loan instruments, 
     other assets, interest or currency exchange rates, or 
     indexes; and other instruments as determined by the 
     appropriate federal bank regulators.
       (2) Exceptions--
       (a) Hedging Transactions.--An insured depository 
     institution may engage in hedging transactions as permitted 
     by the appropriate federal banking regulators.
       For this purpose, ``hedging transaction'' generally means 
     any transaction involving derivative financial instruments 
     entered into in the normal course of the institution's 
     business to reduce risk of interest rate, price change or 
     currency fluctuations with respect to property held by the 
     institution, or loans or other investments or obligations 
     made or incurred by the institution.
       (b) Separately Capitalized Affiliates.--A separately 
     capitalized uninsured affiliate of an insured depository 
     institution may engage in a transaction involving a 
     derivative financial instrument if such affiliate complies 
     with certain rules and regulations as issued by the 
     appropriate federal banking regulators, including notice that 
     none of the activities of the affiliate are insured by the 
     federal government or the parent company of the affiliate.
       (c) De Minimis Interests.--An insured depository 
     institution may engage in transactions involving small 
     interests in derivative financial instruments for the account 
     of that institution as permitted by the appropriate federal 
     bank regulators.
       (d) Existing Interests.--Existing interests and the 
     acquisition of certain reasonably related interests in 
     derivative financial instruments are grandfathered under this 
     legislation.
                                 ______

      By Mr. SIMPSON:
  S. 559. A bill to amend the Lanham Act to require certain disclosures 
relating to materially altered films; to the Committee on the 
Judiciary.


                    the film disclosure act of 1995

  Mr. SIMPSON. Mr. President, I rise today to introduce the Film 
Disclosure Act of 1995.
  This legislation would recognize the interest we all have in 
preserving the integrity of one of the most uniquely American of art 
forms--the motion picture. I personally recoil at the thought of 
colorizing such classics as ``Casablanca'' or ``The Maltese Falcon.'' 
These films were intended to be shown in black and white by their 
creators.
  Perhaps the most vivid example of an inappropriately altered film is 
the colorization of ``Lost Horizon.'' That film was necessarily filmed 
in black and white because the mythical paradise in which it is set--
Shangri-La, a name that has come down through the decades--is formed by 
the author's and the audience's imagination. I personally knew one of 
the stars of the movie, Isabel Jewell, a marvelous woman, she filled me 
with imagination as she described the filming of that remarkable film. 
It is up to the viewer of ``Lost Horizon'' to ``fill in the blanks'' 
when visualizing that paradise. Quite frankly, I find colorization of 
that particular film to be demeaning and wholly inappropriate--unfair, 
if you will.
  However, I also believe that any legislation that addresses film 
alteration must recognize the realities of the international market. 
The motion picture industry ranks high among all industries in 
producing a positive cash flow in the U.S. balance of trade. While 
protecting the artistic integrity of motion pictures, I believe it is 
also essential that Congress do nothing to impede or harm the financial 
arrangements by which motion pictures are made and distributed.
  The object of this legislation is to ensure that the artistic authors 
of motion pictures--principal directors, screenwriters and 
cinematographers--may be able to inform the viewing public about any 
significant changes that are made to their work by studios or by 
television stations. The bill requires that labels be affixed to all 
films that are exhibited in a ``materially altered'' form. The label 
would contain two parts: first, the nature of the alterations would be 
described, and second, the objection, if any, of the principal artistic 
authors to the alterations would be clearly stated.
  This bill does not prohibit the exhibition of materially altered 
films. Nor does the bill allow the principal artistic authors to have 
their names stricken from the altered versions of the film. The bill is 
``truth in packaging.'' That is what it is, nothing more. It simply 
gives the consumers of films vital information on: first, the changes 
that have been made to the film, and second, the objection of the 
film's author to those changes, if such an objection exists. I might 
add that film authors in many European countries have much more 
extensive rights to object to significant alterations of their work 
than this bill would provide.
  Here are the types of alterations--made by people other than the 
artistic authors--that this bill would require to be labeled: first, 
colorization; second, panning and scanning--changing the film's image 
to fit wider movies onto the narrower television screen; third, 
lexiconning--altering the sound track; fourth, time compression or 
expansion--speeding up or slowing down a film; and fifth, editing--
removal of material or insertion of new material.
  I know people understand that these alterations occur with surprising 
frequency. It is my personal belief that many of these alterations pass 
unnoticed by a viewing public which might wish to see the original 
version intended by the artist. I also believe that these alterations 
could discourage some artistic authors of films from making innovative 
films in the future. This would be a sad result.
  However, let me emphasize again that this bill does not prevent 
alterations. It does not prevent copyright owners from changing the 
movie when it is distributed into the secondary markets--such as 
television or video stores. The bill simply will provide consumers with 
information on the workings of the market place for movies: it merely 
allows consumers of films to make the most informed choice possible 
when making their marketplace decision about what films to watch.
  Mr. President, a little more knowledge never hurt anyone. I have 
visited over the years on this issue with directors and artists and 
actors and actresses who are offended to see the work that they have 
placed all of their energy and effort and skill and reputation into, 
seeing it jerked around, if you will, by people who have no sense or no 
sensitivity about the meaning of the train scene in a certain movie or 
this particular scene in ``High Noon'' or whatever was done with power, 
passion and skill by directors and actors and actresses.
  That is what it is about. It is about knowledge. It is about the 
public's right to know. I hope that as this bill is reported to the 
American public, we will wrap around the cherished phrase of all 
journalists, the public's right to know. That is exactly what this is. 
More knowledge will not hurt any of the consumers. This is all the bill 
provides, more knowledge to the consumer about the original artist's 
intent when a film is publicly shown.
  Mr. President, I commend this bill to my colleagues and ask for their 
support and ask unanimous consent a copy of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:
                                 S. 559

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Film Disclosure Act of 
     1995''.

     SEC. 2. AMENDMENT TO THE LANHAM ACT.

       Section 43 of the Act entitled ``An Act to provide for the 
     registration and protection of trade-marks used in commerce, 
     to carry out the provisions of certain international 
     conventions, and for other purposes'', approved July 5, 1946, 
     commonly known as the Lanham Act (15 U.S.C. 1125), is amended 
     by adding at the end the following:
       ``(c)(1)(A) Any distributor or network that proposes to 
     exploit a materially altered motion picture shall--
       ``(i) make a good faith effort to notify each artistic 
     author of the motion picture in writing and by registered 
     mail and in a reasonable amount of time prior to such 
     exploitation;
       ``(ii) determine the objections of any artistic author so 
     notified to any material alteration of the motion picture;
       ``(iii) determine the objection of any artistic author so 
     notified by the questionnaire set forth in paragraph (9) to 
     any type of future material alterations which are in addition 
     to those specifically proposed for the motion picture to be 
     exploited;
       ``(iv) if any objections under clause (ii) or (iii) are 
     determined, include the applicable label under paragraph (6) 
     or (8) in, or affix such label to, all copies of the motion 
     picture before--
       ``(I) the public performance of the materially altered 
     motion picture if it is already in distribution, or
       ``(II) the initial distribution of the materially altered 
     motion picture to any exhibitor or retail provider; and

[[Page S3966]]

       ``(v) in the event of objections by an artistic author to 
     any future material alterations, include or affix such 
     objections to any copy of the motion picture distributed or 
     transmitted to any exhibitor or retail provider.
       ``(B) Whenever a distributor or network exploits a motion 
     picture which has already been materially altered, such 
     distributor or network shall not be required to satisfy the 
     requirements of subparagraph (A) (i), (ii), and (iii), if--
       ``(i) such distributor or network does not further 
     materially alter such motion picture; and
       ``(ii) such motion picture was materially altered by 
     another distributor or network that complied fully with all 
     of the requirements of subparagraph (A).
       ``(C)(i) The requirement of a good faith effort under 
     subparagraph (A)(i) is satisfied if a distributor or network 
     that has not previously been notified by each artistic author 
     of a motion picture--
       ``(I) requests in writing the name and address of each 
     artistic author of the motion picture from the appropriate 
     professional guild, indicating a response date of not earlier 
     than 30 days after the date of the request, by which the 
     appropriate professional guild must respond; and
       ``(II) upon receipt of such information from the 
     appropriate professional guild within the time specified in 
     the request, notifies each artistic author of the motion 
     picture in a reasonable amount of time before the 
     exploitation of the motion picture by such network or 
     distributor.
       ``(ii) The notice to each artistic author under this 
     paragraph shall contain a specific date, not earlier than 30 
     days after the date of such notice, by which the individual 
     so notified shall respond in accordance with subparagraph 
     (A)(ii). Failure of the artistic author or the appropriate 
     professional guild to respond within the time period 
     specified in the notice shall relieve the distributor or 
     network of all liability under subparagraph (A).
       ``(D) The requirements of this paragraph for an exhibitor 
     shall be limited to--
       ``(i) broadcasting, cablecasting, exhibiting, or 
     distributing all labels required under this section in their 
     entirety that are included with or distributed by the network 
     or distributor of the motion picture; and
       ``(ii) including or affixing a label described in 
     paragraphs (6) and (8) on a materially altered motion picture 
     for any material alterations performed by the exhibitor to 
     which any artistic author has objected under subparagraph 
     (A)(iii).
       ``(E)(i) The provisions of this paragraph shall apply with 
     respect to motion pictures intended for home use through 
     either retail purchase or rental, except that no requirement 
     imposed under this paragraph shall apply to a motion picture 
     which has been packaged for distribution to retail providers 
     before the effective date of this subsection.
       ``(ii) The obligations under this paragraph of a retail 
     provider of motion pictures intended for home use shall be 
     limited to including or distributing all labels required 
     under this paragraph in their entirety that are affixed or 
     included by a distributor or network.
       ``(F) There shall be no consideration in excess of one 
     dollar given in exchange for an artistic author's waiver of 
     any objection or waiver of the right to object under this 
     subsection.
       ``(2)(A) Any artistic author of a motion picture that is 
     exploited within the United States who believes he or she is 
     or is likely to be damaged by a violation of this subsection 
     may bring a civil action for appropriate relief, as provided 
     in this paragraph, on account of such violation, without 
     regard to the nationality or domicile of the artistic author.
       ``(B)(i) In any action under subparagraph (A), the court 
     shall have power to grant injunctions, according to the 
     principles of equity and upon such terms as the court deems 
     reasonable, to prevent the violation of this subsection. Any 
     such injunction may include a provision directing the 
     defendant to file with the court and serve on the plaintiff, 
     within 30 days after the service on the defendant of such 
     injunction, or such extended period as the court may direct, 
     a report in writing under oath setting forth in detail the 
     manner and form in which the defendant has complied with the 
     injunction. Any such injunction granted upon hearing, after 
     notice to the defendant, by any district court of the United 
     States--
       ``(I) may be served on the parties against whom such 
     injunction is granted anywhere in the United States where 
     they may be found; and
       ``(II) shall be operative and may be enforced by 
     proceedings to punish for contempt, or otherwise, by the 
     court by which such injunction was granted, or by any other 
     United States district court in whose jurisdiction the 
     defendant may be found.
       ``(ii) When a violation of any right of an artistic author 
     is established in any civil action arising under this 
     subsection, the plaintiff shall be entitled to the remedies 
     provided under section 35(a).
       ``(iii) In any action under subparagraph (A), the court may 
     order that all film packaging of a materially altered motion 
     picture (including film packages of motion pictures intended 
     for home use through either retail purchase or rental) that 
     is the subject of the violation shall be delivered up and 
     destroyed.
       ``(C) No action shall be maintained under this paragraph 
     unless--
       ``(i) the action is commenced within 1 year after the right 
     of action accrues; and
       ``(ii) if brought by an artistic author designee, the 
     action is commenced within the term of copyright of the 
     motion picture.
       ``(3) Any disclosure requirements imposed under the common 
     law or statutes of any State respecting the material 
     alteration of motion pictures are preempted by this 
     subsection.
       ``(4) To facilitate the location of a potentially aggrieved 
     party, each artistic author of a motion picture may notify 
     the copyright owner of the motion picture or any appropriate 
     professional guild. The professional guilds may each maintain 
     a Professional Guild Registry including the names and 
     addresses of artistic authors so notifying them and may make 
     available information contained in a Professional Guild 
     Registry in order to facilitate the location of any artistic 
     author for purposes of paragraph (1)(A). No cause of action 
     shall accrue against any professional guild for failure to 
     create or maintain a Professional Guild Registry or for any 
     failure to provide information pursuant to paragraph 
     (1)(A)(i).
       ``(5) As used in this subsection--
       ``(A) the term `artistic author' means--
       ``(i) the principal director and principal screenwriter of 
     a motion picture and, to the extent a motion picture is 
     colorized or its photographic images materially altered, the 
     principal cinematographer of the motion picture; or
       ``(ii) the designee of an individual described in clause 
     (i), if the designation is made in writing and signed by the 
     principal;
       ``(B) the term `colorize' means to add color, by whatever 
     means, to a motion picture originally made in black and 
     white, and the term `colorization' means the act of 
     colorizing;
       ``(C) the term `distributor'--
       ``(i) means any person, vendor, or syndicator who engages 
     in the wholesale distribution of motion pictures to any 
     exhibitor, network, retail provider, or other person who 
     publicly performs motion pictures by means of any technology, 
     and
       ``(ii) does not include laboratories or other providers of 
     technical services to the motion picture, video, or 
     television industry;
       ``(D) the term `editing' means the purposeful or accidental 
     removal of existing material or insertion of new material;
       ``(E) the term `exhibitor' means any local broadcast 
     station, cable system, airline, motion picture theater, or 
     other person that publicly performs a motion picture by means 
     of any technology;
       ``(F) the term `exploit' means to exhibit publicly or offer 
     to the public through sale or lease, and the term 
     `exploitation' means the act of exploiting;
       ``(G) the term `film' or `motion picture' means--
       ``(i) a theatrical motion picture, after its publication, 
     of 60 minutes duration or greater, intended for exhibition, 
     public performance, public sale or lease, and
       ``(ii) does not include episodic television programs of 
     less than 60 minutes duration (exclusive of commercials), 
     motion pictures prepared for private commercial or industrial 
     purposes, or advertisements;
       ``(H) the term `lexiconning' means altering the sound track 
     of a motion picture to conform the speed of the vocal or 
     musical portion of the motion picture to the visual images of 
     the motion picture, in a case in which the motion picture has 
     been the subject of time compression or expansion;
       ``(I) the terms `materially alter' and `material 
     alteration'--
       ``(i) refer to any change made to a motion picture;
       ``(ii) include, but are not limited to, the processes of 
     colorization, lexiconning, time compression or expansion, 
     panning and scanning, and editing; and
       ``(iii) do not include insertions for commercial breaks or 
     public service announcements, editing to comply with the 
     requirements of the Federal Communications Commission (in 
     this subparagraph referred to as the `FCC'), transfer of film 
     to videotape or any other secondary media preparation of a 
     motion picture for foreign distribution to the extent that 
     subtitling and editing are limited to those alterations made 
     under foreign standards which are no more stringent than 
     existing FCC standards, or activities the purpose of which is 
     the restoration of the motion picture to its original 
     version;
       ``(J) the term `network' means any person who distributes 
     motion pictures to broadcasting stations or cable systems on 
     a regional or national basis for public performance on an 
     interconnected basis;
       ``(K) the term `panning and scanning' means the process by 
     which a motion picture, composed for viewing on theater 
     screens, is adapted for viewing on television screens by 
     modification of the ratio of width to height of the motion 
     picture and the selection, by a person other than the 
     principal director of the motion picture, of some portion of 
     the entire picture for viewing;
       ``(L) the term `professional guild' means--
       ``(i) in the case of directors, the Directors Guild of 
     America (DGA);
       ``(ii) in the case of screenwriters, the Writers Guild of 
     America-West (WGA-W) and the Writers Guild of America-East 
     (WGA-E); and
       ``(iii) in the case of cinematographers, the International 
     Photographers Guild (IPG), and the American Society of 
     Cinematographers (ASC);
       ``(M) the term `Professional Guild Registry' means a list 
     of names and addresses of 
      [[Page S3967]] artistic authors that is readily available 
     from the files of a professional guild;
       ``(N) the term `publication' means, with respect to a 
     motion picture, the first paid public exhibition of the work 
     other than previews, trial runs, and festivals;
       ``(O) the term `retail provider' means the proprietor of a 
     retail outlet that sells or leases motion pictures for home 
     use;
       ``(P) the term `secondary media' means any medium, 
     including, but not limited to, video cassette or video disc, 
     other than television broadcast or theatrical release, for 
     use on which motion pictures are sold, leased, or distributed 
     to the public;
       ``(Q) the term `syndicator' means any person who 
     distributes a motion picture to a broadcast television 
     station, cable television system, or any other means of 
     distribution by which programming is delivered to television 
     viewers;
       ``(R) the terms `time compression' and `time expansion' 
     mean the alteration of the speed of a motion picture or a 
     portion thereof with the result of shortening or lengthening 
     the running time of the motion picture; and
       ``(S) the term `vendor' means the wholesaler or packager of 
     a motion picture which is intended for wholesale distribution 
     to retail providers.
       ``(6)(A) A label for a materially altered version of a 
     motion picture intended for public performance or home use 
     shall consist of a panel card immediately preceding the 
     commencement of the motion picture, which bears one or more 
     of the following statements, as appropriate, in legible type 
     and displayed on a conspicuous and readable basis:
       `THIS FILM IS NOT THE VERSION ORIGINALLY RELEASED. ______ 
     mins. and ______ secs. have been cut [or, if appropriate, 
     added]. The director, __________________ 
     ____________________, and screenwriter, __________ 
     __________, object because this alteration changes the 
     narrative and/or characterization. It has (also) been panned 
     and scanned. The director and cinematographer, __________ 
     __________, object because this alteration removes visual 
     information and changes the composition of the images. It has 
     (also) been colorized. Colors have been added by computer to 
     the original black and white images. The director and 
     cinematographer object to this alteration because it 
     eliminates the black and white photography and changes the 
     photographic images of the actors. It has (also) been 
     electronically speeded up (or slowed down). The director 
     objects because this alteration changes the pace of the 
     performances.'
       ``(B) A label for a motion picture that has been materially 
     altered in a manner not described by any of the label 
     elements set forth in subparagraph (A) shall contain a 
     statement similar in form and substance to those set forth in 
     subparagraph (A) which accurately describes the material 
     alteration and the objection of the artistic author.
       ``(7) A label for a motion picture which has been 
     materially altered in more than one manner, or of which an 
     individual served as more than one artistic author, need only 
     state the name of the artistic author once, in the first 
     objection of the artistic author so listed. In addition, a 
     label for a motion picture which has been materially altered 
     in more than one manner need only state once, at the 
     beginning of the label: `THIS FILM IS NOT THE VERSION 
     ORIGINALLY RELEASED.'.
       ``(8) A label for a film package of a materially altered 
     motion picture shall consist of--
       ``(A) an area of a rectangle on the front of the package 
     which bears, as appropriate, one or more of the statements 
     listed in paragraph (6) in a conspicuous and legible type in 
     contrast by typography, layout, or color with other printed 
     matter on the package; and
       ``(B) an area of a rectangle on the side of the package 
     which bears, as appropriate, one or more of the statements 
     listed in paragraph (6) in a conspicuous and legible type in 
     contrast by typography, layout, or color with other printed 
     matter on the package.
       ``(9) The questionnaire required under paragraph 
     (1)(A)(iii) shall consist of the following statement and 
     related questions:
       `In order to conform [insert name of motion picture], of 
     which you are an ``artistic author'', to ancillary media such 
     as television, airline exhibition, video cassettes, video 
     discs, or any other media, do you object to:
       `(a) Editing (purposeful or accidental deletion or addition 
     of program material)?
       Yes____________      No______________
       `(b) Time compression/time expansion/lexiconning?
       Yes____________      No______________
       `(c) Panning and scanning?
       Yes____________      No______________
       `(d) Colorization, if the motion picture was originally 
     made in black and white?
       Yes____________      No______________'.''

     SEC. 4. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall take 
     effect 180 days after the date of the enactment of this Act.
                                 ______

      By Mr. DASCHLE:
  S. 560. A bill to amend section 6901 of title 31, United States Code, 
to entitle units of general local government to payments in lieu of 
taxes for nontaxable Indian land; to the Committee on Indian Affairs.


                        indian land legislation

  Mr. DASCHLE. Mr. President, today I introduce a bill to amend section 
6901 of title 31, United States Code. This bill will provide payment in 
lieu of taxes to nontaxable Indian land that is conveyed to the 
ownership of an Indian or Indian tribe or to the United States in trust 
for an Indian or Indian tribe.
  In 1976, Congress authorized a program to help compensate counties 
and units of local government for the loss of property taxes from the 
presence of tax-exempt Federal lands within their jurisdictions. This 
program, commonly referred to as payments in lieu of taxes, or PILT, is 
administered by the Bureau of Land Management. Payments are made for 
tax-exempt Federal lands administered by the BLM, Forest Service, 
National Park Service, U.S. Fish and Wildlife Service, and for Federal 
water projects and some military installations.
  This amendment will provide compensation to local governments for 
lost revenue from land that is conveyed to an individual Indian or 
tribe and then converted to trust status. This amendment does not apply 
to Indian land that was not originally subject to property taxes or 
land converted to trust status prior to the enactment of this bill.
  The purpose of the amendment is to provide a means for local 
governments to be compensated for the loss of revenue that results from 
the tax-exempt status of Indian land without discouraging individual 
Indians and tribes from converting recently purchased land holdings 
into trust status.
  The additional PILT compensation will be minimal. Far more Indian 
land is converted from trust status to fee status. During the past 5 
years, less than 1,000 acres have been converted to trust status in 
South Dakota.
  This amendment is a fair and sensible approach to remedying an 
inequity effecting local governments in South Dakota and across the 
Nation.
  Mr President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:
                                 S. 560

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PAYMENTS IN LIEU OF TAXES FOR NONTAXABLE INDIAN 
                   LAND.

       Section 6901 of title 31, United States Code, is amended--
       (1) in paragraph (1)--
       (A) by striking ``means'' and inserting ``means--
       ``(A) land owned by the United States Government--'';
       (B) by redesignating subparagraphs (A) through (G) as 
     clauses (i) through (vii), respectively, and adjusting the 
     margins as appropriate; and
       (C) by striking the period at the end, inserting a 
     semicolon, and adding the following:
       ``(B) nontaxable Indian land.'';
       (2) by redesignating paragraph (2) as paragraph (5); and
       (3) by inserting after paragraph (1) the following:
       ``(2) `Indian land' means land that is owned by an Indian 
     or Indian tribe or by the United States in trust for an 
     Indian or Indian tribe.
       ``(3) `Indian tribe' means an Indian tribe, band, nation, 
     pueblo, or other recognized group or community, including any 
     Alaska Native Village or regional corporation as defined in 
     or established pursuant to the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1601 et seq.), that is eligible for 
     the special programs and services provided by the United 
     States to Indians because of their status as Indians.
       ``(4) `nontaxable Indian land' means Indian land that--
       ``(A) on or after the date of enactment of this paragraph, 
     is conveyed to the ownership of an Indian or Indian tribe or 
     to the United States, in trust for an Indian or Indian tribe;
       ``(B) prior to the conveyance, was subject to taxation by a 
     unit of general local government; and
       ``(C) under a provision of the Constitution of the United 
     States or an Act of Congress, is not subject to taxation by 
     the unit of general local government by reason of that 
     ownership.''.
                                 ______

      By Mr. CHAFEE:
  S. 561. A bill to authorize the Secretary of Transportation to issue 
a certificate of documentation with appropriate endorsement for 
employment in the coastwise trade for the vessel Isabelle, and for 
other purposes; to the Committee on Commerce, Science, and 
Transportation.
        [[Page S3968]] certificate of documentation legislation

 Mr. CHAFEE. Mr. President, I ask unanimous consent that the 
text of the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 561

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. VESSEL DOCUMENTATION.

       Notwithstanding section 27 of the Merchant Marine Act, 1920 
     (46 App. U.S.C. 883), section 8 of the Act of June 19, 1886 
     (24 Stat. 81, chapter 421; 46 App. U.S.C. 289), and section 
     12106 of title 46, United States Code, the Secretary of 
     Transportation may issue a certificate of documentation with 
     appropriate endorsement for employment in the coastwise trade 
     for the vessel ISABELLE, United States official number 
     600655.

                                 ______

      By Mr. GRAMM (for himself and Mr. Shelby):
  S. 562. A bill to provide for State bank representation on the Board 
of Directors of the Federal Deposit Insurance Corporation, and for 
other purposes; to the Committee on Banking, Housing, and Urban 
Affairs.


                   the state bank representation act

 Mr. GRAMM. Mr. President, our system of State and federally 
chartered banks has served Americans well over the years. Many of the 
bank products that are most popular with consumers were first developed 
by State banks.
  Today, together with the chairman of the Financial Institutions 
Subcommittee, Senator Shelby, I am introducing legislation to 
strengthen the dual banking system by providing for State bank 
representation on the board of Directors of the Federal Deposit 
Insurance Corporation [FDIC]. The FDIC Board currently is made up of 
five members: the Chairman of the FDIC, the Comptroller of the 
Currency, the Chairman of the Office of Thrift Supervision, and two 
independent members.
  Mr. President, while the FDIC insures the deposits of both State and 
national banks, no one is seated at the table who can be counted on to 
present the perspective of State-chartered banks.
  Decisions made and regulations issued by the FDIC have a powerful 
impact on banks, whether they have a State or national charter. We are 
in some degree, a dangerous degree, flying blind without having both 
elements of our dual banking system participating on the FDIC Board.
  Our legislation contains several procedural safeguards. The bill 
would ensure that no one State would be favored over other States in 
serving on the FDIC Board. First of all, the State bank supervisor 
would be appointed to the Board by the President and confirmed by the 
Senate. Second, such a supervisor would serve for only 2 years and 
could not be reappointed. Neither could supervisors from the same State 
serve consecutive terms on the Board.
  Finally, to ensure that it is the point of view of State bank 
supervisors that is being represented, should the individual while 
serving on the FDIC Board cease to be a State bank supervisor, then 
membership on the FDIC Board would also be lost. The President, in that 
case, would need to appoint another supervisor, with the advice and 
consent of the Senate, to serve for the remainder of the unexpired 
term. Such new appointment could be, but would not have to be, an 
individual from the same State as the individual originally appointed 
to that term.
  As with the Comptroller of the Currency and the Chairman of the 
Office of Thrift Supervision, a State bank supervisor would receive no 
Federal salary for service as a member of the FDIC Board.
  Mr. President, I believe that provision should have been made for a 
State bank supervisor on the FDIC Board when the Comptroller of the 
Currency was included on the Board. This legislation will rectify that 
oversight and bring about the balance that currently does not exist.
  Mr. President, I ask unanimous consent that the text of the bill and 
a summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 562

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``State Bank Representation 
     Act''.

     SEC. 2. STATE BANK REPRESENTATION OF FDIC BOARD OF DIRECTORS.

       (a) In General.--Section 2(a)(1) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1812(a)(1)) is amended--
       (1) by striking ``5 members'' and inserting ``6 members'';
       (2) in subparagraph (B), by striking ``and'' at the end;
       (3) in subparagraph (C), by striking the period at the end 
     and inserting ``; and''; and
       (4) by adding at the end the following:
       ``(D) 1 of whom shall be appointed by the President, by and 
     with the advice and consent of the Senate, from among 
     individuals serving as State bank commissioners or 
     supervisors (or the functional equivalent thereof) as of the 
     date on which the appointment is made.''.
       (b) Limitation.--Section 2(b) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1812(b)) is amended--
       (1) in paragraph (1), by striking ``appointed members'' and 
     inserting ``members appointed pursuant to subsection 
     (a)(1)(C)''; and
       (2) in paragraph (2), by striking ``appointed members'' and 
     inserting ``members appointed pursuant to subsection 
     (a)(1)(C)''.
       (c) Terms.--Section 2(c)(1) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1812(c)(1)) is amended--
       (1) by striking ``Each appointed member'' and inserting the 
     following:
       (A) In General.--Each member appointed pursuant to 
     subsection (a)(1)(C)''; and
       (2) by adding at the end the following:
       ``(B) State bank representatives.--
       ``(i) In general.--Except as provided in clause (ii), each 
     member appointed pursuant to subsection (a)(1)(D) shall be 
     appointed for a single term of 2 years.
       ``(ii) Exception.--If a member appointed pursuant to 
     subsection (a)(1)(D) ceases to be a State banking 
     commissioner or supervisor (or functional equivalent thereof) 
     on a date prior to the expiration of the 2-year period 
     described in clause (i), such member's membership on the 
     Board of Directors shall terminate on that date.''.
       (d) Vacancies.--Section 2(d)(1) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1812(d)(1)) is amended--
       (1) by striking ``Any vacancy'' and inserting the 
     following:
       ``(A) In General.--Subject to the restrictions contained in 
     subparagraph (B), any vacancy''; and
       (2) by adding at the end the following:
       ``(B) Restrictions.--
       ``(i) Same individual.--In filling a vacancy on the Board 
     of Directors pursuant to subsection (a)(1)(D), the President 
     may not appoint an individual who has previously served as a 
     member of the Board of Directors pursuant to subsection 
     (a)(1)(D).
       ``(ii) Same state.--In filling a vacancy on the Board of 
     Directors pursuant to subsection (a)(1)(D) (other than a 
     vacancy occurring under subsection (c)(1)(B)(ii)), the 
     President may not appoint an individual who is serving as the 
     State bank commissioner or supervisor (or functional 
     equivalent thereof) of the same State as the member most 
     recently appointed pursuant to subsection (a)(1)(D).''.
       (e) Noncompensation; Travel Expenses.--Section 2 of the 
     Federal Deposit Insurance Act (12 U.S.C. 1812) is amended by 
     adding at the end the following:
       ``(g) Personnel Matters Relating to State Bank 
     Representatives.--Members of the Board of Directors appointed 
     pursuant to subsection (a)(1)(D)--
       ``(1) shall serve without compensation; and
       ``(2) shall be allowed travel expenses, including per diem 
     in lieu of subsistence, at rates authorized for employees of 
     agencies under subchapter I of chapter 57 of title 5, United 
     States Code, while away from their homes or regular places of 
     business in the performance of services for the Board of 
     Directors.''.
                                                                    ____


                 Summary--State Bank Representation Act

       1. Short title: ``State Bank Representation Act.''
       2. Add another member to the FDIC Board of Directors, who 
     would be a sitting state banking Supervisor or Commissioner 
     (or the functional equivalent thereof), and who would be a 
     full voting member.
       3. This board member would be nominated by the President 
     and confirmed by the Senate.
       4. Remuneration would only be for expenses in connection 
     with official duties as a board member; no salary.
       5. Term of office would be two years. Such a board member 
     may not be reappointed to the board for this particular seat, 
     nor may a Supervisor from the same state serve for two 
     consecutive terms on the board.
       6. If during term of office as a member of the FDIC board 
     the individual ceases to be a state banking Supervisor, then 
     the person would also lose membership on the FDIC 
     Board.
                                 ______

      By Mr. GREGG:
  S. 563. A bill to amend the Internal Revenue Code of 1986 to treat 
recycling facilities as exempt facilities under the tax-exempt bond 
rules, and for other purposes; to the Committee on Finance.
 [[Page S3969]] the environmental infrastructure financing act of 1995

 Mr. GREGG.
 Mr. President, I introduce the Environmental Infrastructure Financing 
Act of 1995. The bill will amend the Internal Revenue Code of 1986 to 
allow recycling facilities to be eligible for tax-exempt bond 
financing.

  A continuing problem in the development of recycling efforts is the 
need for markets for the materials that are being collected. Processes 
exist for remanufacturing the recycled materials into new products, but 
they frequently require extensive capital investment.
  An approach that is often attempted is the use of the Federal tax-
exempt bond program, which does have a subcategory for solid waste 
projects. Solid waste recycling facilities should constitute a 
legitimate application of these funds; however, certain sections of the 
Tax Code define solid waste as being ``material without value.'' With 
recycled materials now being traded as commodities, they do, in fact, 
have value, making the facilities which might process them ineligible 
for tax-exempt financing. This definitional problem impedes the 
construction of recycling facilities and hurts the development of 
recycling materials markets.
  My bill will correct this problem in the Tax Code and allow recycling 
facilities to obtain tax-exempt financing. The Environmental 
Infrastructure Financing Act of 1994 will foster the further 
development of the recycling industry and promote increased recycling.
  Mr. President, I ask unanimous consent that a copy of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 563

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Environmental Infrastructure 
     Financing Act of 1995''.

     SEC. 2. RECYCLING FACILITIES TREATED AS EXEMPT FACILITIES.

       (a) Treatment as Exempt Facility Bond.--Subsection (a) of 
     section 142 of the Internal Revenue Code of 1986 (defining 
     exempt facility bond) is amended by striking ``or'' at the 
     end of paragraph (11), by striking the period at the end of 
     paragraph (12) and inserting ``, or'', and by adding at the 
     end the following new paragraph:
       ``(13) qualified recycling facilities.''
       (b) Qualified Recycling Facilities Defined.--Section 142 of 
     the Internal Revenue Code of 1986 (defining exempt facility 
     bond) is amended by adding at the end the following new 
     subsection:
       ``(k) Qualified Recycling Facilities.--
       ``(1) In general.--For purposes of subsection (a)(13), the 
     term `qualified recycling facilities' means any facility used 
     exclusively--
       ``(A) to sort and prepare municipal, industrial, and 
     commercial refuse for recycling, or
       ``(B) in the recycling of qualified refuse.
       ``(2) Qualified refuse.--For purposes of this subsection, 
     the term `qualified refuse' means--
       ``(A) yard waste,
       ``(B) food waste,
       ``(C) waste paper and paperboard,
       ``(D) plastic scrap,
       ``(E) rubber scrap,
       ``(F) ferrous and nonferrous scrap metal,
       ``(G) waste glass,
       ``(H) construction and demolition waste, and,
       ``(I) biosolids (sewage sludge).
       (3) Recycling.--For purposes of this subsection, the term 
     `recycling' includes either--
       ``(A) processing (including composting) qualified refuse to 
     a point at which such refuse has commercial value; or
       ``(B) manufacturing products from qualified refuse when 
     such refuse constitutes at least 40 percent, by weight or 
     volume, of the total materials introduced into the 
     manufacturing process.
       ``(4) Special rule.--Refuse shall not fail to be treated as 
     waste merely because such refuse has a market value at the 
     place such refuse is located only by reason of the value of 
     such refuse for recycling.''
       (c) Effective Date.--The amendments made by this section 
     shall apply to bonds issued after the date of the enactment 
     of this Act.
                                 ______

      By Mr. BIDEN:
  S. 564. A bill to confer and confirm Presidential authority to use 
force abroad, to set forth principles and procedures governing the 
exercise of that authority, and thereby to facilitate cooperation 
between the President and Congress in decisions concerning the use or 
deployment of U.S. Armed Forces abroad in situations of actual or 
potential hostilities.


                            use of force act
  Mr. BIDEN. Mr. President, I rise today to introduce a piece of 
legislation that I worked on for the last several years. As time has 
passed, I believe my arguments for the legislation in the first 
instance are even more relevant today than they were then.
  This legislation will replace the War Powers Resolution of 1973, and 
it is designed to provide a framework for joint congressional-Executive 
decisionmaking about the most solemn decision that a nation can make: 
to send women and men to fight and die for their country.
  Decades ago, a noted scholar, Edwin Corwin, characterized 
constitutional provisions regarding the foreign policy of the Nation as 
an invitation to struggle--a struggle between the executive branch and 
the legislative branch.
  Professor Corwin's maxim accurately describes over 200 years of 
constitutional history--two centuries of tension between the executive 
and the legislative branches regarding the war power.
  But over the past four decades, what was intended as a healthy 
struggle between the executive and legislative branches has become an 
extremely excessively divisive and chronically debilitating struggle.
  The primary cause, in my view, is that Presidents have pushed the 
limits of Executive prerogative, Democratic Presidents as well as 
Republican Presidents. Their rationale has been the supposed burden of 
Presidential responsibility imposed by the stresses and dangers of the 
cold war.
  The era began in 1950, when President Truman deployed forces to 
defend South Korea without any congressional authorization.
  With elaborate legal argument, Truman asserted an inherent 
Presidential authority to act unilaterally to protect the broad 
interests of American foreign policy.
  A nearly lone voice of concern, Senate minority leader--Mr. 
Republican--Robert Taft--known, as I said, as Mr. Republican--declared 
that the President had usurped authority, in violation of the laws and 
the Constitution.
  But Taft's pronouncements availed him little, a fate that would often 
befall similar Executive attempts to restrain Executive aggrandizement.
  The dissenters were overwhelmed by the proponents of a thesis: The 
thesis that in the nuclear age--when the fate of the planet itself 
appeared to rest with two men thousands of miles apart--Congress had 
little choice, or so it was claimed, but to cede tremendous authority 
to the Executive.
  By the beginning of the 1970's, that thesis had become doctrine.
  In 1970, when President Nixon sent United States forces into Cambodia 
with neither congressional authorization nor even consultation, his 
accompanying assertions of autonomous Presidential powers were so 
sweeping and so extreme that the Senate began a search--a search led by 
Republican Senator Jacob Javits and strongly supported by Democratic 
Senator and hawk John Stennis--the Senate began a search for some means 
of rectifying what was now perceived as a dangerous constitutional 
imbalance in favor of the Executive.
  The result was the enactment, in 1973--my first year in the U.S. 
Senate--of the War Powers Resolution over a Presidential veto.
  Today, over two decades later, few would dispute that the War Powers 
Resolution has failed to fulfill its intent and has been, to state it 
quite simply, ineffective.
  It is commonly said that every President has disputed the 
constitutionality of the War Powers Act, but that is not wholly true. 
President Ford took no issue with the act while he was in office.
  And President Carter explicitly vowed to comply with its provisions, 
declaring that he would neither endorse nor challenge its 
constitutionality.
  Moreover, the Carter Justice Department conducted a detailed analysis 
of the resolution and declared, quite explicitly, that its most 
critical mechanism--the timetable for congressional authorization of 
use of force abroad--is fully and unambiguously constitutional.
   [[Page S3970]] Unfortunately, under the Ford and Carter 
administrations, no body of practice under the resolution developed, 
because the only two military actions of that period--the Mayaguez 
incident under President Ford and Desert One under President Carter--
were over almost before they began.
  Then came President Reagan and President Bush, who dealt with the 
resolution pragmatically while declaring their blanket opposition to 
its provisions.
  Their assertion of the doctrine of broad Executive powers--what I 
call the monarchist viewpoint--is best exemplified by President Bush's 
statement on the eve of the gulf war.
  With half a million American forces standing ready in Saudi Arabia, 
President Bush petulantly declared that he did not need permission from 
some old goat in the Congress to kick Saddam out of Kuwait.
   Although Mr. Bush eventually sought congressional support in the 
gulf, he did so reluctantly, and continued to assert that he sought 
only support, refusing to concede that congressional authorization was 
a legal necessity.
  More recently, the notion of broad Executive power was claimed on the 
eve of the invasion of Haiti--an invasion that, thankfully, was averted 
by a last-minute diplomatic initiative.
  Last summer, Clinton administration officials characterized the Haiti 
operation as a mere police action, a semantic dodge designed to avoid 
the need for congressional authorization.
  Some of my Democratic colleagues suggested that the war clause of the 
Constitution was entirely ceremonial and that the President had 
virtually unlimited discretion to order an invasion of Haiti. These 
were some of the same Democrats who stood here on the floor and said 
President Bush did not have the authority to act in the gulf without 
congressional assent; proving the axiom that Senators and Congressmen 
tend to pick what side of their issue they are on depending on the 
partisan need.
  We have the interesting phenomena, Republicans on the floor who said 
there was a broad range of congressional authority, but when it came to 
Clinton exercising it, saying, no, he did not have the authority; and 
Democrats who were on the floor telling President Bush he did not have 
the authority but saying, no, President Clinton does. To be sure, there 
were some of my Republicans and Democratic friends who were 
consistent--who may have questioned the President's policy in Haiti but 
did not question the right to deploy those troops in the absence of 
congressional consent.
  In my view, the assertions expressed during the Haitian crisis 
underscore that the doctrine asserted by President Nixon 25 years ago 
still grips the executive branch. More alarming, the congressional 
viewpoints I summarized suggest that the legislative surrender of the 
war power continues, based in part on whether or not the man or woman 
in power is a man of your party and whether you agree with him on the 
substance of the action.
  With all respect to my colleagues and the administration, I believe 
this President, the last President, and the Presidents under whom I 
have served have misread the Constitution. Article I, section 8, clause 
11, grants to the Congress the power ``To declare War, grant Letters of 
Marque and Reprisal and make Rules concerning Captures on Land and 
Water.''
  To the President, the Constitution provides in article II, section 2, 
the role of ``Commander in Chief of the Army and Navy of the United 
States.'' It may fairly be said that with regard to many constitutional 
provisions, the framers' intent was ambiguous, but not on the war 
power. Both the contemporaneous evidence and the early construction of 
these clauses, in my view, do not leave much room for doubt.
  The original draft of the U.S. Constitution would have given the 
Congress the power to ``make war.'' At the Constitutional Convention in 
Philadelphia, a motion was made to change to ``make war,'' to ``declare 
war.''
  The reason for the change is very instructive. At the convention, 
James Madison and Elbridge Gerry argue for an amendment solely in order 
to permit the President the power ``to repel sudden attacks.'' They 
were fearful if you said it was the power of the Congress to make war, 
that could be read to deny the President the authority without 
congressional power to repel sudden attacks.
  Just one delegate at the convention, Pierce Butler of South Carolina, 
suggested that the President should be given the power to initiate war. 
All others disagreed. Only one to suggest that the President had the 
power to initiate war. The rationale for vesting the power to launch 
war in the U.S. Congress was quite simple: The framers knew their 
history. The framers' thoughts were dominated by their experience with 
the British king who had unfettered power to start wars and spend the 
treasure and blood of his nation. Such powers the framers were 
determined to deny the President of the United States.
  George Mason, for example, explained that he was opposed to giving 
the power to initiate war to the President because the President, the 
Executive, he believed, was not to be safely trusted with that power. 
Even Alexander Hamilton, a staunch advocate of Presidential power, 
emphasized that the President's power as Commander in Chief would be 
``much inferior'' to the British kings, amounting to ``nothing more 
than the supreme command and direction of the military and naval 
forces,'' while that of the British king ``extends to the declaring of 
war and the raising and regulation of fleets and armies--all which [by 
the U.S.] Constitution would appertain to the legislature.''
  It is frequently contended by those who favor vast Presidential 
powers that Congress was granted only ceremonial power to declare war, 
in effect, a designation to provide fair notice to the opposing States, 
and legal notice to neutral parties. At least that is what they argue.
  But the framers had little interest, it seems, in the ceremonial 
aspects of war. The real issue was congressional authorization of war. 
As Hamilton noted in Federalist 25, ``The ceremony of a formal 
denunciation of war has of late fallen into disuse.'' Indeed, by one 
historian's account, just 1 war in 10 was formally declared in the 
years between 1700 and 1870--1 in 10.
  The proposition that Congress had the power to initiate all wars 
except to repel attack on the United States is also strengthened in 
view of the second part of the war clause. That is the power to ``grant 
Letters of Marque and Reprisal.''
  Now, most Americans, I daresay most Members of Congress, I daresay 
most members of Government, do not even know what the ``power to grant 
Letters of Marque and Reprisal'' means and why it is in the 
Constitution. An anachronism today, letters of marque and reprisals 
were licenses issued by governments, usually to private citizens, but 
on occasion to government agents, empowering these private citizens or 
government agents to seize enemy ships or take action on land, short of 
all-out war.
  In essence, it was the 18th century version of what we now regard as 
limited war or police actions. That is what letters of marque and 
reprisal were. If you are having trouble with pirates off the coast, 
you are not looking to declare war. The Federal Government, in this 
case the Congress, could go out and hire out, give permission to, give 
a letter of marque and reprisal to a local. Think of it in terms of a 
local security agency that comes by and patrols your neighborhoods. You 
could give letters of marque or reprisal and say, ``You are authorized 
under the law, through the Congress, to go seize those pirate ships.''
  That is what it was about. A leading commentator of the day--that is, 
the late 1700's--a leading commentator of the day on international law 
explained the distinction this way: ``A perfect war is that which 
entirely interrupts the tranquility of the state. An imperfect war, on 
the contrary, is that which does not entirely interrupt the peace. 
Reprisals are that imperfect kind of war.''
  So, when we hear people talk about imperfect wars, it is used as a 
term of art as it was used back in the late 1700's. The framers 
undoubtedly knew that reprisals or imperfect wars could lead to general 
or all-out wars. England, for example, had fought five wars between 
1652 and 1756 which were preceded by public naval reprisals.
   [[Page S3971]] That is, if you gave these letters of marque to 
someone or a group of people to go out and seize shipping, it was 
acknowledged that that could lead to a larger war. If the nation from 
which those ships came decided that it was not in their interest, they 
may very well send a larger armada and you are at war. You move from 
that imperfect war to the so-called perfect war--an odd phrase, 
``perfect war.''
  Surely, those who met at Philadelphia, all learned men, knew and 
understood this history of marque and reprisals. Given this 
understanding, the only logical conclusion that the framers intended by 
vesting the power to grant these letters of marque and reprisal 
authorizing imperfect war in the Congress, could be that it was 
designed to grant to Congress the power to initiate all hostilities, 
even limited wars.
  To review for a second, they changed from ``make'' to ``declare" in 
the Constitution for the purpose of allowing the President not to 
initiate a war, perfect or imperfect, large or small, but for the 
purpose of allowing the President to respond to a sudden attack.
  Then to be sure everyone understood what they meant, they said, ``And 
by the way, we are going to vest in the section of the Constitution 
that relates to congressional power the exclusive power to the Congress 
of issuing these letters of marque and reprisal.''
  So they not only said Congress can only initiate war and the 
President can only respond, but even limited war only the Congress can 
initiate.
  A comparison of the war clause to related constitutional provisions 
suggest that this interpretation is the correct one. Unlike other 
foreign affairs provisions in the Constitution which grant to the 
President and the Senate the shared power to make treaties and appoint 
ambassadors, when it comes to the war power the Constitution provides a 
role for the Senate and the House of Representatives--but not a shared 
responsibility between the branches.
  The inclusion of the House, in particular, suggests a determination 
to mandate that public consensus be achieved before the initiation of a 
war.
  Think about it. If the Founders thought that they should not give the 
power to raise taxes to the Senate because we were more like the House 
of Lords, and that all taxes must be initiated in the House of 
Representatives, why did they do that? They did that because they knew 
that taxation could affect people's lives so drastically that it should 
be a democratic decision and it should be made first and foremost in 
the people's house, that group of legislators who stand for election 
every 2 years and are immediately answerable to the public.
  If they thought it was so important and so critical that taxes should 
be determined by the people's house because it had such an impact on 
the lives of the average citizen, what do you think they thought about 
the power of a Government to take your son or daughter and send them to 
war and die? It is illogical to me, and those who say that the 
President has this exclusive authority, to suggest that they would 
worry about taxation but not worry about taking a nation to war, which 
can cost them their lives, their monetary treasure, their lifeblood.
  The inclusion of the House in the decision to go to war was because 
the House was designed to be closely attuned to the views of the Nation 
and thereby would provide a means for gauging and ensuring public 
support for any war.
  Moreover, with both Chambers involved in the decision to go to war, 
the initiation of war could necessarily be slowed by the simple fact 
that securing passage of statutory authorization or a declaration of 
war through both Houses is potentially a time-consuming and cumbersome 
process. That is what it was intended to be, because when one goes to 
war, you cannot say, short of surrender, 2 weeks into it or 1 month 
into it, ``By the way, we made a mistake, we're passing legislation to 
correct it.'' You can do that with taxes. You can pass a tax bill and 2 
months later, 3 months later say, ``We made a mistake and rescind it.'' 
You do not rescind a war.
  So it was intended--it was intended--in the Constitution that 
decision to go to war--not to repel attack, to go to war--to initiate 
war, to alter the state of peace, it was intended that it should be a 
process that consumed some time.
  It is bordering on the irrational, in my view, to suggest that the 
framers thought the appointment of ambassadors, although an important 
task, but not of the same consequence as war, that the appointment of 
ambassadors was so critical that they gave the Senate a veto power over 
it, but they considered the war powers so trivial that the decision to 
send Americans to fight and die was left deliberately vague so as to 
permit the Executive reasonable discretion to launch hostilities at his 
or her whim.
  I think that is irrational for anyone to think that is what the 
Framers thought, that who we have as Ambassador to England is so 
important that we are not going to leave it to a President alone, we 
are going to require the Senate to go along with it, but going to war 
with England was so trivial that we did not have to consult the United 
States Senate or did not have to consult the people's House before a 
President could take us to war. That is, in my humble opinion, an 
irrational view.
  In the same vein, I am continually amazed that many of my colleagues 
who zealously guard the Senate's power to advise and consent to 
treaties and to ambassadorial appointments, so cavalierly cede the war 
power to the Executive. I find that fascinating. What more can impact 
on the life of the average American than taking the Nation to war? Why 
would they possibly have left that to the President alone but said, 
``By the way, when you want to stop a war, when you want to have a 
treaty, the President has no authority to do that. He has to come to us 
and get a supermajority.''
  Does that make any sense? Talk about tortured logic. Yet, we have 
people on this floor, in the 22 years I have been here--and when I got 
here, the Vietnam war was still going on; that is one of the reasons I 
ran for the Senate in the first place--we have Members in both 
political parties with whom I have served and have great respect 
saying, ``War is up to the President, but who the Ambassador is, you 
better check with me.''
 War is up to the President. But whether there is a peace treaty, you 
better check with me.

  I would respectfully suggest the reason that many have adopted that 
position is they do not have the political courage to take a stand on 
whether or not we should go to war.
  In sum, to accept the proposition that the war power is merely 
ceremonial, or applies only to big wars, is to read much of the war 
clause out of the U.S. Constitution. And such a reading is supported 
neither by the plain language of the text or the original intention of 
the Framers of the Constitution.
  In describing the Framers' intent, I hasten to add a caveat. We 
should always be cautious about our ability to divine the intentions of 
those who came 200 years before us, particularly when the documentary 
record is not at all voluminous.
  But any doubt about the wisdom of relying on original intent alone, 
in my view, is dispelled in view of the actions of the early 
Presidents, early Congresses, and early Supreme Court decisions.


         Early practice--shedding light on the Framers' intent

  Let me speak to that a minute. Advocates of Executive power often 
assert that Presidents have used force throughout our history without 
congressional consent. But with all due respect, history does not 
support that claim.
  Indeed, our earliest Presidents, who were involved in the 
ratification of the Constitution, were extremely cautious about 
encroaching on Congress' power under the war clause.
  Our first President, George Washington, adhered to the view that only 
Congress could authorize offensive action. Writing in 1793, President 
Washington stated that offensive operations against an Indian tribe, 
the Creek Nation, depended on congressional action alone.
  Let me quote from what Washington wrote. Washington as President 
said:

       The Constitution vests the power of declaring war with the 
     Congress; therefore, no offensive expedition of importance 
     can be undertaken until after they have deliberated upon the 
     subject, and authorized such a measure.

  That was George Washington.
   [[Page S3972]] During the Presidency of John Adams, the United 
States engaged in an undeclared naval war with France. These military 
engagements were clearly authorized by the Congress in a series of 
incremental statutes.
  The naval war with France also yielded three important Supreme Court 
decisions regarding the scope of the war power.
  In 1799, Congress authorized the President to intercept any United 
States vessel headed to France. President Adams subsequently ordered 
the Navy to seize any ship traveling to or from France. The Supreme 
Court declared the seizure of a United States vessel traveling from 
France to be illegal, thus ruling that Congress had the power not only 
to authorize limited war but also to limit Presidential power to take 
military action.
  The Court ruled in two other cases bearing on the question of limited 
war. Wars, the Court said, even if ``imperfect,'' are nonetheless wars.
  In still another case, Chief Justice Marshall opined that:

       The whole powers of war [are] by the Constitution . . . 
     vested in the Congress . . . [which] may authorize general 
     hostilities . . . or partial war.

  Now, modern monarchists, those who lean and tilt so far to the 
President on this, refer habitually to the actions of our third 
President, Thomas Jefferson, in coping with the Barbary pirates. But 
Jefferson's actions provide little solace to advocates of that 
position.
  In May of 1801, President Jefferson deployed a small squadron of 
ships to the Mediterranean to deter attacks against American shipping. 
Acting under the authority of an act of Congress which mandated that 
six frigates be maintained in the Navy during peacetime, Jefferson 
instructed the naval commander that if he arrived and found that the 
Barbary powers had declared war against the United States, to take 
action if necessary ``to protect commerce.''
  But when he learned that the leader of Tripoli had, in fact, declared 
war, Jefferson referred the matter to the Congress.
  Reporting on a small skirmish won by a U.S. ship, Jefferson noted 
that the American ship was authorized by the Constitution, without the 
sanction of Congress, to go beyond the line of defense, and thus the 
U.S. commander did not take possession of the ship or retain its crew 
as prisoners of war.
   Jefferson sought further guidance from Congress about the next step, 
and I quote:

       The legislature will doubtless consider whether, by 
     authorizing measures of offence also, [Congress] will . . . 
     place our forces on an equal footing [with the Tripolitan 
     forces].

  Congress promptly enacted a statute empowering Jefferson to protect 
U.S. shipping, and to seize vessels owned by the Tripoli regime. The 
legislation passed 2 years later gave explicit support for ``warlike 
operations against Tripoli or other Barbary powers.''
  I believe this episode, and the historical record of actions taken by 
other early Presidents, has significantly more bearing on the meaning 
of the war clause than the record of Presidents in the modern era.
  The reasons should be obvious. The men who were at Philadelphia and 
wrote the Constitution--or, as in Jefferson's case, participated in the 
ratification debates in the States--had a much better understanding of 
the intended meaning of the constitutional provisions than those of us 
200 years later have. They participated.
  Their actions while in office should, therefore, be given great 
weight in interpreting the constitutional clauses in question. As Chief 
Justice Warren once wrote, ``The precedential value of [prior practice] 
tends to increase in proportion to the proximity'' to that 
Constitutional Convention.


                  Restoring the Constitutional balance

  Unfortunately, this constitutional history seems largely forgotten, 
and the doctrine of Presidential power that arose during the four 
decades of the cold war continues to remain in vogue--even, to my 
dismay, among many of my colleagues in the Congress.
  To accept this situation requires us to believe that the 
constitutional imbalance serves our Nation well. But it can hardly be 
said that it does.
  As matters now stand, Congress is denied its proper role in sharing 
the decision to commit American troops, and the President is deprived 
of the consensus he needs to help carry that policy through.
  Only by establishing an effective war powers mechanism can we ensure 
that both of these goals are met. More importantly, we will guarantee 
that the will of the American people will stand behind the commitment 
of U.S. forces.
  The question then is this: How to revise the War Powers Resolution in 
a manner that gains bipartisan support as well as the support of the 
Executive?
  In the past two decades, a premise has gained wide acceptance that 
the War Powers Resolution is fatally flawed. Indeed, there are flaws in 
the resolution, but they need not have been fatal.
  For that law was designed--by legislators who were statesmen of a 
markedly conservative stripe--to embody constitutional principles and 
to set forth practical procedures.
  Ironically, a law designed to improve executive-legislative branch 
comity on the war power has instead contributed to frequent squabbles 
about the minutiae of the law's provisions.
  In 1988, determining that a review of the War Powers Resolution was 
in order, the Foreign Relations Committee established a special 
subcommittee to assume the task.
  As chairman of the subcommittee, I conducted an exhaustive series of 
hearings, the most extensive hearings held in recent times on this 
subject.
  Over the course of 2 months, the subcommittee heard from many 
distinguished witnesses: Former President Ford, former Secretaries of 
State and Defense, former Joint Chiefs of Staff, former Members of 
Congress who drafted the law, and many constitutional scholars.
  At the end of that process, I produced a lengthy law review article 
describing how the War Powers Resolution might be thoroughly rewritten 
to overcome its actual and perceived liabilities.
  I envisaged its replacement by a new act entitled ``The Use of Force 
Act''--which would aim to achieve, at long last, the goal of its 
predecessor: To restore the balance of power between the executive and 
legislative branches regarding the war power for purposes of complying 
with the intent and will of the American people as well as the 
Constitution.
  That effort provided the foundation for the legislation I introduce 
today. The bill that I offer has many elements; I will briefly 
summarize the most important.
  First, it bears emphasis that my bill would replace the War Powers 
Resolution with a new version. But I should make clear that I retain 
its central element: A time-clock mechanism that limits the President's 
power to use force abroad.
  That mechanism, I should repeat, was found to be unambiguously 
constitutional in a 1980 opinion issued by the Office of Legal Counsel 
at the Department of Justice.
  It is often asserted that the time-clock provision is unworkable, or 
that it invites our adversaries to make a conflict so painful in the 
short run so as to induce timidity in the Congress, forcing the 
President to remove troops.
  But with or without a war powers law, American willingness to 
undertake sustained hostilities will always be subject to democratic 
pressures. A statutory mechanism is simply a means of delineating 
procedure.
  And the procedure set forth in this legislation assures that if the 
President wants an early congressional vote on a use of force abroad, 
his congressional supporters can produce it.
  Recent history tells us, of course, that the American people, as well 
as Congress, rally around the flag--rally around the President--rally 
around the Commander in Chief--in the early moments of a military 
deployment.
  Second, my bill defuses the specter that a timid Congress can simply 
sit on its hands and permit the authority for a deployment to expire.
  As noted above, it establishes elaborate expedited procedures 
designed to ensure that a vote will occur. And it explicitly defeats 
the timid Congress specter by granting to the President the authority 
he has sought if these procedures nonetheless fail to produce a vote.
  Thus, if the President requests authority for a sustained use of 
force--one outside the realm of emergency-- 
 [[Page S3973]] and Congress fails to vote, the President's authority 
is extended indefinitely.
  Third, the legislation delineates what I call the going-in 
authorities for the President to use force.
  One fundamental weakness of the War Powers Resolution is that it 
fails to acknowledge powers that most scholars agree are inherent 
Presidential powers, such as the power to repel an armed attack upon 
the United States or its Armed Forces, or to rescue Americans abroad.
  My legislation corrects this deficiency--and thus avoids the endless 
dispute over where the exact location of the line between what the 
President already possesses independently and what Congress was 
bestowing upon him by legislation--where that line rests.
  The bill enumerates five instances where the President may use force:
  First, to repel attack on U.S. territory or U.S. forces;
  Second, to deal with urgent situations threatening supreme U.S. 
interests--i.e. the Cuban missile crisis;
  Third, to extricate imperiled U.S. citizens;
  Fourth, to forestall or retaliate against specific acts of terrorism; 
and
  Fifth, to defend against substantial threats to international sea 
lanes or airspace.
  It may be that no such enumeration can be exhaustive. But it is worth 
noting that the circumstances set forth would have sanctioned virtually 
every use of force by the United States since World War II.
  This concession of authority is circumscribed by the maintenance of 
the time-clock provision. After 60 days have passed--2 months--the 
President's authority would expire, unless 1 of 3 conditions had been 
met:
  First, Congress has declared war or enacted specific statutory 
authorization; or
  Second, the President has requested authority for an extended use of 
force but Congress has failed to act on that request, notwithstanding 
the expedited procedures established by this act--that is, Congress, if 
he asks to continue the force must act to tell him he cannot or it is 
presumed he can continue--or;
  Third, the President has certified the existence of an emergency 
threatening the supreme national interests of the United States; in 
which case he can continue the force in place.
  The legislation also affirms the importance of consultation between 
the President and Congress and establishes a new means to facilitate 
that consultation.
  To overcome the common complaint that Presidents must contend with 
``535 secretaries of state''--that is 535 Members of Congress--the Use 
of Force Act establishes a congressional leadership group with whom the 
President is mandated to consult on the use of force.
  Another infirmity of the War Powers Resolution is that it fails to 
define ``hostilities.'' Thus, Presidents frequently engaged in a verbal 
gymnastics of insisting that ``hostilities'' were not ``imminent.'' 
Even when hundreds of thousands of troops were positioned in the 
Arabian desert opposite Saddam's legions,
 President Bush argued that they were not in an area of hostilities 
and, even if they were, there was no prospect of imminent hostilities. 
Therefore the War Powers Act would not be triggered and engaged.

  Therefore, my legislation includes a more precise definition of what 
constitutes the use of force. And this definition contains two 
elements:
  First, a new commitment of U.S. forces, and second, the deployment is 
aimed at deterring a specific threat, the forces deployed have incurred 
or inflicted casualties, or are operating with a substantial 
possibility of incurring or inflicting casualties.
  If those conditions are met then there is a use of force as defined 
in the law.
  Finally, to make the statutory mechanism complete, the Use of Force 
Act provides a means for judicial review.
  Like many of my colleagues, I am reluctant to inject the judiciary 
into decisions that should be made by the political branches. 
Therefore, the provision is extremely limited: It empowers a three-
judge panel to decide only whether the time-clock mechanism has been 
triggered.
  I have no illusions that enacting this legislation will be easy. The 
experience of the War Powers Resolution gives witness to the difficulty 
of finding the proper balance between the executive and legislative 
branches on war powers.
  But I am determined to try. The status quo, with Presidents asserting 
broad executive powers, and Congress often content to surrender its 
constitutional powers, serves neither branch, and clearly does not 
serve the American people.
  More fundamentally, it does not serve the men and women who risk 
their lives to defend our interests. For that, ultimately, must be the 
test of any war powers law.
  Mr. President, some would argue now that the cold war is over there 
is less need for this delineation of authority, this new set of ground 
rules. I would argue nothing could be further from the truth. We are 
more likely to be pulled into hostilities--although not a world war III 
in all probability. More Americans have been engaged in areas of 
hostility, have been killed, and have been put on the battlefield since 
the cold war has ended than all during the cold war but for Korea and 
Vietnam, in little parts of the world all over the world: Bosnia, 
Somalia, and Haiti. What happens in a decade, a year from now--in the 
Ukraine, Byelarus, Russia--or any number of places where there might be 
hostilities and Americans or entire divisions of Americans may be 
called to action?
  So, Mr. President, I think to have an ordered plan to diminish the 
bickering between the executive and legislative branches on this issue 
is more needed today than it has been at any time.
  Mr. President, I ask unanimous consent that the text of the bill that 
I have sent to the desk and the accompanying section-by-section 
analysis be included in the Record at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 564

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Use of Force Act''.

     SEC. 2. TABLE OF CONTENTS.

       The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Congressional findings.
Sec. 4. Statement of purpose.
Sec. 5. Definitions.

                      TITLE I--GENERAL PROVISIONS

Sec. 101. Authority and governing principles.
Sec. 102. Consultation.
Sec. 103. Reporting requirements and referral of reports.
Sec. 104. Conditions for extended use of force.
Sec. 105. Measures eligible for congressional priority procedures.
Sec. 106. Funding limitations.
Sec. 107. Judicial review.
Sec. 108. Interpretation.
Sec. 109. Severability.
Sec. 110. Repeal of the War Powers Resolution.

                     TITLE II--EXPEDITED PROCEDURES

Sec. 201. Congressional priority procedures.
Sec. 202. Repeal of obsolete expedited procedures.
     SEC. 3. CONGRESSIONAL FINDINGS.

       The Congress affirms that--
       (1) the provisions of the United States Constitution compel 
     the President and Congress to engage actively and jointly in 
     decisions to use force abroad;
       (2) joint deliberation by the two branches will contribute 
     to sound decisions and to the public support necessary to 
     sustain any use of force abroad; and
       (3) a statutory framework, devised to promote consultation 
     and timely authorization as may be needed for specific uses 
     of force, can facilitate cooperation between the Congress and 
     the President in such decisionmaking.

     SEC. 4. STATEMENT OF PURPOSE.

       (a) In General.--The purpose of this Act is to confer and 
     confirm Presidential authority to use force abroad, to set 
     forth principles and procedures governing the exercise of 
     that authority, and thereby to facilitate cooperation between 
     the President and Congress in decisions concerning the use or 
     deployment of United States Armed Forces abroad in situations 
     of actual or potential hostilities.
       (b) Exclusivity of Provisions.--Because this Act confirms 
     all of the President's inherent constitutional authority to 
     use force abroad and confers additional authority, this Act 
     applies to all uses of force abroad by the United States.

     SEC. 5. DEFINITIONS.

       As used in this Act--
       (1) a ``use of force abroad'' occurs when--
       (A) United States Armed Forces are--
     [[Page S3974]]   (i) introduced into a foreign country,
       (ii) deployed to expand significantly the United States 
     military presence in a foreign country, or
       (iii) committed to new missions or objectives in a foreign 
     country, or in international airspace, or on the high seas; 
     and
       (B) such forces--
       (i) have been deployed to deter an identified threat, or a 
     substantial danger, of military action by other forces; or
       (ii) have incurred or inflicted casualties or are operating 
     with a substantial possibility of incurring or inflicting 
     casualties;
       (2) the term ``foreign country'' means any land outside the 
     United States, its territorial waters as recognized by the 
     United States, and the airspace above such land and waters;
       (3) the term ``high seas'' means all waters outside the 
     territorial sea of the United States and outside the 
     territorial sea, as recognized by the United States, of any 
     other nation;
       (4) the term ``international terrorism'' means activities 
     that--
       (A) involve violent acts or acts dangerous to human life 
     that are a violation of the criminal laws of the United 
     States or of any State, or that would be a criminal violation 
     if committed within the jurisdiction of the United States or 
     any State;
       (B) appear to be intended--
       (i) to intimidate or coerce a civilian population;
       (ii) to influence the policy of a government by 
     intimidation or coercion; or
       (iii) to affect the conduct of a government by 
     assassination or kidnapping; and
       (C) transcend national boundaries in terms of the means by 
     which they are accomplished, the persons they appear intended 
     to coerce or intimidate, or the locale in which their 
     perpetrators operate or seek asylum;
       (5) the term ``United States'' means the several States, 
     the District of Columbia, the Commonwealth of the Northern 
     Mariana Islands, the Commonwealth of Puerto Rico, American 
     Samoa, Guam, the United States Virgin Islands, and any other 
     possession of the United States; and
       (6) the term ``Use of Force Report'' means the report 
     described in section 103(a).
                      TITLE I--GENERAL PROVISIONS

     SEC. 101. AUTHORITY AND GOVERNING PRINCIPLES.

       (a) Authority.--In the absence of a declaration of war or 
     statutory authorization for a specific use of force, the 
     President, through powers vested by the Constitution of the 
     United States and by this Act, is authorized to use force 
     abroad in accordance with this Act--
       (1) to repel an armed attack upon the United States or its 
     armed forces;
       (2) to respond to a foreign military threat that severely 
     and directly jeopardizes the supreme national interests of 
     the United States under emergency conditions that do not 
     permit sufficient time for Congress to consider statutory 
     authorization or a declaration of war;
       (3) to extricate citizens and nationals of the United 
     States located abroad from situations involving a direct and 
     imminent threat to their lives;
       (4) to forestall an imminent act of international terrorism 
     directed at citizens or nationals of the United States or to 
     retaliate against the perpetrators of a specific act of 
     international terrorism directed at such citizens or 
     nationals; and
       (5) to protect internationally recognized rights of 
     innocent and free passage in the air and on the seas in 
     circumstances where the violation, or threat of violation, of 
     such rights poses a substantial danger to the safety of 
     American citizens or the national security of the United 
     States.
       (b) Governing Principles.--In exercising the authority set 
     forth in subsection (a), the President shall, without 
     limitation on the constitutional power of Commander in Chief, 
     adhere rigorously to principles of necessity and 
     proportionality, as follows:
       (1) Principles of necessity:
       (A) Force may not be used for purposes of aggression.
       (B) Before the use of force abroad, the President shall 
     have determined, with due consideration to the implications 
     under international law, that the objective could not have 
     been achieved satisfactorily by means other than the use of 
     force.
       (2) Principles of proportionality:
       (A) The use of force shall be exercised with levels of 
     force, in a manner, and for a duration essential to and 
     directly connected with the achievement of the objective.
       (B) The diplomatic, military, economic, and humanitarian 
     consequences of such action shall be in reasonable proportion 
     to the benefits of the objective.
     SEC. 102. CONSULTATION.

       (a) Prior Consultation Required.--Except where an emergency 
     exists that does not permit sufficient time to consult 
     Congress, the President shall seek the advice of the Congress 
     before any use of force abroad.
       (b) Congressional Leadership Group.--(1) To facilitate 
     consultation between the President and the Congress, there is 
     established within the Congress the Congressional Leadership 
     Group on the Use of Force Abroad (hereafter in this Act 
     referred to as the ``Congressional Leadership Group'').
       (2) The Congressional Leadership Group shall be composed 
     of--
       (A) the Speaker of the House of Representatives and the 
     President pro tempore of the Senate;
       (B) the Majority Leader and the Minority Leader of the 
     Senate and the Majority Leader and the Minority Leader of the 
     House of Representatives;
       (C) the chairman and ranking minority member of each of the 
     following committees of the Senate: the Committee on Foreign 
     Relations, the Committee on Armed Services, and the Select 
     Committee on Intelligence; and
       (D) the chairman and ranking minority member of each of the 
     following committees of the House of Representatives: the 
     Committee on International Relations, the Committee on 
     National Security, and the Permanent Select Committee on 
     Intelligence.
       (3) The Speaker of the House of Representatives and the 
     Majority Leader of the Senate shall each serve as co-chairman 
     of the Congressional Leadership Group.
       (c) Regular Consultations.--(1) Except as the parties may 
     otherwise determine, whenever Congress is in session, 
     meetings shall be held, in open or closed session, for the 
     purpose of facilitating consultation between Congress and the 
     President on foreign and national security policy, as 
     follows:
       (A) The President shall meet at least once every four 
     months with the Congressional Leadership Group.
       (B) The Secretary of State shall meet at least once every 
     two months with the Committee on Foreign Relations of the 
     Senate and the Committee on International Relations of the 
     House of Representatives.
       (C) The Secretary of Defense shall meet at least once every 
     two months with the Committee on Armed Services of the Senate 
     and the Committee on National Security of the House of 
     Representatives.
       (D) The Director of Central Intelligence shall meet at 
     least once every two months with the Select Committee on 
     Intelligence of the Senate and the Permanent Select Committee 
     on Intelligence of the House of Representatives.
       (2) Such consultation shall have, among its primary 
     purposes--
       (A) identifying potential situations in which the use of 
     force abroad might be necessary and examining thoroughly the 
     advisability and lawfulness of such use of force; and
       (B) in those instances in which a use of force abroad has 
     already been undertaken, discussing how such use of force 
     complies with the objectives and the authority required to be 
     cited in the appropriate Use of Force Report and the 
     governing principles set forth in section 101(b).
       (d) Emergency Consultations.--Under emergency circumstances 
     affecting United States national security interests, the 
     President should meet promptly with the Congressional 
     Leadership Group on his own initiative or upon receipt of a 
     special request from its co-chairmen that is made on their 
     own initiative or pursuant to a request from a majority of 
     the members of the Congressional Leadership Group.

     SEC. 103. REPORTING REQUIREMENTS AND REFERRAL OF REPORTS.

       (a) Use of Force Report Required.--Not later than 48 hours 
     after commencing a use of force abroad, the President shall 
     submit to the Speaker of the House of Representatives and to 
     the President pro tempore of the Senate a report stating--
       (1) the objective of such use of force;
       (2) in the absence of a declaration of war or specific 
     statutory authorization for such use of force, the specific 
     paragraph or paragraphs of section 101(a) setting forth the 
     authority for such use of force; and
       (3) the manner in which such use of force complies, and 
     will continue to comply with, the governing principles set 
     forth in section 101(b).

     Any such report shall be known as a Use of Force Report and 
     shall state that it is submitted pursuant to this subsection.
       (b) Periodic Reporting Required.--Whenever force is used 
     abroad, the President shall, so long as the United States 
     Armed Forces continue to be involved in the use of force, 
     report to Congress periodically on the status, scope, and 
     expected duration of such use of force. Such reports shall be 
     submitted at intervals to be determined jointly by the 
     President and the Congressional Leadership Group.
       (c) Referral of Reports.--Each report transmitted under 
     this section shall be immediately referred to the Committee 
     on Foreign Relations of the Senate and the Committee on 
     International Relations of the House of Representatives.
       (d) Reconvening Congress.--If, when a report is transmitted 
     under this section, the Congress has adjourned sine die or 
     has adjourned for any period in excess of three calendar 
     days, the Speaker of the House of Representatives and the 
     Majority Leader of the Senate, if they deem it advisable (or 
     if petitioned by a majority of the members of the 
     Congressional Leadership Group or by 30 percent of the 
     membership of either House of Congress) shall jointly request 
     the President to convene Congress in order that it may 
     consider the report and take appropriate action pursuant to 
     this Act.

     SEC. 104. CONDITIONS FOR EXTENDED USE OF FORCE.

       The President may continue a use of force abroad for longer 
     than 60 calendar days after the date by which the appropriate 
     Use of Force Report is required to be submitted only if--
       (1) Congress has declared war or provided specific 
     statutory authorization for the use of force abroad beyond 
     such period;
     [[Page S3975]]   (2) the President has requested that 
     Congress enact a joint resolution constituting a declaration 
     of war or statutory authorization under section 105(a) but 
     such joint resolution has not been subject to a vote in each 
     House of Congress, notwithstanding the expedited procedures 
     to which such joint resolution would be entitled; or
       (3) the President has determined and certified to the 
     Speaker of the House of Representatives and the President pro 
     tempore of the Senate that an emergency exists that threatens 
     the supreme national interests of the United States and 
     requires the President to exceed such period of limitation.

     SEC. 105. MEASURES ELIGIBLE FOR CONGRESSIONAL PRIORITY 
                   PROCEDURES.

       (a) Eligible Joint Resolutions.--A joint resolution shall 
     be entitled to the expedited procedures set forth in section 
     201--
       (1) if such resolution--
       (A) is introduced in a House of Congress by a Member of 
     Congress pursuant to a request by the President made in 
     writing to that Member, or
       (B) is introduced in a House of Congress and satisfies the 
     cosponsorship criteria set forth in subsection (c); and--
       (2) if such resolution--
       (A) constitutes a declaration of war or specific statutory 
     authorization within the meaning of this Act, or
       (B) requires the President to terminate, limit, or refrain 
     from a use of force abroad.
       (b) Eligible Concurrent Resolutions.--A concurrent 
     resolution shall be entitled to the expedited procedures set 
     forth in section 201 if such resolution satisfies the 
     cosponsorship criteria set forth in subsection (c) and 
     contains a finding that--
       (1) a use of force abroad began on a specific date or that 
     a Use of Force Report was required to be submitted;
       (2) a use of force abroad has exceeded the period of 
     limitation set forth in section 104;
       (3) the President has acted outside the authority of 
     section 101(a) or abused the authority of section 104(3); or
       (4) a use of force is otherwise being conducted in a manner 
     inconsistent with the provisions of this Act.
       (c) Cosponsorship Criteria.--A joint resolution described 
     in subsection (a)(1)(B) or a concurrent resolution described 
     in subsection (b) is a resolution for purposes of section 201 
     if such resolution has been cosponsored--
       (1) by a majority of the members of the Congressional 
     Leadership Group who are members of the House of Congress in 
     which it is introduced; or
       (2) by 30 percent of the membership of the House of 
     Congress in which it is introduced.

     SEC. 106. FUNDING LIMITATIONS.

       (a) Prohibition.--No funds made available under any 
     provision of law may be obligated or expended for any use of 
     force abroad inconsistent with the provisions of this Act.
       (b) Point of Order.--(1) Whenever the Congress adopts a 
     concurrent resolution making a finding under paragraph (2), 
     (3), or (4) of section 105(b), it shall thereafter not be in 
     order in either House of Congress to consider any bill or 
     joint resolution or any amendment thereto, or any report of a 
     committee of conference, which authorizes or provides budget 
     authority to carry out such use of force.
       (2) Any committee of either House of Congress that reports 
     any bill or joint resolution, and any committee of conference 
     which submits any conference report to either such House, 
     authorizing or providing budget authority which has the 
     effect of providing resources to carry out any such use of 
     force, shall include in the accompanying committee report or 
     joint statement, as the case may be, a statement that budget 
     authority for that purpose is authorized or provided in such 
     bill, resolution, or conference report.

     SEC. 107. JUDICIAL REVIEW.

       (a) Standing.--(1) Any Member of Congress may bring an 
     action in the United States District Court for the District 
     of Columbia for declaratory judgment on the grounds that the 
     provisions of this Act have been violated.
       (2) A copy of any complaint in an action brought under 
     paragraph (1) shall be promptly delivered to the Secretary of 
     the Senate and the Clerk of the House of Representatives, and 
     each House of Congress shall have the right to intervene in 
     such action.
       (b) Three-Judge Court.--Any action brought under subsection 
     (a) shall be heard and determined by a three-judge court in 
     accordance with section 2284 of title 28, United States Code.
       (c) Justiciability.--(1) In any action brought under 
     subsection (a), the United States District Court and the 
     United States Supreme Court, if applicable, shall not refuse 
     to make a determination on the merits based upon the doctrine 
     of political question, remedial discretion, equitable 
     discretion, ripeness, or any other finding of non-
     justiciability, unless such refusal is required by Article 
     III of the Constitution.
       (2) Notwithstanding the number, position, or political 
     party affiliation of any party to an action brought under 
     subsection (a), it is the intent of Congress that the United 
     States District Court and, if applicable, the United States 
     Supreme Court infer that Congress would disapprove of any use 
     of force inconsistent with the provisions of this Act and 
     find that an impasse exists between Congress and the 
     Executive which requires judicial resolution.
       (d) Judicial Remedies.--If the United States District 
     Court, in an action brought under subsection (a), finds that 
     a Use of Force Report was required to have been submitted 
     under this Act but was not submitted, it shall issue an order 
     declaring that the period set forth in section 104 has begun 
     on the date of the United States District Court's order or on 
     a previous date, as may be determined by the United States 
     District Court.
       (e) Appeal to Supreme Court.--Notwithstanding any other 
     provision of law, any order entered by the United States 
     District Court in an action brought under subsection (a), 
     including any finding that a Use of Force Report was or was 
     not required to have been submitted to the Congress, shall be 
     reviewable by appeal directly to the Supreme Court of the 
     United States. Any such appeal shall be taken by a notice of 
     appeal filed within 10 days after such order is entered, and 
     the jurisdictional statement shall be filed within 30 days 
     after such order is entered. No stay of an order issued 
     pursuant to an action brought under this section shall be 
     issued by a single Justice of the Supreme Court.
       (f) Expedited Judicial Consideration.--It shall be the duty 
     of the District Court for the District of Columbia and the 
     Supreme Court of the United States to advance on the docket 
     and to expedite, to the greatest possible extent consistent 
     with Article III of the Constitution, the disposition of any 
     matter brought under this section.

     SEC. 108. INTERPRETATION.

       (a) Construction.--Nothing in this Act may be construed as 
     requiring any use of force abroad.
       (b) Specific Authorization Required.--Authority to use 
     force may not be inferred--
       (1) from any provision of law, unless such provision states 
     that it is intended to constitute specific statutory 
     authorization within the meaning of this Act; or
       (2) from any treaty heretofore or hereafter ratified unless 
     such treaty is implemented by a statute stating that it is 
     intended to constitute specific statutory authorization 
     within the meaning of this Act.
       (c) Status of Certain Congressional Actions.--The 
     disapproval by Congress of, or the failure of Congress to 
     approve, a measure--
       (1) terminating, limiting, or prohibiting a use of force; 
     or
       (2) containing a finding described in section 105(b);

     may not be construed as indicating congressional 
     authorization or approval of, or acquiescence in, a use of 
     force abroad, or as a congressional finding that a use of 
     force abroad is being conducted in a manner consistent with 
     this Act.

     SEC. 109. SEVERABILITY.

       (a) Severability.--Except as provided in subsection (b), if 
     any provision of this Act or the application thereof to any 
     person or circumstance is held invalid, the remainder of the 
     Act and the application of such provision to any other person 
     or circumstance shall not be affected thereby.
       (b) Exception.--If section 101(b), 103, 104, or 106 of this 
     Act or the application thereof to any person or circumstance 
     is held invalid, section 101(a) of this Act shall be deemed 
     invalid and the application thereof to any other person or 
     circumstance shall be null and void.

     SEC. 110. REPEAL OF THE WAR POWERS RESOLUTION.

       The War Powers Resolution (50 U.S.C. 1541 et seq.; Public 
     Law 93-148), relating to the exercise of war powers by the 
     President under the Constitution, is hereby repealed.
                     TITLE II--EXPEDITED PROCEDURES

     SEC. 201. CONGRESSIONAL PRIORITY PROCEDURES.

       (a) Definitions.--For purposes of this section--
       (1) the term ``resolution'' means any resolution described 
     in subsection (a) or (b) of section 105; and
       (2) the term ``session days'' means days on which the 
     respective House of Congress is in session.
       (b) Referral of Resolutions.--A resolution introduced in 
     the House of Representatives shall be referred to the 
     Committee on International Relations of the House of 
     Representatives. A resolution introduced in the Senate shall 
     be referred to the Committee on Foreign Relations of the 
     Senate.
       (c) Discharge of Committee.--(1) If the committee to which 
     is referred a resolution has not reported such a resolution 
     (or an identical resolution) at the end of 7 calendar days 
     after its introduction, such committee shall be discharged 
     from further consideration of such resolution, and such 
     resolution shall be placed on the appropriate calendar of the 
     House of Congress involved.
       (2) After a committee reports or is discharged from a 
     resolution, no other resolution with respect to the same use 
     of force may be reported by or be discharged from such 
     committee while the first resolution is before the respective 
     House of Congress (including remaining on the calendar), a 
     committee of conference, or the President. This paragraph may 
     not be construed to prohibit concurrent consideration of a 
     joint resolution described in section 105(a) and a concurrent 
     resolution described in section 105(b).
       (d) Consideration of Resolutions.--(1)(A) Whenever the 
     committee to which a resolution is referred has reported, or 
     has been discharged under subsection (c) from further 
     consideration of such resolution, notwithstanding any rule or 
     precedent of the Senate, 
      [[Page S3976]] including Rule 22, it is at any time 
     thereafter in order (even though a previous motion to the 
     same effect has been disagreed to) for any Member of the 
     respective House of Congress to move to proceed to the 
     consideration of the resolution and, except as provided in 
     subparagraph (B) of this paragraph or paragraph (2) of this 
     subsection (insofar as it related to germaneness and 
     relevancy of amendments), all points of order against the 
     resolution and consideration of the resolution are waived. 
     The motion is highly privileged in the House of 
     Representatives and is privileged in the Senate and is not 
     debatable. The motion is not subject to a motion to postpone. 
     A motion to reconsider the vote by which the motion is agreed 
     to or disagreed to shall be in order, except that such motion 
     may not be entered for future disposition. If a motion to 
     proceed to the consideration of the resolution is agreed to, 
     the resolution shall remain the unfinished business of the 
     respective House of Congress, to the exclusion of all other 
     business, until disposed of, except as otherwise provided in 
     subsection (e)(1).
       (B) Whenever a point of order is raised in the Senate 
     against the privileged status of a resolution that has been 
     laid before the Senate and been initially identified as 
     privileged for consideration under this section upon its 
     introduction pursuant to section 105, such point of order 
     shall be submitted directly to the Senate. The point of 
     order, ``The resolution is not privileged under the Use of 
     Force Act'', shall be decided by the yeas and the nays after 
     four hours of debate, equally divided between, and controlled 
     by, the Member raising the point of order and the manager of 
     the resolution, except that in the event the manager is in 
     favor of such point of order, the time in opposition thereto 
     shall be controlled by the Minority Leader or his designee. 
     Such point of order shall not be considered to establish 
     precedent for determination of future cases.
       (2)(A)(i) Consideration in a House of Congress of the 
     resolution, and all amendments and debatable motions in 
     connection therewith, shall be limited to not more than 12 
     hours, which, except as otherwise provided in this section, 
     shall be equally divided between, and controlled by, the 
     Majority Leader and the Minority Leader, or by their 
     designees.
       (ii) The Majority Leader or the Minority Leader or their 
     designees may, from the time under their control on the 
     resolution, allot additional time to any Senator during the 
     consideration of any amendment, debatable motion, or appeal.
       (B) Only amendments which are germane and relevant to the 
     resolution are in order. Debate on any amendment to the 
     resolution shall be limited to 2 hours, except that debate on 
     any amendment to an amendment shall be limited to 1 hour. The 
     time of debate for each amendment shall be equally divided 
     between, and controlled by, the mover of the amendment and 
     the manager of the resolution, except that in the event the 
     manager is in favor of any such amendment, the time in 
     opposition thereto shall be controlled by the Minority Leader 
     or his designee.
       (C) One amendment by the Minority Leader is in order to be 
     offered under a one-hour time limitation immediately 
     following the expiration of the 12-hour time limitation if 
     the Minority Leader has had no opportunity to offer an 
     amendment to the resolution thereto. One amendment may be 
     offered to the amendment by the Minority Leader under the 
     preceding sentence, and debate shall be limited on such 
     amendment to one-half hour which shall be equally divided 
     between, and controlled by, the mover of the amendment and 
     the manager of the resolution, except that in the event the 
     manager is in favor of any such amendment, the time in 
     opposition thereto shall be controlled by the Minority Leader 
     or his designee.
       (D) A motion to postpone or a motion to recommit the 
     resolution is not in order. A motion to reconsider the vote 
     by which the resolution is agreed to or disagreed to is in 
     order, except that such motion may not be entered for future 
     disposition, and debate on such motion shall be limited to 1 
     hour.
       (3) Whenever all the time for debate on a resolution has 
     been used or yielded back, no further amendments may be 
     proposed, except as provided in paragraph (2)(C), and the 
     vote on the adoption of the resolution shall occur without 
     any intervening motion or amendment, except that a single 
     quorum call at the conclusion of the debate if requested in 
     accordance with the rules of the appropriate House of 
     Congress may occur immediately before such vote.
       (4) Appeals from the decisions of the Chair relating to the 
     application of the Rules of the Senate or the House of 
     Representatives, as the case may be, to the procedure 
     relating to a resolution shall be limited to one-half hour of 
     debate, equally divided between, and controlled by, the 
     Member making the appeal and the manager of the resolution, 
     except that in the event the manager is in favor of any such 
     appeal, the time in opposition thereto shall be controlled by 
     the Minority Leader or his designee.
       (e) Treatment of Other House's Resolution.--(1) Except as 
     provided in paragraph (2), if, before the passage by one 
     House of a resolution of that House, that House receives from 
     the other House a resolution, then the following procedures 
     shall apply:
       (A) The resolution of the sending House shall not be 
     referred to a committee in the receiving House.
       (B) With respect to a resolution of the House receiving the 
     resolution, the procedure in that House shall be the same as 
     if no resolution had been received from the sending House, 
     except that the resolution of the sending House shall be 
     considered to have been read for the third time.
       (C) If the resolutions of the sending and receiving Houses 
     are identical, the vote on final passage shall be on the 
     resolution of the sending House.
       (D) If such resolutions are not identical--
       (i) the vote on final passage shall be on the resolution of 
     the sending House, with the text of the resolution of the 
     receiving House inserted in lieu of the text of the 
     resolution of the sending House;
       (ii) such vote on final passage shall occur without debate 
     or any intervening action; and
       (iii) the resolution shall be returned to the sending House 
     for proceedings under subsection (g).
       (E) Upon disposition of the resolution received from the 
     other House, it shall no longer be in order to consider the 
     resolution originated in the receiving House.
       (2) If one House receives from the other House a resolution 
     before any such resolution is introduced in the first House, 
     then the resolution received shall be referred, in the case 
     of the House of Representatives, to the Committee on 
     International Relations and, in the case of the Senate, to 
     the Committee on Foreign Relations, and the procedures in 
     that House with respect to that resolution shall be the same 
     under this section as if the resolution received had been 
     introduced in that House.
       (f) Treatment of Identical Resolutions.--If one House 
     receives from the other House a resolution after the first 
     House has disposed of an identical resolution, it shall be in 
     order to proceed by nondebatable motion to consideration of 
     the resolution received by the first House, and that received 
     resolution shall be disposed of without debate and without 
     amendment.
       (g) Procedures Applicable to Amendments Between the Houses 
     of Congress.--The following procedures shall apply to dispose 
     of amendments between the Houses of Congress:
       (1) Upon receipt by a House of Congress of a message from 
     the other House with respect to a resolution, it is in order 
     for any Member of the House receiving the message to move to 
     proceed to the consideration of the respective resolution. 
     Such motion shall be disposed of in the same manner as a 
     motion under subsection (d)(1)(A). Such a motion is not in 
     order after conferees have been appointed.
       (2)(A) The time for debate in a House of Congress on any 
     motion required for the disposition of an amendment by the 
     other House to the resolution shall not exceed 2 hours, 
     equally divided between, and controlled by, the mover of the 
     motion and manager of the resolution at each stage of the 
     proceedings between the two Houses, except that in the event 
     the manager is in favor of any such motion, the time in 
     opposition thereto shall be controlled by the Minority Leader 
     or his designee.
       (B) The time for debate for each amendment to a motion 
     shall be limited to one-half hour.
       (C) Only motions proposing amendments which are germane and 
     relevant are in order.
       (h) Procedures Applicable to Conference Reports and 
     Presidential Action.--(1) Either House of Congress may 
     disagree to an amendment or amendments made by the other 
     House to a resolution or may insist upon its amendment or 
     amendments to a resolution, and request a conference with the 
     other House at anytime. In the case of any disagreement 
     between the two Houses of Congress with respect to an 
     amendment or amendments to a resolution which is not resolved 
     within 2 session days after a House of Congress first amends 
     the resolution originated by the other House, each House 
     shall be deemed to have requested and accepted a conference 
     with the other House. Upon the request or acceptance of a 
     conference, in the case of the Senate, the President pro 
     tempore shall appoint conferees and, in the case of the House 
     of Representatives, the Speaker of the House shall appoint 
     conferees.
       (2) In the event the conferees are unable to agree within 
     72 hours after the second House is notified that the first 
     House has agreed to conference, or after each House is deemed 
     to have agreed to conference, they shall report back to their 
     respective House in disagreement.
       (3) Notwithstanding any rule in either House of Congress 
     concerning the printing of conference reports in the 
     Congressional Record or concerning any delay in the 
     consideration of such reports, such report, including a 
     report filed or returned in disagreement, shall be acted on 
     in the House of Representatives or the Senate not later than 
     2 session days after the first House files the report or, in 
     the case of the Senate acting first, the report is first made 
     available on the desks of the Senators.
       (4) Debate in a House of Congress on a conference report or 
     a report filed or returned in disagreement in any such 
     resolution shall be limited to 3 hours, equally divided 
     between the Majority Leader and the Minority Leader, and 
     their designees.
       (5) In the case of a conference report returned to a House 
     of Congress in disagreement, an amendment to the amendment in 
     disagreement is only in order if it is germane and relevant. 
     The time for debate for such an amendment shall be limited to 
     one-half 
      [[Page S3977]] hour, to be equally divided between, and 
     controlled by, the mover of the amendment and the manager of 
     the resolution, except that in the event the manager is in 
     favor of any such amendment, the time in opposition thereto 
     shall be controlled by the Minority Leader or his designee.
       (6) If a resolution is vetoed by the President, the time 
     for debate in consideration of the veto message on such 
     measure shall be limited to 20 hours in each House of 
     Congress, equally divided between, and controlled by, the 
     Majority Leader and the Minority Leader, and their designees.
       (i) Rules of the Senate and the House.--This section is 
     enacted by the Congress--
       (1) as an exercise of the rulemaking power of the Senate 
     and House of Representatives, respectively, and as such it is 
     deemed a part of the rules of each House, respectively, but 
     applicable only with respect to the procedure to be followed 
     in that House in the case of a resolution, and it supersedes 
     other rules only to the extent that it is inconsistent with 
     such rules; and
       (2) with full recognition of the constitutional right of 
     either House to change rules (so far as relating to the 
     procedure of that House) at any time, in the same manner, and 
     to the same extent as in the case of any other rule of that 
     House.

     SEC. 202. REPEAL OF OBSOLETE EXPEDITED PROCEDURES.

       Section 1013 of the Department of State Authorization Act, 
     Fiscal Years 1984 and 1985 (50 U.S.C. 1546a), relating to 
     expedited procedures for certain joint resolutions and bills, 
     is repealed.
                                                                    ____

             Use of Force Act--Section-by-Section Analysis

       Section 1. Short Title. The title of the bill is the ``Use 
     of Force Act (UFA).''
       Section 2. Table of Contents.
       Section 3. Findings. This section sets forth three findings 
     regarding the need to provide a statutory framework to 
     facilitate joint decisionmaking between Congress and the 
     President regarding decisions to use force abroad.
       Section 4. Statement of Purpose. The key phrase in this 
     section is ``confer and confirm Presidential authority.'' The 
     Use of Force Act is designed to bridge the long-standing--
     and, for all practical purposes, unresolvable--dispute over 
     precisely what constitutes the President's ``inherent'' 
     authority to use force. Whereas the War Powers Resolution 
     purported to delineate the President's constitutional 
     authority and to grant no more, the Use of Force Act sets 
     forth a range of authorities that are practical for the 
     modern age and sufficiently broad to subsume all presidential 
     authorities deemed ``inherent'' by any reasonable 
     constitutional interpretation.
       Section 5. Definitions. This section defines a number of 
     terms, including the term ``use of force abroad,'' thus 
     correcting a major flaw of the War Powers Resolution, which 
     left undefined the term ``hostilities.''
       As defined in the Use of Force Act, a ``use of force 
     abroad'' comprises two prongs:
       (1) a deployment of U.S. armed forces (either a new 
     introduction of forces, a significant expansion of the U.S. 
     military presence in a country, or a commitment to a new 
     mission or objective); and
       (2) the deployment is aimed at deterring an identified 
     threat, or the forces deployed are incurring or inflicting 
     casualties (or are operating with a substantial possibility 
     of incurring or inflicting casualties.


                      title i--general provisions

       Section 101. Authority and Governing Principles. This 
     section sets forth the Presidential authorities being 
     ``conferred and confirmed.'' Based on the Constitution and 
     this Act, the President may use force--
       (1) to repel an attack on U.S. territory or U.S. forces;
       (2) to deal with urgent situations threatening supreme U.S. 
     interests;
       (3) to extricate imperiled U.S. citizens;
       (4) to forestall or retaliate against specific acts of 
     terrorism;
       (5) to defend against substantial threats to international 
     sea lanes or airspace.
       Against a complaint that this list is excessively 
     permissive, it should be emphasized that these are the 
     President's initial authorities to undertake a use of force--
     so-called ``going in'' authorities--and that the ``staying 
     in'' conditions set forth in section 104 will, in most cases, 
     bear heavily on the President's original decision.
       This section also sets forth two governing principles; 
     necessity and proportionality. Although unavoidably imprecise 
     in definition, these principles set important criteria 
     against which any use of force can be evaluated.
       Section 102. Consultation. Section 102 affirms the 
     importance of consultation between the President and Congress 
     and establishes a new means to facilitate it. To overcome the 
     common complaint that Presidents must contend with ``535 
     secretaries of state,'' the UFA establishes a Congressional 
     Leadership Group with whom the President is mandated to 
     consult on the use of force.
       A framework of regular consultations between specified 
     Executive branch officials and relevant congressional 
     committees is also mandated in order to establish a ``norm'' 
     of consultative interaction and in hope of overcoming what 
     many find to be the overly theatrical public-hearing process 
     that has superseded the more frank and informal consultations 
     of earlier years.
       Note: An alternative to the Use of Force Act is to repeal 
     (or effectively repeal) the War Powers Resolution and leave 
     in its place only a Congressional Leadership Group. (This is 
     the essence of S.J. Res. 323, 100th Congress, legislation to 
     amend the War Powers Resolution introduced by Senators Byrd, 
     Warner, Nunn, and Mitchell in 1988.) This approach, which 
     relies on ``consultation and the Constitution,'' avoids the 
     complexities of enacting legislation such as the UFA but 
     fails to solve chronic problems of procedure or authority, 
     leaving matters of process and power to be debated anew as 
     each crisis arises. In contrast, the Use of Force Act would 
     perform one of the valuable functions of law, which is to 
     guide individual and institutional behavior.
       Section 103. Reporting Requirements. Section 103 requires 
     that the President report in writing to the Congress 
     concerning any use of force, not later than 48 hours after 
     commencing a use of force abroad.
       Section 104. Conditions for Extended Use of Force. Section 
     104 sets forth the ``staying in'' conditions: that is, the 
     conditions that must be met if the President is to sustain a 
     use of force he has begun under the authorities set forth in 
     section 101. A use of force may extend beyond 60 days only 
     if--
       (1) Congress has declared war or enacted specific statutory 
     authorization;
       (2) the President has requested authority for an extended 
     use of force but Congress has failed to act on that request 
     (notwithstanding the expedited procedures established by 
     Title II of this Act);
       (3) the President has certified the existence of an 
     emergency threatening the supreme national interests of the 
     United States.
       The second and third conditions are designed to provide 
     sound means other than a declaration of war or the enactment 
     of specific statutory authority by which the President may 
     engage in an extended use of force. Through these conditions, 
     the Use of Force Act avoids two principal criticisms of the 
     War Powers Resolution: (1) that Congress could irresponsibly 
     require a force withdrawal simply through inaction; and (2) 
     that the law might, under certain cricumstances, 
     unconstitutionally deny the President the use of his 
     ``inherent'' authority.
       To defuse the specter of a President hamstrung by a 
     Congress too timid or inept to face its responsibilities, the 
     UFA uses two means: first, it establishes elaborate expedited 
     procedures designed to ensure that a vote will occur, second, 
     it explicitly defeats the ``timid Congress'' specter by 
     granting to the President the authority he has sought if 
     these procedures nonetheless fail to produce a vote. Thus, if 
     the President requests authority for a sustained use of 
     force--one outside the realm of emergency--and Congress fails 
     to vote, the President's authority is extended indefinitely.
       The final condition should satisfy all but proponents of an 
     extreme ``monarchist'' interpretation under which the 
     President has the constitutional authority to use force as he 
     sees fit. Under all other interpretations, the concept of an 
     ``inherent'' authority depends upon the element of emergency: 
     the need for the President to act under urgent circumstances 
     to defend the nation's security and its citizens. If so, the 
     UFA protects any ``inherent'' presidential authority by 
     affirming his ability to act for up to 60 days under the 
     broad-ranging authorities in section 101 and, in the event he 
     is prepared to certify an extended national emergency, to 
     exercise the authority available to him through the final 
     condition of section 104.
       Section 105. Measures Eligible for Congressional Priority 
     Procedures. This section establishes criteria by which joint 
     and concurrent resolutions become eligible for the expedited 
     procedures created by Title II of the UFA.
       A joint resolution that declares war or provides specific 
     statutory authorization--or one that terminates, limits, or 
     prohibits a use of force--becomes eligible if it is 
     introduced: (1) pursuant to a written request by the 
     President to any one member of Congress; (2) if cosponsored 
     by a majority of the members of the Congressional leadership 
     Group in the house where introduced; or (3) if cosponsored by 
     30 percent of the members of either house. Thus, there is 
     almost no conceivable instance in which a President can be 
     denied a prompt vote: he need only ask one member of Congress 
     to introduce a resolution on his behalf.
       A concurrent resolution becomes eligible if it meets either 
     of the cosponsorship criteria cited above and contains a 
     finding that a use of force abroad began on a certain date, 
     or has exceeded the 60 day limitation, or has been undertaken 
     outside the authority provided by section 101, or is being 
     conducted in a manner inconsistent with the governing 
     principles set forth in section 101.
       While having no direct legal effect, the passage of a 
     concurrent resolution under the UFA could have considerable 
     significance: politically, it would represent a clear, 
     prompt, and formal congressional repudiation of a 
     presidential action; within Congress, it would trigger 
     parliamentary rules blocking further consideration of 
     measures providing funds for the use of force in question (as 
     provided by section 106 of the UFA); and juridically, it 
     would become a consideration in any action brought by a 
     member of Congress for declaratory judgment and injunctive 
     relief (as envisaged by section 107 of the UFA).
       Section 106. Funding Limitations. This section prohibits 
     the expenditure of funds for any use of force inconsistent 
     with the UFA. 
      [[Page S3978]] Further, this section exercises the power of 
     Congress to make its own rules by providing that a point of 
     order will lie against any measure containing funds to 
     perpetuate a use of force that Congress, by concurrent 
     resolution, has found to be illegitimate.
       Section 107. Judicial Review. This section permits judicial 
     review of any action brought by a Member of Congress on the 
     grounds that the UFA has been violated. It does so by--
       (1) granting standing to any Member of Congress who brings 
     suit in the U.S. District Court for the District of Columbia;
       (2) providing that neither the District Court nor the 
     Supreme Court may refuse to make a determination on the 
     merits based on certain judicial doctrines, such as political 
     question or ripeness (doctrines invoked previously by courts 
     to avoid deciding cases regarding the war power);
       (3) prescribing the judicial remedies available to the 
     District Court; and
       (4) creating a right of direct appeal to the Supreme Court 
     and encouraging expeditious consideration of such appeal.
       It bears emphasis that the remedy prescribed is modest, and 
     does not risk unwarranted interference of the judicial branch 
     in a decision better reposed in the political branches. The 
     bill provides only that the court may declare that the 60-day 
     period set forth in Section 104 has begun.
       Section 108. Interpretation. This section clarifies several 
     points of interpretation, including these: that authority to 
     use force is not derived from other statutes or from treaties 
     (which create international obligations but not authority in 
     a domestic, constitutional context); and that the failure of 
     Congress to pass any joint or concurrent resolution 
     concerning a particular use of force may not be construed as 
     indicating congressional authorization or approval.
       Section 109. Severability. This section stipulates that 
     certain sections of the UFA would be null and void, and 
     others not affected, if specified provisions of the UFA were 
     held by the Courts to be invalid.
       Section 110. Repeal of WPR. Section 110 repeals the War 
     Powers Resolution of 1973.


                     title ii--expedited procedures

       Section 201. Priority Procedures. Section 201 provides for 
     the expedited parliamentary procedures that are integral to 
     the functioning of the Act. (These procedures are drawn from 
     the war powers legislation cited earlier, introduced by 
     Senator Robert Byrd et al. in 1988.)
       Section 202. Repeal of Obsolete Expedited Procedures. 
     Section 202 repeals other expedited procedures provided for 
     in existing law.

  Mr. BIDEN. Mr. President, I thank the Chair for being so gracious as 
to not only sit there, but to pay attention to what I had to say. I am 
flattered he would listen. I hope that he and others will engage their 
significant legislative skills in trying to work out a feasible war 
powers mechanism--whether it is exactly what I have proposed or 
something else--so we avoid the kind of gridlock that has occurred 
already in the last several years.
  I thank the Chair. I thank my good friend from California who has 
been waiting to be recognized.
  I yield the floor.
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, thank you very much.
  I want to say to my friend from Delaware that it is very important 
that he continue to work on this matter of the War Powers Act because 
what happens to us so often is we get into a discussion about it just 
when we are in the middle of a conflict. That is not the time that is 
appropriate, and this is.
  So I just wanted to thank him for his leadership.
                                 ______

      By Mr. ROCKEFELLER (for himself, Mr. Gorton, Mr. McConnell, Mr. 
        Lieberman, Mr. Dodd, Mr. Pressler, Mr. Hatch, Mr. Exon, Mr. 
        Inhofe, Mrs. Hutchison, and Mr. Chafee):
  S. 565. A bill to regulate interstate commerce by providing for a 
uniform product liability law, and for other purposes; to the Committee 
on Commerce, Science, and Transportation.


               the product liability fairness act of 1995

  Mr. ROCKEFELLER. Mr. President, today I am pleased to introduce the 
Product Liability Fairness Act of 1995 with my esteemed colleague from 
Washington, Senator Gorton. Senator Gorton and I have joined together 
to introduce this much needed legislation to improve our Nation's 
product liability laws with a bipartisan group of our colleagues, Mr. 
McConnell, Mr. Lieberman, Mr. Dodd, Mr. Pressler, Mr. Hatch, Mr. Exon, 
Mr. Inhofe, Mrs. Hutchison, and Mr. Chafee. We believe the time has 
come to reform our current system so that injured people are more 
likely to be compensated and so that businesses are not crushed by the 
costs of nonmeritorious inappropriate lawsuits.
  Senator Gorton and I have worked diligently over recent months to 
hone this product liability reform legislation in order to insure that 
it strikes the right balance between the interests of both consumers 
and business, and recognizing that under our current system, legal 
professionals are most often the biggest and often sole winners in 
product liability cases. Adjustments were made to reflect substantive 
and other concerns which we concluded were obstacles to the enactment 
of this necessary legislation. We believe we have significantly 
improved the legislation from earlier drafts and been responsive to the 
issues which prevented earlier enactment of this legislation.
  Before I review the reasons why I believe reform of this system is 
imperative and what has motivated me to work so hard to refine this 
bill, year after year, I want to take a moment to express my deep 
admiration for the work of the Senator from Washington and that of his 
staff. I have great respect for Senator Gorton's intellect and insight, 
and want to acknowledge his contribution to the improvement in this 
legislation--and the role he will play in pushing it to final 
enactment. It is a privilege to work with the distinguished new 
chairman of the Commerce Committee in crafting this year's bill.
  Our bill will encourage alternative dispute resolution as a way of 
getting parties to have their cases heard without going through the 
time and expense of a court trial. It will apply different 
responsibilities to a product seller as opposed to a manufacturer to 
avoid the kind of lawsuits that cast a wide net in the hopes of 
catching a cash cow. Our bill will give consumers more time to pursue 
legal action and it will allow consumers greater awards for punitive 
damages.
  This effort is nothing new for me. For years I have called for legal 
reforms to make the system more efficient, less costly, and fairer to 
consumers and business alike. I am tired of West Virginia 
businesspeople and workers and consumers paying the price for this 
inequitable, ineffective legal tangle. Paying higher costs for things 
or being denied new products because manufacturers are scared to assume 
the exposure that comes with it. And then, when a problem does arise, 
being forced to spend ridiculous amounts of money and invest years in 
the hopes of maybe getting some satisfaction.
  The product liability system is broken, and it is hurting the people 
of West Virginia, and Washington, and every State in between. The 
Rockefeller-Gorton bill aims to reform the laws so product liability is 
not an anchor around the American economy. Our approach is bipartisan 
and balanced and, I think, far-removed from the extreme bill in the 
House that is long on special interest needs and short on public 
interest fairness.
  If today's product liability laws achieve one thing, it is that it is 
an equal opportunity victimizer. Injured consumers oftentimes find it 
impossible to get a just and prompt resolution, and just as frequently, 
blameless manufacturers are forced to spend thousands of dollars on 
baseless lawsuits. The system frequently allows negligent companies to 
avoid penalties and even rewards undeserving plaintiffs.
  Product liability law should deter wasteful suits and discipline 
culpable practices but not foster hours of waste and endless 
litigation.
  Under the patchwork system we now have, depending on which of the 51 
different jurisdictions you are in, product liability is not more 
reliable than a roll of the dice. Today a consumer, seeking fair 
compensation for harm done by a manufacturer must brace for a legal 
ordeal, often tilted in favor of business. Consumers generally recover 
just one-third of their actual damages. And that is when they can 
recover damages at all after fighting their way through statutes of 
limitation and corporate shell games that make assigning true liability 
ofttimes impossible. If a consumer can plow through this maze, they 
must be able to endure years of litigation that wrack up legal fees 
faster than a taxi meter in rush-hour traffic.
   [[Page S3979]] And businesses are little better off. Perhaps the 
biggest manufacturers can ride out costly litigation with less 
financial drain than consumers, but businessowners face a dizzying 
number of lawsuits too often without merit. The result? Manufacturers 
abandon research and development on new products that could invite 
future lawsuits, and prices on products are inflated to compensate for 
liability insurance or huge legal retainers. Price inflation passed on 
to consumers who are now doubly squeezed by the liability labyrinth.
  The Product Liability Fairness Act aims to correct this. Today, 
Senator Gorton and I introduce our bipartisan bill, with an impressive 
group of Senate cosponsors, and expect to begin hearings in his 
Commerce Subcommittee on Consumer Affairs in about a month.
  Just the other day, the Washington Post quoted a business executive 
who said, basically, that American businesses can be lumped into two 
groups: those that have been sued and those that will be sued. That is 
no way for American industry to operate and it results in pitting 
consumers against business to the detriment of both. The Rockefeller-
Gorton bill is a step at easing this tension and restoring some common 
sense to the American legal system.
  Mr. President, I ask unanimous consent that the text of the bill and 
a summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                 S. 565

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Product Liability Fairness 
     Act of 1995''.

     SEC. 2. DEFINITIONS.

       For purposes of this Act, the following definitions shall 
     apply:
       (1) Claimant.--The term ``claimant'' means any person who 
     brings a product liability action and any person on whose 
     behalf such an action is brought. If an action is brought 
     through or on behalf of--
       (A) an estate, the term includes the decedent; or
       (B) a minor or incompetent, the term includes the legal 
     guardian of the minor or incompetent.
       (2) Claimant's benefits.--The term ``claimant's benefits'' 
     means an amount equal to the sum of--
       (A) the amount paid to an employee as workers' compensation 
     benefits; and
       (B) the present value of all workers' compensation benefits 
     to which the employee is or would be entitled at the time of 
     the determination of the claimant's benefits, as determined 
     by the appropriate workers' compensation authority for harm 
     caused to an employee by a product.
       (3) Clear and convincing evidence.--
       (A) In general.--Subject to subparagraph (A), the term 
     ``clear and convincing evidence'' is that measure of degree 
     of proof that will produce in the mind of the trier of fact a 
     firm belief or conviction as to the truth of the allegations 
     sought to be established.
       (B) Degree of proof.--The degree of proof required to 
     satisfy the standard of clear and convincing evidence shall 
     be--
       (i) greater than the degree of proof required to meet the 
     standard of preponderance of the evidence; and
       (ii) less than the degree of proof required to meet the 
     standard of proof beyond a reasonable doubt.
       (4) Commercial loss.--The term ``commercial loss'' means 
     any loss incurred in the course of an ongoing business 
     enterprise consisting of providing goods or services for 
     compensation.
       (5) Durable good.--The term ``durable good'' means any 
     product, or any component of any such product, which has a 
     normal life expectancy of 3 or more years or is of a 
     character subject to allowance for depreciation under the 
     Internal Revenue Code of 1986, and which is--
       (A) used in a trade or business;
       (B) held for the production of income; or
       (C) sold or donated to a governmental or private entity for 
     the production of goods, training, demonstration, or any 
     other similar purpose.
       (6) Economic loss.--The term ``economic loss'' means any 
     pecuniary loss resulting from harm (including any medical 
     expense loss, work loss, replacement services loss, loss due 
     to death, burial costs, and loss of business or employment 
     opportunities), to the extent that recovery for the loss is 
     permitted under applicable State law.
       (7) Harm.--The term ``harm'' means any physical injury, 
     illness, disease, or death caused by a product. The term does 
     not include commercial loss or loss or damage to a product 
     itself.
       (8) Insurer.--The term ``insurer'' means the employer of a 
     claimant, if the employer is self-insured, or the workers' 
     compensation insurer of an employer.
       (9) Manufacturer.--The term ``manufacturer'' means--
       (A) any person who is engaged in a business to produce, 
     create, make, or construct any product (or component part of 
     a product), and who designs or formulates the product (or 
     component part of the product), or has engaged another person 
     to design or formulate the product (or component part of the 
     product);
       (B) a product seller, but only with respect to those 
     aspects of a product (or component part of a product) which 
     are created or affected when, before placing the product in 
     the stream of commerce, the product seller produces, creates, 
     makes, constructs, designs, or formulates, or has engaged 
     another person to design or formulate, an aspect of a product 
     (or component part of a product) made by another person; or
       (C) any product seller that is not described in 
     subparagraph (B) that holds itself out as a manufacturer to 
     the user of the product.
       (10) Noneconomic loss.--The term ``noneconomic loss''--
       (A) means subjective, nonmonetary loss resulting from harm, 
     including pain, suffering, inconvenience, mental suffering, 
     emotional distress, loss of society and companionship, loss 
     of consortium, injury to reputation, and humiliation; and
       (B) does not include economic loss.
       (11) Person.--The term ``person'' means any individual, 
     corporation, company, association, firm, partnership, 
     society, joint stock company, or any other entity (including 
     any governmental entity).
       (12) Product.--
       (A) In general.--The term ``product'' means any object, 
     substance, mixture, or raw material in a gaseous, liquid, or 
     solid state that--
       (i) is capable of delivery itself or as an assembled whole, 
     in a mixed or combined state, or as a component part or 
     ingredient;
       (ii) is produced for introduction into trade or commerce;
       (iii) has intrinsic economic value; and
       (iv) is intended for sale or lease to persons for 
     commercial or personal use.
       (B) Exclusion.--The term ``product'' does not include--
       (i) tissue, organs, blood, and blood products used for 
     therapeutic or medical purposes, except to the extent that 
     such tissue, organs, blood, and blood products (or the 
     provision thereof) are subject, under applicable State law, 
     to a standard of liability other than negligence; and
       (ii) electricity, water delivered by a utility, natural 
     gas, or steam.
       (13) Product liability action.--The term ``product 
     liability action'' means a civil action brought on any theory 
     for harm caused by a product.
       (14) Product seller.--
       (A) In general.--The term ``product seller'' means a person 
     who--
       (i) in the course of a business conducted for that purpose, 
     sells, distributes, leases, prepares, blends, packages, 
     labels, or otherwise is involved in placing a product in the 
     stream of commerce; or
       (ii) installs, repairs, or maintains the harm-causing 
     aspect of the product.
       (B) Exclusion.--The term ``product seller'' does not 
     include--
       (i) a seller or lessor of real property;
       (ii) a provider of professional services in any case in 
     which the sale or use of a product is incidental to the 
     transaction and the essence of the transaction is the 
     furnishing of judgment, skill, or services; or
       (iii) any person who--

       (I) acts in only a financial capacity with respect to the 
     sale of a product; and
       (II) leases a product under a lease arrangement in which 
     the selection, possession, maintenance, and operation of the 
     product are controlled by a person other than the lessor.

       (15) State.--The term ``State'' means each of the several 
     States of the United States, the District of Columbia, the 
     Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
     American Samoa, and the Commonwealth of the Northern Mariana 
     Islands, and any other territory or possession of the United 
     States, or any political subdivision thereof.
       (16) Time of delivery.--The term ``time of delivery'' means 
     the time when a product is delivered to the first purchaser 
     or lessee of the product that was not involved in 
     manufacturing or selling the product, or using the product as 
     a component part of another product to be sold.

     SEC. 3. APPLICABILITY; PREEMPTION.

       (a) Applicability.--
       (1) Actions covered.--Subject to paragraph (2), this Act 
     applies to any product liability action commenced on or after 
     the date of enactment of this Act, without regard to whether 
     the harm that is the subject of the action or the conduct 
     that caused the harm occurred before such date of enactment.
       (2) Actions excluded.--
       (A) Actions for damage to product or commercial loss.--A 
     civil action brought for loss or damage to a product itself 
     or for commercial loss, shall not be subject to the 
     provisions of this Act governing product liability actions, 
     but shall be subject to any applicable commercial or contract 
     law.
       (B) Actions for negligent entrustment.--A civil action for 
     negligent entrustment shall not be subject to the provisions 
     of this Act governing product liability actions, but shall be 
     subject to any applicable State law.
     [[Page S3980]]   (b) Scope of Preemption.--
       (1) In general.--This Act supersedes a State law only to 
     the extent that State law applies to an issue covered under 
     this Act.
       (2) Issues not covered under this act.--Any issue that is 
     not covered under this Act, including any standard of 
     liability applicable to a manufacturer, shall not be subject 
     to this Act, but shall be subject to applicable Federal or 
     State law.
       (c) Statutory Construction.--Nothing in this Act may be 
     construed to--
       (1) waive or affect any defense of sovereign immunity 
     asserted by any State under any law;
       (2) supersede any Federal law, except the Act of April 22, 
     1908 (35 Stat. 65 et seq., chapter 149; 45 U.S.C. 51 et seq.) 
     (commonly known as the ``Federal Employers' Liability Act'') 
     and the Longshore and Harbor Workers' Compensation Act (33 
     U.S.C. 901 et seq.);
       (3) waive or affect any defense of sovereign immunity 
     asserted by the United States;
       (4) affect the applicability of any provision of chapter 97 
     of title 28, United States Code;
       (5) preempt State choice-of-law rules with respect to 
     claims brought by a foreign nation or a citizen of a foreign 
     nation;
       (6) affect the right of any court to transfer venue or to 
     apply the law of a foreign nation or to dismiss a claim of a 
     foreign nation or of a citizen of a foreign nation on the 
     ground of inconvenient forum; or
       (7) supersede any statutory or common law, including any 
     law providing for an action to abate a nuisance, that 
     authorizes a State or person to institute an action for civil 
     damages or civil penalties, cleanup costs, injunctions, 
     restitution, cost recovery, punitive damages, or any other 
     form of relief relating to contamination or pollution of the 
     environment (as defined in section 101(8) of the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980, 42 U.S.C. 9601(8)) or the threat of 
     such contamination or pollution.
       (d) Construction.--To promote uniformity of law in the 
     various jurisdictions, this Act shall be construed and 
     applied after consideration of its legislative history.
       (e) Effect of Court of Appeals Decisions.--Notwithstanding 
     any other provision of law, any decision of a circuit court 
     of appeals interpreting a provision of this Act (except to 
     the extent that the decision is overruled or otherwise 
     modified by the Supreme Court) shall be considered a 
     controlling precedent with respect to any subsequent decision 
     made concerning the interpretation of such provision by any 
     Federal or State court within the geographical boundaries of 
     the area under the jurisdiction of the circuit court of 
     appeals.

     SEC. 4. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.

       (a) In General.--
       (1) Service of offer.--A claimant or a defendant in a 
     product liability action that is subject to this Act may, not 
     later than 60 days after the service of the initial complaint 
     of the claimant or the applicable deadline for a responsive 
     pleading (whichever is later), serve upon an adverse party an 
     offer to proceed pursuant to any voluntary, nonbinding 
     alternative dispute resolution procedure established or 
     recognized under the law of the State in which the product 
     liability action is brought or under the rules of the court 
     in which such action is maintained.
       (2) Written notice of acceptance or rejection.--Except as 
     provided in paragraph (3), not later than 10 days after the 
     service of an offer to proceed under paragraph (1), an 
     offeree shall file a written notice of acceptance or 
     rejection of the offer.
       (3) Extension.--The court may, upon motion by an offeree 
     made prior to the expiration of the 10-day period specified 
     in paragraph (2), extend the period for filing a written 
     notice under such paragraph for a period of not more than 60 
     days after the date of expiration of the period specified in 
     paragraph (2). Discovery may be permitted during such period.
       (b) Defendant's Penalty for Unreasonable Refusal.--
       (1) In general.--The court shall assess reasonable 
     attorney's fees (calculated in accordance with paragraph (2)) 
     and costs against the offeree, if--
       (A) a defendant as an offeree refuses to proceed pursuant 
     to the alternative dispute resolution procedure referred to 
     subsection (a)(1);
       (B) final judgment is entered against the defendant for 
     harm caused by the product that is the subject of the action; 
     and
       (C) the refusal by the defendant to proceed pursuant to 
     such alternative dispute resolution was unreasonable or not 
     made in good faith.
       (2) Reasonable attorney's fees.--For purposes of this 
     subsection, a reasonable attorney's fee shall be calculated 
     on the basis of an hourly rate, which shall not exceed the 
     hourly rate that is considered acceptable in the community in 
     which the attorney practices law, taking into consideration 
     the qualifications and experience of the attorney and the 
     complexity of the case.
       (c) Good Faith Refusal.--In determining whether the refusal 
     of an offeree to proceed pursuant to the alternative dispute 
     procedure referred to in subsection (a)(1) was unreasonable 
     or not made in good faith, the court shall consider such 
     factors as the court considers appropriate.

     SEC. 5. LIABILITY RULES APPLICABLE TO PRODUCT SELLERS.

       (a) General Rule.--
       (1) In general.--In any product liability action that is 
     subject to this Act filed by a claimant for harm caused by a 
     product, a product seller other than a manufacturer shall be 
     liable to a claimant, only if the claimant establishes--
       (A) that--
       (i) the product that allegedly caused the harm that is the 
     subject of the complaint was sold by the product seller;
       (ii) the product seller failed to exercise reasonable care 
     with respect to the product; and
       (iii) the failure to exercise reasonable care was a 
     proximate cause of harm to the claimant;
       (B) that--
       (i) the product seller made an express warranty applicable 
     to the product that allegedly caused the harm that is the 
     subject of the complaint, independent of any express warranty 
     made by a manufacturer as to the same product;
       (ii) the product failed to conform to the warranty; and
       (iii) the failure of the product to conform to the warranty 
     caused harm to the claimant; or
       (C) that--
       (i) the product seller engaged in intentional wrongdoing, 
     as determined under applicable State law; and
       (ii) such intentional wrongdoing was a proximate cause of 
     the harm that is the subject of the complaint.
       (2) Reasonable opportunity for inspection.--For purposes of 
     paragraph (1)(A)(ii), a product seller shall not be 
     considered to have failed to exercise reasonable care with 
     respect to a product based upon an alleged failure to inspect 
     a product if the product seller had no reasonable opportunity 
     to inspect the product that allegedly caused harm to the 
     claimant.
       (b) Special Rule.--A product seller shall be deemed to be 
     liable as a manufacturer of a product for harm caused by the 
     product if--
       (1) the manufacturer is not subject to service of process 
     under the laws of any State in which the action may be 
     brought; or
       (2) the court determines that the claimant would be unable 
     to enforce a judgment against the manufacturer.

     SEC. 6. DEFENSES INVOLVING INTOXICATING ALCOHOL OR DRUGS.

       (a) General Rule.--Notwithstanding any other provision of 
     law, a defendant in a product liability action that is 
     subject to this Act shall have a complete defense in the 
     action if the defendant proves that--
       (1) the claimant was under the influence of intoxicating 
     alcohol or any drug that may not lawfully be sold over-the-
     counter without a prescription, and was not prescribed by a 
     physician for use by the claimant; and
       (2) the claimant, as a result of the influence of the 
     alcohol or drug, was more than 50 percent responsible for the 
     accident or event which resulted in the harm to the claimant.
       (b) Construction.--For purposes of this section, the 
     determination of whether a person was intoxicated or was 
     under the influence of intoxicating alcohol or any drug shall 
     be made pursuant to applicable State law.

     SEC. 7. REDUCTION FOR MISUSE OR ALTERATION OF PRODUCT.

       (a) General Rule.--
       (1) In general.--Except as provided in subsection (c), in a 
     product liability action that is subject to this Act, the 
     damages for which a defendant is otherwise liable under 
     applicable State law shall be reduced by the percentage of 
     responsibility for the harm to the claimant attributable to 
     misuse or alteration of a product by any person if the 
     defendant establishes that such percentage of the harm was 
     proximately caused by a use or alteration of a product--
       (A) in violation of, or contrary to, the express warnings 
     or instructions of the defendant if the warnings or 
     instructions are determined to be adequate pursuant to 
     applicable State law; or
       (B) involving a risk of harm which was known or should have 
     been known by the ordinary person who uses or consumes the 
     product with the knowledge common to the class of persons who 
     used or would be reasonably anticipated to use the product.
       (2) Use intended by a manufacturer is not misuse or 
     alteration.--For the purposes of this Act, a use of a product 
     that is intended by the manufacturer of the product does not 
     constitute a misuse or alteration of the product.
       (b) State Law.--Notwithstanding section 3(b), subsection 
     (a) of this section shall supersede State law concerning 
     misuse or alteration of a product only to the extent that 
     State law is inconsistent with such subsection.
       (c) Workplace Injury.--Notwithstanding subsection (a), the 
     amount of damages for which a defendant is otherwise liable 
     under State law shall not be reduced by the application of 
     this section with respect to the conduct of any employer or 
     coemployee of the plaintiff who is, under applicable State 
     law concerning workplace injuries, immune from being subject 
     to an action by the claimant.

     SEC. 8. UNIFORM STANDARDS FOR AWARD OF PUNITIVE DAMAGES.

       (a) General Rule.--Punitive damages may, to the extent 
     permitted by applicable State law, be awarded against a 
     defendant in a product liability action that is subject to 
     this Act if the claimant establishes by clear and convincing 
     evidence that the harm that 
      [[Page S3981]] is the subject of the action was the result 
     of conduct that was carried out by the defendant with a 
     conscious, flagrant indifference to the safety of others.
       (b) Limitation on Amount.--The amount of punitive damages 
     that may be awarded for a claim in any product liability 
     action that is subject to this Act shall not exceed 3 times 
     the amount awarded to the claimant for the economic injury on 
     which the claim is based, or $250,000, whichever is greater. 
     This subsection shall be applied by the court and the 
     application of this subsection shall not be disclosed to the 
     jury.
       (c) Bifurcation at Request of Either Party.--
       (1) In general.--At the request of either party, the trier 
     of fact in a product liability action that is subject to this 
     Act shall consider in a separate proceeding whether punitive 
     damages are to be awarded for the harm that is the subject of 
     the action and the amount of the award.
       (2) Admissible evidence.--
       (A) Inadmissibility of evidence relative only to a claim of 
     punitive damages in a proceeding concerning compensatory 
     damages.--If either party requests a separate proceeding 
     under paragraph (1), in any proceeding to determine whether 
     the claimant may be awarded compensatory damages, any 
     evidence that is relevant only to the claim of punitive 
     damages, as determined by applicable State law, shall be 
     inadmissible.
       (B) Proceeding with respect to punitive damages.--Evidence 
     that is admissible in the separate proceeding under paragraph 
     (1)--
       (i) may include evidence of the profits of the defendant, 
     if any, from the alleged wrongdoing; and
       (ii) shall not include evidence of the overall assets of 
     the defendant.

      SEC. 9. UNIFORM TIME LIMITATIONS ON LIABILITY.

       (a) Statute of Limitations.--
       (1) In general.--Except as provided in paragraph (2) and 
     subsection (b), a product liability action that is subject to 
     this Act may be filed not later than 2 years after the date 
     on which the claimant discovered or, in the exercise of 
     reasonable care, should have discovered, the harm that is the 
     subject of the action and the cause of the harm.
       (2) Exceptions.--
       (A) Person with a legal disability.--A person with a legal 
     disability (as determined under applicable law) may file a 
     product liability action that is subject to this Act not 
     later than 2 years after the date on which the person ceases 
     to have the legal disability.
       (B) Effect of stay or injunction.--If the commencement of a 
     civil action that is subject to this Act is stayed or 
     enjoined, the running of the statute of limitations under 
     this section shall be suspended until the end of the period 
     that the stay or injunction is in effect.
       (b) Statute of Repose.--
       (1) In general.--Subject to paragraphs (2) and (3), no 
     product liability action that is subject to this Act 
     concerning a product that is a durable good alleged to have 
     caused harm (other than toxic harm) may be filed after the 
     20-year period beginning at the time of delivery of the 
     product.
       (2) State law.--Notwithstanding paragraph (1), if pursuant 
     to an applicable State law, an action described in such 
     paragraph is required to be filed during a period that is 
     shorter than the 20-year period specified in such paragraph, 
     the State law shall apply with respect to such period.
       (3) Exception.--A motor vehicle, vessel, aircraft, or train 
     that is used primarily to transport passengers for hire shall 
     not be subject to this subsection.
       (c) Transitional Provision Relating to Extension of Period 
     for Bringing Certain Actions.--If any provision of subsection 
     (a) or (b) shortens the period during which a product 
     liability action that could be otherwise brought pursuant to 
     another provision of law, the claimant may, notwithstanding 
     subsections (a) and (b), bring the product liability action 
     pursuant to this Act not later than 1 year after the date of 
     enactment of this Act.

     SEC. 10. SEVERAL LIABILITY FOR NONECONOMIC LOSS.

       (a) General Rule.--In a product liability action that is 
     subject to this Act, the liability of each defendant for 
     noneconomic loss shall be several only and shall not be 
     joint.
       (b) Amount of Liability.--
       (1) In general.--Each defendant shall be liable only for 
     the amount of noneconomic loss allocated to the defendant in 
     direct proportion to the percentage of responsibility of the 
     defendant (determined in accordance with paragraph (2)) for 
     the harm to the claimant with respect to which the defendant 
     is liable. The court shall render a separate judgment against 
     each defendant in an amount determined pursuant to the 
     preceding sentence.
       (2) Percentage of responsibility.--For purposes of 
     determining the amount of noneconomic loss allocated to a 
     defendant under this section, the trier of fact shall 
     determine the percentage of responsibility of each person 
     responsible for the amount of noneconomic loss caused to the 
     claimant, whether or not such person is a party to the 
     action.

      SEC. 11. WORKERS' COMPENSATION SUBROGATION STANDARDS.

       (a) General Rule.--
       (1) Right of subrogation.--
       (A) In general.--An insurer shall have a right of 
     subrogation against a manufacturer or product seller to 
     recover any claimant's benefits relating to harm that is the 
     subject of a product liability action that is subject to this 
     Act.
       (B) Written notification.--To assert a right of subrogation 
     under subparagraph (A), the insurer shall provide written 
     notice to the court in which the product liability action is 
     brought.
       (C) Insurer not required to be a party.--An insurer shall 
     not be required to be a necessary and proper party in a 
     product liability action covered under subparagraph (A).
       (2) Settlements and other legal proceedings.--
       (A) In general.--In any proceeding relating to harm or 
     settlement with the manufacturer or product seller by a 
     claimant who files a product liability action that is subject 
     to this Act, an insurer may participate to assert a right of 
     subrogation for claimant's benefits with respect to any 
     payment made by the manufacturer or product seller by reason 
     of such harm, without regard to whether the payment is made--
       (i) as part of a settlement;
       (ii) in satisfaction of judgment;
       (iii) as consideration for a covenant not to sue; or
       (iv) in another manner.
       (B) Written consent.--Except as provided in subparagraph 
     (C)--
       (i) an employee shall not make any settlement with or 
     accept any payment from the manufacturer or product seller 
     without the written consent of the insurer; and
       (ii) no release to or agreement with the manufacturer or 
     product seller described in clauses (i) through (iv) of 
     subparagraph (A) shall be valid or enforceable for any 
     purpose without the consent of the insurer.
       (C) Exemption.--Subparagraph (B) shall not apply in any 
     case in which the insurer has been compensated for the full 
     amount of the claimant's benefits.
       (3) Harm resulting from action of employer or coemployee.--
       (A) In general.--If, with respect to a product liability 
     action that is subject to this Act, the manufacturer or 
     product seller attempts to persuade the trier of fact that 
     the harm to the claimant was caused by the fault of the 
     employer of the claimant or any coemployee of the claimant, 
     the issue of that fault shall be submitted to the trier of 
     fact, but only after the manufacturer or product seller has 
     provided timely written notice to the employer.
       (B) Rights of employer.--
       (i) In general.--Notwithstanding any other provision of 
     law, with respect to an issue of fault submitted to a trier 
     of fact pursuant to subparagraph (A), an employer shall, in 
     the same manner as any party in the action (even if the 
     employer is not a named party in the action), have the right 
     to--

       (I) appear;
       (II) be represented;
       (III) introduce evidence;
       (IV) cross-examine adverse witnesses; and
       (V) present arguments to the trier of fact.

       (ii) Last issue.--The issue of harm resulting from an 
     action of an employer or coemployee shall be the last issue 
     that is presented to the trier of fact.
       (C) Reduction of damages.--If the trier of fact finds by 
     clear and convincing evidence that the harm to the claimant 
     that is the subject of the product liability action was 
     caused by the fault of the employer or a coemployee of the 
     claimant--
       (i) the court shall reduce by the amount of the claimant's 
     benefits--

       (I) the damages awarded against the manufacturer or product 
     seller; and
       (II) any corresponding insurer's subrogation lien; and

       (ii) the manufacturer or product seller shall have no 
     further right by way of contribution or otherwise against the 
     employer.
       (D) Certain rights of subrogation not affected.--
     Notwithstanding a finding by the trier of fact described in 
     subparagraph (C), the insurer shall not lose any right of 
     subrogation related to any--
       (i) intentional tort committed against the claimant by a 
     coemployee; or
       (ii) act committed by a coemployee outside the scope of 
     normal work practices.
       (b) Attorney's Fees.--If, in a product liability action 
     that is subject to this section, the court finds that harm to 
     a claimant was not caused by the fault of the employer or a 
     coemployee of the claimant, the manufacturer or product 
     seller shall reimburse the insurer for reasonable attorney's 
     fees and court costs incurred by the insurer in the action, 
     as determined by the court.

     SEC. 12. FEDERAL CAUSE OF ACTION PRECLUDED.

       The district courts of the United States shall not have 
     jurisdiction under section 1331 or 1337 of title 28, United 
     States Code, over any product liability action covered under 
     this Act.
                                                                    ____

             Summary of the Product Liability Fairness Act

       Alternative Dispute Resolution (ADR): Either party may 
     offer to participate in a voluntary, non-binding state-
     approved ADR procedure. If a defendant unreasonably refuses 
     to participate and a judgment is entered for the claimant, 
     the defendant must pay the claimant's reasonable legal fees 
     and costs. There is no penalty for claimants who refuse to 
     participate in an ADR procedure. No penalty may be assessed 
     against a defendant unless judgment is entered for the 
     claimant.
       [[Page S3982]] Product Sellers: Product sellers will be 
     liable only for their own negligence or failure to comply 
     with an express warranty. However, if the manufacturer cannot 
     be brought into court or is unable to pay a judgment, the 
     seller shall be liable as if it were a manufacturer. This 
     assures that injured persons will always have available an 
     avenue for recovery.
       Alcohol and Drugs: The defendant has an absolute defense if 
     the plaintiff was under the influence of intoxicating alcohol 
     or illegal drugs and the condition was more than 50 percent 
     responsible for plaintiff's injuries.
       Misuse and Alteration: The bill limits a defendant 
     liability if the product user has misused or altered the 
     product in an unforeseeable manner.
       Punitive Damages: Punitive damages may be awarded if a 
     plaintiff proves, by clear and convincing evidence, that the 
     harm was caused by defendant's ``conscious, flagrant 
     indifference to the safety of others.'' To streamline 
     litigation, trials may be bifurcated so the punitive damages 
     phase is separate from the proceedings on compensatory 
     damages. Courts may award punitive damages up to three times 
     economic damages, or $250,000, whichever is greater.
       Statute of Limitations: The pro-plaintiff statute of 
     limitations is two years, which begins to run when the 
     claimant reasonably should have discovered both the harm and 
     cause.
       Statute of Repose: The statute of repose is for capital and 
     durable goods used in the workplace, and is set at 20 years.
       Joint and Several Liability: The bill abolishes joint 
     liability with respect to non-economic damages, such as pain 
     and suffering. States are permitted to provide joint 
     liability for economic damages, such as medical expenses and 
     lost wages, so that these damages are always fully 
     compensated in all cases.
       Workers' Compensation Offset: An employer's right to 
     recover worker's compensation benefits from a manufacturer 
     whose product allegedly harmed a worker is preserved unless 
     the manufacturer can prove, by clear and convincing evidence, 
     that the employer caused the injury.

  Mr. GORTON. Mr. President, I am pleased to join with Senator 
Rockefeller to introduce legislation that will bring common sense back 
to America's product liability system. The Product Liability Fairness 
Act of 1995 is a bipartisan proposal that takes a moderate, sensible 
approach to product liability reform.
  As an attorney myself, I recognize that America's trial lawyers would 
like to see me disbarred for introducing this bill.
  It should come as no surprise that they are planning to spend $20 
million to defeat this legislation. They're making millions off the 
current system, and the legislation we're introducing today will put an 
end to the lawyers' financial free-for-all.
  Consider just a couple of cases from my own State of Washington. 
Connelly Water Skis of Lynnwood pays $345,000 a year for liability 
insurance even though they have never lost a liability case. They paid 
more than $83,000 in legal expenses to defend themselves in a case in 
which the plaintiff has asked be dismissed. They paid more than $12,000 
to defend themselves in a case in which no Connelly product was 
involved.
  Commercial Plastics of Seattle, which manufacturers candy dispensers, 
has been sued in a case involving a drunken woman who pulled a unit off 
a grocery store shelf on New Year's Eve. She wasn't hurt, but she is 
suing for mental anguish caused by the embarrassment of the incident.
  Bayliner Boats of Everett manufactures a 25-foot hard-top boat with 
the steering station inside. The plaintiff sawed a hole through the 
hard top--kind of like a sunroof. He was sitting on the top driving the 
boat with his feet. He saw an oncoming boat and tried to honk the horn 
with his toe. He turned the boat to the left with his feet, and shifted 
his weight to the right to counter the turn. He fell overboard, was 
injured, and is now suing Bayliner.
  Keep in mind that these examples come from a State where limits on 
punitive damages are already in place.
  Does it make sense for consumers to pay higher prices for water skis 
or other equipment because the person used the product incorrectly? 
Does it make sense for consumers to pay higher costs for products 
because someone did something that defies all common sense? Does it 
make sense for consumers to pay higher prices for products because some 
inebriated person injures, and
 even embarrasses him or herself?

  And most importantly, does it make sense that trial attorneys are 
ripping off consumers around the country when they make millions of 
dollars off these cases?
  Out of every dollar spent on product litigation, more than 50 percent 
of the money goes to the lawyers. They're the only ones winning 
anything. Their opposition to this legislation is only about protecting 
their fees--not protecting consumers.
  Consider the Chicago law firm that issued a bulletin to its clients 
stating: ``We are pleased to announce that we obtained for our client 
the largest verdict ever for an arm amputation: $7.8 million.''
  Consider the new Florida company, called ``Went For It,'' that 
researches the names of accident victims and sells them to lawyers.
  Consider the New York lawyer found guilty of using a pickax to 
enlarge a pothole before he photographed it for a client with a 
personal injury claim.
  It's outrageous.
  This country desperately needs a fair and efficient product liability 
system. A fair and efficient product liability system should have 
consistent standards and yield predictable results. It should award 
damages in proportion to the harm suffered and those damages should be 
paid only by those responsible. A fair and efficient system should 
award damages in a timely manner without incurring large, wasteful 
transaction costs.
  The status quo defended mightily by the trial lawyers is far from 
fair or efficient. Consumers, those injured by faulty products, and 
American businesses all suffer as a result of selfish lawyers.
  Fair compensation is not awarded in a timely fashion. Cases drag on 
for years. Over 20 percent of seriously injured persons receive no 
compensation for 5 years. A 1989 GAO study says that the average case 
takes nearly 3 years to resolve, and longer if there is an appeal. When 
compensation is awarded, transaction costs--such as attorney's fees--
absorb too much money that should have gone to injured persons.
  Not only does the present product liability system generate excessive 
costs and delay, it does not compensate injured persons in proportion 
to their losses. If a person's injuries are minor, they can expect to 
receive a windfall of nearly nine times their losses. If their injuries 
are severe, they should expect to receive only 15 percent of their 
losses. A severely injured person cannot afford to gamble on the 
outcome of lengthy
 litigation. As a result, many are forced to settle for an amount far 
less than their injuries merit.

  Injured persons are not the only ones that are treated unfairly by 
the tort system. That system imposes inordinate costs on the U.S. 
economy. Domestic manufacturers face product liability costs up to 20 
to 50 times higher than those paid by foreign competitors.
  These excessive costs put American business at a competitive 
disadvantage in world markets. Important sectors of our domestic 
economy are losing substantial market shares to foreign competitors. 
For example, the Association of Manufacturing Technology estimates its 
member companies have lost, in recent years, nearly 25 percent of their 
market share to foreign competitors. Much of this loss is attributed to 
the excessive costs of the current product liability system, which 
wastes vital resources and inhibits the development and marketing of 
innovative products. The U.S. machine tool industry spends seven times 
more on product liability costs than on research and development.
  When the job creators have to pay insurance premiums instead of 
salaries, we've got a lot of people on unemployment for no good reason. 
Listen to the small business owner in Hoquiam who pays more in product 
liability premiums than he does in Federal taxes. Listen to the small 
business owner in Spokane who says his insurance premiums often equal 
his before-tax profits.
  This is outrageous.
  Innovation is also squelched because manufacturers decide not to 
market new products due to these excessive transaction costs and the 
possibility of unjustified, unpredictable but nonetheless crushing 
liability. These concerns further stifle innovation because scientific 
research essential for advanced product development, is foregone.
  For instance, promising AIDS vaccines have been shelved. New 
hazardous waste cleanup technologies have been shelved. Asbestos 
substitutes have been 
 [[Page S3983]] shelved. The list of valuable products and life-saving 
medicines that have been shelved and kept from the market goes on, and 
on, and on, and on.
  The current system is clearly broken, and it must be fixed. I hope 
that my colleagues will join with Senator Rockefeller and me in 
supporting a bill that seeks in a balanced way to introduce fairness 
and efficiency to our product liability system.
  Mr. McCONNELL. Mr. President, I am pleased to join my colleagues in 
the introduction of the Product Liability Reform Act of 1995. Our 
litigation system needs repair; less than half--43 cents to be 
precise--of every dollar spent in the liability system goes to injured 
victims. More than half of every dollar represents transactions costs--
lawyers' fees, the cost of keeping the courts running, and other 
associated expenses of the legal system. Something is seriously wrong 
with a system that pays out more to those who run the legal system than 
to those who need it for dispute resolution.
  And, litigation costs drain billions of dollars from our economy. We 
know there is a litigation tax associated with putting goods and 
services in the stream of commerce. For example, the price, on average, 
of an 8-foot ladder is $119.33. But the actual cost is only $94.47, 
with the litigation tax representing 25 percent of the cost. And, the 
litigation tax for a heart pacemaker is 20 percent, driving the cost up 
an additional $3,000. (Source: Newsweek, Oct. 25, 1993, reprinting 
from, ``The 96 Billion Dollar Game,'' Philip Hermann.)
  This litigation tax impedes innovation and invention. Companies 
hesitate to put products on the market because of the high risk of 
litigation. That means fewer choices for consumers and a shrinking 
share of the global market for American companies.
  And unless we fix the problems of our legal system, the situation is 
bound to get worse. Longer delays in the courts, increased inefficiency 
and unpredictability in getting compensation to victims, and more 
burdens on productivity and invention.
  This bill is a significant step in the right direction. It offers a 
national answer to a nationwide problem--uniformity and certainty in 
America's product liability laws.
  The bill will not prevent those injured by defective products from 
receiving fair compensation for their injuries. Rather, it will offer 
some protection for those parties who had no connection to the defects 
in the product from unfairly and unreasonably having to pay the tab in 
a lawsuit. But, make no mistake about it, those who are responsible for 
the defects will be held accountable for the injuries they cause.
  In addition, this bill restores the element of punishment to punitive 
damages. In the current environment, the quest for punitive damages is 
like taking a chance on the lottery--some plaintiffs win big and many 
win nothing at all. Often times, the award of punitive damages bears no 
relationship to the injuries suffered. The bill will link punitive 
damages to the economic loss by providing that where punitive damages 
are awarded, they should be awarded in an amount of three times the 
economic loss or $250,000, whichever is greater.
  The time for this bill is long overdue. I look forward to its prompt 
consideration in the Commerce Committee and speedy action on the Senate 
floor.
  Mr. LIEBERMAN. Mr. President, I am proud to join a broad bipartisan 
group of eight Senators led by my distinguished colleagues, Senators 
Rockefeller and Gorton, in introducing a bill to address one of the 
most important issues facing this Congress--product liability reform. 
This is my third effort to pass much-needed changes to the product 
liability system and, after years of frustration, I believe we are 
finally going to succeed. This year's bill builds on last year's effort 
and is the fairest and strongest bill possible.
  No one should be praising the status quo. The current system is 
inefficient, unpredictable, costly, slow, and inequitable. And everyone 
pays: plaintiffs, defendants, manufacturers, product sellers, and 
consumers. This bill addresses these problems by making a number of 
balanced and limited changes intended to reduce transaction costs, 
provide greater certainty to everyone, and increasing the 
competitiveness of U.S. firms. I urge my colleagues to support this 
bill.
  Mr. President, I did not join the fight for product liability reform 
until my second year in the Senate. I came here as a former State 
attorney general who had been active in consumer protection. I knew 
that some consumer groups opposed Federal product liability 
legislation, and as a former State official, I was hesitant to step 
into an area that had traditionally been the province of State law. In 
fact, as attorney general of Connecticut and a member of the National 
Association of Attorneys General, I voted for resolutions opposing 
earlier Federal product liability legislation that would have swept 
away virtually all State product liability laws and repealed the 
doctrine of strict liability for product defects.
  But as I traveled around the State of Connecticut, this problem--
product liability litigation--kept coming up in my discussions with 
small business men and women, with small and large manufacturing 
companies, and with plant managers. They told me of problems they had 
experienced with the product liability system, of the expense of 
defending yourself even when you win, of the cost of settlements to 
avoid paying litigation costs, and of the time and energy that product 
liability suits diverted away from the business of designing new 
products and bringing them to market.
  One of my favorite examples concerns an experience of Mr. Robert 
Lyons, who runs the Bilco Co. in New Haven, CT. Bilco, a small company, 
manufactures roof hatch doors. Several years ago, Mr. Lyons and his 
colleagues at Bilco invented an ingenious safety feature called the 
LadderUP Safety Post. This device attached to the ladder that led to 
the roof hatch. When the hatch was opened, the LadderUP Safety Post 
would automatically extend through the opening to a height several feet 
above the level of the roof. This allowed a person climbing out of the 
top of the hatch to hold on to the pole as he or she stepped up onto 
the roof.
  After Bilco put the LadderUP Safety Post on the market, Bilco was 
sued by a person who had fallen when using a Bilco hatch without the 
device. The plaintiff argued that Bilco should only have sold its roof 
hatch with a LadderUP device, and that Bilco should not have permitted 
its customers simply to buy a hatch. The plaintiff also argued that 
Bilco should have more widely advertised its product. Despite the fact 
that anyone who uses a ladder surely must know that you have to be 
careful when climbing on the top rungs, and the fact that the builder 
had chosen not to buy or retrofit the hatch with a LadderUP device, 
Bilco ended up paying $20,000 to settle this case out of court, judging 
that to be cheaper than going through full litigation.
  Now there are some people who will say, so what is wrong with that? 
After all, a person who was injured received $20,000 to help compensate 
for his injuries. But the flaw with the reasoning should be apparent. 
Private businesses cannot print money. A $20,000 payment here was 
$20,000 less to be invested in new plant equipment, in developing new 
products, or hiring new people. And what did Mr. Lyons and Bilco 
actually do to deserve having to pay $20,000? They invented and put on 
the market a new product, a new safety device. They did not build the 
building with the roof hatch, they did not install the hatch, they were 
not the ones who decided to forego purchasing a LadderUP Safety Post 
for use with the hatch. All they did was to build a better mousetrap. 
And for that, a lawyer beat a path to their door.
  The injustice of this case points out a fundamental problem with our 
product liability system. At a time when we need to be rebuilding our 
country's manufacturing base, to be promoting innovation in our 
manufacturing sector, to be designing, building and bringing to market 
the next generation of high-quality, high-value added products the 
world will need, our liability system chills innovation like a bucket 
of cold water.
  The debate should really center around consumers, because it is 
consumers who suffer because of this system, not simply businesses. 
Consumers are the ones who have to pay higher prices in order to cover 
product liability-related costs. If a ladder costs 20 
 [[Page S3984]] percent more because of liability-related costs, 
consumers--not businesses--end up paying that 20 percent premium.
  Consumers are also the ones who suffer when valuable innovations do 
not occur, or when needed products like life-saving medical devices or 
earthquake shock absorbers do not come to market because no one will 
supply the necessary raw materials.
  Last term, at a hearing on product liability and sales of raw 
materials for medical devices, Mr. Mark Reily described what life would 
be like for his then 9-year-old son, Thomas Reily, if he could no 
longer obtain a replacement for the silicone shunt in Thomas' head: 
``The fluid builds pressure inside the head, like steam building inside 
a locked pressure cooker. If left untreated, it is a well-documented 
fact that the patient will initially suffer severe brain damage, become 
comatose and ultimately die.'' Mr. Reily pleaded for us to reform our 
product liability laws to ensure that raw materials for Thomas' shunt 
will continue to be available to the shunt's makers. Mark and Thomas 
Reily are consumers who are being hurt, not helped, by our product 
liability system.
  The point that Mr. Reily and his son drove home is that the best 
interests of consumers as a whole are not always identical to the 
interests of people who are seeking compensation. The people who suffer 
or die because a new drug or medical device was never developed, or was 
delayed in its development, are hurt as surely as those who suffer 
because a device malfunctioned or a drug was improperly designed. These 
silent victims of our product liability system's chilling effect on 
innovation are consumers whose interests also deserve protection.
  Of course, even for its putative beneficiaries, people who are 
injured by defective products, the legal system hardly can be said to 
work well. GAO, in its five-State survey, found that product liability 
cases took an average of 2\1/2\ years just to reach trial. If the case 
was appealed, it took, on average, another year to resolve. This is a 
very long time for an injured person to wait for compensation.
  In some instances too, our product liability laws have erected 
barriers to suit that just do not make sense. For example, in some 
States, the statute of limitations--the time within which a lawsuit can 
be brought--begins to run even though the injured person did not know 
they were injured and could not
 have known that the product was the cause. In those States, the time 
in which to bring a suit can expire before the claimant knows or could 
ever know there is a suite to bring.

  Mr. President, no one will argue that this bill will cure all the 
ills in our product liability system. That would require a gargantuan 
overhaul and I doubt we can reach agreement as to what that would look 
like. But we can, I believe, work to enact a balanced package of 
reforms that works incrementally to eliminate the worst aspects of our 
current system, to restore some balance to our product liability 
system. I believe this bill is just such a balanced package.
  For people injured by defective products, this bill makes a set of 
very important and beneficial changes. First, it enacts uniform, 
nationwide statute of limitations of 2 years from the date the claimant 
knew or should have discovered both the fact he or she was injured and 
the cause of the injury. Injured people will no longer lose the right 
to sue before they knew both that they were hurt and that a specific 
product caused their injury.
  Second, this bill will force defendants to enter alternative dispute 
resolution processes which can resolve a case in months rather than 
years. If the defendant unreasonably refuses to enter into ADR, it can 
be liable for all of claimant's costs and attorney's fees. On the other 
hand, if a plaintiff unreasonably refuses to enter ADR, she will suffer 
no penalty.
  For workers who face possible injury in the workplace, this bill will 
reform the product liability system to give employers a stronger 
incentive to provide a safe workplace. Under current law, an employer 
is often permitted to recoup the entire amount of workers compensation 
benefits paid to an employee who was injured by a defective machine, 
even if the employer contributed significantly to the injury by, for 
example, running the machine at excessive speeds or removing safety 
equipment. This essentially means that an employer can end up paying 
nothing despite the fact that their misconduct was a significant cause 
of the injury.
  This bill would change this. When an employer is found, by clear and 
convincing evidence, to be partly responsible for an injury, the 
employer loses recoupment in proportion to its contribution to the 
injury. This does not change the amount of money going to the injured 
person, but it makes the employer responsible for its conduct.
  For manufacturers, this bill reforms the product liability system to 
establish a nationwide standard for punitive damages of proof of 
conscious, flagrant indifference to public safety by clear and 
convincing evidence. The clear and convincing evidence standard is 
already the law in over 25 States. Punitive damages in these product 
liability cases would also be limited to the greater of $250,000 or 
three times the amount of economic damages. The American College of 
Trial Lawyers and ALI support this provision. It will bring some 
reasonable limits to what too often just results in windfalls to 
particular claimants instead of the original purpose--punishing 
defendant's wrongful behavior.
  Manufacturers of durable goods--goods with life expectancy over 3 
years that are used in the workplace--will also be assured that they 
cannot be sued more than 20 years after they deliver a product. This 
will bring an end to suits such as the one in which Otis Elevator was 
sued over a 75-year-old elevator that had been modified and maintained 
by a number of different owners and repair persons through the decades. 
By the way, this same provision will not apply to household goods such 
as refrigerators, and is only intended to cover those workplace 
injuries that are already covered by workers compensation.
  Manufacturers will also have some protection against ``deep pocket'' 
liability. While the bill still permits States to hold all defendants 
jointly liable for economic damages such as lost wages, foregone future 
earnings, past and future medical bills, and cost of replacement 
services, noneconomic damages such as pain and suffering will be 
apportioned among codefendants on the basis of each defendant's 
contribution to the harm. In addition, if the plaintiff misused or 
altered a product, or used the product under the influence of drugs or 
alcohol, the manufacturers share of the damages will also be reduced.
  For wholesalers and retailers, they will, in the majority of cases, 
be relieved of the threat that they can be held liable for the actions 
of others. Under current law, for example, the owner of the corner 
hardware store could be sued for injuries resulting from a power saw 
just as if she was the manufacturer of a power saw, even if she had no 
input in the design or assembly of the power saw and had done nothing 
other than to inspect a sample to make sure there were no obvious flaws 
and to put the items on the shelf.
  For our American economy and industrial base, passage of this product 
liability reform legislation will move us back to promoting innovation 
and the development and commercialization of new products. Passing this 
bill will create and save jobs here, not overseas.
  After years of debate, this compromise bill balances important 
issues: It is pro-business and pro-consumer. It is pro-innovation and 
pro-safety. But most importantly, it finally balances the scales of 
justice properly to ensure that victims of defective products remain 
compensated while consumers receive the best products available. It is 
incremental reform. And it is a key component of any strategy for long-
term economic growth, and for rebuilding our country's manufacturing 
base.
  Let me say finally, that in the upcoming months, this bill will be 
debated over and over. In that rhetoric and inevitable soundbites, one 
thing should not be lost. This bill does not absolve a company from 
making an unsafe product. If a company has made a defective product, it 
must be held fully accountable. Period. But when a company does follow 
the rules and makes a safe product, it should not have to settle 
frivolous claims simply to avoid the expense of litigation and protect 
 [[Page S3985]] against the risk that a huge and irrational judgment 
will be awarded against it.
  The time has come for us to move forward, to give this balanced 
package a chance for full consideration by this body. We owe it to the 
American people to look beyond the rhetoric. We owe it to the American 
people to pass this bill. Mr. President, I urge my colleagues to 
support and enact these overdue reforms.
  Mr. DODD. Mr. President, I am pleased to join with the bipartisan 
group of Senators who are original cosponsors of the Product Liability 
Fairness Act of 1995. I would also like to commend Senators 
Rockefeller, Gorton, and Lieberman for all of their hard work on this 
legislation.
  The current product liability system simply does not serve anyone 
well. The American people know the problem--the results in a product 
liability case depend primarily on a person's ability to afford a good 
lawyer. That's true whether you are a consumer injured by an unsafe 
product, or a businessperson trying to defend yourself against an 
unjustified lawsuit.
  For consumers, the studies show that injured people must wait too 
long for fair compensation. A recent study by the General Accounting 
Office found that cases take about 3 years to be resolved--longer if 
there is an appeal.
  Other studies show dramatically different compensation for similar 
injuries incurred in the very same way. Wealthier and better educated 
people fare far better than low-income people and less well-educated 
people.
  So the present system is not serving the needs of our injured 
citizens. At the same time, it's not serving the needs of American 
businesses. They are reluctant to introduce new products because they 
are not sure what kind of liability they will face under the laws of 55 
States and territories.
  This uncertainty is particularly difficult for small businesses, who 
cannot afford the huge legal costs of the present system. And these are 
not legal costs that fall only on unscrupulous manufacturers--many 
companies have run up enormous legal bills only to be vindicated by the 
courts. Of course, those victories are hollow at best.
  And what happens if an American business is afraid to innovate, or 
forced to defer investment on research and development? Are those only 
problems for particular businesses, and unworthy of serious attention--
of course not. If American businesses are unable to bring innovative 
products to the marketplace, or forced to take helpful products off the 
market, we all lose.
  The search for an AIDS vaccine is a good example. At least one 
company, Biogen in Massachusetts, terminated its investment in an AIDS 
vaccine because of product liability fears.
  And this problem is not limited to particular products or companies. 
The current product liability system threatens entire industries. The 
contraceptive industry is one example. A 1990 report issued by the 
National Research Council and the Institute of Medicine concluded that 
``product liability litigation has contributed significantly to the 
climate of disincentives for the development of contraceptive 
products.''
  The American Medical Association has documented this problem:

       In the early 1970's, there were 13 pharmaceutical companies 
     actively pursuing research in contraception and fertility. 
     Now, only one U.S. company conducts contraceptive and 
     fertility research.

  Is our country well-served by a system that prevents contraceptives, 
and other critical medical products, from coming to the market? Who 
benefits from that result?
  And if the present system is not working--if it helps neither people 
who are injured by products nor the businesses who are trying to 
develop life-saving products--what should we do? Should we simply give 
up and walk away? Should we say that there's nothing we can do--the 
problem's too big for us too handle? Of course not--we owe it to the 
American people to try to do better.
  With passage of the Product Liability Fairness Act we will do better. 
This legislation may not solve all of the problems in the product 
liability system, but it will improve that system for everyone--for the 
injured people who need fast and fair compensation, for consumers who 
need quality products to choose from, for those businesses who are at 
the cutting edge of international competition, and for workers who 
depend on a strong economy to support their families. The moderate 
reforms in this measure will reduce the abuses in the current system 
without eliminating solid protections for those who are victimized by 
defective or dangerous products.
  Let me highlight some of the key provisions. First, this measure will 
provide a more uniform system of product liability. Since about 70 
percent of all products move between States, it makes sense to have a 
federal system for resolving disputes. With Federal rules in place, 
there will be more certainty in the system, and the excessive costs in 
the present system should come down.
  The provisions in the bill that encourage alternative dispute 
resolution will also help reduce the costs in the current system. 
Currently, too much money goes to transaction costs, primarily lawyers 
fees, and not enough goes to victims. A 1993 survey of the Association 
of Manufacturing Technology found that every 100 claims filed against 
its members cost a total of $10.2 million. Out of that total, the 
victims received only $2.3 million with the rest of the money going to 
legal fees and other costs. Clearly, we need to implement a better 
system in which the money goes to those who need it--injured people.
  Most importantly, and I cannot emphasize this enough, the moderate 
reforms in this bill offer a balanced approach to the needs of both 
consumers and businesses. Consumers will benefit, for example, from a 
statute of limitations provision that preserves a claim until 2 years 
after the consumer should have discovered the harm and the cause. In 
many cases, injured people are not sure what caused their injuries and, 
under the current system, they lose their ability to sue. With this 
legislation, people injured by products will have adequate time to 
bring a lawsuit.
  Businesses will also benefit from this legislation. For example, in 
order to recover punitive damages, the plaintiff will have to prove, by 
clear and convincing evidence, that the harm was caused by the 
defendant's ``conscious, flagrant indifference to the safety of 
others.'' This provision will allow defendants to have a clear 
understanding of when they may be subject to this quasi-criminal 
penalty.
  Under this measure, defendants also have an absolute defense if the 
plaintiff was under the influence of intoxicating alcohol or illegal 
drugs and the condition was more than 50 percent responsible for 
plaintiff's injuries. This provision, it seems to me, is nothing more 
than common sense. Why should manufacturers pay for the misconduct of 
intoxicated people?
  Furthermore, product sellers will only be liable for their own 
negligence or failure to comply with an express warranty. But as an 
added protection for injured people, this rule will not apply if the 
manufacturer cannot be brought into court or if the claimant would be 
unable to enforce a judgment against the manufacturer. This provision 
will eliminate the need for sellers to hire lawyers in a high 
percentage of the roughly 95 percent of the cases where they are 
presently not found to be at fault.
  Mr. President, this is an issue that many of us have spent a great 
deal of time on. My involvement dates back to 1986, when I worked on a 
reform proposal with our distinguished former colleague, Senator 
Danforth. We did not get very far with that bill. But the effort to 
improve the product liability system has gained momentum in recent 
years, and I am optimistic that we can pass this legislation during 
this Congress.
  Because of the enormous costs associated with the product liability 
system, both economic and social, we must address this issue with the 
seriousness that it deserves. Unfortunately, in the past, some have 
characterized the debate as a battle between the manufacturers and the 
insurance companies on the one side, and consumers and trial attorneys 
on the other. Some have viewed this legislation in antagonistic terms, 
with one side winning and one side losing.
  Of course, the problem is much more complex than that and the 
solution 
 [[Page S3986]] will be much more complex. As this bill moves forward, 
we will hear from many concerned citizens who can help us refine this 
legislation. I also look forward to working with my colleagues and the 
Clinton administration to strengthen this measure. But our Nation 
cannot afford to maintain the status quo, and this bill will take us a 
long way toward a fairer product liability system.
  Mr. PRESSLER. Mr. President, I am pleased to be an original cosponsor 
of this important legislation. Our existing product liability system is 
a disaster. It is inefficient and unfair. The Senate Committee on 
Commerce, Science, and Transportation has long recognized these 
problems and has reported favorably a reform bill in six previous 
Congresses.
  The Product Liability Fairness Act of 1995 is a balanced bill that 
will make substantial progress in addressing the many problems with our 
current system. This bill is good for consumers, good for businesses--
especially small businesses--and good for those legitimately injured by 
faulty products.
  I thank Senator Gorton and Senator Rockefeller for their excellent 
work in preparing this bill. Their solid working relationship on this 
issue is indicative of the bipartisan support for these essential 
reforms.
  Mr. President, I have long been a supporter of product liability 
reform and will make every effort to advance the reform effort.
  Mr. HATCH. Mr. President, I am extremely pleased to cosponsor the 
Product Liability Fairness Act of 1995 with Senators Rockefeller and 
Gorton, and many others. I commend their longstanding leadership on 
this issue.
  This act represents a truly bipartisan effort to correct what many 
have long recognized to be malfunctions in our product liability 
system. We want American business to grow, to provide more jobs and 
more affordable consumer goods, and to continue to make medical and 
technological breakthroughs that benefit the people of Utah and all 
Americans. We can do that as well as make sure those who are wrongfully 
harmed in the marketplace are properly compensated, if we go about it 
in a rational way.
  Under the current system, however, American manufacturers have been 
forced to devote far too many resources to the costs of product 
liability actions, and consumers have ultimately had to bear those 
costs. Punitive damage awards have particularly grown out of control 
and have crippled our manufacturers, distributors, and retailers. We 
have all heard about astronomical punitive damage awards for spilled 
coffee and other horror stories. What we often fail to focus on is 
where these terrific sums are coming from and the insidious economic 
damage that is caused by forcing the reallocation of millions of 
dollars away from productive, job creating uses.
  The long and short of it is that the current system is harming both 
companies, workers, and consumers and is desperately in need of the 
reforms we propose today.
  Let no one misunderstand what this bill does. It does not prevent 
injured people from being compensated for the harms caused to them by 
defective products. I strongly believe that those who are unfortunate 
enough to be harmed by defective products should have appropriate 
remedies and should be compensated for the harm they suffer.
  However, product liability law as it stands today is severely skewed. 
What this law does is correct certain specific inequities in the law as 
it stands and make those corrections uniform nationwide. Many States, 
for example, have already enacted reforms at the State level that art 
similar to those we introduce today.
  Under the law as it stands in many other States, however, 
manufacturers and others can be held responsible for striking amounts 
of damages for harm that they did not cause--just because another party 
cannot or will not pay its fair share. In addition, juries may award 
runaway amounts of punitive damages for a relatively small amount of 
harm, and courts can lack the power to adequately restrict those awards 
once made.
  The threat alone of excessive punitive damages can force parties to 
settle under conditions in which they otherwise would not. Finally, as 
in numerous other areas of the law, litigation costs in product 
liability cases continue to soar.
  All of this harms our economy. It removes companies' incentives to 
invest and discourages them from researching and developing newer and 
safer products. It limits the amount companies can spend on wages, 
research, and technology. All of this hurts consumers and workers. 
Litigation costs and the higher insurance costs that companies must pay 
to cover their expected liability are ultimately passed on to 
consumers. Of the cost of a simple ladder, for example, a shocking 20 
percent goes to paying the costs of product liability litigation. Those 
costs impact the prices we pay for all sorts of other goods and 
services that we need and use everyday, and prevent the development and 
marketing of products we would like to use but cannot because companies 
are afraid to develop them.
  These problems cannot be addressed comprehensively without a uniform, 
nationwide solution. I look forward to working with my colleagues to 
get this bill to the President.
  Mr. President, I should also note that I expect to introduce civil 
justice reform which goes beyond product liability issues in the near 
future.
                                 ______

      By Mr. AKAKA (for himself and Mr. Inouye):
  S. 566. A bill for the relief of Richard M. Sakakida; to the 
Committee on Armed Services.


                       private relief legislation

 Mr. AKAKA. Mr. President, in behalf of myself and Senator 
Inouye, I am re-introducing today legislation I offered in the previous 
Congress for the private relief of Richard Motoso Sakakida of Fremont, 
CA. My bill would require the military to review whether the retired 
lieutenant colonel deserves the Congressional Medal of Honor, 
Distinguished Service Cross, or Silver Star for actions related to his 
service in the Philippines during World War II.
  Despite many courageous and daring actions he undertook as an Army 
undercover agent before and during the Japanese occupation of the 
islands, Colonel Sakakida has never been officially recognized for his 
service there, largely because much of his work was classified, and 
therefore unknown, until well after the war. Despite efforts undertaken 
in his behalf by fellow veterans and Members of Congress to accord him 
the honors he deserves, the Army has refused to consider his case, 
citing a statute limiting the Medal of Honor or Distinguished Service 
Cross to those whose recommendations are received within 2 years of the 
act justifying the awards, or, in the case of World War II veterans, by 
1951.
  Mr. President, I believe a brief review of Colonel Sakakida's wartime 
exploits will convince my colleagues of the need to enact this 
legislation.
  In March 1941, 9 months before the Japanese attack on Pearl Harbor, 
Richard Sakakida, the son of Japanese parents who immigrated to Hawaii 
at the beginning of the century, and another nisei from Hawaii became 
the first Japanese-Americans recruited to the Army's Counter 
Intelligence Police [CIP]. This unit would later become the Army 
Counter Intelligence Corps, or CIC.
  Sworn in as a sergeant. Sakakida was sent to the Philippines, then an 
American possession; his mission was to spy on Japanese with possible 
connections to the Japanese military. There, Sakakida was able to 
masquerade as a draft evader from Hawaii and talk himself into being 
admitted to an all-Japanese residential hotel in Manila. Under cover of 
a prearranged job, and without any prior training or experience, he 
succeeded in establishing a clandestine intelligence collection 
operation out of his hotel room. As a measure of the success of his 
penetration of the Japanese community, Sakakida was even offered a post 
with the Japanese consulate in Mindanao.
  The outbreak of war abruptly ended that possibility. Instead of 
returning to the American side, Sakakida was asked to stay with the 
Japanese community to continue his work. He relied on sheer 
resourcefulness to talk his way past unwitting American and Filipino 
security guards at the gate to the emergency Japanese relocation 
compound, where Japanese nationals were 
 [[Page S3987]] being detained. His vulnerability was compounded by the 
fact that only a few men were aware of his secret work. In fact, he was 
eventually arrested on spy charges by the Philippine Constabulary
 and subjected to punishing interrogation at Bilibid Prison. Throughout 
the ordeal Sakakida maintained his cover story, as he was later able to 
do with his Japanese captors.

  Fortuitously, he was eventually recognized by a Filipino agent who 
was aware of his undercover status; unfortunately, this also 
compromised his cover among Philippine authorities. A ruse involving 
his return to the Japanese compound and unceremonious arrest by 
American agents was staged in an attempt to maintain his cover in the 
Japanese community, but the rapid advance of the Japanese Army ended 
hopes for his return to the Japanese. For the first time since he 
arrived in the islands, he reentered the American fold.
  Back in military uniform with the CIP, Sargent Sakakida was tasked 
with interrogating Japanese civilians and POW's in Manila, Bataan, and 
Corregidor. He translated Japanese diaries and Bataan, and Corregidor. 
He translated Japanese diaries and combat documents, prepared 
propaganda leaflets in Japanese, and called upon the Japanese to 
surrender in loudspeaker broadcasts. He also monitored Japanese air-
ground communications and deciphered enemy codes. At Bataan, he singled 
out and translated a key captured Japanese document that led to the 
destruction of a large battalion-size force that was attempting a 
landing there. It was one of the few, perhaps only, major American 
battlefield successes in a string of setbacks that led to the downfall 
of Bataan.
  When the final surrender of the Philippines became imminent at 
Corregidor in 1942, General MacArthur ordered Sakakida's evacuation to 
Australia. In spite of the prospect of certain imprisonment, possible 
torture, and perhaps execution at the hands of the Japanese, he chose 
to give up his seat on one of the last escape aircraft to a nisei 
lawyer. Sakakida was aware that the lawyer had a family and for various 
reasons would have faced serious reprisals had he been captured. As a 
result, by his own hand, Sakakida became the only Japanese-American to 
be captured by the Japanese forces in the Philippines.
  Sakakida spent 6 months in a Manila prison, where he would be 
mercilessly interrogated and tortured. His situation was compounded by 
the fact that, under existing Japanese law, everyone of Japanese 
ancestry was considered a citizen of the empire; thus, Sakakida was 
viewed as a traitor. He was strung up by the arms in such a way that 
his shoulders were literally dislocated. His captors forced water into 
him, and struck his swollen stomach repeatedly; they also burned his 
body with lighted cigarettes. Incredibly, through it all, Sakakida 
would adhere to his story that he was a civilian forced to work for the 
U.S. Army.
  After being tortured, Sakakida spent more time in Bilibid Prison, 
where he underwent more interrogation for alleged treason. When treason 
charges against him were dropped, he was assigned to work for the 
Japanese judge advocate of the 14th Army Headquarters, although 
Japanese counter-intelligence agents continued their attempts to elicit 
his true identity through trick questions and other stratagems. He took 
advantage of his position to aid secretly a number of allied prisoners 
of war who were being held there for trial for
 attempting to escape; Sakakida smuggled food to them and imaginatively 
interpreted for them during their trials. One of these men, a naval 
officer who was later to become an Oklahoma supreme court justice, 
believes he escaped execution only through Sakakida's intervention and 
assistance during the trial.

  During this time, he established contact with the Filipino guerrilla 
underground, through which he funnelled important Japanese troop and 
shipping information to MacArthur in Australia. Sakakida's reporting 
from Manila also contributed to the destruction of a major Japanese 
task force headed for Davao by American submarines that lay in wait for 
the convoy. The huge Japanese setback abruptly ended the Japanese 
advance toward Australia, saving it from an invasion.
  Sakakida then engineered a daring prison break from Mantinlupa Prison 
that freed the guerrilla leader Ernest Tupas and 500 of his men. 
Sakakida himself chose to remain behind in order to continue his 
intelligence activities from the enemy's midst. Thereafter, Sakakida 
was able to relay additional tactical information to MacArthur through 
the guerrillas.
  After American forces invaded the Philippines, Sakakida escaped from 
the retreating Japanese forces at Baguio. During a firefight between 
American and Japanese troops, he suffered shrapnel wounds in the 
stomach. For the next several months Sakakida wandered alone in the 
jungle, living off the land, debilitated by his wound. He finally 
happened upon American troops, whom he eventually convinced of his 
identity. At that point, he was informed that the war was over.
  Mr. President, this is a thumbnail sketch of Richard Sakakida's 
record of service in the Philippines. Naturally, it cannot do justice 
to the full tale of his courage, daring, sacrifice, and endurance. I 
have omitted many other incidents that displayed Sakakida's courage and 
fortitude. In fact, for a variety of reasons, including the secrecy 
surrounding his intelligence activities, his story has never been told 
in its entirety until relatively recently.
  Mr. President, because Sakakida's activities were classified, few 
were in a position to recommend him for the Medal of Honor or other 
high award for valor. Much of what we know is largely anecdotal, 
because circumstances dictated that the presence of any official 
records would be damaging not only to his personal safety but also to 
the diplomatic and military efforts of the United States. Now, time has 
lifted the veil of secrecy, but many of the records of his activities 
are missing or were never kept; in addition, many witnesses who could 
have spoken of his exploits were either killed during the war or have 
since passed away in the period between the end of the war and the 
vitiation of the official blackout on Sakakida's operations. In spite 
of this catch-22 situation, I believe that ample evidence exists to 
support the awarding of the Congressional Medal of Honor to Colonel 
Sakakida. I believe this especially in view of the fact that the whole 
of his activities is informed by a supreme consistency, validated by 
objective events, that only the truth bears.
  Nevertheless, after Colonel Sakakida's story was publicly
   revealed several years ago, and his record formally brought to the 
Army's attention by fellow veterans as well as by my Hawaii colleague, 
Representative Patsy Mink, the Army's Military Awards Branch refused to 
consider him for the Medal of Honor. The Army, citing the statute I 
have referred to earlier, stated that Sakakida's recommendation must 
have been submitted through official military channels shortly after 
the end of the war, by 1951. The Army refused to consider the special 
circumstances surrounding Sakakida's case, namely, that the nature of 
his intelligence work prevented his story from being appropriately 
considered prior to the delimiting date. In fact, as I have alluded to 
before, he was officially enjoined from talking about his intelligence 
activities during World War II until 1972, more than 20 years after the 
statutory deadline, when they were declassified and he was no longer 
bound by his secrecy oath. As a result, Colonel Sakakida's 
contributions to the allied victory have been overlooked by history and 
by his country.

  This is a tragic oversight. Colonel Sakakida has been inducted into 
the Military Intelligence Hall of Fame. He has been honored repeatedly 
by his Japanese-American comrades-in-arms, notably members of the all-
Nisei Military Intelligence Service and the 100th Infantry Battalion/
442d Regimental Combat Team. At least one book, and chapters in many 
others, has been devoted to his wartime accomplishments. And, he has 
been awarded four different medals by the Philippine Government, 
including the Philippine Legion of Honor Award.
  Thus, it seems that everyone but our own Government has recognized 
Colonel Sakakida's heroic military service in the Philippines. Indeed, 
the Army has never accorded Sakakida a single award or commendation for 
bravery associated with his undercover work in the archipelago.
  [[Page S3988]] Mr. President, I cannot help wondering if Colonel 
Sakakida's ethnic heritage has had something to do with this slight. 
While the Army apparently does not keep statistics on the ethnic 
breakdown of valor awards, one could make the case that Japanese-
Americans have been underdecorated with respect to the Medal of Honor.
  According to the book, ``Nisei: The Quiet Americans,'' by Bill 
Hosokawa, no Japanese-American had been awarded a Medal of Honor at the 
end of World War II. It was only when a member of the all-Nisei 100th/
442d, the most highly decorated military unit in American history made 
this known to Congress that the medal was awarded posthumously to one 
of its members.
  Hosokawa noted that a number of the Japanese-Americans in the 100th/
442d were recommended for the Medal of Honor, but in each case, 
somewhere along the line, the request was denied and the lesser, 
Distinguished Service Cross presented instead. As of the late 1960s, 
according to Hosokawa, only one other Japanese-American received the 
Medal of Honor, for his service in the Korean war. I have been unable 
to find data on Vietnam or post-Vietnam conflicts, which is significant 
in itself. I have no doubt Nisei like Colonel Sakakida suffered racial 
prejudice at the onset of hostilities with Japan; the unjust internment 
of Japanese-Americans is proof enough of this.
  There have been other allegations of discrimination in the medal 
awarding process. Apparently, only one black American received the 
Medal of Honor for World War I service, and that happened only after 
the Army conducted research to determine if there had been any barriers 
to black soldiers in the medal recognition process. And, recently, a 
retired lieutenant colonel who is African-American alleged he was 
denied the Medal of Honor for his heroics in Korea because of 
discrimination.
  The Army has contracted a second study on black winners of the Medal 
of Honor in World War II that will presumably throw additional light on 
this sensitive subject. However, I also understand there are no plans 
to study Asian-Americans or any other ethnic group.
  In any event, Mr. President, whether Colonel Sakakida is a victim of 
discrimination, an outdated law, or merely circumstance, his record is 
compelling enough to warrant formal review.
  My bill would accomplish this by authorizing the President to award 
the Medal of Honor, Distinguished Service Cross, or Silver Star to 
Colonel Sakakida. The award would be made on the basis of a positive 
review of his military records by the Secretary of the Army, free of 
any statutory time restrictions that may pertain to these awards.
  Let me stress that this bill does not direct the President to award 
the Medal of Honor to Colonel Sakakida outright, but to do so only if a 
review of his records determines that he is indeed deserving of the 
Nation's highest military decoration.
  This bill has the strong support of the Japanese-American veterans 
organizations as well as the Japanese-American community at large. I 
also have a letter of support from the Philippine Embassy for this 
effort. I ask unanimous consent that these messages of support, as well 
as a copy of the bill, be included in the Record at the conclusion of 
my remarks.
  Mr. President, I do not offer this legislation entirely in Richard 
Sakakida's behalf. For Richard Sakakida is already amply bestowed with 
badges of honor--in the scars that deface his body, in the medication 
he takes to dull the constant pain he suffers from his wounds, and in 
the silent knowledge that he rendered extraordinary services to the 
Nation in its time of need. Rather, I offer this legislation in our 
collective behalf. For, in honoring individuals such as Richard 
Sakakida, we honor ourselves--by reaffirming the value of the freedoms 
that men and women like him have sacrificed so much to preserve.
  In closing, I should note that since I last introduced this bill, 
Colonel Sakakida has suffered serious health problems. It is therefore 
important that Congress act with dispatch, if Colonel Sakakida is to be 
appropriately honored for his courageous actions.
  Mr. President, I ask unanimous consent that additional material be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                            Japanese American Citizens League,

                              San Francisco, CA, January 31, 1995.
     Hon. Daniel K. Akaka,
     U.S. Senate, Washington, DC.
       Dear Senator Akaka: The Japanese American Citizens League 
     (JACL), the largest Asian Pacific American civil rights 
     organization in the United States, strongly supports your 
     legislative initiative to require the United States Army to 
     consider awarding the Congressional Medal of Honor to retired 
     Air Force Lieutenant Colonel Richard M. Sakakida in 
     recognition of his work as a Military Intelligence Service 
     (MIS) Officer.
       LTC Sakakida was among the first to be recruited for the 
     all-Nisei MIS unit which provided invaluable intelligence 
     support to combat units throughout the Pacific during World 
     War II. His extraordinary exploits while serving as an 
     undercover agent in the Philippines are legendary and have 
     been well chronicled. The government of the Philippines 
     recently awarded him the Philippine Legion of Honor for his 
     heroic actions as an undercover agent. He was also honored by 
     being installed in the MIS Hall of Fame.
       LTC Sakakida is worthy of recognition by the United States 
     Army for his meritorious service to the military effort 
     during World War II. JACL enthusiastically supports your 
     efforts to secure proper acknowledgement for him.
           Sincerely yours,
                                                  Randall Senzaki,
     Executive Director.
                                                                    ____



                            Japanese American Citizens League,

                                    Washington, DC, July 28, 1994.
     Hon. Daniel K. Akaka,
     U.S. Senate, Washington, DC.
       Dear Senator Akaka: The Japanese American Citizens League 
     (JACL), the nation's largest Asian Pacific American civil 
     rights organization, strongly supports your legislative 
     initiative to require the United States Army to consider 
     awarding the Congressional Medal of Honor, or other 
     appropriate medal of valor, to retired Air Force Lieutenant 
     Colonel Richard M. Sakakida in recognition of his work as a 
     Military Intelligence Service (MIS) Officer.
       Colonel Sakakida was among the first to be recruited for 
     the all-Nisei MIS unit which provided invaluable intelligence 
     support to combat units throughout the Pacific during World 
     War II. His extraordinary exploits while serving as an 
     undercover agent in the Philippines are legendary and have 
     been well chronicled. The government of the Philippines 
     recently awarded him the Philippine Legion of Honor for his 
     heroic actions as an undercover agent. He was also honored by 
     being installed in the MIS Hall of Fame.
       Colonel Sakakida is worthy of recognition by the United 
     States Army for his meritorious service to the military 
     effort during World War II. JACL enthusiastically applauds 
     your efforts to secure proper acknowledgement for him.
       Please let me know if there is anything we can do to 
     support your efforts.
           Sincerely yours,
                                                Karen K. Narasaki,
     Washington, DC Representative.
                                                                    ____

                                            National Asian Pacific


                                    American Legal Consortium,

                                   Washington, DC, August 1, 1994.
     Hon. Daniel K. Akaka, 
     U.S. Senate, Washington, DC.
       Dear Senator Akaka: On behalf of the National Asian Pacific 
     American Legal Consortium, I am writing to support your 
     efforts to require the U.S. Army to consider awarding the 
     Congressional Medal of Honor, or other appropriate medal of 
     valor, to retired Air Force Lieutenant Colonel Richard M. 
     Sakakida for his heroic efforts in the Philippines during 
     World War II.
       As one of the first to be recruited into the all-nisei 
     Military intelligence Service, which provided invaluable 
     intelligence support to combat units during World War II 
     throughout the Pacific, Lieutenant Colonel Sakakida is one of 
     the most eminent of a group of men whose contributions to the 
     Allied victory never have been fully acknowledged or 
     appreciated.
       Lieutenant Colonel Sakakida's incredible exploits while 
     serving as an undercover agent in the Philipines are 
     legendary indeed. His story has been related in several 
     histories and recollections about World War II. In addition, 
     he is a member of the Military Intelligence Hall of Fame and 
     a recipient of the Philippine Legion of Honor. It is time the 
     U.S. government offered similar recognition for the 
     tremendous sacrifices by this brave man.
       Thank you again for your efforts to secure proper 
     recognition for Lieutenant Colonel Sakakida. The Consortium 
     fully supports your initiative.
       The National Asian Pacific American Legal Consortium is a 
     not-for-profit, nonpartisan organization whose mission is to 
     advance the legal and civil rights of Asian Pacific Americans 
     through litigation, advocacy, public education, and public 
     policy development.
           Very truly yours,
                                        Philip Tajitsu Nash, Esq.,
                                               Executive Director.

                                               [[Page S3989]]

                                          442nd Veterans Club,

                                      Honolulu, HI, July 27, 1994.
     Hon. Daniel Akaka,
     U.S. Senate, Washington DC.
       Dear Senator Akaka: The 442nd Veterans Club supports your 
     efforts to require the U.S. Army to consider awarding the 
     Congressional Medal of Honor, or other appropriate medal of 
     valor, to retired Air Force Lt. Colonel Richard M. Sakakida 
     for his heroic efforts in the Philippines during World War 
     II.
       As one of the first to be recruited into the all-Nisei 
     Military Intelligence Service, which provided invaluable 
     intelligence support to combat units during World War II 
     throughout the Pacific, Lt. Colonel Sakakida is one of the 
     most eminent of a group of men whose contributions to the 
     Allied victory never have been fully appreciated.
       Lt. Col. Sakakida incredible exploits while serving as an 
     undercover agent in the Philippines are the stuff of legend. 
     His story has been related in several histories and 
     recollections about World War II. In addition, he is a member 
     of the Military Intelligence Hall of Fame and a recipient of 
     the Philippine Legion of Honor. It is time the United States 
     government offered similar recognition for the tremendous 
     sacrifices by this brave man.
       Thank you again for your efforts to secure proper 
     recognition for Lt. Col. Sakakida. The 442nd fully supports 
     your initiative.
           Sincerely,
                                                   Henry Kuniyuki,
     President.
                                                                    ____

         Rocky Mountain Military Intelligence Service Veterans 
           Club,
                                    Denver, CO, February 10, 1995.
     Hon. Daniel K. Akaka,
     U.S. Senate, Washington, DC.
       Dear Senator Akaka: Our MIS Veterans club is pleased to 
     resubmit a letter in behalf of your efforts to gain belated 
     but deserved official recognition for Richard Sakakida for 
     his heroic military actions before and during World War II in 
     the Philippines. Clearly Richard Sakakida's efforts and 
     contributions toward a just victory deserve the highest 
     awards that a grateful nation can bestow.
       It is perhaps fitting to recognize that our nation is a 
     great social experiment--proving to a world torn by ethnic 
     and cultural strife that citizens from diverse origins and 
     environments can live together and can demonstrate their 
     courage and loyalty to that experiment. Our heroes can come 
     from a variety of sources, and Richard Sakakida's humble but 
     somewhat typical background adds to that variety. It is also 
     fitting that this nation should seek out, recognize and honor 
     those who rise above their challenges to add their names to 
     our roster of heroes. It is unfortunate that the passage of 
     time often dims our ardor for recognition because too often 
     we are a nation of instantaneous celebrities. It is also 
     unfortunate that there are no official records of Richard 
     Sakakida's exploits because the circumstances of his actions 
     precluded their presence. These conditions do not however 
     diminish the magnitude and heroism of his actions and this 
     nation can do no less than to acknowledge his valiant 
     contributions.
       All of our club members share a military intelligence 
     background and we have lived with the knowledge that the use 
     of a foreign language in a military confrontation is not 
     given adequate recognition. The ability to use that language 
     is often the crucial difference between success and failure 
     of a military operation. Richard Sakakida's language skills 
     enabled him to earn significant military gains as well as his 
     own survival in an extended and tense situation. We heartily 
     endorse and encourage your efforts to gain belated but hard 
     earned recognition for Richard Sakakida.
           Sincerely,
                                                     Dr. Sueo Ito,
     President.
                                                                    ____

         Rocky Mountain Military Intelligence Service Veterans 
           Club,
                                      Denver, CO, August 14, 1994.
     Hon. Daniel K. Akaka,
     U.S. Senate, Washington, DC.
       Dear Senator Akaka: Our MIS Veterans Club has been advised 
     of your very laudable efforts in getting official recognition 
     for Richard Sakakida for his valiant and largely unheralded 
     military efforts before and during World War II in the 
     Philippines. Clearly Richard Sakakida's heroic actions merit 
     the highest recognition that this nation can bestow.
       We recognize that the accounts of Sakakida's contributions 
     are largely anecdotal because his circumstances dictated that 
     the presence of any official records would be damaging not 
     only to his personal safety but also to the diplomatic and 
     military efforts of the United States. Also his actions 
     during and after capture by the Japanese precluded any 
     written records.
       Our club is composed of veterans with a Military 
     Intelligence background and we all recognize the important 
     contributions made by the citizens of the United States 
     through their knowledge and use of language. We therefore 
     heartily endorse and encourage your efforts in securing 
     belated but well-earned recognition for Richard Sakakida.
           Sincerely,
                                                     Dr. Sueo Ito,
     President.
                                                                    ____

                                           444D Veterans Club,

                                   Honolulu, HI, January 26, 1995.
     Hon. Daniel Akaka,
     U.S. Senate, Hart Senate Office Building, Washington, D.C.
       Dear Senator Akaka: The 442nd Veterans Club supports your 
     efforts to require the U.S. Army to consider awarding the 
     Congressional Medal of Honor, or other appropriate medal of 
     valor, to retired Air Force Lt. Colonel Richard M. Sakakida 
     for his heroic efforts in the Philippines during World War 
     II.
       As one of the first to be recruited into the all-Nisei 
     Military Intelligence Service, which provided invaluable 
     intelligence support to combat units during World War II 
     throughout the Pacific, Lt. Colonel Sakakida is one of the 
     most eminent of a group of men whose contributions to the 
     Allied victory never have been fully appreciated.
       Lt. Col. incredible exploits while serving as an undercover 
     agent in the Philippines are the stuff of legend. His story 
     has been related in several histories and recollections about 
     World War II. In addition, he is a member of the Military 
     Intelligence Hall of Fame and a recipient of the Philippines 
     Legion of Honor. It is time the United States government 
     offered similar recognition for the tremendous sacrifices by 
     this brave man.
       Thank you again for your efforts to secure proper 
     recognition for Lt. Col. Sakakida. The 442nd fully supports 
     your initiative.
           Sincerely,
                                                   Henry Kuniyuki,
     President.
                                                                    ____

                                        Japanese-American Veterans


                              Association of Washington, D.C.,

                                         Vienna, VA, July 5, 1994.
     Hon. Daniel K. Akaka,
     U.S. Senator from Hawaii, Hart Senate Office Building, 
         Washington, D.C.
       Dear Senator Akaka: The Japanese American Veterans 
     Association of Washington, D.C. stands in complete support of 
     your effort to have our country award its highest military 
     decoration to Lt. Col. Richard M. Sakakida, USAF (Ret.), for 
     his extraordinary service to country and his heroic acts of 
     self-sacrifice while in the Philippines as an undercover 
     agent of the U.S. Army during World War II.
       A review of the remarkable deeds and unshakable devotion to 
     duty through the most inhuman of treatment and adverse 
     conditions ranks Lt. Col. Sakakida among those who have 
     served ``above and beyond'' the call of duty.
       The passage of years or the resultant lack of the necessary 
     documentation must not be the basis of denying a great 
     American soldier his due recognition by a nation which he 
     served to loyally and courageously.
           Sincerely,

                                                  Sunao Ishio,

                                                  Col. AUS (Ret.),
     President.
                                                                    ____

                                        Japanese-American Veterans


                                Association of Washington, DC,

                                     Vienna, VA, January 28, 1995.
     Hon. Daniel K. Akaka,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Akaka: The Japanese-American Veterans 
     Association of Washington, D.C., whose members include many 
     veterans of the Military Intelligence Service of the United 
     States Army in the Pacific Theater of Operations during World 
     War II, enthusiastically supports your legislative efforts to 
     encourage the Department of Defense to consider the awarding 
     of the Congressional Medal of Honor to LTC. Richard M. 
     Sakakida, USAF (Ret), in recognition of his heroic deeds as 
     an officer of the US Armed Forces in the Philippines during 
     WW II.
       The Japanese American Veterans Association of Washington, 
     D.C. has been very aware of LTC Sakakida's heroic efforts 
     and, accordingly, honored him as one of the first recipients 
     of its American Patriot Award in October of 1993.
       LTC Sakakida has been honored with numerous commendations 
     for his dedicated and noteworthy services and the 
     Congressional Medal of Honor would most certainly be the 
     culmination of national recognition of this gallant warrior's 
     efforts.
       The Japanese American Veterans Association of Washington, 
     D.C. appreciates and commends your efforts to obtain proper 
     acknowledgement and commendation for LTC Sakakida, which he 
     so rightfully deserves.
       If there is anything more we can do to support your 
     efforts, please do not hesitate to call me.
           Sincerely yours,

                                          Henry S. Wakabayashi

                                              Colonel USAR (Ret.),
     President.
                                                                    ____

                                                 Japanese-American


                                         Veterans Association,

                                                 January 21, 1995.
     Daniel K. Akaka,
     U.S. Senator from Hawaii.
       Dear Senator Akaka: I consider it a great honor to support 
     the effort to have the highest military award bestowed upon 
     Lt. Col. Richard M. Sakakida, one of the forgotten and unsung 
     heroes of World War II.
       In more ways than one, Lt. Col. Sakakida placed devotion to 
     duty and country above all else, disregarding any personal 
     harm or danger to himself. When the opportunity came for him 
     to evacuate from the Philippines for Australia as part of 
     General MacArthur's group, he turned it down to give his 
     place to a fellow nisei. He knew full well the horrible fate 
     that awaited him as a prisoner of the Japanese, yet he felt 
     that he would be 
      [[Page S3990]] more useful by remaining behind. Lt. Col. 
     Sakakida suffered months of indescribable torture, but he 
     never broke. Eventually his captors accepted his cover story 
     that he was an army deserter and was given a certain degree 
     of freedom and responsibility. He continued to gather and 
     send valuable information on the Japanese forces to General 
     MacArthur's HQ in Australia through the Filipino guerrilla 
     network. One of the most vital pieces of intelligence which 
     he sent was about the formation of a Japanese invasion task 
     force against Australia. Corroboration of this plan by other 
     sources resulted in a successful Allied action against this 
     invasion effort. While working with the guerrillas, Lt. Col. 
     Sakakida planned and carried out the escape of several 
     hundred Filipino Guerrillas from the prison camp. He managed 
     to escape with a group of guerrillas, but was wounded in the 
     stomach and separated from them in the process. Already 
     severely wounded, Lt. Col. Sakakida's indomitable will to 
     survive carried him through to eventual rescue by U.S. 
     forces.
       The requirement of documentation should be waived in this 
     case because of the highly classified nature of the 
     undercover work involved and because of the lapse of over 
     half a century since these events occurred. It should be 
     noted that the Philippine Government has recognized Lt. Col. 
     Sakakida's service in the Philippine liberation campaign and 
     has awarded him the Legion of Honor (Degree of Legionnaire).
       Lt. Col. Sakakida's unparalleled and unselfish service to 
     his country under the most adverse of situations with 
     complete disregard for personal safety and survival is 
     certainly ``above and beyond'' the call of duty. It calls for 
     his country's gratitude and recognition by the awarding of 
     the highest military decoration commensurate with his service 
     record.
           Sincerely,

                                            Sunao (Phil) Ishio

                                                  Col. AUS (Ret.),
     Founder and First President.
                                                                    ____

                                    M.I.S. Association of Northern


                                             California, Inc.,

                              San Francisco, CA, January 25, 1995.
     Hon. Daniel K. Akaka,
     U.S. Senator from Hawaii, Hart Senate Office Building, 
         Washington, DC.
       Dear Senator Akaka: This letter is in our support of a 
     private bill for LTC. (Ret) Richard M. Sakakida to award him 
     the Congressional Medal of Honor, or other appropriate medal 
     for valor in recognition for his meritorious services as an 
     undercover Military Intelligence Service (MIS) agent in the 
     Philippines during World War II.
       On behalf of the M.I.S. Association of Northern California, 
     I wish to express our wholehearted appreciation and support 
     your worthwhile and meaningful special legislation. Richard 
     Sakakida is a member of our organization and over the past 
     four years, we have endeavored to tell his story and seek 
     recognition of his extraordinary service to his country in 
     time of war. As you may know, he was the keynote speaker of 
     the 50th MIS Anniversary Reunion in San Francisco/Monterey in 
     November 1991. In April 1994 a videotape was made, entitled 
     ``Mission to Manila--The Richard Sakakida Story''. A copy was 
     delivered to your office.
       Also, for the past three years, members of MIS NORCAL have 
     been engaged in two separate actions concerning Richard 
     Sakakida recommendation for the Award of Purple Heart for 
     wounds sustained in the Philippines during WWII and an award 
     for Valor. The latter is for heroic personal sacrifice, 
     including the risk of his own life, to protect and save the 
     lives of fellow American servicemen, while he, himself as a 
     POW of the Japanese Military Forces. We have an unsung hero 
     in our midst, and we welcome this opportunity to assist and 
     support you in obtaining recognition for the highest military 
     decoration of our country for Richard Sakakida.
           Sincerely,
                                                 Thomas T. Sasaki,
     President.
                                                                    ____



                                                MIS Northwest,

                                        Seattle, WA, July 9, 1994.
     Hon. Daniel K. Akaka,
     U.S. Senator from Hawaii, Hart Senate Office Building, 
         Washington, DC.
       Dear Senator Akaka: The Military Intelligence Service (MIS) 
     Northwest Association wholeheartedly supports the effort to 
     bestow upon Lt. Col. USAF (Ret.) Richard Sakakida the 
     Congressional Medal of Honor.
       We understand that this effort has been going on for a 
     number of years without success mainly because of the passage 
     of time and the lack of necessary documentation. Richard 
     Sakakida is a unique American Hero. Time should not be a 
     factor. It is never too late to acknowledge his heroic 
     actions in the Philippines as a CIC agent which could only be 
     classified as services performed ``above and beyond the call 
     of duty.''
       Documentation of his exploits should be properly recorded 
     in the annals of U.S. military intelligence. Any lack of 
     needed documentation could be supplemented by the records of 
     the Philippine government which saw fit to award him the 
     Philippine Legion of Honor medal. Additional documentation 
     could be mustered from some of the 500 Filipino resistance 
     fighters that he liberated.
       We appreciate and endorse your effort to have the U.S. Army 
     rightfully recognize the heroism of Richard Sakakida.
           Yours truly,
                                               Kenichi (Ken) Sato,
     President.
                                                                    ____

                                    MIS-Northwest Association,

                                    Seattle, WA, January 28, 1995.
     Hon. Daniel K. Akaka,
     U.S. Senator from Hawaii, Hart Senate Office Building, 
         Washington, DC.
       Dear Senator Akaka: The Military Intelligence Service (MIS) 
     Northwest Association wholeheartedly supports the effort to 
     bestow upon Lt. Col. USAF (Ret.) Richard Sakakida the 
     Congressional Medal of Honor or other appropriate medal for 
     valor in recognition for his meritorious service during WW 
     II.
       We understand that this effort has been going on for a 
     number of years without success mainly because of the passage 
     of time and the lack of necessary documentation. Richard 
     Sakakida is a unique American Hero. Time should not be a 
     factor. It is never too late to acknowledge his heroic 
     actions in the Philippines as an undercover Military 
     Intelligence Service (MIS) agent which could only be 
     classified as services performed ``above and beyond the call 
     of duty.''
       Documentation of his exploits should be properly recorded 
     in the annals of U.S. military intelligence. Any lack of 
     needed documentation could be supplemented by the records of 
     the Philippine Government which saw fit to award him the 
     Philippine Legion of Honor medal. Additional documentation 
     could be mustered from some of the 500 Filipino resistance 
     fighters that he liberated.
       We appreciate and endorse your effort to introduce 
     legislation to rightfully recognize the heroism of LTC 
     Richard Sakakida.
           Yours truly,
                                               Kenichi (Ken) Sato,
     President.
                                                                    ____

                                    M.I.S. Association of Northern


                                             California, Inc.,

                                 San Francisco, CA, July 14, 1994.
     Hon. Daniel K. Akaka,
     U.S. Senator from Hawaii, Hart Senate Office Building, 
         Washington, DC.
       Dear Senator Akaka: I am in receipt of a letter from Mr. 
     Sunao Ishio, President of the Japanese American Veterans 
     Association of Washington, D.C. (JAVA) In this letter he 
     describes your initiative with the backing of other concerned 
     members of Congress, to introduce a private bill for LTC. 
     (Ret.) Richard M. Sakakida to award him the Congressional 
     Medal of Honor.
       On behalf of the M.I.S. Association of Northern California, 
     I wish to express our wholehearted appreciation and support 
     your worthwhile and meaningful special legislation. Richard 
     Sakakida is a member of our organization and over the past 
     three years, we have endeavored to tell his story and seek 
     recognition of his extraordinary service to his country in 
     time of war. As you may know, he was the keynote speaker of 
     the 50th MIS Anniversary Reunion in San Francisco/ Monterey 
     in November 1991. In April 1994 a videotape was made, 
     entitled ``Mission to Manila--The Richard Sakakida Story''. A 
     copy was delivered to your office.
       Also, for the past two years, members of MIS NORCAL have 
     been engaged in two separate actions concerning Richard 
     Sakakida recommendation for the Award of Purple Heart for 
     wounds sustained in the Philippines during WWII and an award 
     for Valor. The latter is for heroic personal sacrifice, 
     including the risk of his own life, to protect and save the 
     lives of fellow American servicemen, while he, himself as a 
     POW of the Japanese Military Forces. We have an unsung hero 
     in our midst, and we welcome this opportunity to assist and 
     support you in obtaining recognition for the highest military 
     decoration of our country for Richard Sakakida.
           Sincerely,
                                                 Thomas T. Sasaki,
     President.
                                                                    ____

                                  Chicago-Nisei Post No. 1183,

                                      Chicago, IL, August 4, 1994.
     Hon. Daniel K. Akaka,
     U.S. Senate,
     Washington, DC.
       Dear Senator Akaka: As an American Legion Post consisting 
     primarily of Nisei veterans of World War II (and subsequent 
     conflicts), we point with considerable pride at the 
     accomplishments of Richard Sakakida, whose remarkable 
     achievements during WWII went unheralded until recently.
       By way of further background, enclosed is an article which 
     appeared in a CIC Journal in 1991. Those of us who met him at 
     recent linguist reunions were overwhelmed with the story.
       Further delay in recognition of his heroic exploits would 
     be unconscionable, and we are in full support of your 
     introduction of a private Bill to award him (albeit 
     belatedly) the Congressional Medal of Honor.
           Very truly yours,
                                                    Sam Yoshinari,
     Post Commander.
                                                                    ____

                                       Office of Veterans Affairs,


                                   Embassy of the Philippines,

                                    Washington, DC, July 25, 1994.
     Mr. John A. Tagami,
     Legislative Assistant, Office of Senator Daniel K. Akaka, 
         Washington, DC.
       Dear Mr. Tagami: In August 1993 I recommended the award of 
     Philippine Legion of Honor to Lt. Col. Richard Sakakida on 
     the basis of the Military Intelligence report compiled by 
     Diane L. Hamn, (copy enclosed). My recommendation was 
     addressed to his 
      [[Page S3991]] Excellency President Fidel V. Ramos, 
     President of the Philippines through the Secretary of 
     National Defense. This was referred to G2, Armed Forces of 
     the Philippines which went over the attached report. I do not 
     know what exactly happened. I can only surmise that the 
     herein report had been confirmed by records we have in the 
     Philippines and President Fidel V. Ramos approved the award.
       Let me tell you that at one time, I was informed that the 
     recommendation may not be approved because of the 
     prescriptive period during which the achievement may be 
     recognized. I made appropriate representation that this 
     prescriptive period may be waived, my reason being that the 
     recommendation for the award could not be made earlier 
     because the record of Lt. Col. Sakakida had been declassified 
     very much later.
       I understand from Ms. Barbara Joseph that the same 
     objection is being raised in connection with this award of 
     Congressional Medal of Honor. Maybe the same argument may be 
     used.
           Sincerely yours,
                                            Tagumpay A. Nanadiego,
         BGen, AFP (Ret), Special Presidential Representative/
           Head, Office of Veterans Affairs, WDC.
                                                                    ____

                              Falls Church, VA, February 27, 1995.
     Hon. Daniel K. Akaka,
     U.S. Senate,
     Washington, DC.
       Dear Senator Akaka: If you recall, His Excellency President 
     Fidel V. Ramos of the Republic of the Philippines approved 
     the award of the Philippine Legion of Honor (Degree of 
     Legionnaire) to Lt Colonel Richard M. Sakakida, USAF (Ret) 
     for his role in the Philippine campaign during WWII. The 
     formal presentation was held at the Carlos P. Romulo Hall of 
     the Philippine Embassy, Washington, D.C. on April 15, 1994. 
     You were represented at the awarding ceremony by Mr. John 
     Tagami who read your message and that of Senator Daniel 
     Inouye.
       I am enclosing herewith a copy of the General Orders issued 
     by the General Headquarters, Armed Forces of the Philippines 
     announcing the award.
       In my private capacity as a former enlisted man in the 31st 
     Division (PA) called and ordered into the service of the 
     United States Army Forces in the Far East (USAFFE) in 1942 
     and as a guerrilla intelligence officer of the Vera's Tayabas 
     Guerrillas, a combat batallion which was recognized by the 
     Sixth Army, USA in 1945, I join in the recommendations for 
     the award of the Congressional Medal of Honor to LtCol. 
     Sakakida.
       Enclosed is a brief summary on LtCol. Sakakida's role in 
     the Philippine campaign which is chronicled in the 
     intelligence operation reports of the Armed Forces of the 
     Philippines.
           Sincerely,
                                            Tagumpay A. Nanadiego,
     BrigGeneral, AFP (Ret).
                                                                    ____



    award of the philippine legion of honor--(Degree of legionnaire)

       By direction of the President, pursuant to paragraph 1-6e, 
     Section II, Chapter 1, Armed Forces of the Philippines 
     Regulations G 131-053, this Headquarters, dated 1 July 1986, 
     the PHILIPPINE LEGION OF HONOR in the degree of Legionnaire 
     is hereby awarded to Mr. Richard M. Sakakida for 
     exceptionally meritorious conduct in the performance of 
     outstanding service to the Filipino--American freedom 
     fighters as the United States undercover counterintelligence 
     agent from 22 April 1941 to 20 September 1945. At the 
     outbreak of World War II, then Sergeant Sakakida was shipped 
     out from Honolulu to the Philippines to monitor the 
     activities of the Japanese community in Manila. When 
     Corregidor surrendered to the Japanese Imperial Forces in 
     1942, he was taken as prisoner of war, was tortured and 
     brought to Bilibid Prison. Later, he was utilized as 
     interpreter for court martial proceedings for American and 
     Filipino prisoners and on many occasions, interceded on 
     behalf of the POWs by translating testimony in their favor. 
     He engineered and successfully carried out a daring prison 
     break from Muntinlupa Prison, releasing over 500 Filipino 
     guerrillas with the assistance of some Filipinos. In July 
     1945, after his escape from prison, he was wounded in a 
     skirmish between Filipino guerrillas and Japanese forces. He 
     rejoined General Douglas MacArthur's returning forces in the 
     liberation of the Philippines after a long trek across miles 
     of jungle terrain. By these achievements, Mr. Sakakida 
     contributed immeasurably to the liberation of the 
     Philippines, thereby earning for himself the respect and 
     admiration of the Filipino people.
       By Order of the Secretary of National Defense.
                                                Lisandro C Abadia,
                                     General, AFP, Chief of Staff.
     
                                                                    ____
                          Richard M. Sakakida

       Richard Sakakida's undercover intelligence work during 
     World War II parallels Arthur Komori's in that both were from 
     Hawaii and were selected over a number of candidates in March 
     1941 for the secret CIP (Counter Intelligence Police) 
     undercover mission, until they sneaked ashore in Manila.
       Once landed, Sakakida, pretending to be a draft evader from 
     Hawaii, checked into the Nishikawa Hotel. He soon got a 
     clerical job there checking passports and filling out 
     passport entry forms of visiting Japanese. He obtained 
     valuable information during this time. He even found work as 
     a sales representative of Sears Roebuck to complete his 
     cover, while he wove himself into the fabric of Manila's 
     Japanese business community, passing on his findings to CIP 
     chief, Major Nelson Raymond. One of Sakakida's assignments 
     was to befriend a Nisei serving as local advisor to the 
     Japanese Consulate in Manila and collect information from 
     that source.
       On December 8, 1941, when the Japanese bombed Manila and 
     the United States declared war on Japan, Sakakida, as 
     previously planned, voluntarily turned himself in at the 
     Nippon Club Evacuation Center with the rest of the Japanese 
     in Manila. One day, Sakakida, escorted by the Philippine 
     Constabulary, went marketing for foodstuff for the other 
     detainees. When he stopped at the Nishikawa Hotel to pick up 
     his belongings, the Filipino Secret Service arrested him as a 
     spy and hauled him to Philippine Constabulary headquarters 
     for interrogation. U.S. CIP agents eventually rescued him.
       Back in military uniform with the CIP Sakakida interrogated 
     Japanese civilians until December 23, 1941, when the 
     advancing Japanese Army forced the evacuation of the American 
     military in Manila to Bataan and Corregidor. On Bataan, 
     Sakakida interrogated Japanese POWs, translated Japanese 
     diaries and combat documents, prepared propaganda leaflets in 
     Japanese, and called upon the Japanese to surrender by 
     loudspeaker broadcasts Assisting Army Signal Intelligence, he 
     monitored Japanese air-ground communications and deciphered 
     Japanese codes. He preformed critical intelligence work in 
     Malinta Tunnel on Corregidor which came under intense daily 
     bombing by Japanese planes.
       After three months of bitter fighting, the lack of relief 
     supplies and replacements forced the exhausted, malnourished, 
     disease-ridden Americans to capitulate. Bataan fell on April 
     8, 1942, and 76,000 defeated American and Filipino troops 
     embarked upon the infamous ``Bataan Death March'' that killed 
     over half their numbers. General MacArthur ordered the 
     evacuation to Australia of his two valuable Nisei linguists, 
     Komori and Sakakida, but the latter chose to give up his seat 
     on the escape aircraft to a civilian Nisei. With no chance, 
     therefore to escape, Sakakida became one of General 
     Wainwright's tragic survivors of Corregidor to surrender to 
     the Japanese Army.
       As the only American Nisei POW known to have been captured 
     by the Japanese, Sakakida spent six months incarcerated on 
     Corregidor. The Kenpei Tai quizzed him mercilessly and 
     tortured him. Sakakida steadfastly endured, adhering to his 
     story of being a civilian, forced to work for the U.S. Army 
     after the war began. In December 1942, Sakakida was thrown 
     into Bilibid Prison. The enemy questioned Sakakida's 
     renunciation of his Japanese citizenship prior to the war 
     but, because he was born of Japanese parents, considered he 
     could be tried for treason. He faced an almost certain death 
     sentence if tried before a Japanese military tribunal. The 
     Japanese 14th Army HQ verified from the Foreign Minister that 
     Sakakida's Japanese citizenship had indeed been voided 
     (fortuitously, Sakakida's mother had cancelled his dual 
     citizenship in
      August 1941 after his departure). On February 11, 1943, 
     ``Kigensetsu,'' (Empire Day), Sakakida was advised the 
     treason charge would be dropped. Despite the hideous 
     torture suffered at the hands of his Japanese captors, the 
     marks of which remain evident today, Richard Sakakida 
     never broke down and never revealed his undercover role 
     and mission against the Japanese.
       Sakakida was then assigned to work for Chief Judge Advocate 
     Col. Nishiharu and remained under continued surveillance, 
     subjected to periodic attempts at entrapment to elicit his 
     true identity. During this period, Sakakida established 
     contact with the Filipino guerrilla underground through which 
     he managed to funnel vital military information to 
     MacArthur's HQ in Australia. His most crucial report cited 
     Japanese troop and shipping activity. The report also advised 
     of preparations for an invasion of Australia to be launched 
     from Davao, Mindanao, by the Japanese 35th Army with 15 troop 
     transports and destroyers. Sakakida later learned from an 
     officer of the sole surviving ship that American submarines 
     had annihilated that convoy, probably reported in WW II 
     history as the Battle of the Bismarck Sea.
       Sakakida also engineered a daring prison break from 
     Muntinglupa Prison by disguising as a Japanese security 
     officer. The escape freed guerrilla leader Ernesto Tupas and 
     500 of his men. Tupas escaped to the Rizal mountains, where 
     he established radio contact with MacArthur's HQ through 
     which Sakakida could relay more tactical information gleaned 
     from the 14th Army HQ where he worked. This could be the only 
     instance in World War II where a U.S. Military intelligence 
     agent relayed information from the very heart of the enemy's 
     headquarters.
       After October 1944, when the American forces invaded Leyte 
     and American planes bombed Manila, inflicting heavy damage, 
     General Yamashita moved his headquarters north to Baguio. As 
     the American invading forces encircled the beleagured 
     Yamashita's 14th Army, Sakakida encountered increasing 
     hostility from his captors and decided to make his break. In 
     June 1945, he escaped from the retreating Japanese forces and 
     fled into the hills where he joined a band of guerrillas. 
     During a firefight between the guerrillas and the Japanese a 
     shell fragment hit Sakakida in the stomach. The retreating 
     guerrillas had to abandon him. For the next 
      [[Page S3992]] several months, Sakakida wandered alone 
     through the mountainous jungle, scrounging for food from the 
     wild. He was weakened with his stomach wound and ravaged by 
     malaria, dysentery and beriberi. His hair and beard grew long 
     and wild; insect bites and sores covered his skin. His 
     clothes hung in tatters; semi-starvation emaciated him.
       One day, unaware that the war had already ended, he saw a 
     group of approaching soldiers wearing unfamiliar uniforms and 
     deep helmets, unlike the pie-plated American helmets of 1942. 
     He thought they were Germans. But his heart leaped as he 
     heard them speaking English. Sakakida emerged from his jungle 
     hiding, waving his arms and yelling ``Don't shoot!'' and then 
     fervently convinced the dubious American GIs that this ragged 
     and haggard Japanese-looking soldier was an American sergeant 
     captured by the Japanese at Corregidor. He begged them to 
     call the CIC to verify his claim. Two hours later two CIC 
     lieutenants drove up in a jeep, leaped out to identify him 
     and welcomed him back to the CIC ranks. They took him back to 
     the field office of the 441st Detachment where Sgt. Richard 
     Sakakida was home at last. His long, lonely, fearful, 
     tortuous ordeal as an undercover agent in the Philippines 
     finally ended. On July 1, 1988, Lt. Col. Richard Sakakida was 
     inducted into the Military Intelligence Hall of Fame at Fort 
     Huachuca, Arizona.
     

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