[Congressional Record Volume 141, Number 196 (Monday, December 11, 1995)]
[Senate]
[Pages S18333-S18348]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   UNITED STATES LEADERSHIP IN BOSNIA

  Mr. BYRD. Mr. President, I have been recognized to speak out of 
order.
  Mr. President, President Clinton has made a difficult and courageous 
decision to accept a role in leading a NATO deployment of forces to 
implement the peace treaty that the parties to the Bosnia conflict have 
initialed and that they will soon sign. It was only through strong, 
persistent, and courageous leadership that these parties reached an 
agreement to end their atrocious, murderous, ethnic savagery at all.
  What is crystal clear is that our European allies, half a century 
after the end of World War II, are dependent on the United States for 
leadership on the European Continent. This is a result of the 
continuous commitment of America to defend Europe against possible 
aggression by the Soviet empire for many, many years, and of the United 
States, being willing to provide the glue of military and economic 
leadership on the European Continent. This reliance on the United 
States is testimony, one might surmise, to a job that the United States 
did almost too well, too unselfishly, and under administrations of both 
political parties.
  The argument can be made and will be made that this conflict in 
Bosnia is a European conflict, and that Europeans should police it 
without asking the United States to take the lead. That is a logical 
argument. I agree with it. But what is logical, unfortunately, is not 
reality in that sense.
  The probable effect on the future of NATO--indeed, of Europe itself--
of a decision by America not to lead this force can be gleaned from the 
history of the first half of this century, when the United States 
refused to take a leadership role, but then was later pushed into 
entering a European conflict and suffered heavy casualties in the 
process. I have lived through that. History is clear.
  So to those who would say that this conflict is Europe's business and 
that America need not be involved, they certainly have a point, but 
there is the history that I have been talking about, and there is in 
the history of this century a warning about the possible, even 
probable, results of that view in this situation that we are facing.
  This vital military relationship with Europe also affects U.S. vital 
interests in other areas of the world, as well as in Europe. How will 
other nations depend on the United States, on our word, if we walk away 
from NATO by not participating in this unique NATO mission? Our 
security relationships with NATO, with Asian nations, and elsewhere, 
are intimately tied through our trading, banking, and diplomatic 
relationships. U.S. military leadership and security agreements create 
a strong base upon which to build fertile economic and diplomatic 
relationships. It is a mistake to view this current situation as some 
sort of stand-alone problem.
  The outcome of U.S. failure to support NATO in this operation could 
affect U.S. interests in other parts of the world and at other times in 
history. The risks of not attempting to stabilize the conflict in the 
Balkans, resulting in the war's spreading outside the immediate theater 
of conflict that would be a likely consequence, are substantial and 
troubling. Left unchecked, the Bosnian conflict could spread to 
Macedonia and Albania, dragging NATO allies Greece and Turkey into an 
escalating ethnic conflict. That would be disastrous for the future 
with respect to the interests of NATO and certainly with respect to our 
own overall security interests.
  I do not think I need to point out the damage to the NATO alliance 
that would result from such an eventuality. U.S. troops are still on 
watch over Iraq, which remains a threat to Kuwait and Saudi Arabia. 
Should Iraq move against Kuwait once again, would we be able to count 
on our allies to stand with us against Iraq a second time?
  Whether we like it or not, as we are fond of saying, the United 
States is the world's sole remaining superpower. I find it ironic that 
some Senators who promote robust defense budgets, even at the expense 
of not funding needed domestic infrastructure, educational, and other 
needs, still shrink from endorsing a role for the United States which 
has been requested by the NATO alliance. Given our power, given the 
unbroken leading role we have played in Europe throughout the entire 
second half of this century, indeed, given the size of our military 
budget--I am not altogether supportive of that particular size inasmuch 
it is representative of the $7 billion increase over and above the 
President's budget, which I think is too much at this particular time--
it cannot be much of a surprise that European powers are heavily 
dependent on the United States to lead NATO in implementing a peace 
treaty in Bosnia. It is, in fact, the case that NATO is now vigorous, 
and, as Secretary of Defense Perry testified before the Senate Armed 
Services Committee on Wednesday, December 5 of this year, more united 
than ever before. Indeed, it is a major development that the French 
have now agreed to participate in the NATO Military Committee, 
reversing a standoffish position that has so often characterized 
France's relationship with NATO since the day of General Charles de 
Gaulle. It is both notable and telling that while there has been a lot 
of fiery rhetoric in Congress about not placing U.S. troops under the 
command of foreign military officers, none of our NATO allies, and none 
of the other nations sending troops to Bosnia, has expressed any 
reservation about putting their soldiers under U.S. command. Even the 
Russian troops who will serve under the U.S. lst Armored Division 
around Tuzla have had great difficulty, as a matter of fact had greater 
difficulty in putting themselves under NATO command than under U.S. 
command. This is another testament, it seems to me, to U.S. leadership.
  President Clinton and the United States accepted a leadership role in 
Bosnia only reluctantly. We all can recall the cries of outrage from 
across the United States a year or two ago, as media coverage of 
wartime atrocities in Bosnia were beamed into our living rooms. 
Pictures of refugees fleeing burned-out homes, pictures of skeletal 
prisoners of war recounting tales of torture and suffering, of sobbing 
women admitting to the rapes they endured, pictures of stoic faces of 
United Nations observers chained to ammunition bunkers--all of these 
images led to cries for action by the United States, cries for 
immediate military reprisals from across the United States.
  This was the reaction driven by the media, driven by the electronic 
eye, and perhaps it is too bad in a sense that we are to be driven and 
are to let ourselves be driven by that electronic eye, by that 
television tube.
  But the President did not commit U.S. troops to such an effort, and 
in my opinion he would have been on dubious constitutional grounds had 
he done so. I know there are those who would say he is the Commander in 
Chief and that he has that authority. I am not going into that argument 
at this point but I am prepared to, and may do so before many days have 
passed--that is a very dubious ground of constitutionality. He 

[[Page S18334]]
promised troops for our NATO mission on the ground in Bosnia only to 
help implement a peace agreement, and there was no peace agreement in 
sight at that time. Now, there is a peace agreement in sight, brought 
about in large part by the efforts of this administration, and we are 
faced with the decision of whether or not to support that agreement. We 
can be sure that those calls for U.S. military action would be heard 
again, should those tragic images be resurrected as a result of our 
unwillingness to follow through on this opportunity; that is what it 
is, an opportunity. That is all it is at the moment, an opportunity. We 
hope that it will eventually lead to peace, but it is an opportunity 
for peace.
  In many ways, Bosnia represents the future of conflict in the world--
an ugly, convoluted, and murderous small war with the ability to spread 
across borders and to convocate and to draw in neighboring nations and 
religio-ethnic groups. There is no clear superpower prism to focus and 
sharpen the lines between warring factions, as there was in the cold 
war. We cannot intervene in all of these conflicts, of course, nor can 
we hope to solve all of them. But some can be averted, or shortened, or 
perhaps settled, as Iraq, and now, hopefully, Bosnia has been, or soon 
will be, by the combined efforts of the United States and other powers. 
No single nation can wade in and settle these conflicts as they are too 
deep-seated, too complex. This places a premium on coalition building 
and on cooperative efforts by interested parties. It is an approach 
that worked in Iraq, and hopefully will work in Bosnia. United States 
leadership and participation have been critical, but we cannot do it 
alone, anymore than the other nations concerned about Bosnia can do 
it--or will do it--without us.

  The Dayton accords, to be signed in Paris on December 14, are 
impressive. They comprise the basis for a new start for all the people 
of Bosnia, covering territorial, military, civil, governmental, and 
electoral matters. Not every issue is finally resolved, not every issue 
will be finally resolved, but additional negotiations are called for to 
resolve the outstanding issues. All three parties to the conflict have 
initialed these accords, and all three parties have pledged to abide by 
them. All the parties have sought this peace, and have made the many 
difficult decisions necessary to reach agreement on these accords. 
After almost 4 years of bitter conflict, this is truly an impressive 
achievement, and one that should not be underestimated.
  The administration has done a good job in testifying before 
congressional committees, in laying out in detail the military plan and 
tasks that we would undertake to fulfill the NATO implementation plan.
  I have participated in hearings by the Senate Appropriations 
Committee, of which I am a member. I have likewise participated in 
hearings by the Armed Services Committee, of which I am a member.
  So the administration has presented its case. It has responded to 
questions and, in my judgment, candidly.
  We are all very cognizant of the risks of casualties, and the 
administration is very clear on that point, that there are risks of 
casualties. And we are rightly concerned about the prospects of mission 
creep and the resulting quagmire that could develop when unforeseen 
events attempt to push us into an undefined, interminable and 
escalating involvement which none of us wants and which none of us--
this Senator in particular--is willing to support. I believe that the 
administration is also concerned about these possibilities, and that we 
must reject any attempt to expand the limited military role in Bosnia 
beyond that which has been projected and assured as being the limit by 
the administration. We must guard against mission creep. We saw that in 
Somalia. When that happened, then I insisted on an amendment. It was my 
amendment which drew the line in the sand and said, ``This far, no 
farther. If there is a request, if there is justification for staying 
longer, then come back, come back to Congress, seek authorization and 
appropriations.'' So the power of the purse was the magic ointment that 
assured that such a line could be drawn and that it could be enforced.
  The United States can be proud of its professional, volunteer 
military. These men and women are well trained, well armed, willing and 
ready to meet any challenge.
  I have heard it said that they are the best America has ever 
produced. I am not one who would say that, having lived through two 
world wars, the war in Vietnam and the war in Korea. The United States 
has produced great armies, great navies, military forces manned by 
patriotic individuals who were well trained in past wars. So, some who 
fought in World War II may question the saying that today's military is 
the best that America has ever produced. We can say that no better has 
been produced. And we can be proud of our military men and women.
  These men and women are well trained, they are well armed, and they 
are willing and ready to meet any challenge, and they understand the 
risks that they face better than I can ever hope to do. They are 
prepared to operate effectively and decisively in Bosnia.
  So, I again commend the President in arranging the Dayton meetings 
and putting together this opportunity to bring peace to the Balkans. 
This was quite an achievement in reaching the Dayton accords, quite an 
achievement in bringing the parties together, quite an achievement in 
getting them to initial an agreement. It is a noble effort, worthy of 
America, and it holds promise for a more enlightened 21st century than 
was the reality of the 20th century. American leadership, we have 
learned, makes a difference, and the world recognizes that American 
leadership makes a difference. Nevertheless, Mr. President, the 
American people are not anxious to risk their children to tame the 
excesses of other nations and ethnic groups. We do so very reluctantly, 
and that is as it should be. But when we contemplate an action such as 
the President has proposed in the Balkans, the chances of success are 
greatly enhanced if the execution of the operation is bipartisan and if 
the President has the support of the Congress in this endeavor.
  I wrote to the President on October 13, urging him to seek the 
support of Congress before beginning this mission, and I commend him 
for replying in the affirmative on October 19. He promised to provide 
such a request ``promptly after a peace agreement is reached.'' And in 
the next 2 minutes, such a letter will be faxed, as I have just been 
advised.
  It is a truism that when the President succeeds, America succeeds. 
And if he does not succeed, the Nation as a whole loses. The majority 
leader, Mr. Dole, has the experience and wisdom to understand this 
fundamental axiom of American power and influence, and I commend our 
majority leader for throwing his support behind the President in the 
execution of this national commitment. He has done the right thing for 
our country, and I believe the Congress as a whole should step up to 
the plate and accept its share of the responsibility.
  The Constitution places upon the Congress the authority to declare 
war. Is one to suppose that anything less than a declaration of war 
shifts the responsibility elsewhere? I will have more to say on this 
later.
  We in the Senate should come down on this one way or the other. It is 
the responsibility of the Congress. That is where the responsibility 
rests. That is where it is vested by the Constitution, and we should be 
willing to step up to the plate and vote one way or the other.
  We have a constitutional duty to do so. We have an obligation to the 
people who voted to put us here to stand up for what we believe. One 
may wish to vote no; one may wish to vote aye. It seems to me that we 
have a responsibility to vote one way or the other. Ducking around the 
issue, hedging our bets and avoiding responsibility are not what the 
voters sent us here for. Our constituents deserve our considered 
judgment and expect us to take a stand on actions which will put their 
children at risk in foreign lands.
  Our foreign military men and women will not have the opportunity to 
hedge their bets. They are being sent to battle, and they will stand at 
the plate. And we have a responsibility to do the same. The 
Constitution places that responsibility right here.
  I believe that any resolution that we pass on this matter should 
clearly state that the Congress is approving 

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the operation. I would prefer to use the word ``authorizing'' the 
operation. That is what we did in the case of the war in the Persian 
Gulf. Congress authorized the President of the United States, the words 
being these, and I quote from the Joint Resolution, Senate Joint 
Resolution 2, as voted on January 12, 1991: ``The President is 
authorized,'' et cetera.
  So we should take a clear stand. It should have the effect of giving 
the President the clear aegis of congressional authority that there is 
no doubt in the minds of friend or foe.
  I can understand those who may wish to vote against such a measure, 
but vote we should. It should have the effect, as I say, of giving the 
President a clear aegis of congressional authority, which will help our 
military forces to succeed, and thus help America to succeed.
  Some have compared this upcoming vote to the vote authorizing 
President Bush to lead U.S. troops into combat in Operation Desert 
Storm against Iraq, and I just referred to that resolution. Unlike the 
Persian Gulf war, when an economic embargo that was only just beginning 
to bite into the Iraqi economy provided an alternative to war, an 
alternative that I favored--an alternative that I believe most of the 
Chiefs of Staff favored, an alternative that I seem to remember General 
Powell favored--that I favored at that time over risking U.S. service 
men and women to combat, there is no comparable current alternative in 
the case of Bosnia. All of the alternatives have been tried over the 
last 3 or 4 years and have played out whatever impact they had.
  The economic embargo on Serbia did have an important influence on the 
behavior of President Milosevic in seeking a peaceful settlement. In 
the end, however, only resolute U.S. and NATO military power have 
created conditions in which all of the warring factions have sought 
peace and have sought to protect this fragile commitment with the 
security of a NATO presence.
  This is unique. It is unique. In Bosnia, our mission is to deter 
further war, to ensure stability by our very presence, and to give all 
three parties a chance to back away from conflict and begin anew in 
peace. This is an important difference. America has long valued peace 
and valued compromise over conflict.
  We should think long and we should think hard before we consider 
rejecting this compromise, this chance for peace instead of more war. 
In the end, we do not know how this effort will turn out. It is a 
serious undertaking, as can be said of many decisions that have been 
made by our forbears in the past and in many actions that have been 
taken by our forefathers in the past. The outcome was not assured in 
their day. The outcome is not assured here, but we must make the best 
possible choice and decide what is best for America's security 
interests.
  Furthermore, there has been concern over the so-called exit strategy; 
that is, the standards of success and benchmarks of military action by 
the international force which will result in a departure of our forces. 
The Secretary of Defense, Mr. Perry, and the Chairman of the Joint 
Chiefs of Staff, General Shalikashvili, testified on Wednesday, 
December 5, 1995, that they will have no trouble in completing the 
military mission and removing our forces from the ground operation in 
Bosnia in ``approximately'' a year.
  That is the exit strategy! Let us vote on language putting their 
assurances into print, into law, into the action of the Senate. That is 
the exit strategy, ``approximately 1 year.'' Indeed, they have 
emphatically argued that the military missions are structured so as to 
be able to be accomplished well within that time period.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 13 minutes and 10 seconds 
remaining.
  Mr. BYRD. I thank the Chair.
  The Dayton agreement itself, in Article I, General Obligations, 
states that the parties ``welcome the willingness of the international 
community to send to the region, for a period of approximately one 
year, a force to assist in implementation of the territorial and other 
militarily related provisions of the agreement.'' Therefore, the 
expectation of the parties themselves in language that they have 
initialed is that approximately 1 year is what they get in terms of the 
NATO operation. This is the clear understanding of the duration of the 
military mission, and so I think that there should be no ambiguity 
about this, no invitation to mission creep, no cloud of uncertainty 
that we are being drawn into a quagmire. The administration and the 
parties themselves, therefore, have made it indubitably clear that the 
mission is for approximately 1 year, and the American people have a 
right to expect it to last no longer than that.
  The military operation should not be dependent upon the success of 
reconstruction attempts by civilian agencies, should not be dependent 
on the pace of civilian reconstruction, should not be dependent on 
elections, or other nonmilitary tasks. Therefore, I think it is 
appropriate to write into whatever resolution we pass a clear date 
certain--if not that, then the words ``approximately 1 year''--so that 
it would be clear as to when U.S. forces will be expected to have 
fulfilled their mission and departed. I suggest that it be the language 
because that is the language the administration witnesses, that is the 
language that the President, and that is the language that the parties 
to the agreement themselves have proposed.
  The language then should say--should, indeed, let the President 
know--that we expect that word to be kept. If for some unforeseen 
reason the circumstances are such that there may appear to be 
justification for seeking an extension, then I think that the President 
can come back to the Congress at that time and seek an extension, and 
seek the appropriations that are necessary, and Congress may at that 
time then address such a request promptly and appropriately, based on 
circumstances at such time.
  I am not saying that Congress would favorably respond or that it 
would not favorably respond. But, again, Congress would speak. The 
deadline itself then is the ultimate exit strategy, and the 
administration can clearly plan its activities and withdrawal in an 
orderly fashion with that deadline understood from the outset. There 
will be no ambiguity about timeframes, then, regarding American 
military involvement and exposure of our forces to extended risk in 
Bosnia.
  I should say that such language in no way would prevent the troops 
from being withdrawn earlier than ``approximately 1 year,'' if all goes 
as well as expected. And if the mission does not go well, I remind my 
colleagues that Congress has the ability to end U.S. participation 
earlier, if necessary. Congress retains the power of the purse. I hope 
that Congress will think long and many times before it ever shifts that 
power of the purse to the Chief Executive.
  Congress retains the power of the purse and can at any time draw a 
dateline for cutting off the funds for the mission and bringing the 
troops home. This is the ultimate authority, the ultimate authority of 
Congress and the ultimate authority of the American people through 
their elected representatives in Congress. And the power of the purse 
is the ultimate oversight tool of the Congress.
  While I accept the assurances of our military leadership that the 
mission is achievable and that U.S. forces are well prepared to deal 
with the expected problems that may arise, if the situation changes and 
the parties resume their conflict despite our efforts and despite their 
pledges, then I would support action to bring our troops home, as I 
have done in the past.
  There may well be needed a follow-on security force, manned by 
European troops on the ground, when the U.S. mission is over. I 
strongly encourage the administration to begin planning for such a 
turnover now. While U.S. leadership is needed now to stabilize the 
situation, after it is stabilized an insurance policy in the way of a 
residual European force should be contemplated.
  I say all of this, Mr. President, after long consideration and with 
deep personal reflection and concern. This is a sober, somber thing 
that we are contemplating. I feel deeply my obligations to the 
Constitution and to the people of West Virginia and to the people of 
the United States and to our men and women in uniform. West Virginians 
will play a role in this mission as they have done so well and so 
valiantly in so many U.S. military missions throughout the Nation's 
history. 

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  West Virginians were playing a role even before West Virginia itself 
became a State. Even before it became the 35th star in the universe of 
stars, the people of West Virginia, the people beyond the mountains, 
beyond the Alleghenies played a role. The 152nd POW Information Center, 
an Army National Guard unit in Moundsville, WV, is among the units that 
have been ordered to deploy to Bosnia. I wish them well, and I will 
remember their patriotism daily.
  West Virginia is a great and patriotic State with a history of 
military service. As a percentage of her eligible population, West 
Virginia stands at the top--not at the bottom, but at the top--in 
combat casualties in U.S. military operations during the more than 200-
year history of our Nation. West Virginia also has citizens whose 
heritage is Croat, Serb, and Bosnian Moslem--not many, but some. So the 
people of West Virginia, while most concerned about the fates of the 
U.S. soldiers, sailors, and airmen serving their country around the 
world, are not unmindful of the people of Bosnia.
  In mid-November, the capital city of Charleston, WV, voted to become 
the sister city of Sarajevo, the capital of Bosnia. Charleston 
churches, other religious institutions, and the University of 
Charleston have generously and selflessly volunteered to support 
Bosnian refugees, and I am moved by these acts of kindness. We in West 
Virginia may be physically isolated in our mountains. We do not bemoan 
that fact. As a matter of fact, we look upon those mountains with 
immense pride. We may be isolated, but we are not unmindful of the 
plight of the common people of Sarajevo and the whole of Bosnia and 
Herzegovina.
  This NATO operation in Bosnia in support of the Dayton peace 
agreement can be a turning point in the history of the Balkans. There 
are no other viable alternatives to ending this conflict. There is no 
other alternative to the exercise of American leadership and resolve 
that has led to this last true attempt at peace.
  The President is exercising leadership, and he is rightly seeking the 
support of the people and he is rightly seeking the support of the 
Congress of the United States for this mission. It is our 
constitutional obligation here in the Congress to consider this mission 
and the consequences of this mission for American interests. It is our 
obligation to vote, and it is our obligation to watch over the 
execution of the mission.
  I have been glad to see the Senate conducting the hearings and the 
debate that have led up to this upcoming vote. These have been lengthy 
hearings. They have been probing, and they have been thoughtful. There 
have been thoughtful questions and there have been thoughtful answers, 
and this could be a proud moment in the history of the Senate.
  I hope that we can give the troops and the President the guidance and 
support that I believe are necessary to see this mission through 
successfully.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 2 minutes and 45 seconds 
remaining.
  Mr. BYRD. I thank the Chair.
  Now, Mr. President, I read from a letter that has been sent to our 
Democratic leader, Mr. Daschle, and I understand that the Democratic 
leader has no objection to my reading from this letter and that he 
authorizes my doing so.
  The letter says in part--it is addressed to the leader:

       Dear Mr. Leader: I consider the Dayton peace agreement to 
     be a serious commitment by the parties to settle this 
     conflict. In light of that agreement and my approval of the 
     final NATO plan, I would welcome a congressional expression 
     of support for U.S. participation in a NATO-led 
     implementation force in Bosnia. I believe congressional 
     support for U.S. participation is immensely important--

  Let me say that again.

       I believe congressional support for U.S. participation is 
     immensely important to the unity of our purpose and the 
     morale of our troops.

  Mr. President, I add my own feeling that congressional support is not 
only immensely important, but it is also vital, in my judgment, it is 
vital to the success of the effort.
  Mr. President, I ask unanimous consent on behalf of Mr. Daschle that 
the entire letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                              The White House,

                                    Washington, December 11, 1995.
     Hon. Thomas A. Daschle,
     Democratic Leader, U.S. Senate,
     Washington, DC.
       Dear Mr. Leader: Just four weeks ago, the leaders of 
     Bosnia, Croatia and Serbia came to Dayton, Ohio, in America's 
     heartland, to negotiate and initial a peace agreement to end 
     the war in Bosnia. There, they made a commitment to peace. 
     They agreed to put down their guns; to preserve Bosnia as a 
     single state; to cooperate with the War Crimes Tribunal and 
     to try to build a peaceful, democratic future for all the 
     people of Bosnia. They asked for NATO and America's help to 
     implement this peace agreement.
       On Friday, December 1, the North Atlantic Council approved 
     NATO's operational plan, OPLAN 10405, the Implementation of a 
     Peace Agreement in the Former Yugoslavia. On Saturday, 
     General George Joulwan, Supreme Allied Commander Europe, who 
     will be commanding the NATO operation, briefed me in Germany 
     on the final OPLAN.
       Having reviewed the OPLAN, I find the mission is clearly 
     defined with realistic goals that can be achieved in a 
     definite period of time. The risks to our troops have been 
     minimized to the maximum extent possible. American troops 
     will take their orders from the American general who commands 
     NATO. They will be heavily armed and thoroughly trained. In 
     making an overwhelming show of force, they will lessen the 
     need to use force. They will have the authority, as well as 
     the training and the equipment, to respond with decisive 
     force to any threat to their own safety or any violations of 
     the military provisions of the peace agreement. U.S. and NATO 
     commanders believe the military mission can be accomplished 
     in about a year.
       A summary of the OPLAN is attached. Of course, members of 
     my staff and the Administration are available to answer your 
     questions and further brief you on the OPLAN as you require.
       I consider the Dayton peace agreement to be a serious 
     commitment by the parties to settle this conflict. In light 
     of that agreement and my approval of the final NATO OPLAN, I 
     would welcome a Congressional expression of support for U.S. 
     participation in a NATO-led Implementation Force in Bosnia. I 
     believe Congressional support for U.S. participation is 
     immensely important to the unity of our purpose and the 
     morale of our troops.
       I believe there has been a timely opportunity for the 
     Congress to consider and act upon my request for support 
     since the initialing in Dayton on November 21. As you know, 
     the formal signing of the Peace Agreement will take place in 
     Paris on December 14.
       As I informed you earlier, I have authorized the 
     participation of a small number of American troops in a NATO 
     advance mission that will lay the groundwork for IFOR, 
     starting this week. They will establish headquarters and set 
     up the sophisticated communication systems that must be in 
     place before NATO can send in its troops, tanks and trucks to 
     Bosnia.
       America has a responsibility to help to turn this moment of 
     hope into an enduring reality. As the leader of NATO--the 
     only institution capable of implementing this peace 
     agreement--the United States has a profound interest in 
     participating in this mission, which will give the people of 
     Bosnia the confidence and support they need to preserve the 
     peace and prevent this dangerous war in the heart of Europe 
     from resuming and spreading. Since taking office, I have 
     refused to send American troops to fight a war in Bosnia, but 
     I believe we must help now to secure this Bosnian peace.
           Sincerely,
                                                     Bill Clinton.

  Mr. BYRD. Mr. President, I thank the Senate. I thank Senators. I 
yield the floor.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts if recognized.
  Mr. KENNEDY. Mr. President, I strongly oppose the constitutional 
amendment we are debating this afternoon and will be voting on 
tomorrow. The first amendment is one of the great pillars of our 
freedom. It has never been amended in over 200 years of our history and 
now is no time to start.
  Flag burning is a vile and contemptuous act, but it is also a form of 
expression protected by the first amendment. Surely we are not so 
insecure in our commitment to freedom of speech and the first amendment 
that we are willing to start carving loopholes now in that majestic 
language.
  And for what reason? What is the menace? Flag burning is exceedingly 
rare. Published reports indicate that fewer than 10 flag burning 
incidents have occurred a year since the Supreme Court's decision in 
Texas versus Johnson in 1989. According to the Congressional Research 
Service, there were 7 reported incidents in 1990; 13 in 1991; 10 in 
1992; 0 in 1993; and 3 in 1994.
  Mr. President, this is hardly the kind of serious and widespread 
problem in 

[[Page S18337]]
American life that warrants a loophole in the first amendment. Surely 
there is no clear and present danger that warrants such a change.
  Mr. President, we just heard the excellent statement of the Senator 
from West Virginia. His statement emphasized that issues of security 
and interests of peace in the Balkans are a matter of great importance 
to the American people. It is right that we will debate issues relating 
to national security and the well-being of our men and women under 
arms.
  Similarly, it is essential that we discuss our Nation's domestic 
priorities as we address the budget and the deficit. Hopefully debate 
will lead to progress in an area of great importance.
  We also would agree, I daresay, that the issues facing the children 
of this country--the strength of our educational system, the violence 
engulfing our society, the exposure to substance abuse and other health 
risks--are a matter of importance and deserve extensive debate.
  But, when you look at the incidents of flag desecration during the 
last 5 years--three in 1994, none in 1993--it is difficult to believe 
that we are going to take time to amend the first amendment to the 
Constitution. I think such an action fails the reality test.
  I can remember listening to a speech given by Justice Bill Douglas, 
one of the great Supreme Court Justices. Students asked him what was 
the most important export of the United States. He said, without 
hesitation, ``The first amendment.'' That is the defining amendment for 
the preservation of speech and religion, so basic and fundamental in 
shaping our Nation. Now, in the next 2 days, are we going to make the 
first alteration to the first amendment? I believe it is not wise to do 
so.
  The first amendment breathes life into the very concept of our 
democracy. It protects the freedoms of all Americans, including the 
fundamental freedom of citizens to criticize their Government and the 
country itself, including the flag. As the Supreme Court explained in 
Texas versus Johnson, it is a ``bedrock principle underlying the first 
amendment * * * that the Government may not prohibit the expression of 
an idea simply because society finds the idea itself offensive and 
disagreeable.''
  Of course we condemn the act of flag burning. The flag is a grand 
symbol that embodies all that is great and good about America. It 
symbolizes our patriotism, our achievements, and reverence our 
reverence for freedom and democracy.
  But how do we honor the flag by dishonoring the first amendment? 
Consider the words of James Warner, a former marine aviator, who was a 
prisoner in North Vietnam from 1967 to 1973:

       It hurts to see the flag burned, but I part company with 
     those who want to punish the flag burners. . .. I remember 
     one interrogation [in North Vietnam] where I was shown a 
     photograph of Americans protesting the war by burning a flag. 
     ``There,'' the officer said. ``People in your country protest 
     against your cause. That proves you are wrong.'' ``No,'' I 
     said. ``That proves that I am right. In my country we are not 
     afraid of freedom, even if it means that people disagree with 
     us.'' The officer was on his feet in an instant, his face 
     purple with rage. He smashed his fist onto the table and 
     screamed at me to shut up. While he was ranting, I was 
     astonished to see pain, compounded by fear, in his eyes. I 
     have never forgotten that look nor have I forgotten the 
     satisfaction I felt at using his tool, the picture of the 
     burning flag, against him.

  Mr. President: this is James Warner, former marine, prisoner of war 
for over 7 years.

       It hurts to see the flag burned, but I part company with 
     those who want to punish the flag burners. . . I remember one 
     interrogation [in North Vietnam] where I was shown a 
     photograph of Americans protesting the war by burning a flag. 
     ``There,'' the officer said. ``People in your country protest 
     against your cause. That proves you are wrong.'' ``No,'' I 
     said. ``That proves that I am right. In my country we are not 
     afraid of freedom, even if it means that people disagree with 
     us.'' The officer was on his feet in an instant, his face 
     purple with rage. He smashed his fist onto the table and 
     screamed at me to shut up. While he was ranting, I was 
     astonished to see pain, compounded by fear, in his eyes. I 
     have never forgotten that look nor have I forgotten the 
     satisfaction I felt at using his tool, the picture of the 
     burning flag, against him.

  Mr. President, that says it all. We respect the flag the most, we 
protect it the best, and the flag itself flies the highest when we 
honor the freedom for which it stands.
  Mr. President, I yield the floor.
  Mr. HATCH. Mr. President, this amendment, granting Congress power to 
prohibit physical desecration of the flag, does not amend the first 
amendment. The flag amendment overturns two Supreme Court decisions 
which have misconstrued the first amendment.
  The first amendment's guarantee of freedom of speech has never been 
deemed absolute. Libel is not protected under the first amendment. 
Obscenity is not protected under the first amendment. A person cannot 
blare out his or her political views at 2 o'clock in the morning in a 
residential neighborhood and claim first amendment protection. Fighting 
words which provide violence or breaches of the peace are not protected 
under the first amendment.
  The view that the first amendment does not disable Congress from 
prohibiting physical desecration of the flag has been shared by ardent 
supporters of the first amendment and freedom of expression.
  In Street v. New York, 394 U.S. 576 (1969), the defendant burned a 
flag while uttering a political protest. The Court overturned his 
conviction since the defendant might have been convicted solely because 
of his words. The Court reserved judgment on whether a conviction for 
flag burning itself could withstand constitutional scrutiny. [Id. at 
581.] Chief Justice Warren dissented, and in so doing, asserted:

       I believe that the States and the Federal Government do 
     have the power to protect the flag from acts of desecration 
     and disgrace . . . Id. at 605 (Warren, C.J., dissenting).

  Justice Black--generally regarded as a first amendment 
``absolutist''--also dissented and stated:

       It passes my belief that anything in the Federal 
     Constitution bars a State from making the deliberate burning 
     of the American Flag an offense. Id. at 610 (Black, J., 
     dissenting).

  Justice Fortas agreed with Chief Justice Warren and Justice Black:

       [T]he states and the Federal Government have the power to 
     protect the flag from acts of desecration committed in 
     public. . . . [T]he flag is a special kind of personality. 
     Its use is traditionally and universally subject to special 
     rules and regulation. . . . A person may ``own'' a flag, but 
     ownership is subject to special burdens and responsibilities. 
     A flag may be property, in a sense; but it is property 
     burdened with peculiar obligations and restrictions. 
     Certainly . . . these special conditions are not per se 
     arbitrary or beyond governmental power under our 
     Constitution. Id. at 615-617 (Fortas, J., dissenting).

  Prof. Stephen B. Presser of Northwestern Law School testified before 
the Subcommittee on the Constitution on June 6:

       The Flag Amendment would not in any way infringe the First 
     Amendment. . . . The Flag Protection Amendment does not 
     forbid the expression of ideas, nor does it foreclose 
     dissent. [Written Testimony of Professor Stephen B. Presser, 
     June 6, 1995 at p. 11]

  ]Richard Parker, professor of law at Harvard Law School, testified:

       The proposal would not ``amend the First Amendment.'' 
     Rather, each amendment would be interpreted in light of the 
     other--much as in the case with the guaranties of Freedom of 
     Speech and Equal Protection of the Laws. When the Fourteenth 
     Amendment was proposed, the argument could have been made 
     that congressional power to enforce the Equal Protection 
     Clause might be used to undermine the First Amendment. The 
     courts have seemed able, however, to harmonize the two. The 
     same would be true here. Courts would interpret 
     ``desecration'' and ``flag of the United States'' in light of 
     general values of free speech. They would simply restore one 
     narrow democratic authority. Experience justifies this much 
     confidence in our judicial system.
       But, we're asked, is `harmonization' possible? If the 
     Johnson and Eichman decisions protecting flag desecration 
     were rooted in established strains of free speech law--as 
     they were--how could an amendment countering those decisions 
     coexist with the First Amendment?
       First, it's important to keep in mind that free speech law 
     has within it multiple, often competing strains. The 
     dissenting opinions Johnson and Eichman were also rooted in 
     established arguments about the meaning of freedom of speech. 
     Second, even if the general principles invoked by the five 
     Justices in the majority are admirable in general--as I 
     believe they are--that doesn't mean that the proposed 
     amendment would tend to undermine them, so long as it is 
     confined, as it is intended, to mandating a unique exception 
     for a unique symbol of nationhood. Indeed, carving out the 
     exception in a new amendment--rather than through 
     interpretation of 

[[Page S18338]]
     the First Amendment itself--best ensures that it will be so confined. 
     Even opponents of the new amendment agree on this point. 
     Third, it's vital to recognize that the proposed amendment is 
     not in general tension with the free speech principle 
     forbidding discrimination against specific `messages' in 
     regulation of speech content. Those who desecrate the flag 
     may be doing so to communicate any number of messages. They 
     may be saying that government is doing too much--or too 
     little--about a particular problem. In fact, they may be 
     burning the flag to protest the behavior of non-governmental, 
     `patriotic' groups and to support efforts of the government 
     to squash those groups. Laws enacted under the proposed 
     amendment would have to apply to all such activity, whatever 
     the specific `point of view.' One, and only one, generalized 
     message could be regulated: `desecration' of the flag itself. 
     And regulation could extend no farther than a ban on one, and 
     only one, mode of doing it: `physical' desecration. Finally, 
     and perhaps most importantly, we mustn't lose sight of the 
     fundamental purpose of the proposed amendment. That purpose 
     is to restore democratic authority to protect the unique 
     symbol of our aspiration to national unity, an aspiration 
     that, I've said, nurtures--rather than undermines--freedom of 
     speech that is ``robust and wide-open. [Written Testimony, 
     Professor Richard D. Parker, June 6, 1995, pages 6-8, 
     footnotes omitted].

  In short, Mr. President, there is no conflict between the flag 
protection amendment and the first amendment--we are only overturning 
two mistaken Supreme Court decisions.
  Mrs. FEINSTEIN addressed the Chair.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
California is recognized.
  Mr. HATCH. Will the Senator yield?
  Mrs. FEINSTEIN. Yes.
  Mr. HATCH. I ask unanimous consent that the distinguished Senator 
from Alaska, Senator Stevens, be permitted to speak after our friend, 
the Senator from California.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from California.
  Mrs. FEINSTEIN. I thank the Chair.
  Mr. President, I think you have heard some very eloquent words from 
the senior Senator from Massachusetts. I respect him greatly. I respect 
the words he said. I think what this proves is that there is no lack of 
patriotism on either side of this debate. Patriotism and love of 
country are equally as strong for those of us on each side of this 
debate.
  I support a constitutional amendment to restore protection to our 
national flag. I do so not in deference to political expediency, but 
because I believe it is the right thing to do. And I have believed this 
for a long time. Today I have an opportunity to say why.
  Our national flag has come to hold a unique position in our society 
as the most important and universally recognized symbol that unites us 
as a nation. No other symbol crosses the political, cultural, and 
ideological patchwork that makes up this great Nation and binds us as a 
whole. The evolution of the American flag as the preeminent symbol of 
our national consciousness is as old and as rich as the evolution of 
our country itself.
  I will never forget the emotion I felt as a child when I saw that 
famous photograph by photographer Joe Rosenthal--a photograph of the 
soldiers raising the American flag at Iwo Jima--capturing in one moment 
in time, the strength and the determination of this entire Nation.
  The unique status of the national flag has been supported by 
constitutional scholars as diverse as Chief Justices William Rehnquist 
and Earl Warren, and Justices John Paul Stevens and Hugo Black.
  The flag flies proudly over official buildings, and many Americans 
fly them at their homes. I happen to be one of them.
  Our history books are replete with the stories of soldiers, beginning 
with the Civil War, who were charged with the responsibility of leading 
their units into battle by carrying the flag. To them it was more than 
a task--it was an honor worth dying for, and many did. When one soldier 
would fall, another would take his place, raise the flag, and press 
forward. They would not fail. Their mission was too important; the 
honor too great; flag and country too respected to give anything short 
of their lives to succeed.
  (Mr. GRAMS assumed the chair.)
  Mrs. FEINSTEIN. Mr. President, our flag is recognized as unique, not 
only in the hearts and minds of Americans, but in our laws and customs 
as well. No other emblem or symbol in our Nation carries with it such a 
specific code of conduct and protocol in its display and handling.
  Here are just a few sections of the Federal law:

       The United States flag should never be displayed with the 
     Union down, except as a signal of dire distress or in 
     instances of extreme danger to life or property.
       The United States flag should never touch anything beneath 
     it--ground, floor, water or merchandise.
       The United States flag should never be dipped to any person 
     or thing.
       The United States flag should never be carried 
     horizontally, but it should always be carried aloft and free.

  Why then, should it be permissible conduct to urinate on, to defecate 
on, or to burn the flag? That is not my definition of free speech.
  Until the Supreme Court's decision in Texas versus Johnson in 1990, 
48 of 50 States had laws preventing the burning or defacing of our 
Nation's flag.
  I do not take amending the Constitution lightly. However, when the 
Supreme Court issued the Johnson decision and then the Eichman 
decision, those who wanted to protect the flag were forced to find an 
alternative path.
  The Nation's flag is a revered object as well as a symbol. I believe 
that it should be viewed as such--as a revered national object, not 
simply as one of many vehicles for free speech.
  Everything about the flag in its tangible form, in its very fabric, 
has significance. The shape, the colors, the dimensions, and the 
arrangement of the patterns help make the flag what it is.
  The colors of the flag were chosen by the Continental Congress in the 
18th century. In 1782, the Congress of the Confederation chose the same 
colors for the Great Seal of the United States: Red for hardiness and 
courage; white for purity and innocence; blue for vigilance, 
perseverance, and justice.
  If one were to change the colors, the orientation of the stripes, or 
the location of the field of stars, it would no longer be the American 
flag. What I am saying is that I believe that the physical integrity of 
the flag is crucial.
  Despite this fact, because the flag also has symbolic value, the 
Supreme Court has determined that physically burning or mutilating the 
flag does not destroy the symbol. Therefore, a prohibition on burning 
or mutilating the flag would not serve a ``compelling'' governmental 
interest and could not be justified under the first amendment.
  I do not agree. I believe that burning, tearing, and trampling on the 
object undermines the symbol. The process may be incremental, but over 
time the symbol erodes. The Supreme Court arguably has placed the flag 
in a kind of catch-22 situation. Because the flag is so important, 
because the flag is unique, because the flag has such powerful symbolic 
value, it, ironically, goes unprotected.
  I support Senate Joint Resolution 31 because it will return the 
Nation's flag to the protected status I believe it deserves. The 
authority for the Nation to protect its central symbol of unity was 
considered constitutional until 5 years ago.
  In the Senate Judiciary Committee's markup of Senate Joint Resolution 
31, I proposed alternative legislation with more specific, narrowly 
tailored language. Although this was not voted on in committee, 
Chairman Hatch offered to work with me to see if we could develop 
language we could agree upon.
  He has now proposed the substitute amendment that I believe 
represents a vast improvement over the original language of Senate 
Joint Resolution 31.
  The original language would have allowed Congress, as well as each of 
the 50 States, to develop legislation prohibiting the desecration of 
the flag. In other words, each State would have been authorized to 
define ``flag,'' and each State would have been authorized to define 
``desecration.''
  The proposed substitute amendment offered earlier this afternoon 
would give Congress, and Congress alone, the authority to draft a 
statute to protect the flag. This will give Congress the opportunity to 
draft, carefully and deliberatively, precise statutory language that 
clearly defines the contours of prohibited conduct, something along the 
lines of the language I offered in committee. It would allow Congress 
to establish a uniform definition for ``flag of the United States,'' 
rather than allowing for 50 separate State definitions. 

[[Page S18339]]

  Because we are protecting our national symbol, it makes sense to me 
that Members of Congress, representing the Nation as a whole, should 
craft the statute protecting our flag.
  Let me add that, from a first amendment perspective, a specific 
constitutional amendment prohibiting flag burning may be preferable to 
a statute. Harvard Law Prof. Frank Michelman made this point in a 1990 
article, ``Saving Old Glory: On Constitutional Iconography.''
  Although not himself an advocate of flag protective prohibitions, 
Professor Michelman argued that a specifically worded constitutional 
amendment related to flag burning could be preferable to a statute, 
posing fewer potential conflicts with the first amendment. An amendment 
pertaining exclusively to the flag would have little risk of affecting 
other kinds of expressive conduct. The premise of his argument is that, 
when the Constitution is amended, Supreme Court review is not required.
  By contrast, a statute, if challenged, could only survive if the 
Supreme Court ultimately determined it to be constitutional. In other 
words, the Court would need to justify that the statute conformed to 
existing freedom-of-expression doctrine. In so doing, the Court 
arguably would need to develop a rationale that could ultimately serve 
to justify prohibitions on other kinds of symbolic expression.
  So, I believe that those who say we are making a choice between 
trampling on the flag and trampling on the first amendment are creating 
an unfair dichotomy. Protecting the flag will not prevent people from 
expressing their ideas through other means, in the strongest possible 
terms.
  Furthermore, the right to free speech is not unrestricted. For 
example, the Government can prohibit speech that threatens to cause 
imminent tangible harm, including face-to-face ``fighting words,'' 
incitement to violation of law, or shouting ``fire'' in a crowded 
theater. Obscenity and false advertising are not protected under the 
first amendment, and indecency over the broadcast media can be limited 
to certain times of day. Ever since Justice Brennan's 1964 decision in 
New York Times versus Sullivan, statements criticizing official conduct 
of a public official may be sanctioned if they are known to be false 
and if they damage the reputation of the official. There is much that 
is open to debate about the proper parameters of free speech.
  In voting for this legislation, however, I extend a cautionary note. 
This amendment should not be viewed as a precedent for a host of new 
constitutional amendments on a limitless variety of subjects. The 
Constitution was designed to endure throughout the ages, and for that 
reason it should not be amended to accommodate the myriad of issues of 
the day. My support of a constitutional amendment to protect the flag 
reflects the gravity of my belief in the purpose.
  I recognize that by supporting a constitutional amendment to protect 
the flag, I am choosing a different course from many Democrats in 
Congress and, quite frankly, from many of my close friends for whom I 
have the greatest respect.
  But my support for this amendment reflects my broader belief that the 
time has come for the Nation to begin a major debate on values. I 
believe that this country must look at itself in the mirror and come to 
terms with those values. I do not wish to imply that one set of values 
is necessarily superior to another. But we cannot keep pressing the 
envelope and still remain a functional society.
  We need to ask ourselves what we hold dear--Is there anything we will 
not cast contempt upon? We need to ask ourselves: How can we foster 
respect for tradition as well as for ideological and cultural 
diversity? How can we foster community as well as individuality, 
nationhood as well as internationalism? These are all important values, 
and we have to learn to reconcile them. We must not jettison one at the 
expense of another.
  The Framers of the Constitution recognized two important elements of 
our constitutional tradition: a liberty element and a responsibility 
element. Without responsibility, without a rule of law, there could be 
no protection of life, limb, or property--there could be no lasting 
liberty. I believe there is a danger of moving too far in either 
direction--toward too restrictive order, or toward unlimited individual 
liberty.
  In this instance, I believe we cannot tilt the scales entirely in 
favor of individual rights, when there exists a vast community of 
people in this country who have gone to war for our flag. And there are 
mothers and fathers and wives and children who have received a knock at 
their front door and have been told that their son, or husband, or 
father had died alone, in a trench. They were given a flag on this 
occasion, a flag which helps preserve the memory of their loved one, 
and which speaks to his or her courage.
  Last June, the Senate Judiciary Committee heard testimony from Rose 
Lee of the Gold Star Wives of America, an organization representing 
10,000 widows of American servicemen. This is what she said:

       The flag, my flag, our flag . . . means something different 
     to each and every American. But to the Gold Star Wives, it 
     has the most personal of meanings. Twenty-three years ago 
     this American flag covered the casket of my husband, Chew-Mon 
     Lee, United States Army. . . Every Gold Star Wife has a flag 
     like this one, folded neatly in a triangle and kept in a 
     special place . . . My husband defended this flag during his 
     life . . . [b]urning the flag is . . . a slap in the face of 
     every widow who has a flag just like mine.

  Requiring certain individuals to refrain from defacing or burning the 
flag, I believe, is a small price to pay on behalf of the millions of 
Americans for whom the flag has deep personal significance. Just 5 
years ago, when 48 States had laws against flag burning, the first 
amendment continued to thrive.
  I believe that this legislation will protect the integrity of the 
flag while keeping our first amendment jurisprudence intact. I urge my 
colleagues to support it.
  I thank the Chair and yield the floor.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I understand there is a unanimous-consent 
request for the senior Senator from Alaska to proceed at this time, is 
that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. LEAHY. Mr. President, the distinguished senior Senator, my good 
friend, is not on the floor at the moment. I ask unanimous consent that 
I might be able to proceed, and I assure my friends that if he arrives, 
I will yield to him at that point.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont is recognized.
  Mr. LEAHY. I thank the Chair and my friend from Utah.
  Mr. President, I find flag burning a reprehensible form of protest. 
We have, in this the greatest democracy on Earth, freedom of speech, 
and we have so many ways that we can have political debate and well-
understood protests, that it seems like a slap at so many people in 
this country, certainly those of us who serve our country and are sworn 
to uphold its laws, and a particularly vile form of protest. It demeans 
an important symbol of our country and shows disrespect for the 
sacrifice so many have made to preserve our freedoms. I know that the 
veterans, the Gold Star Wives, whom the distinguished Senator from 
California just referred to, and others who are pressing for this 
amendment are doing so out of sincerity and out of a strong sense of 
patriotism.
  I feel fortunate that we live in a country where the vast majority--I 
would say 99.9 percent--of our citizens share a deep respect for the 
flag and all that it symbolizes. It was one of the first things that my 
grandparents saw when they came to this country--not speaking a word of 
English but knowing it was a symbol of freedom.
  Indeed, most of us do not need a law or the Constitution to require 
us to honor America. We do so willingly and spontaneously, as I do when 
I fly the flag at my home in Vermont.
  We salute the flag and we stand for ``The Star Spangled Banner'' not 
because the law compels it, but out of respect. These are ways of 
expressing our thanks to those who have left us such a rich heritage. 
It is that respect that comes voluntarily, that comes from a sense of 
our history and our debt to prior generations that inspires us to 
salute, not the command of law or outside imposition of any legal 
requirement. 

[[Page S18340]]

  I believe that we are being asked to take steps down a road that 
leads to a weakening of the Bill of Rights and our fundamental 
guarantees of freedom. No right is more precious than that of freedom, 
and no freedom is more important than the first amendment's guarantee 
of freedom of speech. Even though, for a good cause, this proposed 
constitutional amendment would restrict others' free speech rights, it 
would set a dangerous precedent.
  I believe--and I have said it many times on the floor--that the first 
amendment is the most valuable bedrock in our Constitution and in our 
democracy. The first amendment guarantees us the right to practice any 
religion we want, or no religion if we want. It gives us the right of 
free speech. That right is unprecedented in any other significant 
country on this Earth. It guarantees diversity of religion, diversity 
of belief, diversity of speech, and if you have protected diversity, 
you have a democracy.
  I cannot believe that there is a Member of this Senate--certainly not 
myself--who was not offended, in 1989 and 1990, by the publicity-hungry 
flag burners. I am offended to see the American flag burned or trampled 
overseas. I am offended when our President and Commander in Chief and 
his family are subjected to mean-spirited and defamatory 
characterizations, and when nationally syndicated radio personalities 
talk about how to shoot to kill Federal law enforcement officers.
  I am offended when anyone makes such a suggestion.
  I am offended by militant extremists who called our Senate colleague 
from Pennsylvania a representative of ``corruption and tyranny'' when 
he chaired a hearing exposing their ideas. I am offended by those who 
spew racial and ethnic hatred. I am offended that the Supreme Court of 
the United States required Columbus, OH, to allow the Ku Klux Klan to 
erect in a public square the KKK's ``symbol of white supremacy and a 
tool for the intimidation and harassment of racial minorities, 
Catholics, Jews, Communists and other groups hated by the Klan.'' There 
is certainly much that offends in our contemporary society.
  But we must resist the temptation to make an exception here to limit 
one form of obnoxious speech. The guts of the first amendment is its 
extraordinary protection of antigovernment, political speech. Nowhere 
else in the world or through history has there been such a profound 
commitment to allow unrestricted criticism of those in power. The 
shouts of protest disturb, provoke, challenge, and offend. We must 
tolerate them because they also demonstrate the strength of America.
  Polls and resolutions of State legislatures are being cited as 
reasons to support this proposed constitutional amendment. I have 
thought hard about the argument that this is a populist amendment and 
that the States should be given the opportunity to decide whether to 
amend our Constitution. In many settings, this would be a strong 
argument. But here, we are confronted with a proposed amendment to the 
Bill of Rights, and to that part of the first amendment intended to 
protect the minority from an orthodoxy of the majority.
  We are this year commemorating the 50th anniversary of the end of the 
Second World War. While that profound conflict raged, in June, 1943, 
the Supreme Court decided West Virginia State Board of Education versus 
Barnette, a case that raised the question whether children attending 
public schools could be compelled to salute the flag and pledge 
allegiance. The Court held, over the vigorous dissent of Justice 
Frankfurter, that the State could not employ such compulsion to achieve 
national unity, even in that time of world war.
  The Supreme Court's opinion was written by Justice Robert Jackson, a 
former Attorney General of the United States who later served as the 
chief prosecutor at the Nurenberg trials. Let me quote from Justice 
Jackson's opinion:

       The very purpose of a Bill of Rights was to withdraw 
     certain subjects from the vicissitudes of political 
     controversy, to place them beyond the reach of majorities and 
     officials and to establish them as legal principles to be 
     applied by the courts. One's right to life, liberty, and 
     property, to free speech, a free press, freedom of worship 
     and assembly, and other fundamental rights may not be 
     submitted to vote; they depend on the outcome of no 
     elections. . . .
       The case is made difficult not because the principles of 
     its decision are obscure but because the flag involved is our 
     own.
       Nevertheless, we apply the limitations of the Constitution 
     with no fear that freedom to be intellectually and 
     spiritually diverse or even contrary will disintegrate the 
     social organization. To believe that patriotism will not 
     flourish if patriotic ceremonies are voluntary and 
     spontaneous instead of a compulsory routine is to make an 
     unflattering estimate of the appeal of our institutions to 
     free minds. We can have intellectual individualism and the 
     rich cultural diversities that we owe to exceptional minds 
     only at the price of occasional eccentricity and abnormal 
     attitudes. Where they are so harmless to others or to the 
     State as those we deal with here, the price is not too great. 
     But freedom to differ is not limited to things that do not 
     matter much. That would be a mere shadow of freedom. The test 
     of its substance is the right to differ as to things that 
     touch the heart of the existing order.
       If there is any fixed star in our constitutional 
     constellation, it is that no official, high or petty, can 
     prescribe what shall be orthodox politics, nationalism, 
     religion, or other matters of opinion or force citizens to 
     confess by word or act their faith therein. If there are any 
     circumstances which permit an exception, they do not now 
     occur to us.

  If World War II itself was not a circumstance that permitted an 
exception to the first amendment to foster patriotism and national 
unity, I do not believe that the potential for disrespectful political 
protest of today's Government policy provides the justification 
required by article V of the Constitution for its amendment. There 
exists no compelling reason for limiting the Bill of Rights.
  I am proud that earlier this year the Vermont Legislature chose the 
first amendment over the temptation to take popular action. The Vermont 
House passed a resolution urging respect for the flag and also 
recognizing the value of protecting free speech ``both benign and 
overtly offensive.'' Our Vermont attorney general has urged that we 
trust the Constitution and not the passions of the times.
  Vermont's action this year is consistent with its strong tradition of 
independence and commitment to the Bill of Rights. Indeed, Vermont's 
own Constitution is based on our commitment to freedom and our belief 
that it is best protected by open debate. Vermont did not join the 
Union until the Bill of Rights was ratified and part of the country's 
fundamental charter.
  Vermont sent Matthew Lyon to Congress and he cast the decisive vote 
of Vermont for the election of Thomas Jefferson. He was the same House 
Member who was the target of a shameful prosecution under the Sedition 
Act in 1789 for comments made in a private letter. Vermont served the 
Nation again in the dark days of McCarthyism when Senator Ralph 
Flanders stood up for democracy and in opposition to the repressive 
tactics of Joseph McCarthy. Vermont's is a great tradition that we 
cherish and that I intend to uphold.
  I have deep respect for the position of William Detweiler, the 
national commander of the American Legion. When he testified this year 
before the Judiciary Committee he shared with us his concern that we, 
as a country, ``slide down that slippery slope * * * every time we deny 
our heritage.'' But the slippery slope that most concerns me is the 
proposed restriction of the Bill of Rights and the precedent such an 
amendment would establish.
  Never in our history as a Nation have we narrowed the Bill of Rights 
through constitutional amendment. Our history has been one of expanding 
individual rights and protections.
  Some of our colleagues contend that because the flag is such a unique 
national symbol, this will be the only time that we will be called upon 
to limit first amendment rights. Unfortunately, no one can give that 
assurance or make such a guarantee. Just this session, in the wake of 
the bombing in Oklahoma City, the Senate passed a terrorism bill that 
includes new limits on associational rights and, in the heat of the 
moment, 84 Members of this body voted to censor the Internet and 
criminalize private, constitutionally protected speech that might be 
considered indecent during consideration of the telecommunications 
bill. We cannot be so sure that without the bulwark of the first 
amendment our rights will be protected.
  Barely 5 years ago a similar proposed constitutional amendment was 
considered and rejected by this Senate after 

[[Page S18341]]
the U.S. Supreme Court ruled that the conviction in the Eichman case 
resulted from an unconstitutional application of the Flag Protection 
Act of 1989. Little has changed. Indeed, in the intervening years, 
following the protests sparked by Desert Storm, there have been only a 
handful of flag burnings. None was reported in 1993 and three were 
reported in 1994, as the drive to amend the Constitution built 
momentum.
  In 1990, 42 Senators stood up for the Bill of Rights and voted 
against the constitutional amendment we are voting on again today. I 
urge my colleagues to join with me to preserve the Constitution and 
protect the very principles of freedom that the flag symbolizes. 
Fundamental constitutional principles are too important for partisan 
politics or short-term expediency. Let us not allow this matter to 
devolve into the bumper sticker politics of emotion that has so 
dominated this Congress.
  One of the best statements that I have ever seen in all the years 
that we have been debating this issue is that by James H. Warner, a 
former Marine flyer who had been a prisoner of the North Vietnamese for 
5\1/2\ years. I ask that his full statement from July 1989 be printed 
in the Record and urge my colleagues to consider it.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, July 11, 1995]

     When They Burned the Flag Back Home--Thoughts of a Former POW

                          (By James H. Warner)

       In March of 1973, when we were released from a prisoner of 
     war camp in North Vietnam, we were flown to Clark Air Force 
     base in the Philippines. As I stepped out of the aircraft I 
     looked up and saw the flag. I caught my breath, then, as 
     tears filled my eyes. I saluted it. I never loved my country 
     more than at that moment. Although I have received the Silver 
     Star Medal and two Purple Hearts, they were nothing compared 
     with the gratitude I felt then for having been allowed to 
     serve the cause of freedom.
       Because the mere sight of the flag meant so much to me when 
     I saw it for the first time after 5\1/2\ years, it hurts me 
     to see other Americans willfully descreate it. But I have 
     been in a Communist prison where I looked into the pit of 
     hell. I cannot compromise on freedom. It hurts to see the 
     flag burned, but I part company with those who want to punish 
     the flag burners. Let me explain myself.
       Early in the imprisonment the Communists told us that we 
     did not have to stay there. If we would only admit we were 
     wrong if we would only apologize, we could be released early. 
     If we did not, we would be punished. A handful accepted, most 
     did not. In our minds, early release under those conditions 
     would amount to a betrayal, of our comrades of our country 
     and of our flag.
       Because we would not say the words they wanted us to say, 
     they made our lives wretched. Most of us were tortured and 
     some of my comrades died. I was tortured for most of the 
     summer of 1969. I developed beriberi from malnutriton. I had 
     long bouts of dysentery. I was infested with intestinal 
     parasites. I spent 13 months in solitary confinement. Was our 
     cause worth all of this? Yes, it was worth all this and more.
       Rose Wilder Lane in her magnificent book ``The Discovery of 
     Freedom,'' said there are two fundamental truths that men 
     must know in order to be free. They must know that all men 
     are brothers, and they must know that all men are born free. 
     Once men accept these two ideas, they will never accept 
     bondage. The power of these ideas explains why it was illegal 
     to teach slaves to read.
       One can teach these ideas, even in a Communist prison camp. 
     Maoists believe that ideas are merely the product of material 
     conditions; change those material conditions, and one will 
     change the ideas they produce. They tried to ``reeducate'' 
     us. If we could show them that we would not abandon our 
     belief in fundamental principles, then we could prove the 
     falseness of their doctrine. We could subvert them by 
     teaching them about freedom through our example. We could 
     show them the power of ideas.
       I do not appreciate this power before I was a prisoner of 
     war. I remember one interrogation where I was shown a 
     photograph of some Americans protesting the war by burning a 
     flag. ``There,'' the officer said. ``People in your country 
     protest against your cause. That proves that you are wrong.''
       ``No.'' I said, ``That proves that I am right. In my 
     country we are not afraid of freedom, even if it means that 
     people disagree with us.'' The officer was on his feet in an 
     instant his face purple with rage. He smashed his fist onto 
     the table and screamed at me to shut up. While he was ranting 
     I was astonished to see pain, compounded by fear, in his 
     eyes. I have never forgotten that look, nor have I forgotten 
     the satisfaction. I felt at using his tool, the picture of 
     the burning flag, against him.
       Aneurin Bevan, former official of the British Labor Party, 
     was once asked by Nikita Khrushchev how the British 
     definition of democracy differed from the Soviet view, Bevan 
     responded forcefully that if Khrushchev really wanted to know 
     the difference, he should read the funeral oration of 
     Pericles.
       In that speech, recorded in the Second Book of Thucydides' 
     ``History of the Peloponnesian War,'' Pericles contrasted 
     democratic Athens with totalitarian Sparta. Unlike the 
     Spartans, he said the Athenians did not fear freedom. Rather 
     they viewed freedom as the very source of their strength. As 
     it was for Athens, so it is for America--our freedom is not 
     to be feared, for our freedom is our strength.
       We don't need to amend the Constitution in order to punish 
     those who burn our flag. They burn the flag because they hate 
     America and they are afraid of freedom. What better way to 
     hurt them than with the subversive idea of freedom? Spread 
     freedom. The flag in Dallas was burned to protest the 
     nomination of Ronald Reagan, and he told us how to spread the 
     idea of freedom when he said that we should turn America into 
     ``a city shining on a hill, a light to all nations.'' Don't 
     be afraid of freedom, it is the best weapon we have.

  Mr. LEAHY. While a prisoner of war, he was shown a photo of Americans 
protesting the Vietnam war by burning a flag. His reaction was that of 
a true American hero: He turned the use of the photo against his 
captors by proclaiming that the photo proved the rightness of the cause 
of freedom. He was proud that we in this great country ``are not afraid 
of freedom, even if it means that people disagree with us.'' Let us 
heed his words and ``not be afraid of freedom.''
  Mr. President, we are each custodians of the Constitution as well as 
contemporary representatives during our brief terms in office. We were 
given a Bill of Rights that has served to protect our rights and speech 
for over 200 years. We should provide no less to our children and 
grandchildren.
  My family and I fly the flag at our home. I display it in my office. 
No law tells me to do that. Love of my country and its symbols tells me 
to. That love is far more compelling than any law.
  Mr. STEVENS. Mr. President, this resolution proposes a constitutional 
amendment to empower Congress to prohibit the physical desecration of 
the flag. I have come to commend my friend from Utah, Senator Hatch, 
for his leadership on this issue; and I am pleased to join with him as 
a sponsor of the proposal.
  On this subject, I do believe I speak for a majority of Alaskans as I 
support this legislation. Mr. President, 90 percent of Alaskans who 
have contacted my office since this matter was proposed are in favor of 
this amendment.
  Our support comes on a little different basis, Mr. President, than 
others who stand on this floor. We live a long way from this Capitol. 
We are actually closer to Tokyo than to Washington, DC. We are an 
independent bunch. Yet we have some very deep-seated feelings on this 
issue. Why are we for this bill? It is because the flag is truly the 
symbol of the Nation that we sought to join as a State not too long 
ago.
  As a veteran, I have felt and seen our flag's importance overseas. 
Living away from home, overseas, away from our freedoms, those of us 
who served during the long period of World War II learned to respect 
our flag deeply. It represents what our country stands for, qualities 
that no other nation can offer its citizens. We stand for freedom in 
this country, and that is what this flag reminds us all of. Our 
Nation's anthem, ``The Star Spangled Banner,'' captures the bond that 
Americans feel toward our flag.
  The flag does, in fact, represent America. The 13 stripes represent 
the 13 States that brought about our Constitution. There are 50 stars, 
one for each State. I remember well the day that the 49th star was 
placed on that flag. I was in Maryland assisting in raising the first 
flag. And also in Alaska, once a territory, now becoming a State, Rita 
Gravel, the wife of a former Senator, climbed up a long ladder to pin 
the 49th star on a flag flying in our major city. Those of us who had 
worked in the statehood movement will never forget that moment. It 
meant a great deal to us.
  In short, it is more than just a symbol. It is a question of 
belonging. Every State is represented there on that flag, and that has 
been our tradition since the very beginning. As I said, participating 
in the statehood movement, which does not happen very often, is 
something that is deeply ingrained in the soul. It was and remains 
meaningful to us to have our star on the flag.
  I think, then, that desecration of the flag has meant a great deal to 
States. 

[[Page S18342]]
 I am not sure how many Members of the Senate know, it has probably 
been said on the floor time and time again, but 48 of our States had 
laws on the books that punished flag desecration when the Supreme Court 
rejected such laws.
  The Supreme Court has indicated that, absent an expression from the 
national legislature, State and Federal prohibitions on flag 
desecration are subject to strict first amendment proscriptions. I do 
believe we must act now to give our people the opportunity to reverse 
that position.
  I do not take too lightly, and I do not think Alaskans take too 
lightly, the concept of suggesting and supporting amendments to our 
Constitution. That is a powerful action to suggest, and a route that 
has not been taken too often by the Congress.
  Mr. President, we pledge allegiance to our flag and to the Nation it 
represents. If anyone doubts, really, what it means to a veteran to 
consider the flag, I think a person should take a trip to the Iwo Jima 
monument. Nothing, I think, represents the Nation the way the flag 
does. Therefore, I am hopeful that this amendment will be approved by 
our States, and that it will restore the demand for everyone in this 
Nation to respect the symbol of our freedoms.
  Mr. HATCH. Mr. President, I thank my colleague from Alaska for his 
excellent statement and for the continuing great work that he does as a 
Member of the Senate. I really appreciate him personally and I 
appreciate his support for this amendment.
  I might mention that earlier in the day my colleague and friend from 
Massachusetts said there just are not many flag-burning desecrations, 
and he cited some statistics that I think are quite wrong.
  Based on information provided to me by the Congressional Research 
Service, the number of flags desecrated have been as follows--and keep 
in mind these are ones that are reported, the ones where we have had a 
fuss about. This does not begin to cover those desecrated that were not 
reported:
  In 1990, at least 20 flags in this country; in 1991, at least 10 
flags; in 1992, at least 7 flags; in 1993, at least 3 flags; in 1994, 
at least 5 flags; for a total of 45 flags between 1990 and 1994. In 
1995, there have been over 20 flags so far.
  Every one of these known flag-burning cases have been covered by the 
media, so millions of people have been affected by them. Millions of 
people have seen our national symbol desecrated and held in contempt.
  Millions of people are beginning to wonder, why don't we have any 
values in this country? Why don't we stand up for the things that are 
worthwhile? Why don't we stand up for our national symbol? What is 
wrong with that?
  What this amendment would do is allow the Congress of the United 
States to pass legislation that would protect the flag. What is so 
wrong about that? It would allow us to do that. We could do whatever we 
wanted to.
  If people did not like it, they could vote against it. They could 
filibuster it, where you have to get 60 votes in the Senate. The 
President, if he does not like it, has a right to veto it, where you 
have to get 67 votes in the Senate. It is not like people's rights are 
being taken away because we pass a constitutional amendment.
  I wonder if my friend from Massachusetts believes that the Supreme 
Court has so far construed the first amendment correctly by holding 
that it does not protect obscenity and child pornography?
  He was attempting to make the point that this amendment is somehow an 
unprecedented infringement on the first amendment. With all due 
respect, that is a joke. Last Friday, I listed 21 instances where the 
Supreme Court upheld laws which limit speech or conduct which some have 
argued was protected by the first amendment. What we are considering 
here is not something new.
  Some of those cases involved actual speech, including obscenity and 
limitations on Government speaking. Here, we are talking about 
offensive conduct, not speech. The Supreme Court, in one of its off 
days--in fact two off days, when you consider both Johnson and 
Eichman--decided by a 5 to 4 margin, that this offensive conduct rises 
to the dignity of free expression.
  If my friend from Massachusetts thinks it is terrible to interfere 
under any circumstances with speech or conduct which some might argue 
is somehow protected by the first amendment, what about laws 
prohibiting child pornography? What about laws against obscenity?
  Put aside whether my friend would use the same legal test for 
determining what is obscenity or child pornography as the Supreme Court 
presently uses. He may not. But I think he would admit that would not 
want his children or grandchildren to be buffeted by child pornography.
  If, after 200-plus years of legal precedent to the contrary, the 
Supreme Court were to decide, by a 5 to 4 vote, that obscenity is 
protected by the first amendment, I wonder if some of the people who 
have argued against this amendment, because they claim it infringes 
upon the first amendment, would oppose an amendment authorizing the 
prohibition of the sale and distribution of obscenity or pornography?
  And if my friend felt that the 5-to-4 decision was wrong, would he 
view such an amendment as tampering with the Bill of rights, or just 
overturning a mistaken judicial interpretation of it?
  Would my friend be demanding on the floor of Congress that supporters 
of an antiobscenity amendment determine in advance whether this or that 
hypothetical picture, photograph, or writing would qualify as obscene 
under the amendment?
  I doubt it. I sincerely doubt it.
  I want to say a few words about Senator Biden's content-neutral 
constitutional amendment, and then I understand my friend from Idaho is 
here, and also my friend from Kentucky.
  A few critics of the flag amendment believe that all physical 
impairments of the integrity of the flag, such as by burning or 
mutilating, must be made illegal or no such misuse of the flag should 
be illegal. An exception is provided for disposal of a worn or soiled 
flag. This all or nothing approach flies in the face of nearly a 
century of legislative protection of the flag.
  A content neutral amendment would forbid an American combat veteran 
from taking an American flag flown in battle and having printed on it 
the name of his unit and location of specific battles, in honor of his 
unit, the service his fellow soldiers, and the memory of the lost.
  Then Assistant Attorney General for Legal Counsel William S. Barr 
testified before the Senate Judiciary committee August 1, 1989, and 
brought a certain American flag with him:

       Now let me give you an example of . . . the kind of result 
     that we get under the [content-neutral approach]. This is the 
     actual flag carried in San Juan Hill. It was carried by the 
     lead unit, the 13th Regiment U.S. Infantry, and they proudly 
     emblazon their name right across the flag, as you see; 1,078 
     Americans died following this flag up San Juan Hill.
       . . . Under [a content neutral approach], you can't have 
     regiments put their name on the flag that's defacement . . . 
     (Testimony, Assistant Attorney General William P. Barr, 
     August 1, 1989, at 68).

  I wish to empower Congress to prohibit the contemptuous or 
disrespectful physical treatment of the flag. I do not wish to compel 
Congress to penalize respectful treatment of the flag. A constitutional 
amendment which would force the American people to treat the placing of 
the name of a military unit on a flag as the equivalent of placing the 
words ``Down with the Fascist Federal Government'' or racist remarks on 
the flag is not what the popular movement for protecting the flag is 
all about. I respectfully submit that such an approach ignores 
distinctions well understood by tens of millions of Americans.
  Moreover, never in the 204 years of the first amendment has the free 
speech clause been construed as totally ``content neutral.'' Prof. 
Richard Parker, of Harvard Law School, who believes in ``robust and 
wide-open'' freedom of speech and that it ought to be more robust than 
the Supreme Court currently allows in some respects, noted as much in 
his testimony:

       . . . Everyone agrees that there must be ``procedural'' 
     parameters of free speech--involving, for example, places and 
     times at which certain modes of expression are permitted. 
     Practically everyone accepts some explicitly ``substantive'' 
     parameters of speech content as well. Indeed, despite talk of 
     ``content-neutrality,'' the following principle of 
     constitutional law is very clear: Government sometimes may 
     sanction you for speaking because of the way the content of 
     what you say affects other people.
       What is less clear is the shape of this principle. There 
     are few bright lines to define it. 

[[Page S18343]]
     The Supreme Court understands the principle to rule out speech that 
     threatens to cause imminent tangible harm: face-to-face 
     fighting words, incitement to violation of law, shouting 
     ``fire'' in a crowded theater. And it does not stop there. It 
     understands the principle, also, to rule out speech that 
     threatens certain intangible, even diffuse, harms. It has, 
     for instance, described obscenity as pollution of the moral 
     ``environment.''

  I think he makes some very important points. But what about 
political speech critical of the Government? Is there not there a 
bright line protecting that, at least so long as no imminent physical 
harm is threatened? The answer is: No. The Court has made clear, for 
instance, that statements criticizing official conduct of a public 
official may be sanctioned if they are known to be false and damage the 
reputation of the official. There has been no outcry against this rule. 
It was set forth by the Warren Court--in an opinion by Justice Brennan, 
the very opinion that established freedom of speech as `robust and 
wide-open.' [New York Times v. Sullivan, 376 U.S. 254 (1964)]. It has 
been reaffirmed ever since. Allowing the Congress to prohibit 
contemptuous treatment of the American flag does not unravel the first 
amendment or freedom of speech.

  Incidentally, I might add that, in order to be truly ``content 
neutral,'' an amendment must have no exceptions, even for the disposal 
of a worn or soiled flag. Once such an exception is allowed, as in the 
Biden amendment, the veneer of content neutrality is stripped away. The 
Texas versus Johnson majority itself pointedly noted:

       if we were to hold that a state may forbid flag burning 
     wherever it is likely to endanger the flag's symbolic role, 
     but allow it whenever burning a flag promotes that role--as 
     where, for example, a person ceremoniously burns a dirty 
     flag--we would be saying that when it comes to impairing the 
     flag's physical integrity, the flag itself may be used as a 
     symbol . . . only in one direction . . .'' [491 U.S. at 416-
     417].

  Of course, if Congress proposes and the States ratify a 
constitutional amendment with such an exception, the Supreme Court 
would have to uphold the exception. But the amendment would not be 
content neutral.
  The suggestion that a worn or soiled flag is no longer a flag, in an 
effort to escape the logical inconsistency of a so-called content 
neutral amendment which would permit an exception for disposal of such 
a flag, is unavailing. Obviously, a worn or soiled American flag is 
still a flag, recognizable as such, even if no longer fit for display.


                       biden amendment--odd form

  Mr. President, I draw to my colleagues' attention the text of the 
amendment by my friend from Delaware. I say with great respect to my 
friend, and to my colleagues, you will search the Constitution in vain 
for anything that looks like this. Even if I agreed with its substance, 
not in 206 years have we had a statute written right in to the text of 
the Constitution itself with Congress given no more than a right to 
vote on it up or down.
  We have always prided ourselves on distinguishing our fundamental 
charter from a statutory code. This amendment is a textbook case of 
blurring that 206-year-old distinction.
  Mr. President, I notice the distinguished Senator from Idaho is here. 
I will be happy to yield the floor.
  Mr. CRAIG. Mr. President, I thank the chairman of the Judiciary 
Committee.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. Chairman, I thank the chairman of the Judiciary 
Committee for yielding to me and let me thank him personally for the 
tremendous leadership he has shown in the area of protecting our flag 
and offering forth this unique constitutional amendment. He has, 
without doubt, led the way for us to finally bring this critical issue 
to the floor.
  I think it is high time that we listen, that we listen to not only 
the debate on the floor but, more important, we listen to the American 
people on the issue of flag protection and this amendment.
  Some of my colleagues may remember that more than a year ago, I came 
to this Senate floor with memorials from 43 State legislatures--
memorials urging Congress to take action to protect the American flag 
from physical desecration. Those memorials were inserted in the 
Congressional Record for all to read.
  Now the number of those memorials has reached 49, and a 1995 Gallup 
Poll found that almost 80 percent of the American public supports a 
flag protection amendment.
  This is a truly historic outpouring of popular support. And we have 
an opportunity to respond to the American people by passing a very 
simple amendment and sending it to the States for ratification: It 
authorizes Congress and the States to prohibit physical desecration of 
the flag of the United States.
  Opponents of this amendment are doing their best to find bogeymen 
hiding inside this proposal, or to tie it up in a mass of legal 
complications--but in fact, it is a very straightforward issue to most 
Americans.
  Old Glory holds a special place in our hearts. No other emblem, 
token, or artifact of our Nation has been defended to the death by 
legions of patriots. No other has drawn multitudes from abroad with the 
promise of freedom. No other unifies the diverse cultures that form the 
amalgam we call the United States.
  No other has inspired generations with the belief that life, liberty, 
and the pursuit of happiness are the birthright of every human being. 
It is because the flag holds the unique place in the hearts of 
Americans that they have demanded ultimate protection for it. Congress 
has already tried furnishing that protection by statute, and, as we 
know, the Supreme Court shut the door on that particular strategy--
firmly and for all time, in my opinion. A constitutional amendment is 
the only vehicle left for those who believe in protecting the flag.
  I expect the opposition to argue that protecting the flag from 
physical desecration somehow runs afoul of the first amendment and the 
freedom of expression, Mr. President. That is part of the debate that 
has been going on here now for a good many hours. I believe--and I 
think all Americans believe--that nothing could be further from the 
truth. The flag amendment does not prevent the expression of any ideas. 
As a matter of fact, there are far more direct ways of expressing one's 
opinion than engaging in an act--even the act of destroying or defiling 
a flag.
  Another accusation the opposition will try to use is that this is a 
slippery slope to Government censorship. I say hogwash as 
straightforward and as best I can, Mr. President. We are trying to 
protect the flag--and only the flag and only from physical 
desecration--because it is uniquely revered by Americans. That 
uniqueness absolutely prevents this effort from being extended to 
anything else. It is a very specific amendment.
  Mr. President, obscene speech that outrages a community is not 
protected by the Constitution. Fighting words that outrage individuals 
and provoke violence are not protected by the Constitution. Both these 
standards are well known and widely accepted in this country. Yet, when 
80 percent of Americans say they are outraged by the physical 
desecration of the flag and ask us to protect it, our opponents accuse 
them of advocating censorship and interfering with the freedom of 
speech.
  I say to the American people, do not believe them. This amendment is 
narrowly tailored to allow protection only of the flag and only from 
physical desecration. It will not force anyone to salute the flag. It 
will not mandate participation in the Pledge of Allegiance. It will not 
stop individuals from telling the world exactly and in detail how they 
feel about the flag, even if they despise it. This simply allows 
Congress and the States to prevent one act: the physical act of 
desecrating the flag.
  The concern has been raised that physical desecration can be defined 
to mean anything. That may be true in a vacuum. But it is most 
certainly not true in the marketplace of ideas, where all points of 
view have an opportunity to be heard, and that is precisely where this 
definition is going to be written, Mr. President.
  This amendment enables the American people to weigh in on this 
definition, whether they support or oppose protecting the flag. There 
will not be any midnight, closed-door, secret session to write this 
definition. It is going to be fully and openly discussed in every State 
in the Union.
  Mr. President, Congress has acted once before to protect the flag. By 
the narrowest of margins, the Supreme Court stopped that effort from 
succeeding. However, the Supreme Court's decision did not change the 
value at 

[[Page S18344]]
stake, it did not change the need for this protection, and, most 
important, it did not change the heart and the minds of the American 
people.
  Against all odds, against all expectations, support for this effort 
continues to grow, not to diminish. At a time when some are wringing 
their hands about the erosion of values in America, we have a 
grassroots movement demanding the opportunity to protect the symbol of 
our country's aspirations and our country's values.
  Are we so preoccupied with the problems of our Nation here in 
Washington that we cannot recognize the positive signs when we see it, 
Mr. President? Millions of our fellow citizens are telling us that the 
sight or mention of our flag still has the power to awaken the American 
spirit of the American patriot. We should be cheering them on, not 
ignoring them or denying them access to their Constitution.
  In providing two methods for amending the Constitution, article V 
safeguards the people's right to correct what they believe is a wrong 
decision by the Supreme Court or the Congress. The people have asked 
for this opportunity to make a correction in the case of the flag, and 
I urge my colleagues to listen to them, to send the American people an 
amendment allowing protection of the great flag of our country.
  Mr. President, I yield the floor.
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. McCONNELL. Mr. President, parliamentary inquiry. We are operating 
under a unanimous-consent agreement, are we not, that anticipates that 
I will send to the desk an amendment in the nature of a substitute 
which will be voted on in the morning, along with the constitutional 
amendment?
  The PRESIDING OFFICER. The Senator from Kentucky is correct.


                           Amendment No. 3097

                   (Purpose: To provide a substitute)

  Mr. McCONNELL. Mr. President, I therefore send that amendment to the 
desk on behalf of myself, Senator Bennett, Senator Dorgan, and Senator 
Bumpers.
  The PRESIDING OFFICER. Without objection, the pending amendment will 
be set aside.
  The clerk will report.
  The bill clerk read as follows:

       The Senator from Kentucky (Mr. McConnell), for himself, Mr. 
     Bennett, Mr. Dorgan, and Mr. Bumpers, proposes an amendment 
     numbered 3097.

  Mr. McCONNELL. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Strike all after resolving clause and inserting the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Flag Protection and Free 
     Speech Act of 1995''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--The Congress finds that--
       (1) the flag of the United States is a unique symbol of 
     national unity and represents the values of liberty, justice, 
     and equality that make this Nation an example of freedom 
     unmatched throughout the world;
       (2) the Bill of Rights is a guarantee of those freedoms and 
     should not be amended in a manner that could be interpreted 
     to restrict freedom, a course that is regularly resorted to 
     by authoritarian governments which fear freedom and not by 
     free and democratic nations;
       (3) abuse of the flag of the United States causes more than 
     pain and distress to the overwhelming majority of the 
     American people and may amount to fighting words or a direct 
     threat to the physical and emotional well-being of 
     individuals at whom the threat is targeted; and
       (4) destruction of the flag of the United States can be 
     intended to incite a violent response rather than make a 
     political statement and such conduct is outside the 
     protections afforded by the first amendment to the United 
     States Constitution.
       (b) Purpose.--It is the purpose of this Act to provide the 
     maximum protection against the use of the flag of the United 
     States to promote violence while respecting the liberties 
     that it symbolizes.

     SEC. 3. PROTECTION OF THE FLAG OF THE UNITED STATES AGAINST 
                   USE FOR PROMOTING VIOLENCE.

       (a) In General.--Section 700 of title 18, United States 
     Code, is amended to read as follows:

     ''Sec. 700. Incitement; damage or destruction of property 
       involving the flag of the United States

       ``(a) Actions Promoting Violence.--Any person who destroys 
     or damages a flag of the United States with the primary 
     purpose and intent to incite or produce imminent violence or 
     a breach of the peace, and in circumstances where the person 
     knows it is reasonably likely to produce imminent violence or 
     a breach of the peace, shall be fined not more than $100,000 
     or imprisoned not more than 1 year, or both.
       ``(b) Damaging a Flag Belonging to the United States.--Any 
     person who steals or knowingly converts to his or her use, or 
     to the use of another, a flag of the United States belonging 
     to the United States and intentionally destroys or damages 
     that flag shall be fined not more than $250,000 or imprisoned 
     not more than 2 years, or both.
       ``(c) Damaging a Flag of Another on Federal Land.--Any 
     person who, within any lands reserved for the use of the 
     United States, or under the exclusive or concurrent 
     jurisdiction of the United States, steals or knowingly 
     converts to his or her use, or to the use of another, a flag 
     of the United States belonging to another person, and 
     intentionally destroys or damages that flag shall be fined 
     not more than $250,000 or imprisoned not more than 2 years, 
     or both.
       ``(d) Construction.--Nothing in this section shall be 
     construed to indicate an intent on the part of Congress to 
     deprive any State, territory or possession of the United 
     States, or the Commonwealth of Puerto Rico of jurisdiction 
     over any offense over which it would have jurisdiction in the 
     absence of this section.
       ``(e) Definition.--As used in this section, the term `flag 
     of the United States' means any flag of the United States, or 
     any part thereof, made of any substance, in any size, in a 
     form that is commonly displayed as a flag and would be taken 
     to be a flag by the reasonable observer.''.
       (b) Clerical Amendment.--The table of sections for chapter 
     33 of title 18, United States Code, is amended by striking 
     the item relating to section 700 and inserting the following 
     new item:

700. Incitement; damage or destruction of property involving the flag 
              of the United States.''.

  Mr. McCONNELL. Mr. President, I assume that I have to do nothing 
further in order to have this amendment in the nature of a substitute 
be pending in the morning for a vote.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DORGAN. Mr. President, I am pleased to join my colleagues 
Senators McConnell and Bennett in offering a statutory proposal, rather 
than a constitutional amendment, to prohibit the desecration of the 
American flag.
  For me and for most American citizens, the flag of this Nation holds 
a special place in our minds and hearts as the unique symbol of our 
Nation and of the fundamental democratic freedoms for which it stands. 
It symbolizes the extraordinary sacrifices that millions of Americans 
have made over the past 200 years to preserve those freedoms. And 
freedom-loving Americans throughout this great Nation are appalled when 
someone chooses to defile, deface, or destroy our national symbol.
  Honorable men and women in this country and in this body may disagree 
on the means to achieve the objective we all share--the protection of 
the flag of the United States. But we are united in our love and 
respect for it. Protecting the flag from those who would destroy it is 
not in dispute. What is in dispute is how we best achieve the objective 
of protecting our national symbol while preserving the principles and 
values for which it stands.
  One of the most fundamental freedoms guaranteed by the Constitution 
and symbolized by the flag is the right to express one's views without 
fear of retribution. It is enshrined in the first amendment to the 
Constitution. It is part of the Bill of Rights. It is a right we all 
cherish. It is a right we all want to preserve. Preserving this basic 
right guaranteed by the Constitution is not always easy. Often it poses 
a dilemma. Such is the case with protecting the flag. But preserving 
the Constitution should be the backdrop of this debate. Justice Holmes 
framed the issue this way:

       [I]f there is any principle of the Constitution that more 
     imperatively calls for attachment than any other it is the 
     principle of free thought--not free thought for those who 
     agree with us but freedom for the thought that we hate.

  His imperative is one we should all take to heart.
  Unfortunately, the rhetoric of the flag debate has been highly 
charged. Accusations of disloyalty have been hurled against those who 
oppose the proposed constitutional amendment while those who support it 
are referred to as patriots. I hope we can lower the rhetoric and 
instead focus on the substance of this issue. Let us begin the debate 
by agreeing that honorable men and women can disagree on this very 

[[Page S18345]]
important issue. As the esteemed senior Senator from South Carolina, 
Senator Thurmond, has stated: ``The fact is, there are intelligent 
arguments on both sides of the debate.''
  Mr. President, I have worked closely with Senators McConnell and 
Bennett to develop a legislative solution to protect the flag that we 
believe will pass constitutional muster. The American Law Division of 
the Congressional Research Service has provided an analysis of our 
proposal which makes us optimistic that our approach will survive any 
constitutional attack on first amendment grounds. I ask unanimous 
consent that the CRS analysis be printed in the Record at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. DORGAN. Amending the Constitution should never be taken lightly. 
It is an approach that ought not be pursued if there is an alternative 
which can achieve the same objective. The amendment we are offering 
provides such an alternative, and I hope my colleagues will give it 
careful consideration.
  Our amendment, which was introduced earlier this year as S. 1335, 
would punish criminal acts of incitement, damage, or destruction of 
property involving the flag of the United States. The destruction of 
the flag can be intended to incite a violent response rather than to 
make a political statement. If that is the intent, that conduct is 
outside the protections offered by the first amendment, just like 
shouting fire in a crowded theater is outside its purview. Under our 
legislation, those who destroy or damage the flag with the intent of 
inciting violence or breaching the peace would be fined or imprisoned 
or both. Our proposal would also punish those who steal a flag 
belonging to the Federal Government and intentionally destroy or damage 
it.
  Our purpose in offering this amendment is clear. We want to provide 
the maximum protection of our flag from those who would defile it while 
preserving the constitutional liberties that it symbolizes. We believe 
our proposal strikes that important and delicate balance.
  During a June 21, 1990 Senate Judiciary Committee hearing on a 
constitutional amendment to prohibit flag desecration, several 
constitutional scholars were asked to analyze a similar bill which had 
been introduced by Congressman Jim Cooper in the House of 
Representatives. The views of these experts is quite telling.
  One of them, Charles Fried, the Carter Professor of General 
Jurisprudence at Harvard University, said that this approach was 
perfectly proper and perfectly constitutional. He stated that if a 
person burns a flag in a situation which presents an immediate 
incitement to violence, that is squarely within Supreme Court doctrine 
as the kind of thing which can be criminalized.
  Many other experts also agree that our legislative proposal would 
pass constitutional muster and protect the flag from those who would 
use it to promote violence or to infringe on another's right to wave 
the flag. Those are important goals and ones which I believe are the 
crux of this issue. We can achieve these goals by passing a statutory 
remedy. We do not need to, nor should we, amend the Constitution of the 
United States if a statutory alternative can accomplish the same 
objective. I ask unanimous consent that a very thoughtful column which 
appeared in the Washington Post and was written by James H. Warner, a 
former marine pilot and POW in Vietnam, be printed in the Record.
  There being no objection, the column was ordered to be printed in the 
Record, as follows:

               [From the Washington Post, July 11, 1989]

                  When They Burned the Flag Back Home

                          (By James H. Warner)


                        thoughts of a former POW

       In March of 1973, when we were released from a prisoner of 
     war camp in North Vietnam, we were flown to Clark Air Force 
     base in the Philippines. As I stepped out of the aircraft I 
     looked up and saw the flag. I caught my breath, then, as 
     tears filled my eyes, I saluted it. I never loved my country 
     more than at that moment. Although I have received the Silver 
     Star Medal and two Purple Hearts, they were nothing compared 
     with the gratitude I felt then for having been allowed to 
     serve the cause of freedom.
       Because the mere sight of the flag meant so much to me when 
     I saw it for the first time after 5\1/2\ years, it hurts me 
     to see other Americans willfully desecrate it. But I have 
     been in a Communist prison where I looked into the pit of 
     hell. I cannot compromise on freedom. It hurts to see the 
     flag burned, but I part company with those who want to punish 
     the flag burners. Let me explain myself.
       Early in the imprisonment the Communists told us that we 
     did not have to stay there. If we would only admit we were 
     wrong, if we would only apologize, we could be released 
     early. If we did not, we would be punished. A handful 
     accepted, most did not. In our minds, early release under 
     those conditions would amount to a betrayal, of our comrades, 
     of our country and of our flag.
       Because we would not say the words they wanted us to say, 
     they made our lives wretched. Most of us were tortured, and 
     some of my comrades died. I was tortured for most of the 
     summer of 1969. I developed beriberi from malnutrition. I had 
     long bouts of dysentery. I was infested with intestinal 
     parasites. I spent 13 months in solitary confinement. Was our 
     cause worth all of this? Yes, it was worth all this and more.
       Rose Wilder Lane in her magnificent book ``The Discovery of 
     Freedom,'' said there are two fundamental truths that men 
     must know in order to be free. They must know that all men 
     are brothers, and they must know that all men are born free. 
     Once men accept these two ideas, they will never accept 
     bondage. The power of these ideas explains why it was illegal 
     to teach slaves to read.
       One can teach these ideas, even in a Communist prison camp. 
     Marxists believe that ideas are merely the product of 
     material conditions; change those material conditions, and 
     one will change the ideas they produce. They tried to ``re-
     educate'' us. If we could slow them that we would not abandon 
     our belief in fundamental principles, then we could prove the 
     falseness of their doctrine. We could subvert them by 
     teaching them about freedom through our example. We could 
     show them the power of ideas.
       I did not appreciate this power before I was a prisoner of 
     war. I remember one interrogation where I was shown a 
     photograph of some Americans protesting the war by burning a 
     flag. ``There,'' the officer said. ``People in you country 
     protest against your cause. That proves that you are wrong.''
       ``No, I said. ``That proves that I am right. In my country 
     we are not afraid of freedom, even if it means that people 
     disagree with us.'' The officer was on his feet in an 
     instant, his face purple with rage. He smashed his fist onto 
     the table and screamed at me to shut up. While he was ranting 
     I was astonished to see pain, compounded by fear, in his 
     eyes. I have never forgotten that look nor have I forgotten 
     the satisfaction I felt at using his tool, the picture of the 
     burning flag, against him.
       Aneurin Bevan, former official of the British Labor Party, 
     was once asked by Nikita Khrushchev how the British 
     definition of democracy differed from the Soviet view. Bevan 
     responded, forcefully, that if Khrushchev really wanted to 
     know the difference, he should read the funeral oration of 
     Pericles.
       In that speech, recorded in the Second Book of Thucydides 
     ``History of the Peloponnesian War,'' Pericles contrasted 
     democratic Athens with totalitarian Sparta. Unlike the 
     Spartans, he said, the Athenians did not fear freedom. 
     Rather, they viewed freedom as the very source of their 
     strength. As it was for Athens, so it is for America--our 
     freedom is not to be feared, for our freedom is our strength.
       We don't need to amend the Constitution in order to punish 
     those who burn our flag. They burn the flag because they hate 
     America and they are afraid of freedom. What better way to 
     hurt them than with the subversive idea of freedom? Spread 
     freedom. The flag in Dallas was burned to protest the 
     nomination of Ronald Reagan, and he told us how to spread the 
     idea of freedom when he said that we should turn American 
     into ``a city shining on a hill, a light to all nations.'' 
     Don't be afraid of freedom, it is the best weapon we have.

  Mr. DORGAN. Mr. Warner's sentiments express far better than I am able 
why we should not amend the Constitution to safeguard the flag. I hope, 
therefore, that my colleagues will join our efforts to protect the flag 
from desecration without amending the Bill of Rights. I believe that is 
the right approach. The flag, which all of us love and respect, will 
then be protected, as will be the freedoms our flag has symbolized 
since the dawn of the Republic.

                               Exhibit 1


                               Congressional Research Service,

                                 Washington, DC, November 8, 1995.
     To: Honorable Kent Conrad.
     From: American Law Division.
     Subject: Analysis of S. 1335, the Flag Protection and Free 
         Speech Act of 1995.
       This memorandum is furnished in response to your request 
     for an analysis of the constitutionality of S. 1335, the Flag 
     Protection and Free Speech Act of 1995. This bill would amend 
     18 U.S.C. Sec. 700 to criminalize the destruction or damage 
     of a United States flag under three circumstances. First, 
     subsection (a) of the new Sec. 700 would penalize such 
     conduct when the person engaging in it does so with the 
     primary purpose and intent to incite or produce imminent 
     violence or a 

[[Page S18346]]
     breach of the peace and in circumstances where the person knows it is 
     reasonably likely to produce imminent violence or a breach of 
     the peace.
       Second, subsection (b) would punish any person who steals 
     or knowingly converts to his or her use, or to the use of 
     another, a United States flag belonging to the United States 
     and who intentionally destroys or damages that flag. Third, 
     subsection (c) punishes any person who, within any lands 
     reserved for the use of the United States or under the 
     exclusive or concurrent jurisdiction of the United States, 
     steals or knowingly converts to his or her use, or to the use 
     of another, a flag of the United States belonging to another 
     person and who intentionally destroys or damages that flag.
       The bill appears intended to offer protection for the flag 
     of the United States in circumstances under which statutory 
     protection may still be afforded after the decisions of the 
     Supreme Court in United States v. Eichman\1\ and Texas v. 
     Johnson.\2\ These cases had established the principles that 
     flag desecration or burning, in a political protest context, 
     is expressive conduct if committed to ``send a message,'' 
     that the Court would review limits on this conduct with 
     exacting scrutiny; and legislation that proposed to penalize 
     the conduct in order to silence the message or out of 
     disagreement with the message violates the First Amendment 
     speech clause.
     Footnotes at end of letter.
---------------------------------------------------------------------------
       Subsections (b) and (c) appear to present no constitutional 
     difficulties, based on judicial precedents, either facially 
     or as applied. These subsections are restatements of other 
     general criminal prohibitions with specific focus on the 
     flag.\3\ The Court has been plain that one may be prohibited 
     from exercising expressive conduct or symbolic speech with or 
     upon the converted property of others or by trespass upon the 
     property of another.\4\ The subsections are directed 
     precisely to the theft or conversion of a flag belonging to 
     someone else, the government or a private party, and the 
     destruction of or damage to that flag.
       Almost as evident from the Supreme Court's precedents, 
     subsection (a) is quite likely to pass constitutional muster. 
     The provision's language is drawn from the ``fighting words'' 
     doctrine of Chaplinsky v. New Hampshire.\5\ In that case the 
     Court defined a variety of expression that was unprotected by 
     the First Amendment, among the categories being speech that 
     inflicts injury or tends to incite immediate violence.\6\ 
     While the Court over the years has modified the other 
     categories listed in Chaplinsky, it has not departed from the 
     holding that the ``fighting words'' exception continues to 
     exist. It has, of course, laid down some governing 
     principles, which are reflected in the subsection's language. 
     Thus, the Court has applied to ``fighting words'' the 
     principle of Brandenburg v. Ohio,\7\ under which speech 
     advocating unlawful action may be punished only if it is 
     directed to inciting or producing imminent lawless action and 
     is likely to incite or produce such action.\8\
       A second principle, enunciated in an opinion demonstrating 
     the continuing vitality of the ``fighting words'' doctrine, 
     is that it is impermissible to punish only those ``fighting 
     words'' of which government disapproves. Government may not 
     distinguish between classes of ``fighting words'' on an 
     ideological basis.\9\
       Subsection (a) reflects both these principles. It requires 
     not only that the conduct be reasonably likely to produce 
     imminent violence or breach of the peace, but that the person 
     intend to bring about imminent violence or breach of the 
     peace. Further, nothing in the subsection draws a distinction 
     between approved or disapproved expression that is 
     communicated by the action committed with or on the flag.
       There is a question which should be noted concerning this 
     subsection. There is no express limitation of the application 
     of the provision to acts on lands under Federal jurisdiction, 
     neither is there any specific connection to flags or persons 
     that have been in interstate commerce. Therefore, application 
     of this provision to actions which do not have either of 
     these, or some other Federal nexus, might well be found to be 
     beyond the power of Congress under the decision of the Court 
     in United States v. Lopez.\10\
       In conclusion, the judicial precedents establish that the 
     bill, if enacted, while not reversing Johnson and Eichman, 
     should survive constitutional attack on First Amendment 
     grounds. Subsections (b) and (c) are more securely grounded 
     in constitutional law, but subsection (a) is only a little 
     less anchored in decisional law.
       We hope this information is responsive to your request. If 
     we may be of further assistance, please call.
                                                   John R. Luckey,
                      Legislative Attorney, American Law Division.


                               footnotes

     \1\496 U.S. 310 (1990).
     \2\491 U.S. 397 (1989).
     \3\See, 18 U.S. Sec. Sec. 641, 661, and 1361.
     \4\Eichman, supra, 496 U.S., 316 n. 5; Johnson, supra, 412 n. 
     8; Spence v. Washington, 418 U.S. 405, 408-409 (1974). See 
     also R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992) (cross 
     burning on another's property).
     \5\315 U.S. 568 (1942).
     \6\Id., at 572.
     \7\395 U.S. 444 (1969).
     \8\Id, at 447. This development is spelled out in Cohen v. 
     California, 403 U.S. 15, 20, 22-23 (1971). See, also NAACP v. 
     Claiborne Hardware Co., 458 U.S. 886, 928 (1982); Hess v. 
     Indiana, 414 U.S. 105 (1973).
     \9\R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
     \10\115 S. Ct. 1624 (1995).

  Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DOLE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (At the request of Mr. Daschle, the following statement was ordered 
to be printed in the Record.)
 Mr. KOHL. Mr. President, we all agree that flag burning is 
reprehensible. After all, hundreds of thousands of Americans have given 
their lives to protect the principles that our flag represents, and 
burning the flag offends the memory of those who made that ultimate 
sacrifice. Acting on this belief, I voted for legislation to protect 
the flag. Unfortunately, however, our statute was struck down by the 
Supreme Court.
  Although we should protect the flag, we must also approach amendments 
to the Constitution with great caution. Throughout our 200-year history 
we have never amended the Bill of Rights--the guardian of the 
principles and freedoms that our flag represents. During all this 
time--through a bloody Civil War, two world wars, a Depression, and 
urban riots--the first amendment has needed no repair.
  Mr. President, I have great faith that the American flag is strong 
enough to withstand the foolish actions of a handful of extremists. The 
Bill of Rights, however, is much more fragile. If we pass a 
constitutional amendment to prohibit this behavior--deplorable as it 
is--sooner or later the Government may prohibit other more legitimate 
types of expression and protest. So to my mind, protecting our revered 
symbol means ensuring that we do not infringe upon the freedoms that it 
represents.
  One of the most persuasive arguments against this amendment came from 
Keith Kruel of Fennimore, WI. A former national commander of the 
American Legion, he wrote that ``when the flag is not accorded proper 
consideration under the present flag code, it upsets patriotic 
Americans. Rightly so. [but] no one ever has, nor can, legislate a 
patriot.'' I agree.
  And do not take my word for it, ask the editorial writers of 
Wisconsin. Across my home State, from the Milwaukee Journal Sentinel to 
the Eau Claire Leader-Telegram to the Appleton Post-Crescent to the 
LaCrosse Tribune, these newspapers firmly believe that a flag 
desecration amendment is a bad idea. I ask that these editorials be 
printed in the Record at the conclusion of my statement.
  In closing, Mr. President, we should all be clear on our opposition 
to flag burning. But we should also resist this well-intentioned but 
unwise effort to tinker with the Bill of Rights.
  The editorials follow:

          [From the Milwaukee Journal Sentinel, June 12, 1995]

                       Flag Amendment Ill-Advised

       Probably nine-tenths of the knuckleheads who get their 
     jollies from burning the American flag or desecrating it in 
     other ways have no idea what freedoms that flag symbolizes. 
     Because these people are stupid as well as ungrateful, they 
     never think about the precious gift they have been given.
       The irony is that the American flag stands for, along other 
     things, the freedom to express yourself in dumb and even 
     insulting ways, like burning the flag. This is a freedom 
     literally not conferred on hundreds of millions of people.
       A few years ago, several states passed laws that made it 
     illegal to desecrate the flag, but in 1989 the Supreme Court 
     ruled that such statutes violated the Bill of Rights. 
     Congress is now moving to amend the Constitution itself, so 
     that flag desecration laws can be enacted.
       That movement is as ill-considered as it is understandable. 
     The Constitution should be amended only reluctantly and 
     rarely, when a genuine threat to our nation emerges and when 
     there is no other way to guard against it.
       That is why the founding fathers made it so difficult to 
     revise the Constitution, and why, as a Justice Department 
     spokesman pointed out the other day, the Bill of Rights has 
     not been amended since it was ratified in 1792.
       The unpatriotic mischief of adolescent punks is 
     infuriating. But it is not a serious enough act to warrant 
     revision of the nation's charter. The Bill of Rights exists 
     to protect people whose behavior, however repugnant, injures 
     nothing but people's feelings.
     
[[Page S18347]]

       The American flag protects even people who burn it; it 
     prevails over both them and their abuse. That is one of the 
     reasons the flag and the nation it stands for are so strong.
                                                                    ____


          [From the Eau Claire Leader-Telegram, June 18, 1995]

                   Let's Concentrate on Real Problems

       There's no winning for those who oppose a constitutional 
     amendment to outlaw desecration of the American flag.
       You might as well be against Mother's Day.
       But for several reasons we ought to let this idea die.
       Sure, burning the American flag to protest one thing or 
     another is a stupid thing to do. And the few times we've seen 
     someone burn the flag on television, we've never seen the 
     protester follow up by sweeping up the ashes with a broom and 
     dust pan, so it seems there is grounds to nail the protester 
     on a littering charge anyway.
       But even if they beat the littering rap, the only thing 
     such protesters prove is their ignorance. Burning a flag 
     doesn't signify anything positive or suggest alternatives to 
     make our nation stronger. It's just an action that indicates 
     you oppose our nation. So what? How do they propose to make 
     it better?
       But it's quite a jump from not liking stupidity to 
     tinkering with the U.S. Constitution to make flag-burning 
     illegal. The Constitution has guided us well for more than 
     200 years, and to amend it in an effort to prohibit flag-
     burning--which by one estimate occurs only about eight times 
     a year--seems to be an overreaction.
       But the most important reasons to stop this proposal are 
     that there are far more important things for Congress and the 
     people to worry about, and that it promotes a mindless 
     nationalism that challenges citizens to ``prove'' their 
     patriotism by endorsing the litmus test in the form of a 
     constitutional amendment.
       Politicians without the guts or the brains to solve what 
     really ails this country know that they can fool many voters 
     simply by using the flag as a political prop and making 
     flowery speeches about patriotism, love of country, etc.
       We should be more worried about where the flag gets its 
     strength. Instead of focusing on the flag itself, what about 
     the federal deficit (more than $200 billion a year) and the 
     national debt (nearing $5 trillion)? These are far greater 
     threats to Old Glory than some clown with a cigarette lighter 
     at a protest rally.
       What a legacy to leave to our children: ``Hey, kids, we've 
     mortgaged your future in the name of special interests and 
     for our convenience, but we've protected the flag with an 
     amendment. Pretty smart, huh?''
       What's at work here is a time-tested political practice. 
     That is, if you can't solve the real problems, throw up a 
     diversion to get people thinking and talking about something 
     else.
       Paying for health care, environmental protection, defense, 
     education and all the rest are complex issues that bore 
     readers and viewers. So if the real goal is to be re-elected 
     to a job with a six-figure salary, what a better way than to 
     focus on push-button issues like patriotism, the flag, etc.
       Burning the American flag won't solve anything, but neither 
     will outlawing burning of the flag while the nation it 
     represents crumbles underneath it.
                                                                    ____


            [From the Appleton Post-Crescent, Oct. 28, 1995]

              Flag-Protection Amendment Not What It Seems

                         (By William B. Ketter)

       Congress is about to put an asterisk on the First 
     Amendment.
       I am talking about the constitutional amendment to 
     ``protect'' the American flag from the kind of free 
     expression that this country was founded on.
       It is more commonly called the flag-desecration amendment, 
     and it protects nothing, not the flag, not values and 
     certainly not free speech.
       It does represent a test of will that has Congress on the 
     spot with The American Legion, Women's Army Corps, Navy 
     League and every other well-meaning veterans and fraternal 
     organization.
       The House in June overwhelmingly passed the amendment. The 
     Senate showdown could come any day now. Sixty-seven Senate 
     votes are needed to send it to the states for ratification. 
     The protect-the-flag partisans are flooding lawmakers with 
     tens of thousands of God-and-motherhood telegrams.
       If it is approved, the essence of free political speech 
     will drift from the first time from the First Amendment 
     mooring that gives every citizen a constitutional right to 
     challenge, even cast aspersions on, the icons of government.
       The federal government and the 50 states will have wide 
     latitude in determining what desecrates the flag. Given the 
     emotions over this issue, flag-themed soda cans, bumper 
     stickers, or the shirt on your back could be targets of local 
     harassment. Already, there's a town in Minnesota that wants 
     to keep car dealers from flying more than four U.S. flags on 
     their lots.
       Yes, this is a Boston Tea Party type of issue even if we 
     don't think of it that way. And yes, few institutions, the 
     press included, seem terribly bothered by it all.
       The principal reason for the apathy: The issue has been 
     miscast as a patriotic cause to safeguard the flag against 
     the scruffy likes of Gregory Lee Johnson, and never mind our 
     revered right to free speech.
       It is easy to dislike Gregory Lee Johnson. He's the radical 
     protester who doused the American flag with kerosene, then 
     put a match to it in front of the Dallas City Hall during the 
     1984 Republican National Convention.
       He was arrested and convicted and no one cared. Except the 
     U.S. Supreme Court, which ruled in 1989 that the flag-
     protection law used to prosecute Johnson violated his 
     constitutional right to free expression.
       ``It was enough to make any American's blood boil,'' says 
     William M. Detweiler, immediate past national commander of 
     The American Legion. ``We cannot allow our proud flag--and 
     our proud nation--to be ripped apart, piece by piece.
       Most Americans, myself among them, hate what Johnston did 
     to the flag. From the cradle, we are taught to respect it as 
     a symbol of our unprecedented form of democracy. We grow up 
     saluting it as school children, little leaguers, girl scouts, 
     soldiers, proud citizens.
       Beyond that, many of us have family members who died 
     fighting for the exception freedom the flag represents. We 
     don't want it spit at, trampled under foot, burned in protest 
     or in any way defaced.
       Yet it is because of that special freedom--including the 
     right to extreme political views--that the Senate should 
     reject the flag amendment.
       No nation has a more important history of tolerating 
     dissent, even conduct we have come to genuinely hate, than 
     the United States. The Founding Fathers wanted it that way. 
     They experienced the heavy hand of the British Crown, and saw 
     the right of protest as a vital bulwark against injustice and 
     tyranny. It's what sets America apart from nations that quash 
     citizen protest--and especially flag-burning--nations such as 
     China, North Korea, Vietnam, Iran, Iraq, Cuba.
       In other words, any effort to limit liberty is ultimately 
     directed at you. The flag amendment--and the laws that would 
     follow--probably would not prevent extremists from doing 
     violence to the flag. It is attention that the Gregory Lee 
     Johnsons of this world crave, and getting arrested is part of 
     the act.
       Furthermore, there aren't a lot of lunkheads like Gregory 
     Lee Johnson. Only four cases of flag burning were reported 
     last year in all of America. And those were prosecuted, with 
     the full authority of existing law and the First Amendment.
       How can this be, given the Supreme Court's flag ruling?
       Simple. All those cases were prosecuted under other laws 
     prohibiting theft, vandalism or inciting riots.
       So to solve a problem that does not exist (when was the 
     last time you remember someone burning a flag?), the 
     proponents of this amendment would chip away at the 
     fundamental freedoms guaranteed to all Americans.
       And in case that sounds like a self-interested argument 
     from a First Amendment fundamentalist listen to U.S. Sen. Bob 
     Kerrey of Nebraska, a Vietnam veteran who lost a leg in the 
     war. ``The community's revulsion at those who burn a flag'' 
     Kerrey said, ``is all that we need. It has contained the 
     problem without the government getting involved.''
       Indeed, in their effort to protect the flag, the advocates 
     of this amendment do far greater damaged to the principles of 
     liberty for which that flag stands. We need not wrap 
     ourselves in the flag to protect it.
       We do need, however, to standing up for the freedom that 
     Old Glory represents and urge the U.S. Senate to turn down 
     the flag amendment.
                                                                    ____


           [From the Wisconsin State Journal, June 14, 1995]

                   Flag Burning Amendment Unpatriotic

       Today, Flag Day, is an occasion to celebrate liberty. And 
     one of the best ways you can celebrate liberty is to write 
     your congressman to urge a vote against the proposed 
     constitutional amendment to ban flag burning.
       It may seem unpatriotic to stand up for a right to burn the 
     American flag. But the proposed amendment is not about 
     whether it is patriotic to burn a flag. It is about whether 
     it is right to limit the liberties for which our flag flies. 
     A true patriot would answer no.
       Consider: It's futile, even counter-productive, to try to 
     require patriotism by law.
       In fact, it would inspire greater respect for our nation to 
     refrain from punishing flag burners. As conservative legal 
     scholar Clint Bolick of the Institute for Justice told a 
     House subcommittee, we can lock up flag burners and by doing 
     so make them martyrs, ``or we can demonstrate, by tolerating 
     their expression, the true greatness of our republic.''
       Laws to protect the flag would be unworkable.
       The proposal now before the House seeks a constitutional 
     amendment to allow Congress and the states to pass laws 
     banning physical desecration of the flag. It would require 
     approval by two-thirds of the House and Senate and three-
     fourths of the states.
       It's called the flag burning amendment because many of its 
     supporters consider burning the flag to be the most egregious 
     form of desecration.
     
[[Page S18348]]

       But what counts as desecration of the flag? What if someone 
     desecrated something made up to look like a flag with some 
     flaw, like the wrong number of stars or stripes? Does that 
     count? What if a flag is used in art that some people 
     consider rude or unpatriotic? Does that count as desecration?
       The arguments could rage on and on, enriching lawyers and 
     diminishing the nation.
       A ban on flag burning would set a dangerous precedent.
       The proposed amendment is a reaction to 1989 and 1990 
     Supreme Court rulings that invalidated federal and state laws 
     banning flag desecration. The court ruled that peaceful flag 
     desecration is symbolic speech, protected by the First 
     Amendment freedom of speech clause.
       Supporters of a ban on flag burning argue that burning a 
     flag is not symbolic speech at all but hateful action. But if 
     today's cause is to ban flag burning because it is hateful 
     action, tomorrow's cause may be to ban the display of the 
     Confederate flag because many people consider it to be 
     hateful action. Or to ban the use of racial or sexist 
     comments because they amount to hateful actions. And on and 
     on until we have given up our freedoms because we are 
     intolerant.
       The right to protest is central to democracy.
       A democracy must protect the right to protest against 
     authority, or it is hardly a democracy. It is plainly 
     undemocratic to take away from dissenters the freedom to 
     protest against authority by peacefully burning or otherwise 
     desecrating a flag as the symbol of that authority.
       If the protesters turn violent or if they steal a flag to 
     burn, existing laws can be used to punish them.
       Flag burners are not worth a constitutional amendment.
       A good rule of thumb about amending the U.S. Constitution 
     is: Think twice, then think twice again. Flag burning is not 
     an issue that merits changing the two-centuries-old blueprint 
     for our democracy.
       This nation's founding fathers understood the value of 
     dissent and, moreover, the value of the liberty to dissent. 
     So should we.
                                                                    ____


               [From the La Crosse Tribune, June 7, 1995]

                               Editorial

       The U.S. Supreme Court ruled in a Texas case in 1989 that 
     flag burning is protected by the First Amendment as a form of 
     speech. The court's decision didn't go over very well with 
     friends of Old Glory then, and six years later that ruling 
     still sticks in the craw of many patriots--so much so that 
     constitutional amendments protecting the flag against 
     desecration have picked up 276 co-sponsors in the U.S. House 
     of Representatives and 54 in the Senate.
       The House Judiciary Committee takes up the amendment today, 
     with a floor vote expected on June 28. The Senate Judiciary 
     Committee tackled a similar amendment on Tuesday.
       For two centuries soldiers have given their lives to keep 
     the American flag flying. It is a symbol of freedom and hope 
     for millions. That is what infuses the stars and strips with 
     meaning and inspires the vast majority of Americans to treat 
     it with respect. But to take away the choice in the matter, 
     to make respect for the flag compulsory, diminishes the very 
     freedom represented by the flag.
       Do we follow a constitutional amendment banning flag 
     desecration with an amendment requiring everyone to actually 
     sing along when the national anthem is played at sports 
     events? An amendment making attendance at Memorial Day 
     parades compulsory?
       Sen. Howell Heflin, D-Ala., argues that the flag unites us 
     and therefore should be protected. But Heflin and like minded 
     amendment supporters are confusing cause and effect. The flag 
     is a symbol of our unity, not the source of it.
       Banning flag burning is simply the flip side of the same 
     coin that makes other shows of patriotism compulsory. What 
     are the names of the countries that makes shows of patriotism 
     compulsory? Try China, Iraq. The old Soviet Union.
       Coerced respect for the flag isn't respect at all, and an 
     amendment protecting the American flag would actually 
     denigrate that flag.
       Allegiance that is voluntary is something beyond price. But 
     allegiance extracted by statute--or, worse yet, but 
     constitutional flat--wouldn't be worth the paper the 
     amendment was drafted on. It is the very fact that the flag 
     is voluntarily honored that makes it a great and powerful 
     symbol.
       The possibility of the Balkanization of the American people 
     into bickering special interest groups based on ethnicity or 
     gender or age or class frightens all of us, and it's tempting 
     to try to impose some sort of artificial unity. But can the 
     flag unit us? No. We can be united under the flag, but we 
     can't expect the flag to do the job of uniting us.
       We oppose flag burning--or any other show of disrespect for 
     the American flag. There are better ways to communicate 
     dissent than trashing a symbol Americans treasure. But making 
     respect for the flag compulsory would, in the long run, 
     decrease real respect for the flag.
       The 104th Congress should put the flag burning issue behind 
     it and move on to the nuts-and-bolts goal it was elected to 
     pursue: a smaller, less intrusive, fiscally responsible 
     federal government. A constitutional amendment protecting the 
     flag runs precisely counter to that goal.
                                                                    ____


             [From the Oshkosh Northwestern, May 28, 1995]

                  Beware Trivializing Our Constitution

       It is difficult to come out against anything so sacrosanct 
     as the American flag amendment--difficult but not impossible.
       An amendment to protect the flag from desecration is before 
     Congress and has all the lobbying in its favor.
       The trouble is, it is an attempt to solve, through the 
     Constitutional amendment process, a problem that really is 
     not a problem.
       Flag burning is not rampant. It occurs occasionally; it 
     brings, usually, society's scorn upon the arsonist, and does 
     no one any harm, except the sensitivities of some.
       These sensitivities give rise to the effort to abridge the 
     freedom of expression guaranteed by the First Amendment, 
     which has been held by the courts to include expressions of 
     exasperation with government by burning its banner.
       At worst, this flag protection is an opening wedge in 
     trimming away at the basic rights of all Americans to 
     criticize its leaders. That right was so highly esteemed by 
     the Founding Fathers that they made free speech virtually 
     absolute.
       At best, the flag protection amendment trivializes the 
     Constitution.
       That is no small consideration. The Constitution was 
     trivialized once before. The prohibition amendment had no 
     business being made a constitutional chapter. It was not of 
     constitutional stature. It could not have been done by 
     statute alone. Its repeal showed that it was a transitory 
     matter rather than being one of transcendent, eternal 
     concern.
       The flag protection amendment is trivial in that flag 
     burning is not always and everywhere a problem. If the 
     amendment succeeds, what else is out there to further 
     trivialize the document?
       Must the bald eagle be put under constitutional protection 
     if it is no longer an endangered bird?
       This is a ``feel good'' campaign. People feel they 
     accomplish something good by protecting the flag from 
     burning. (Isn't the approved method of disposing of tattered 
     flags to burn them, by the way?)
       But it offers about the same protection to flags that the 
     18th offered to teetotaling.
       If someone has a political statement to make and feels 
     strongly enough, he'll do the burning and accept the 
     consequences. The consequences surely will not be draconian 
     enough that flag burning would rank next best thing to a 
     capital offense.
       Congress has more pressing thing to do than put time into 
     this amendment.

  Mr. DOLE. Mr. President, was leaders' time reserved?
  The PRESIDING OFFICER. The Senator is correct.

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