[Congressional Record Volume 147, Number 116 (Monday, September 10, 2001)]
[Senate]
[Pages S9209-S9246]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 2002
The PRESIDING OFFICER. Under the previous order, the Senate will now
proceed to the consideration of H.R. 2500, which the clerk will report.
The legislative clerk read as follows:
A bill (H.R. 2500) making appropriations for the
Departments of Commerce, Justice, and State, the Judiciary,
and related agencies for the fiscal year ending September 30,
2002, and for other purposes.
The PRESIDING OFFICER. The distinguished Senator from South Carolina,
the chairman of the Commerce Committee, is recognized.
[[Page S9210]]
Amendment No. 1533
Mr. HOLLINGS. Mr. President, I send an amendment to the desk and ask
the clerk to report it.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from South Carolina [Mr. Hollings], for himself
and Mr. Gregg, proposes an amendment numbered 1533.
Mr. HOLLINGS. I ask unanimous consent reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
(The text of the amendment is printed in the Record under
``Amendments Submitted.'')
The PRESIDING OFFICER. Under the previous order, the amendment is
considered adopted.
The amendment (No. 1533) was agreed to.
Mr. HOLLINGS. Mr. President, I am pleased to present to the Senate
the fiscal year 2002 State, Justice, Commerce, the Judiciary, and
related agencies appropriations bill. This bill was accepted
unanimously by the full committee in July. As in past years, this has
been an extremely bi-partisan effort on the part of the members and
staff of this subcommittee. In particular, I would like to thank the
ranking member, Senator Gregg, for his dedication to producing a fair
and well rounded bill. He has chaired this subcommittee in a
distinguished fashion during the past 4 years. He knows this bill
through and through and his assistance during the change over has been
greatly appreciated. Also, I want to recognize the hard work of my
subcommittee staff; my majority clerk, Lila Helms, Jill Shapiro Long,
Luke Nachbar, and Dereck Orr; as well as the minority clerk, Jim
Morhard along with Kevin Linskey, Katherine Hennesey, and Nancy
Perkins.
This is my 31st year on the CJS Subcommittee, and this is the 25th
annual appropriations bill for CJS that I have been privileged to
present to the Senate either as chairman, or as ranking member of the
subcommittee. I am still amazed at the range of important issues that
this bill addresses.
Funds appropriated under this bill directly affect the daily lives of
all Americans.
Under CJS, the Nation's primary and secondary schools are made safer
by providing grants for the hiring of school resource officers to
ensure that our children can grow and learn in a protected environment.
This bill provides funds to protect all americans by increasing the
number of police officers walking the Nation's streets, providing
additional funds to fight the growing problem of illegal drug use,
guarding consumers from fraud, guarding children from internet
predators and protecting Americans from acts of terrorism here at home
and abroad.
People throughout this country benefit from weather forecasting
services funded through this bill, whether they are farmers receiving
information necessary to effectively manage their crops, or families
receiving lifesaving emergency bulletins regarding tornadoes, floods,
torrential rains, and hurricanes.
Small communities benefit from the economic development programs
funded in this bill. Nearly 1,500,000 small businesses benefit from the
free SBA assistance provided in this bill. All American businesses and
their employees benefit from the funding provided to enforce our trade
laws and to prevent illegal, often dangerous products, from being
dumped on our markets.
This appropriations bill provides funds to improve technology in a
host of areas; funding is provided for developing cutting edge
environmental satellites, for developing cutting edge industrial
technologies that keep us competitive, and for developing basic
communications tools for State and local law enforcement so that they
can do their jobs more safely and effectively.
In all, the CJS bill totals $41.5 billion in budget authority, which
is $719.9 million above the President's request. There are four
specific accounts that benefit from the increased funding above the
President's request. They are MARAD, COPS Universal Hiring Program,
NIST's Advanced Technology Program, and the Small Business
Administration.
First, the President's budget proposed to move MARAD into the
Department of Defense. The subcommittee received letters from over one-
third of the senate indicating opposition to such a move. The committee
bill reflects that request and provides $98.7 million for the Maritime
Security Program and $100 million for the Title XI Loan Guarantee
Program.
Second, the President's budget proposed to fund only the school
resource officer component of the COPS Program. The committee bill
before the Senate today fully supports the School Resource Officers
Program, but also restores the Universal Hiring Program. The committee
bill provides $190 million for the Universal Hiring and Cops More
Program.
Third, the President's request proposed to zero out the Advanced
Technology Program. The committee bill restores this program and
provides the same level of funding, $60.7 million, for new awards as
was provided last year. As a result, the bill includes $190 million
above the President's request for the ATP Program.
Finally, the President's request proposed to move SBA from a service
agency to a fee for service agency. In order to correct this misguided
understanding of the services SBA provides this country's more than
1,500,000 small businesses, the committee bill provides an additional
$231 million above the President's request to restore funding for all
the proposed taxes contained in the President's request.
In addition to restoring the funding for Priority National Programs,
the Commerce, Justice, State appropriations bill also focuses on
replacing the aging information technology and other core
infrastructure needs of the Departments of Justice, Commerce, and
State.
As I said before, this is a well rounded bill with a number of
important accounts. I would like to take a few more minutes to go over
some of the specific funding highlights from the CJS bill the committee
is bringing before the Senate today.
Once again, the FBI's Preliminary Annual Uniform Crime Report
released this past May demonstrates how well these programs are
working. According to the FBI's report, in 2000, serious crime has
leveled to mark a decline of 7-percent from 1998, and marking 9
consecutive years of decline. This continues to be the longest running
crime decline on record. Bipartisan efforts to fund DOJ's crime
fighting initiatives have impacted this reduction in crime during the
past 10 years.
The bill provides $3.47 billion for the FBI, which is $216 million
above last year's funding level. To meet the FBI's training, resources,
and equipment needs, the bill provides $142 million for the FBI's
Computer Modernization Program, trilogy; $6.8 million to improve
intercept capabilities; $7 million for counter-encryption resources;
$12 million for forensic research; $4 million for four mitochondrial
DNA forensic labs; and $32 million for an annex for the engineering
research facility, which develops and fields cutting edge technology in
support of case agents.
To highlight the changing mission of the FBI, the bill provides a new
budget structure. Three old criminal divisions were combined into two,
and new divisions for cybercrime and counterterrorism were created. The
new structure provides the Bureau with more flexibility and should
improve the Bureau's responsiveness to changing patterns of crime and
headquarters' support of the field. The bill also directs the FBI to
re-engineer its workforce by hiring and training specialists that are
technically-trained agents and electronics engineers and technicians.
The bill provides $1.5 billion for DEA, $8.8 million above the budget
request. Increased funds are provided for technology and infrastructure
improvements, including an additional $30 million for DEA's computer
network, firebird, and an additional $13 million for DEA's laboratory
operations for forensic support.
To combat drugs that are reaching our streets and our children, the
bill provides $52.8 million to fight methamphetamine and encourages the
DEA to increase efforts to combat heroin and emerging drugs such as
oxycontin and MDMA, also known as ecstacy. The bill also directs DEA to
renew its efforts to work with Mexico to combat drug trafficking and
corruption under the country's new President Vicente Fox.
[[Page S9211]]
For the INS, the bill includes $5.5 billion, $2.1 billion of which is
derived from fees. This funding provides the necessary resources to
address border enforcement and benefits processing. For border
enforcement, the bill provides $75 million for 570 additional Border
Patrol Agents, $25 million for 348 additional land border inspectors,
and $67.5 million for additional inspectors and support staff.
To better equip and house these agents and inspectors, the bill
provides $91 million for border vehicles, $22 million for border
equipment, such as search lights, goggles and infrared scopes, $40.5
million to modernize inspection technology; and $205 million for Border
patrol and detention facility construction and rehabilitation.
For INS' other hat, benefits processing, the bill provides $67
million additional funds to address the backlog and accelerate the
processing times.
This bill includes $3.07 billion for the Office of Justice Programs,
which is $259.8 above the amount requested by the President. This bill
provides for the funding of a number of important law enforcement
programs.
The committee has provided $2.08 billion for State and Local Law
Enforcement Assistance Grants. Within this amount; $400 million is for
the Local Law Enforcement Block Grant Program; $390.5 million is for
Violence Against Women Act--VAWA--programs, including programs to
assist disabled female victims, programs to reduce violence against
women on college campuses, and efforts to address domestic and child
abuse in rural areas; and $265 million is provided for the State
Criminal Alien Assistance Program which reimburses States for the
incarceration costs of criminal aliens.
Within the amount provided for the Office of Justice Programs, a
total of $328.5 million has also been recommended for juvenile justice
programs. These funds will go towards programs aimed at reducing
delinquency among at-risk youth; assisting States in enforcing underage
drinking laws; and enhancing school safety by providing youth with
positive role models through structured mentoring programs, training
for teachers and families so that they can recognize troubled youth,
and training to students on conflict resolution and violence reduction.
This bill includes $1.019 billion for the COPS office in new budget
authority, which is $164.7 billion above the President's request. As in
prior years, the Senate has provided $180 million for the Cops-in-
Schools Program to fund up to 1,500 additional school resources
officers in FY02, which will make a total of 6,100 school resource
officers funded since Senator Gregg and I created this program in 1998.
This committee also remains committed to providing grant funds for
the hiring of local law enforcement officers through the COPS Universal
Hiring Program. Although the President did not seek funding for this
program in FY02, the committee has provided $190 million to continue to
hire officers, as well as to provide much needed communications
technology to the Nations law enforcement community.
Within the COPS budget, the committee has also increased funding for
programs authorized by the Crime Identification and Technology Act,
CITA. In FY02, $150.9 million is provided for programs that will
improve the retention of, and access to, criminal records nationwide,
improve the forensic capabilities of State and local forensic labs, and
reduce the backlog of crime scene and convicted offender DNA evidence.
And finally, the committee has provided $48.3 million within COPS to
continue the COPS methamphetamine initiative. These funds will provide
for the clean-up of meth production sites which pose serious health
risks to law enforcement and the surrounding public. Funds will also be
provided to State and local law enforcement to acquire training and
equipment to safely and effectively dismantle existing meth labs.
For the Department of Commerce in fiscal year 2002, the committee has
focused on the separate but equally important goals of improving
departmental infrastructure and promoting the advancement of
technology. The Nation is blessed with an outstanding group of
individuals who go to work every day, across the Nation, for the
Department of Commerce. Thirty-seven thousand people work in agencies
as diverse as the Economic Development Administration, the National
Oceanic and Atmospheric Administration, and the Bureau of the Census.
They are highly-trained experts who are responsible for a huge array of
critical programs. These people help minority businesses and small
manufacturers flourish, run trade missions to open foreign markets to
American goods, forecast hurricanes, estimate the Nation's gross
domestic product, set standards and measurements recognized and used
world-wide, fly satellites, manage the Nation's fisheries, conduct
censuses, and process patents. These missions of the Department of
Commerce are the glue that holds together the U.S. economy, both
domestically and abroad.
There is no doubt as to the importance of the missions under the
purview of the Department of Commerce. There is, however, a crisis
looming in terms of the infrastructure available to the employees who
work there. In many cases, Mr. President, these people are going to
work in World War II-era buildings that are literally crumbling around
them. We saw this last year in Suitland where we had leaks in the roof,
lead in the water, and asbestos in the air systems and we provided
funding for new buildings. The average age of the NOAA fleet of
research vessels is close to 30 years old. Employees in Department of
Commerce bureaus are working with antiquated computer systems that
often do not speak to the outside world.
The bill we have before us begins to turn the tide on infrastructure
needs. In all cases, the bill funds the President's request for capital
upgrades. This includes new information technology systems at the
Minority Business Development Agency, the Bureau of the Census, the
Economic Development Agency, and the Office of Economic and Statistical
Analysis. The bill includes a $76 million increase for the next
generation of polar-orbiting satellites. It also includes a new radio
spectrum measurement system at the National Telecommunications and
Information Administration.
In other cases, this bill jump-starts capital projects that were not
requested by the President when they should have been. For example,
funding is included to begin work on upgrading the Boulder, CO, campus
of the National Institute of Standards and Technology. We also
encourage the United States Patent and Trademark Office to reflect on
its infrastructure needs and to report back on what we can do to help
in the future.
In terms of NOAA, the bill includes funding for 2 new research
vessels and funds to refurbish 6 others. In addition, funding is
included for needed repairs at the Beaufort, Oxford, and Kasitsna
Coastal Laboratories. Sufficient funding is provided to begin
construction on regional National Marine Fisheries Service Buildings in
Hawaii and in Alaska. The bill provides funding to start building
visitor facilities at National Marine Sanctuaries.
Mr. President, the funding provided in this bill for these purposes
is a down-payment on the future of a robust Department of Commerce. I
believe that the people at the Department are its greatest asset and
that these targeted funds will allow those people to better do their
jobs for decades to come.
In terms of advancing technology, in addition to the satellite
programs, research vessels, radio spectrum management systems and other
programs that I mentioned earlier, the bill provides $696.5 million for
the National Institute for Standards and Technology--NIST. This amount
aggressively funds scientific and technical research and services that
are carried out in the NIST Laboratories in Gaithersburg and in
Boulder. The bill provides the current year funding level of $60.7 for
new ATP awards. The ATP is an industry-led, competitive, and cost-
shared program to help the U.S. develop the next generation of
breakthrough technologies in advance of its foreign competitors. ATP
contracts encourage companies to undertake initial high-risk research
that promises significant widespread economic benefits. Over one-half
of the ATP awards go to small companies. To date, Mr. President, 41 ATP
competitions have been held; 4,435 proposals
[[Page S9212]]
have been submitted involving 7,343 participants; 526 awards have been
issued involving 1,167 participants, and 248 ATP projects have been
completed. Of the 526 awards, 173 are joint ventures, and 353 are
single applicants. Fify-nine percent of the projects are led by small
businesses and 71 percent of the single applicant projects are led by
small business. More than 150 different universities are involved in
280 ATP projects and over 100 new technologies have been commercialized
as products or services. Companies have identified nearly 1,400
potential applications of ATP research.
Is ATP a success? The answer clearly is ``yes.'' The Advanced
Technology Program has been extensively reviewed. Since its inception,
there have been 52 studies on the efficacy and merits of the program.
These assessments reveal that the ATP does not fund projects that
otherwise would have been financed in the private sector. Rather, the
ATP facilitates so-called ``Valley of Death'' projects that private
capital markets are unable to fund. In June 2001, the National Academy
of Sciences' National Research Council completed its comprehensive
review of the ATP. It found that the ATP is an effective Federal
partnership that is funding new technologies that can contribute to
important societal goals. They also found that ``the ATP could use more
funding effectively and efficiently.'' A March 1999 study found that
future returns from just 3 of the 50 completed ATP projects--improving
automobile manufacturing processes, reducing the cost of blood and
immune cell production, and using a new material for prosthesis
devices--would pay for all projects funded to date by the ATP.
Measurement and evaluation have been part of the ATP since its
beginning. What the analysis shows time and time again is that the ATP
is stimulating collaboration, accelerating the development of high-risk
technologies, and paying off for the Nation.
The bill includes a total of $7.6 billion for the Department of State
and related agencies, an increase of $617 million above last year's
funding level of $7.0 billion. Within the State Department account,
$1.1 billion has been provided for worldwide security upgrades of State
Department facilities. Additionally, the bill provides $773 million to
continue our Nation's international peacekeeping activities.
During the past several years, the worldwide security accounts and
the peacekeeping account have accounted for the majority of increases
in the Department's budget while the day-to-day operations have been
neglected. As a result, many of the Department's quality of life
initiatives and the Department's other infrastructure needs--
communications, transportation, office equipment--have suffered. The
funding provided in this bill fully funds all current services for the
Department of State. In addition, this bill funds all quality of life
initiatives such as: additional language, security, leadership and
management training; monetary incentives to attract employees to
hardship posts; incentives to allow civil service employees to compete
for 2-year overseas assignments; and replacement of obsolete furniture
and motor vehicles.
As with the other departments funded through this bill, full funding
is provided for information technology upgrades. The worldwide web has
become essential to the conduct of foreign policy. Yet, very few
overseas posts have that capability. The funding provided in this bill
fully supports Secretary Powell's decision to place information
technology among the Department's top priorities and fully funds the
Department's efforts to provide internet access to all State Department
desktops by January 2003.
Let me conclude by saying again this is a solid piece of legislation
that addresses issues that affect the daily lives of all Americans. It
is a good bill that balances the needs on many diverse missions, and
the interests of members from both parties. Every year, we face
difficulties with respect to limited funding and multiple, sometimes
competing, priorities. This year was no different. And, as in past
years, the CJS Subcommittee made those decisions in a bipartisan and
judicious manner. This could not have happened without the assistance
of Senator Gregg and the endless hours of work that both my and his
staff put into drafting the bill before the Senate today. With the help
of my colleagues, I look forward to swift passage of this vital
legislation.
The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
Mr. GREGG. Mr. President, I rise in support of the bill brought
forward by the Senator from South Carolina. I thank Senator Hollings
for the tremendous courtesy and teamwork approach he has taken on this
bill relative to the Republican side of the aisle. I especially thank
his staff, led by Lila Helms, for their efforts to make sure we had an
approach that involved all the different players on the committee.
This has been a bill which Senator Byrd, during the full committee
markup, described as the ``most bipartisan bill in his memory.'' We are
very proud of that. I think it is very much a reflection of the
leadership of Senator Hollings and the approach he has taken. So I
express my deep and sincere thanks to him.
Senator Hollings has outlined pretty specifically the areas this bill
funds and some of the initiatives in the bill. Let me talk about a
couple, however, that I would like to highlight myself.
First, the appropriation level on this bill is significant, $41.5
billion, which is over the President's request by a fair amount--about
one-half billion dollars. It is my hope--and I have discussed this with
Senator Hollings--as we move through the process that we can come a
little closer to the President's request. I note, however, that the
bill is within our budget resolution and the allocation given to this
committee. So as a practical matter it does not in any way negatively
impact the budget. It is a rather responsible bill. The reason it
spends these dollars is because it has significant agencies that it
funds.
The Department of Justice is, of course, a critical agency; the
Department of State; Department of Commerce; Judiciary; FTC; FCC; and
the SEC. These are all agencies that play a huge role in the
deliverance of quality Government in our country. It is our obligation
to strongly support them.
One area on which we have focused a considerable amount of time in
the committee has been the issue of terrorism and our preparation for
terrorism as a government. Earlier in the year, we had a joint hearing
that involved a large number of Senators participating, at which
hearing we had present and testifying all the major agencies that
impact terrorism within the Federal Government--I believe the number is
42, or maybe 46. I myself even lost count, even though I stay fairly
attentive to this issue. We heard from the leaders of each agency. We
heard from the Secretary of State, the head of FEMA, the Attorney
General, of course, and down the line. We heard from leaders within our
communities and agencies. We heard from the Deputy Secretary of
Defense.
The conclusion, which was clear and regrettably unalterable, is that
there are simply too many people trying to cook this pie, too many
people trying to stir the stew, and, as a practical matter, the
coordination necessary in order to deliver a thoughtful and effective
response to the threat of terrorism is not that strong.
Terrorism can be divided into three basic areas of responsibilities,
the first being intelligence, both domestic and international; the
second being interdiction, again domestic and international; and the
third being consequence management should an event occur.
In all these areas, there is a significant overlap of responsibility
and, as a result, through this hearing and many other hearings we have
held, we have come to the conclusion that we have to become more
focused within especially the Justice Department, which has a huge role
in this area, but within other agencies which naturally fold into the
Justice Department.
We have suggested in this bill that we create a Deputy Attorney
General who would serve as a national go-to person on the issues
relating to domestic terrorism. This individual would obviously work in
tandem with a lot of other major players, including FEMA, but as a
practical matter at least we would have one central place where we
could begin and where people could look to more response to terrorism.
It would be a central place where not
[[Page S9213]]
only the response would occur but the responsibility would occur and
therefore we would have accountability, which is absolutely critical
and which today does not exist.
This bill creates that position and funds it, along with funding a
significant increase in the counterterrorism activity at a variety of
levels which are critically important to our efforts to address this
issue.
I do not want to sound too pessimistic about our efforts in this
area. Compared to 4 or 5 years ago when we began this initiative, we
are way down the positive road. We have, in effect, up and running a
first responder program in a number of communities across this country,
and we are moving aggressively across the country to bring critical
areas up to speed.
We have an effective intelligence effort and effective interdiction
effort, but we still have a long way to go. If you put it on a
continuum time of a person, it is as if this person were born 5 years
ago and we were now in mid-adolescence, in our late teens, moving,
however, aggressively into a more mature approach to the issue.
Another area I think needs to be highlighted, on which I congratulate
the chairman, as I have with counterterrorism, is the issue of NOAA.
NOAA is absolutely a critical agency for us. It is one of the premier
agencies in our Nation in addressing the question of scientific
excellence. I was just watching the weather today and noticed there is
a hurricane off the northern part of our east coast. It is going to be
pushed off the coast in New England because of the weather patterns.
Mr. HOLLINGS. Hopefully it will not hit New Hampshire.
Mr. GREGG. Hopefully it will not hit New Hampshire.
Because of NOAA, we can predict where a hurricane will go with a
great deal more accuracy. Certainly, States such as South Carolina and
those that are located along the hurricane trough have taken full
advantage of it.
This agency goes way beyond the issues of atmospherics. It goes into
quality of water, ocean activity, marine fisheries, and we have made a
huge commitment in this area in this bill.
Environmental conservation is extraordinarily important as part of
the NOAA initiative in this bill, and, as the chairman was reciting, we
have put a large amount of dollars into it, especially in the Coastal
Zone Management Program and the National Estuarine Research Reserve.
The committee recognizes that 90 percent of the commerce in this
country enters through our ports, and our nautical charts are grossly
outdated. This year we address this problem by aggressively increasing
funding for mapping and charting, electronic navigational charts,
shoreline mapping, the survey backlog, and securing additional
hydrographic ships.
Because of the critical importance of fishing to our economy and our
cultural history, the committee is funding a new $54 million fishery
research vessel, as was mentioned by the chairman --this is absolutely
critical--along with making a significant effort to protect and
preserve the right whale population which is very important to my part
of the country.
Given the current concerns regarding our national energy policy, the
committee is providing funds through NOAA again to examine an extension
of the U.S. claim to the mineral continental shelf, implementation of a
regional temperature forecasting system to better project electricity
demands, and to develop an air quality forecasting system to minimize
the impact of powerplant emissions on air quality.
The committee funded the following programs: Coastal Zone Management
grants at $65 million, $5 million over last year's level; National Sea
Grant College Program at $56 million, the same level as the budget
request; the National Weather Service's Local Warnings and Forecasts
Program at $80 million; the National Polar Orbiting Environmental
Satellite System at $156 million. This is a recognition by this
committee of the significance and importance of NOAA and the role it
plays in maintaining the quality of our science in this country but,
more importantly, the quality of the life of our citizenry.
As was mentioned by the chairman of the committee, we have made a
strong commitment to the judiciary which has its own unique problems,
and we continue to work hard, especially in the area of pay. I
personally believe we should do something aggressively in the area of
paying our judges. I suspect the Chair also feels this way, as he is
the fellow responsible for these judges. The fact is, it is very hard
to attract into the judiciary high-quality individuals who might have
young children or especially families whose kids are about to head off
to college under the present pay scale, and something needs to be done.
We are trying to address that in this bill.
Again, as was mentioned by the chairman, the State Department has
been aggressively addressed. I am happy to report, as the chairman has
alluded, that the arrears situation is much improved, thanks to the
good work of our former Ambassador to the U.N., Richard Holbrooke. Mr.
Holbrooke accomplished what many said could not be done: He
successfully negotiated a new U.S. assessment rate both for the regular
budget and the peacekeeping account so that the burden is more fairly
distributed.
For me, the renegotiation of the assessment scale is a perfect
example of how the United States can use its large contribution to the
U.N. as a leverage to demand fairness, accountability, and reform. Our
``tough love'' policy vis-a-vis the U.N., the basis of the Helms-Biden
legislation, is successful because it is premised on good intentions
and high expectations.
I also want to mention that funds have been made available in this
bill for information technology in the total of $210 million. As the
chairman of this committee mentioned, for the last 4 years I have been
extremely supportive of this attempt to try to upgrade the IT
capabilities of the State Department. I have been disappointed,
however, by the lack of progress made by the Department in this area.
The only goal the State Department has achieved is providing e-mail
capability to all Department desktops. Most desktops still do not have
Web access. The networks of various U.S. agencies operating overseas
have not been integrated, and the classified system needs to be
overhauled.
I am encouraged by Secretary Powell's recognition of IT as one of the
Department's top priorities. The fiscal year 2002 mark fully funds IT,
and I congratulate Senator Hollings for his commitment in this area.
Hopefully, the Department will make good use of these funds.
Lastly, I want to mention something that is especially important to
me personally, and that is the bill's effort to eliminate the illegal
diamond trade that has fueled the violent conflict in African nations
such as Sierra Leone, Congo, and Angola.
Nowhere has the effect of this illicit diamond trade been more
graphic than in Sierra Leone. As early as 1991, a criminal gang called
the Revolutionary United Front, or RUF, began taking control of many of
the Sierra Leone diamond mines. Since then, RUF has used profits from
the sale of diamonds to terrorize civilians for no other reason than to
expand their influence. The RUF is notorious for its use of forced
amputations, murder, and rape in waging its war of terrorism. I assure
you, there will be no end to the violence unless we address this
problem at its root. As long as the RUF can profit from the sale of
conflict diamonds, the butchery will continue.
What is needed is a ban on the importation into the United States of
diamonds from countries that fail to observe an effective diamond
control system. Clearly, this will involve substantial commitment on
the part of the Africa's diamond-producing countries. But the onus
cannot fall entirely on them. It is equally the responsibility of
diamond-importing countries to do all we can to ensure we are not
facilitating the trade in conflict diamonds.
In the past, we have been unable or unwilling to act even while
effective preventive measures, measures such as the ones I have
introduced today and which Senator Hollings has been kind enough to
include in this bill, are at our fingertips. There are things we can do
to make the situation in Africa better. The key is to act. We have a
chance to save lives, to promote peace, merely by changing the way we
do business. This bill goes a long way in addressing the appalling
events currently taking place in much of West Africa.
[[Page S9214]]
Again, I thank Senator Hollings for his commitment in this area and
his willingness to support this effort and be a leader on it. In
conclusion, I also thank Senator Hollings, and especially his staff,
for all they have done to make this a bipartisan bill and a bill which
I can enthusiastically support.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Amendment No. 1535
Mr. HOLLINGS. I send to the desk a managers' package of technical
amendments.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from South Carolina [Mr. Hollings], for
himself, and Mr. Gregg, proposes an amendment numbered 1535.
Mr. HOLLINGS. I ask unanimous consent that the reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 91, line 15, before the ``.'', insert the
following: ``, of which $13,000,000 shall remain available
until expended for capital improvements at the U.S. Merchant
Marine Academy''.
On page 18, line 20, before the ``:'', insert the
following: ``, of which $11,554,000 shall be available only
for the activation of the facility at Atwater, California,
and of which $13,323,000 shall be available only for the
activation of the facility at Honolulu, Hawaii''.
On page 53, line 23, strike ``$54,255,000'' and insert
``$23,890,000''.
On page 55, starting on line 4, and finishing on line 5,
strike ``provided under this heading in previous years'' and
insert in lieu thereof ``in excess of $22,000,000''.
On page 53, starting on line 16 and continuing through line
18, strike ``for expenses necessary to carry out ``NOAA
Operations, Research and Facilities sub-category'''' and
insert in lieu thereof ``for conservation activities
defined''.
On page 58, starting on line 7 and ending on line 8, strike
``the ``NOAA Procurement, Acquisition, and Construction sub-
category'''' and insert in lieu thereof ``conservation
activities defined''.
On page 58, line 10, after ``amended'', insert ``including
funds for''.
On page 58, strike all after ``expended'' on line 12
through ``limits'' on line 16.
On page 58, line 16, after ``That'', insert the following:
``, notwithstanding any other provision of law,''.
On page 58, line 17, strike ``for'' and insert in lieu
thereof ``used to initiate''.
On page 58, line 18, insert before the ``:'', the
following: ``, for which there shall be no matching
requirement''.
On page 59, starting on line 2 and ending on line 3, strike
````NOAA Pacific Coastal Salmon Recovery sub-category'''' and
insert in lieu thereof ``conservation activities defined''.
On page 59, line 5, after the second ``,'', insert the
following: ``including funds for''.
On page 59, line 9, strike all after ``expended'' through
``limits'' on line 13.
On page 65, line 13, after ``funds'', insert the following:
``, functions, or personnel''.
On page 66, line 5, strike ``$40,000,000'' and insert
``7,000,000''.
On page 66, line 7, before the ``;'', insert the following:
``or support for the Commerce Administrative Management
System Support Center''.
On page 66, line 8, after the ``(B)'', strike ``not more
than $15,000,000'' and insert in lieu thereof ``None''.
On page 67, after line 15, insert the following new
subsection:
``(f) The Office of Management and Budget shall issue a
quarterly Apportionment and Reapportionment Schedule, and a
Standard Form 133, for the Working Capital Fund and the
``Advances and Reimbursements'' account based upon the report
required by subsection (d)(1).''.
On page 75, after line 11, insert the following new
section:
``Sec. 306. Pursuant to section 140 of Public Law 97-92,
Justices and judges of the United States are authorized
during fiscal year 2002, to receive a salary adjustment in
accordance with 28 U.S.C. 461: Provided, That $8,625,000 is
appropriated for salary adjustments pursuant to this section
and such funds shall be transferred to and merged with
appropriations in title III of this Act.''.
On page 42, line 21, strike ``$49,386,000'' and insert
``$51,440,000''.
Strike section 107 and renumber sections 108-111 as ``107-
110''.
On page 102, line 20, strike ``$3,750,000,000'' and insert
``$4,500,000,000, as provided under section 20(h)(1)(B)(ii)
of the Small Business Act''.
On page 103, line 1, after ``loans'', insert ``for
debentures and participating securities''.
On page 103, line 3, strike ``$4,100,000'', and insert
``the levels established by section 200(h)(1)(C) of the Small
Business Act''.
On page 105, line 5, before the ``,'', insert the
following: ``, to remain available until expended''.
On page 104, line 24, strike ``$14,850,000 and insert
$6,225,000''.
On page 10, line 18, strike ``$724,682,000'' and insert
``$712,682,000''.
Mr. HOLLINGS. Mr. President, in this managers' package, I have listed
some two dozen technical amendments clarifying the funding level for
the Merchant Marine Academy; another technical amendment clarifying the
funding level for the Prison Activations; a technical amendment
clarifying the funding level for NOAA Executive Administration, going
right on down the list.
Mr. President, I ask unanimous consent that this description of the
managers' package be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follow:
Manager's Package
1. Hollings technical amendment [clarifying the funding
level for the Merchant Marine Academy].
2. Hollings technical amendment [clarifying the funding
level for prison activations].
3. Hollings technical amendment [clarifying the funding
level for NOAA executive administration].
4. Hollings technical amendment [clarifying the amount of
NOAA's prior year deobligations].
5. Hollings technical amendment [clarifying language on
conservation activities].
6. Hollings technical amendment [clarifying language on
conservation activities].
7. Hollings technical amendment [clarifying the definition
of the Coastal and Estuarine Land Conservation Program].
8. Hollings technical amendment [striking extraneous
language].
9. Hollings technical amendment [clarifying the
availability of funds for the Coastal and Estuarine Land
Conservation Program].
10. Hollings technical amendment [clarifying the
availability of funds for the Coastal and Estuarine Land
Conservation Program].
11. Hollings technical amendment [clarifying the
availability of funds for the Coastal and Estuarine Land
Conservation Program].
12. Hollings technical amendment [clarifying language on
conservation activities].
13. Hollings technical amendment [clarifying language on
conservation activities].
14. Hollings technical amendment [striking extraneous
language].
15. Hollings technical amendment [clarifies the use of the
Commerce Working Capital Fund].
16. Hollings technical amendment [clarifies the uses of the
Commerce Working Capital Fund].
17. Hollings technical amendment [clarifies the uses of the
Commerce Working Capital Fund].
18. Hollings technical amendment [clarifies the uses of the
Commerce Working Capital Fund].
19. Hollings technical amendment [clarifies the uses of the
Commerce Working Capital Fund].
20. Hollings amendment [providing a cost of living
adjustment for justices and judges].
21. Hollings for Byrd amendment [adjusting the funding
level of the International Trade Commission].
22. Hollings for Durbin/Lieberman amendment [eliminating an
extraneous section].
23. Hollings for Kerry/Bond amendment [improving SBA's loan
authority].
24. Hollings for Kerry/Bond amendment [improving SBA's loan
authority].
25. Hollings for Kerry/Bond amendment [improving SBA's loan
authority].
26. Gregg for Murkowski amendment [to clarify the
availability of funds to the U.S.-Canada Alaska Rail
Commission].
27. Hollings technical amendment [prioritizing spending].
28. Hollings technical amendment [prioritizing spending].
Mr. HOLLINGS. I thank the distinguished Chair, and I urge the
adoption of the amendment.
The PRESIDING OFFICER. Is there any further debate on the amendment?
If not, the question is on agreeing to amendment No. 1535.
The amendment (No. 1535) was agreed to.
Mr. HOLLINGS. I move to reconsider the vote.
Mr. INOUYE. I move to lay that motion on the table.
The motion to reconsider was laid upon the table.
Mr. HOLLINGS. 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. CRAIG. Madam President, I ask unanimous consent the order for the
quorum call be dispensed with.
The PRESIDING OFFICER (Mrs. Lincoln) Without objection, it is so
ordered.
Amendment No. 1536
Mr. CRAIG. Madam President, I send an amendment to the desk to the
pending legislation.
The PRESIDING OFFICER. The clerk will report the amendment.
[[Page S9215]]
The assistant legislative clerk read as follows:
The Senator from Idaho [Mr. Craig] for himself, Mr. Miller,
Mr. Helms, Mr. Smith of New Hampshire, Mr. Allen, Mr. Crapo,
Mr. Lott, Mr. Nickles, Mr. Santorum, Mr. Bennett, Mr. Allard,
Mr. Kyl, Mr. Bond, and Mr. Inhofe, proposes an amendment
numbered 1536.
Mr. CRAIG. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To prohibit the availability of funds for cooperation with,
or assistance or other support to, the International Criminal Court or
the Preparatory Commission)
At the end of title VI, add the following:
Sec. 623. (a) Findings.--Congress makes the following
findings:
(1) On July 17, 1998, the United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of an
International Criminal Court, meeting in Rome, Italy, adopted
the ``Rome Statute of the International Criminal Court''. The
United States voted against final adoption of the Rome
Statute.
(2) As of April 30, 2001, 139 countries had signed the Rome
Statute and 30 had ratified it. Pursuant to Article 126 of
the Rome Statute, the Statute will enter into force on the
first day of the month after the 60th day following the date
on which the 60th country deposits an instrument ratifying
the Statute.
(3) Any American prosecuted by the International Criminal
Court will, under the Rome Statute, be denied procedural
protections to which all Americans are entitled under the
Bill of Rights to the United States Constitution, such as the
right to trial by jury.
(4) Members of the Armed Forces of the United States
deserve the full protection of the United States Constitution
wherever they are stationed or deployed around the world to
protect the vital national interests of the United States.
The United States Government has an obligation to protect the
members of its Armed Forces, to the maximum extent possible,
against criminal prosecutions carried out by United Nations
officials under procedures that deny them their
constitutional rights.
(5) In addition to exposing members of the Armed Forces of
the United States to the risk of international criminal
prosecution, the Rome Statute creates a risk that the
President and other senior elected and appointed officials of
the United States Government may be prosecuted by the
International Criminal Court for national security decisions
involving such matters as responding to acts of terrorism,
preventing the proliferation of weapons of mass destruction,
and deterring aggression.
(6) The claimed jurisdiction of the International Criminal
Court over citizens of a country that is not a state party to
the Rome Statute is a threat to the sovereignty of the United
States under the Constitution of the United States.
(b) Prohibition.--None of the funds appropriated or
otherwise made available by this Act shall be available for
cooperation with, or assistance or other support to, the
International Criminal Court or the Preparatory Commission.
This subsection shall not be construed to apply to any other
entity outside the Rome treaty.
Mr. CRAIG. Madam President, at this time I ask for the yeas and nays
on the amendment.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The yeas and nays were ordered.
Amendment No. 1537 To Amendment No. 1536
Mr. CRAIG. Madam President, I now submit a second-degree amendment to
the amendment, which I think is at the desk as I speak.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:
The Senator from Idaho [Mr. Craig] proposes an amendment
numbered 1537 to amendment numbered 1536.
Mr. CRAIG. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To prohibit the availability of funds for cooperation with,
or assistance or other support to, the International Criminal Court or
the Preparatory Commission)
Strike line 2 and all that follows, and insert the
following:
Sec. 623. None of the funds appropriated or otherwise made
available by this Act shall be available for cooperation
with, or assistance or other support to, the International
Criminal Court or the Preparatory Commission. This subsection
shall not be construed to apply to any other entity outside
the Rome treaty.
Mr. CRAIG. Madam President, I take this time to address with my
colleagues a matter that I believe has the most grave consequence on
our national sovereignty.
I also submit for the Record three articles that pertain to this
issue that I think are fundamentally important for my colleagues to
have and understand. One of those happens to be an op-ed of mine that
appeared in the Washington Posts in August, another one from John
Bolton, and another one from Mr. Lee Casey. I ask unanimous consent
they be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, August 22, 2001]
(By Larry E. Craig)
At its founding, the mission of the United Nations, as
stated in its charter, was ``to save succeeding generations
from the scourge of war.'' It made no claim to supersede the
sovereignty of its member states. Article 2 says that the
United Nations ``is based on the principle of the sovereign
equality of all its Members,'' and it may not ``intervene in
matters which are essentially within the domestic
jurisdiction of any state.''
Since then, the United Nations has turned the principle of
national sovereignty on its head. Through a host of
conventions, treaties and conferences, it has intruded into
regulation of resources and the economy (for example,
treaties on ``biological diversity,'' marine resources and
climate change) and family life (conventions on parent-child
relations and women in society). It has demanded that
countries institute racial quotas and laws against hate
crimes and speech. Recently the United Nations tried to
undermine Americans' constitutional right to keep and bear
arms (with proposed restrictions on the international sale of
small arms).
Fortunately, many of these have been dead on arrival in the
U.S. Senate, successive presidents have refused to endorse
others, and in any case the United Nations had little power
of enforcement. But in 1998, one mechanism of global
government came to life with the so-called ``Rome Statute''
establishing a permanent International Criminal Court. Once
this treaty is ratified by 60 countries, the United Nations
will wield judicial power over every individual human being--
even over citizens of countries that haven't joined the
court.
While the court's stated mission is dealing with war crimes
and crimes against humanity--which, because there is no
appeal from its decisions, only the court will have the right
to define--its mandate could be broadened later. Based on
existing U.N. tribunals for Yugoslavia and Rwanda, which are
models for the International Criminal court, defendants will
have none of the due process rights afforded by the U.S.
Constitution, such as trial by jury, confrontation of
witnesses or a speedy and public trial.
President Clinton signed the Rome treaty last year, citing
U.S. support for existing U.N. war crimes tribunals. Many
suppose the court will target only a Slobodan Milosevic or
the perpetrators of massacres in Rwanda, or dictators like
Iraq's Saddam Hussein. But who knows? To some people, Augusto
Pinochet is the man who saved Chile from communism; to others
he is a murderer. Who should judge him--the United Nations or
the Chilean people?
In dozens of countries, governments use brutal force
against insurgents. Should the United Nations decide whether
leaders in Turkey or India should be put in the defendants'
dock, and then commit the United States to bring them there?
How about Russia's Vladimir Putin, for Chechnya? Or Israel's
Ariel Sharon? Can we trust the United Nations with that
decision?
The court's critics rightly cite the danger to U.S.
military personnel deployed abroad. Since even one death can
be a war crime, a U.S. soldier could be indicated just for
doing his duty. But the International Criminal Court also
would apply to acts ``committed'' by any American here at
home. The European Union and U.S. domestic opponents consider
the death penalty ``discriminatory'' and ``inhumane.'' Could
an American governor face indictment by the court for
``crimes against humanity'' for signing a death warrant?
Milosevic was delivered to a U.N. court (largely at U.S.
insistence) for offenses occurring entirely within his own
country. Some say the Milosevic precedent doesn't threaten
Americans, because the U.S. Constitution protects them. But
for Milosevic, we demanded that the Yugoslav Constitution be
trashed and the United Nations' authority prevail. Why should
the International Criminal Court treat our Constitution any
better?
Instead of trying to ``fix'' the Rome treaty, the United
States must recognize that it is a fundamental threat to
American sovereignty. The State Department's participation in
the court's preparatory commission is counterproductive. We
need to make it clear that we consider the court an
illegitimate body, that the United States will never join it
and that we will never accept its ``jurisdiction'' over any
U.S. citizen or help to impose it on other countries.
____
[From the Washington Post, January 4, 2001]
Unsign That Treaty
(By John R. Bolton)
President Clinton's last-minute decision to authorize U.S.
signing of the treaty creating
[[Page S9216]]
an International Criminal Court (ICC) is as injurious as it
is disingenuous. The president himself says that he will not
submit the Rome Statute to the Senate for ratification
because of flaws that have existed since the treaty was
adopted in Rome in 1998. Instead, he argues that our
signature will allow the United States to continue to affect
the development of the court as it comes into existence.
Signing the Rome Statute is wrong in several respects.
First, the Clinton administration has never understood that
the ICC's problems are inherent in its concept, not minor
details to be worked out over time. These flaws result from
deep misunderstandings of the appropriate role of force,
diplomacy and multilateral institutions in international
affairs. Not a shred of evidence; not one; indicates that the
ICC will deter the truly hard men of history from committing
war crimes or crimes against humanity. To the contrary, there
is every reason to believe that the ICC will shortly join the
International Court of Justice as an object of international
ridicule and politicized futility. Moreover, international
miscreants can be dealt with in numerous other ways, as
Serbia may now be proving with Slobodan Milosevic.
Second, the ICC's supporters have an unstated agenda,
resting, at bottom, on the desire to assert the primacy of
international institutions over nation-states. One such
nation-state is particularly troubling in this view, and that
is the United States, where devotion to its ancient
constitutional structures and independence repeatedly brings
it into conflict with the higher thinking of the advocates of
``global governance.'' Constraining and limiting the United
States is thus a high priority. The reality for the United
States is that over time, the Rome Statute may risk great
harm to our national interests. It is, in fact, a stealth
approach to eroding our constitutionalism and undermining the
independence and flexibility that our military forces need to
defend our interests around the world.
Third, the administration's approach is a thinly disguised
effort to block passage of the American Servicemembers'
Protection Act, introduced last year in Congress. This bill,
if adopted, would unequivocally make it plain that the United
States had no interests in accepting or cooperating with the
ICC. Sponsored by Sen. Jesse Helms and Rep. Tom DeLay, the
proposal has garnered impressive political support, including
from former secretaries of State Henry Kissinger, George
Shultz, James Baker and Lawrence Eagleburger, Secretary of
Defense-designate Donald Rumsfeld and former secretary Caspar
Weinberger and former national security advisers Zbigniew
Brzezinski, Brent Scowcroft and Richard Allen.
So what will signing the Rome Statute do? The president is
undoubtedly thinking of Article 18 of the Vienna Convention,
which requires signatories to a treaty, before ratification,
not to undertake any actions that would frustrate its
objectives. President Clinton has used this provision before.
After the Senate defeated the Comprehensive Test Ban Treaty,
the administration cited Article 18 (rather than the
president's constitutional authority as commander in chief)
to justify a continued moratorium on underground nuclear
testing. Obviously, the pending anti-ICC bill would divorce
the United States from the court and violate Article 18, or
so we will soon hear.
Relying on Article 18, which cannot sensibly apply to our
government of separated powers, is wrong in many respects,
not least that the United States has never even ratified this
Vienna convention. Ironically, however, President Clinton's
``midnight decision'' to sign the Rome Statute provides
guidance to solve the problem he has needlessly created, and
others as well.
After appropriate consideration, the new administration
should straightforwardly announce that it is unsigning the
Rome Statute. President Clinton himself stated that he will
not submit the treaty to the Senate, so this is a purely
executive decision. What one president may legitimately (if
unwisely) do, another may legitimately (and prudently) undo.
The incoming administration seems prepared to take similar
actions in domestic policy, and it should not hesitate to do
so internationally as well.
Not only would an unsigning decision make the U.S. position
on the ICC clear beyond dispute, it would also open the
possibility of subsequently unsigning numerous other
unratified treaties. It would be a strong signal of a
distinctly American internationalism.
The writer, a senior vice president of the American
Enterprise Institute, was assistant secretary of state for
international organization affairs in the first Bush
administration.
____
[From the Washington Legal Foundation, May 18, 2001]
The International Criminal Court: Undemocratic and Unconstitutional
(By Lee A. Casey)
Lee A. Casey is a partner in the Washington, D.C. office of
the law firm Baker & Hostetler. He served in the Department
of Justice's Office of Legal Counsel and Office of Legal
Policy during the Reagan and George H.W. Bush
administrations. Mr. Casey writes and speaks frequently on
international law and constitutional issues.
The 1998 Rome Treaty, which would establish a permanent
International Criminal Court (``ICC''), creates a number of
unprecedented challenges for the United States. The ICC will
have the power to investigate and prosecute a series of
international criminal offenses, such as ``crimes against
humanity,'' heretofore enforceable only in national courts,
or in ad hoc tribunals of very limited application. If the
U.S. ratifies this treaty, the ICC would have the authority
to try and punish American nationals for alleged offenses
committed abroad, or in the United States, and that court
will be entirely unaccountable for its actions. The ICC
would, in fact, be in a position to punish individual
American officials for the foreign policy and military
actions of the United States, and would not offer even the
minimum guarantees of the Bill of Rights to any of the
defendants before it.
President Clinton made a serious mistake when he signed the
Rome Treaty in the waning days of his Administration. The ICC
treaty regime is inconsistent with the most basic political
and legal principles of the United States, and U.S.
ratification of this treaty would, in fact, be
unconstitutional. President Bush should move forward and
withdraw the Clinton signature.
United States Participation in the ICC Treaty Regime Would
Threaten American Democracy. The United States was founded on
the basic principle that the American people have a right to
govern themselves. The elected officials of the United
States, as well as its military and the citizenry at large,
are ultimately responsible to the legal and political
institutions established by our federal and state
constitutions, which exercise the sovereignty of the American
people. The Rome Treaty would erect an institution, in the
form of the ICC, that would claim authority superior to that
of the federal government and the states, and superior to the
American electorate itself. This court would assert the
ultimate authority to determine whether the elected officials
of the United States, as well as ordinary American citizens,
have acted lawfully on any particular occasion. In this, the
Rome Treaty is fundamentally inconsistent with the first
tenet of American republicanism--that anyone who exercises
power must be responsible for its use to those subject to
that power. The governors must be accountable to the
governed.
Moreover, the ICC would be a powerful tool, for both our
adversaries and our allies, to be used against the United
States when states that have ratified the Rome Treaty
disagree with U.S. foreign and military policy decisions. The
offenses within the ICC's jurisdiction, although they are
``defined'' in the Rome Statute, are remarkably flexible in
their application. As was acknowledged by the Prosecutor's
office of the UN International Criminal Tribunal for the
Former Yugoslavia (``ICTY''), which is widely recognized as
the model for the ICC, whether any particular action violates
international humanitarian norms is almost always a debatable
matter and: ``[t]he answers to these questions are not
simple. It may be necessary to resolve them on a case by case
basis, and the answers may differ depending on the background
and values of the decision-maker.'' See Final Report to
the Prosecutor by the Committee Established to Review NATO
Bombing Campaign Against the Federal Republic of
Yugoslavia, para. 50 (June 13, 2000).
The ``values'' of the ICC's prosecutor and judges are
unlikely to be those of the United States. The Rome Treaty
has been embraced by many states with legal and political
traditions dramatically different from our own. This includes
states such as Algeria, Cambodia, Haiti, Iran, Nigeria,
Sudan, Syria and Yemen, all of which have been implicated in
torture or extra-judicial killings, or both. Even our closest
allies, including European states following the civil law
system, begin with very different assumptions about the power
of the courts and the right of the accused. Nevertheless, if
it is permitted to be established, the ICC will claim the
power to try individual Americans, including U.S. service
personnel and officials acting fully in accordance with U.S.
law and interests. The court itself would be the final
arbiter of its own power, and there would be no appeal from
its decisions.
United States Ratification of the Rome Treaty Would Be
Unconstitutional. Not surprisingly, U.S. ratification of the
Rome Treaty would be unconstitutional. By ratifying that
agreement, the United States would become a full participant
in the ICC treaty regime, affirmatively vesting in the court
jurisdiction over its nationals. At the same time, the ICC
would not provide the rights guaranteed to all Americans by
the Bill of Rights. There would be no jury trials in the ICC,
which would follow the Continental ``inquisitorial'' system
rather than the Common Law ``adversarial'' system. Moreover,
that court would not guarantee Americans the rights to
confront hostile witnesses, to a speedy and public trial, and
against ``double jeopardy.''
For example, the Sixth Amendment guarantees a criminal
defendant the right to ``confront'' all hostile witnesses,
and, therefore, the right to exclude from evidence most
``hearsay'' evidence. This right is not preserved on the
international level. In the ICTY, a court that, like the ICC,
theoretically guarantees the right of the confrontation, both
anonymous witnesses and virtually unlimited hearsay evidence
have been permitted in criminal trials. Similarly, although,
like the ICC, the ICTY theoretically preserves the right to a
speedy and public trial, defendants often wait years in
prison
[[Page S9217]]
for a trial, large portions of which are conducted in secret.
In addition, although the Constitution's guarantee against
``double jeopardy'' prevents the prosecution in a criminal
case form appealing a judgment of acquittal, acquittals in
the ICC would be freely appealable by the prosecution, as
they are now in the ICTY--where the Prosecutor has appealed
every judgment of acquittal.
ICC supporters incorrectly suggest that U.S. participation
would not be unconstitutional because that court would not be
``a court of the United States,'' to which the Constitution
applies, and invariably point to extradition cases, where the
Supreme Court has ruled that Americans may be extradited to
face trial overseas in courts without the guarantees of the
Bill of Rights. In fact, and unlike the situation in an
ordinary extradition case, if the U.S. ratified the Rome
Treaty, it would be a full participant in the ICC and its
governing structures, and any prosecution brought by the ICC
would be as much on behalf of the U.S. as any other state
party.
Although the Supreme Court has not directly faced such a
case, it has suggested that, where a prosecution by a foreign
court is, at least in part, undertaken on behalf of the
United States, for example, where ``the United States and its
allies had enacted substantially similar criminal codes aimed
at prosecuting offenses of international character . . .''
then the Bill of Rights would have to apply ``simply because
that prosecution [would not be] fairly characterized as
distinctly `foreign.' The point would be that the prosecution
was as much on behalf of the United States as of the
prosecuting nation. . .'' United States v. Balsys, 525 U.S.
666 (1998). This would, of course, be exactly the case with
the ICC. Since the full and undiluted guarantees of the Bill
of Rights would not be available in the ICC, the United
States cannot, constitutionally, ratify the ICC Treaty.
In addition, by ratifying the Rome Treaty, the United
States would vest the ICC with jurisdiction over offenses
committed entirely within its territory. The Supreme Court
has, however, made clear that criminal offenses committed in
the United States, and otherwise within the judicial power of
the United States, must be tried in Article III courts, with
the full panoply of the Bill of Rights. As the Court
explained in the landmark Civil War cases of Ex parte
Milligan (1866), 71 U.S. 2 (1866) reversing a civilian's
conviction by a military tribunal, ``[e]very trial involves
the exercise of judicial power,'' and courts not properly
established under Article III can exercise ``no part of the
judicial power of the country.'' Thus, since the ICC would
not guarantee all of the protections of the Bill of Rights,
and because it would not be an ``Article III'' court, the
United States cannot vest that institution with any judicial
authority over its nationals or its territory.
Mr. CRAIG. Madam President, last December, President Clinton
deposited his signature to the Rome treaty, thereby making the United
States party to the creation of a permanent International Criminal
Court with unlimited jurisdiction. Once created, this court will have
the right to prosecute U.S. citizens without any of the guarantees or
protections provided by the Constitution. This will also affect our
ability to protect men and women of our uniformed services and meet our
military commitments to our allies.
President Clinton even acknowledged as he deposited his signature
that the Rome treaty had, in his own words, ``significant flaws'' and
would not send it to the Senate for ratification.
In his confirmation hearing testimony, Secretary Powell made it clear
that the administration would not send this treaty to the Senate for
ratification. However, in my opinion and the opinion of others, this is
not enough. Once the 60th country ratifies the treaty, the United
States and her citizens will become subject to the jurisdiction of the
ICC, regardless of Senate approval under the treaty's own terms. This
is precisely why we cannot simply allow the treaty to just be confirmed
and collect dust. I believe it is incumbent upon all of us to try to
bring, in essence, the treaty down.
U.S. Armed Forces operating overseas in peacekeeping operations could
conceivably be prosecuted by the ICC for protecting the vital interests
of the United States. In other words, the Senate of the United States
could support our men and women going to war in a foreign nation only
to have an international court rule them as criminals against the state
or, in essence, criminals against the world.
Furthermore, Americans prosecuted by the ICC will not be guaranteed
any of the procedural protections to which all Americans are entitled
under the Bill of Rights. I can recite those for us. We have heard them
all of our lives: The rights such as the right to a trial by jury or
the right to a jury of one's own peers and the right to question one's
accusers--that is just to name a few of the very rights that we now
walk away from for our citizens if we do not stand up boldly and say
the International Criminal Court should, in fact, not become an arm of
the United Nations.
Currently, the Rome treaty already has 139 signatories, and over half
of the necessary countries have already ratified it. In short, the ICC
will soon become a reality unless we act now. The question is whether
the United States will oppose it--and we have already opposed Kyoto,
Biodiversity, CTBT, and other bad treaties--or whether we will simply
acquiesce to it. The answer to that question is not only one of
protecting our service personnel; it is also one of principle. Are we
fundamentally committed to the sovereign rule of the domestic law of
our country under the U.S. Constitution as opposed to global justice
under the U.N. auspices? I think that is a question on which this
amendment comes right to the point. And are we fundamentally committed
to helping other countries establish and maintain their own
constitutions and their own rule of law?
The consequence of allowing this court to come to fruition stretches
far beyond the threat of prosecution of American military personnel. It
will also put some of our closest allies in direct jeopardy, as we have
seen in the example of the World Conference on Racism that we have
heard about over the last good many months. We have seen that action
taken by the United Nations and its institutions are not always
impartial in their findings. In fact, at the World Conference Against
Racism, language was adopted hostile to Israel, and it is not limited
to the text regarding Zionism. Reference to it has attracted much
attention in light of the 1975 U.N. General Assembly Resolution 3379,
which passed in November of 1975, which condemned Zionism in similar
though not identical terms, as ``a threat to world peace and
security,'' a ``racist and imperialist ideology,'' and as ``a form of
racism and racial discrimination.''
Largely due to American efforts, the General Assembly finally revoked
Resolution 3379 in 1991 with a substantial vote.
Ironically, some nations that took part in the World Conference
Against Racism, and who were supporters of language denouncing Zionism
as racism, are currently still practicing slavery and the trafficking
of human beings. As a result of this controversy over Zionism, one
could easily see the International Criminal Court become nothing more
than another U.N. forum for anti-Semitism where the same players that
caused the United States and Israel to walk out on the World Conference
on Racism would reappear. The result could be the extradition and
prosecution of Prime Minister Ariel Sharon on charges of crimes against
humanity for taking actions to protect the citizens of Israel against
terrorism within the sovereign boundaries of his own nation. Another
document connected to the Durban conference charges Israel with
``genocide'' and ``crimes against humanity''--judicial terms that
directly setting the stage for a future prosecution in an international
criminal court.
I will be the first to admit that atrocities are being committed in
some parts of the world, and that the perpetrators of such atrocities
must be brought to justice. And whenever possible the United States
should serve as a facilitator for that justice to take place, and
always be a shining city on a hill, a supreme example for all nations,
particularly those with fledgling democracies and judicial systems. But
the answer to that problem is not to create a permanent International
Criminal Court with supra-national jurisdiction capable of undermining
democratic governments, Constitutions, and judicial systems, just
because the court is not satisfied with the outcome of a domestic
ruling. Rather we should work hard to strengthen the rule of law within
foreign countries, by helping them to establish their own impartial
courts capable of ensuring justice for all.
When the United Nations was founded in 1945, its primary mission, as
stated in the preamble of the U.N. Charter, was ``to save succeeding
generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind.'' Initially composed only
[[Page S9218]]
of countries that had been allied against the Axis, it soon became seen
as a dispute resolution forum for all countries.
In principle at least, the United Nations initially made no claim to
supersede the sovereignty of its member states. Even its own Charter,
Article 2, says that the U.N. ``is based on the principle of the
sovereign equality of all its Members,'' and it may not ``intervene in
matters which are essentially within the domestic jurisdiction of any
state.''
That is what its charter says. Let's remember what it has done in the
last few years.
Even in the U.N.'s premiere judicial body, the International Court of
Justice, the principle of state sovereignty was maintained, with the
Court only having limited jurisdiction in disputes between nations. It
had no authority over individual citizens of those nations.
Unfortunately, in recent years the U.N. has turned the principle of
national sovereignty on its head. Through a proliferating host of
conventions, treaties, conferences, commissions, and initiatives, the
U.N. has intruded into virtually every aspect of human life once
thought to be the exclusive preserve of national governments, not to
mention private citizens. These include efforts to regulate resources
and the economy, for example treaties on ``biological diversity,'' the
use of marine resources, and climate change. They include claims over
family life, such as conventions on parent-child relations and the role
of women in society. They include, under the guise of anti-racism,
demands that countries institute quotas and hate crimes and hate speech
laws.
While all of these on the surface appear to be good, and in many
instances many of us would support them, we must stop short in saying
that the U.N. has the right to bring them down on any nation and tread
on that nation's sovereignty.
Recently, under the pretext of fighting illicit trafficking in
weapons, the U.N. has even set its sight on undermining American's
constitutional right to keep and bear arms under the second amendment.
Thankfully, many of these initiatives have been dead-on-arrival in
the Senate, and successive Presidents have refused to endorse others.
Moreover, despite the U.N.'s evolution toward governmental authority it
had little to enforce its will. Ideas for global taxation and a
standing U.N. army have so far gained little ground.
But one key mechanism of global government began to be realized in
1998 with the adoption of the so-called ``Rome Statute'' establishing a
permanent International Criminal Court (ICC). Once this dangerous
treaty is ratified by 60 countries, the ICC will come into existence.
For the first time, the U.N. will wield a judicial power not just over
nations, but directly over every individual human being. It will even
claim authority over citizens of countries whose governments have
refused to join the ICC. While the ICC's stated mission is dealing with
war crimes and crimes against humanity--which, since there is no appeal
from its decisions, only the ICC will have the right to define--nothing
prevents the U.N. from broadening its mandate later. Defendants will
have none of the due process rights afforded by the U.S. Constitution,
a speedy and public trial, protection against double jeopardy, or
protection against self-incrimination, and others previously mentioned.
As with other U.N. panels, it can be expected that it will include
``justices'' from countries notorious for their human rights abuses.
It is tempting for many to suppose the ICC will only target the likes
of a Slobodan Milosevic or the perpetrators of massacres in Rwanda, or
maybe rogue state dictators like Iraq's Saddan Hussein, Libya's Muammar
Qadhafi, or Cuba's Fidel Castro. But who can be sure that will be their
only target? To some people, former Chilean Dictator Augusto Pinochet
is a patriot who saved his country from a communist coup.
Again, in the eyes of the beholder, what is he? There are different
opinions and different attitudes. Who has responsibility? I would
suggest that the U.N. should not be allowed to be the judge, or that
the U.N. should not be allowed to be the court. Ultimately, the people
of Chile; in this case, Pinochet. They were the people who made the
decisions. They were the judges.
In dozens of countries governments enjoy brutal force to suppress
violent insurgencies. Should we empower the U.N. to decide whether the
military authorities in Algeria, Turkey, Macedonia, Sri Lanka, China,
and India should be put in the defendants' dock, and then commit the
United States to employ sanctions or even military force to bring them
there? How about Russia's Vladimir Putin for his war in Chechnya? Or
Israel's Ariel Sharon for his war against the Palestinian intifada? Are
we ready to trust the U.N. to tell us who should be prosecuted and who
shouldn't? Critics of the ICC rightfully cite the danger it presents to
the safety of U.S. military personnel. What will be the consequences
for U.S. national defense and our alliance obligations? Since the death
of even one person can qualify as a war crime or even genocide in the
ICC, how can we be sure a U.S. soldier serving abroad will not be
indicted for what we see as just doing their duty?
The ICC applies not just to soldiers, and not just to acts committed
abroad; it also would apply to acts ``committed'' by any American here
at home.
Let me suggest, Is this a stretch of my imagination? It is not.
Statements are broad. The argument of authority within the Rome treaty
is broad.
Even today, our friends in the European Union join domestic critics
in branding the death penalty in the United States as
``discriminatory'' and ``inhumane.'' My guess is some of our colleagues
would agree with that, while others would not.
Who can guarantee that an American Governor might not face an
indictment by the ICC for ``crimes against humanity'' for signing a
death warrant, or that someday, under some foreign judge's idea of
``arms trafficking,'' a U.N. court will not demand the extradition of a
private American citizen for selling a gun to his neighbor?
It has been suggested that Milosevic's extradition does not set an
ICC precedent threatening U.S. citizens because they will be protected
by the U.S. Constitution. But why? In the Milosevic case, we demanded
that the newly established Yugoslav Constitution be trashed for the
authority of the United Nations. We are not defending a constitutional
right at that point; we are simply saying that an international body
has a higher authority. Once the ICC is up and running, why should we
assume that our Constitution would not be thrown in the trash as well
as that of Yugoslavia? Nothing in the treaty requires them to respect
us and to respect our Constitution and our citizens' rights.
Trying to ``fix'' the Rome treaty's flaws so we can live with it is
like zipping a silk purse out of a sow's ear or putting lipstick on
that little piggy. Instead of mistakenly trying to fix the Rome
treaty's flaws, the United States must recognize that the ICC is a
fundamental threat to American sovereignty and civil liberty, and that
no deal, nor any compromise, is possible. We need to make it clear that
we consider the ICC an illegitimate body, that the United States will
never become part of it, and that we will never accept its jurisdiction
over any U.S. citizen or help to impose it on other countries.
President Bush has flatly rejected the Kyoto global warming convention.
It is no less urgent that we act as forthrightly on the ICC.
According to the administration, the State Department is already
engaging in what we call low-level participation in the ICC Preparatory
Commission. Why are we helping to establish an institution that is
created by a treaty that the administration has stated they will not
send to the Senate for ratification? Any kind of participation that
would lend legitimacy to the Rome treaty would be a mistake and would
send a wrong message to our friends in the international community.
That is why during my recent meeting with Secretary Powell, and in my
own op-ed that was published on August 22 in the Washington Post, I
have encouraged the administration to remove our signature from the
Rome treaty and to discontinue assistance to
[[Page S9219]]
the International Criminal Court's Preparatory Commission. Such a
statement of policy would send a clear signal to those countries that
are currently wrestling with the issue of ratification that the United
States does not support the creation of the Court. This clear signal
has already been sent by the House of Representatives earlier this year
when they passed an amendment, with overwhelming bipartisan support, to
the State authorization bill that prohibits cooperation with the
International Criminal Court.
To complement the administration's efforts, and the efforts of the
House of Representatives, I am offering this first- and second-degree
amendment to Commerce-State-Justice, and the Judiciary appropriations
bill that would prohibit funding to the International Criminal Court
and its Preparatory Commission. I have discussed this issue with
Senator Helms. He and many others have indicated their strong support
for the proposal.
When we stand to cast a vote on these amendments, we literally are
voting about American sovereignty. My guess is, when the dust settles
and the stories are written and this amendment is analyzed, that is
exactly how it will be viewed. It is a vote to protect the men and
women of our Armed Forces--without question--and a vote to protect our
allies that have become subject to the Court.
I will be darned if American sovereignty and the U.S. Constitution
become subject to an International Criminal Court on my watch. And I
would hope all of my colleagues would agree.
The creation of an international court is not a foregone conclusion.
We can intervene. We can state a position. We can ask that we step back
and withdraw our signatures from this critical action and say to all
the world that we will not support an International Criminal Court's
ratification, and we would ask other nations in the world to act
accordingly.
Madam President, at this time I know of no others in this Chamber who
wish to debate this issue, so I ask unanimous consent to temporarily
set aside my amendment.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. CRAIG. I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Amendment No. 1538
Mr. SMITH of New Hampshire. Madam President, on behalf of Senators
Harkin, Warner, Inhofe, Cochran, and myself, I send an amendment to the
desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from New Hampshire [Mr. Smith], for himself,
Mr. Harkin, Mr. Warner, Mr. Inhofe, and Mr. Cochran, proposes
an amendment numbered 1538.
Mr. SMITH Of New Hampshire. Madam President, I ask unanimous consent
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide protection to American Servicemen who were used in
World War II as slave labor)
At the appropriate place, add the following:
Sec. . None of the funds made available in this Act may be
used by the Department of Justice or the Department of State
to file a motion in any court opposing a civil action against
any Japanese person or corporation for compensation or
reparations in which the plaintiff alleges that, as an
American prisoner of war during World War II, he or she was
used as slave or forced labor.
Mr. SMITH of New Hampshire. Madam President, there are many things
that happen in war of which, when we look back, many of us on both
sides of the aisle are not always proud. But I want to point out that
sometimes things happen that must be corrected just because it is the
right thing to do. This amendment I am offering is likely to be
mischaracterized. There will be a lot of things said about what my
amendment does not do. I want to make sure everybody understands what
my amendment does. This concerns something that happened during World
War II. I want to refer to it before I go to the actual context of the
amendment.
There is an article written by Peter Maas I want printed in the
Record which is entitled ``They Should Have Their Day In Court.'' I ask
unanimous consent a copy of that article be printed in the Record. It
is a Parade magazine article.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Parade Magazine, June 17, 2001]
They Should Have Their Day In Court
(By Peter Mass)
Tears suddenly fill Lester Tenney's eyes. ``I'm sorry,'' he
says. ``It's been a long time, but it's still very hard
sometimes to talk about.'' All I can do is nod dumbly. Words
fail me as I listen to the horror he is describing.
On April 9, 1942, Tenney, a 21-year-old Illinois National
Guardsman, was one of 12,000 American soldiers who
surrendered to the Japanese at the tip of Bataan Peninsula,
which juts into Manila Bay in the Philippines. Ill-equipped,
ill-trained, disease-ridden, they had fought ferociously for
nearly five months against overwhelming odds, with no
possibility of help, until they ran out of food, medical
supplies and ammunition.
As prisoners of war, Tenney among them, they were taken to
a prison camp by the Japanese army on what became infamous as
the nine-day, 55-mile-long Bataan Death March, during which
1000 of them perished. The atrocities they suffered have to
some extent been revealed. But what happened afterward--when
they were forced into inhuman slave labor for some of Japan's
biggest corporations--remains largely unknown. These
corporations, many of which have become global giants,
include such familiar names as Mitsubishi, Mitsui, Kawasaki
and Nippon Steel.
Through interviews with former POWs and examinations of
government records and court documents, I learned that in
1999 Tenney had filed a lawsuit for reparations in a
California state court. His suit was followed by a number of
others by veterans who had suffered a similar fate. The
Japanese corporations, instead of confronting their dark
past, went into deep denial. Represented by American law
firms, they maintained that, by treaty, they didn't owe
anybody anything--not even an apology.
Surprisingly, the U.S. government stepped in on behalf of
the Japanese and not only had these lawsuits moved to federal
jurisdiction but also succeeded in getting them dismissed by
Vaughn R. Walker, a federal judge in the Northern District of
California. In his ruling, Judge Walker declared in essence
that the fact that we had won the war was enough of a payoff.
His exact words were ``The immeasurable bounty of life for
themselves [the POWs] and their posterity in a free society
services the debt.'' In applauding the judge's decision, an
attorney for Nippon Steel was quoted as saying, ``It's
definitely a correct ruling.'' She did not dwell on what
these men had gone through.
What befell Lester Tenney as a POW was by no means unique.
He got an inkling of what was to come on that April day in
1942 when he surrendered and one of his captors smashed in
his nose with the butt end of a rifle. Forced to stumble
along a road of crushed rock and loose sand, the men--
wracked with malaria, jaundice and dysentery--were given
no water. Occasionally, they would pass a well. Anyone who
paused to scoop up a handful of water was more likely than
not bayoneted or shot to death. The same fate awaited most
POWs who could no longer walk. ``If you stopped,'' Tenney
recalls, ``they killed you.''
As Tenney staggered forward, he saw a Japanese officer
astride a horse, wielding a samurai sword and chortling as he
tried, often successfully, to decapitate POWs. During a rare
respite, one prisoner was so disoriented that he could not
get up. A rifle butt knocked him senseless. Two of his fellow
POWs, were ordered to dig a shallow trench, put him in it and
bury him while he was still alive. They refused. One of them
immediately had his head blown off with a pistol shot. Two
more POWs were then ordered to dig two trenches--one for the
dead POW, the other for the original prisoner, who had begun
to moan. Tenney heard him continue to moan as he was being
covered with dirt.
Tenney was one of 500 POWs packed into a 50-by-50-foot hold
of a Japan-bound freighter. The overhead hatches were kept
closed except when buckets of rice and water were lowered
twice daily. Each morning, four POWs were allowed topside to
hoist up buckets of bodily wastes and the corpses of any-one
who had died during the night, which were tossed overboard.
In Japan, the prisoners were sent to a coal mine about 35
miles from a city they had never heard of, called Nagasaki.
The mine was owned by the Mitsui conglomerate, which is today
one of the world's biggest corporations. You see the truck
containers it builds on every highway in America. The mine
was so dangerous that Japanese miners refused to work in it.
The Geneva Convention of 1929 specified that the POWs of
any nation ``shall at all times be humanely treated and
protected'' and explicitly forbade forced labor. Japan,
however, never ratified the treaty. That was how it justified
putting POWs to work during World War II, freeing up able-
bodied Japanese men for military service.
Lester Tenney and his fellow POW slave laborers worked 12-
hour shifts. Their diet, primarily rice, amounted to less
than 600 calories a day. This was subsequently reduced
[[Page S9220]]
to about 400 calories. When he was taken prisoner, Tenney
weighed 185 pounds. When he was liberated in 1945, he weighed
97 pounds.
Vicious beatings by Mitsui overseers at the mine were
constant. Tenney's worst moment came when two overseers
decided he wasn't working fast enough and went at him with a
pickax and a shovel. His nose was broken again. So was his
left shoulder. The business end of the ax pierced his side,
just missing his hip bone but causing enough internal damage
to leave him with a permanent limp.
Frank Bigelow was a Navy seaman on the island fortress of
Corregodor in Manila Bay. It was lost about a month after
Bataan fell, so Bigelow escaped the Death March. But he ended
up in the same Mitsui coal mine as Tenney. He was in the
deepest hard-rock part of the mine when a boulder toppled
onto his leg, snapping both the tibia and fibula bones 6
inches below the knee. A POW Army doctor, Thomas Hewlett, was
refused plaster of Paris for a cast. Hewlett tried to
construct a makeshift splint, but it didn't work. Bigelow's
leg began to swell and become putrid. Tissue-destroying
gangrene had set in.
With four men holding Bigelow down, Hewlett performed an
amputation without anesthesia, using a razor and a hacksaw
blade. Bigelow recalls: ``I said, `Doc, do you have any
whiskey you could give me?' and he said, `If I had any. I'd
be drinking it myself.' '' To keep the gangrenous toxins from
spreading, Hewlett packed the amputation with one item
readily available in the prison camp--maggots. Bigelow still
can't comprehend how he withstood the excruciating pain.
``You don't know what you can do 'till you do it,'' he says.
Another seaman, George Cobb, was aboard the submarine
Sealion in Manila Bay when it was sunk in an air attack three
days after Pearl Harbor. Cobb was shipped to a copper mine in
northern Japan owned by the Mitsubishi corporate empire. Clad
only in gunnysacklike garments, the POWs had to trudge to the
mine through 10-foot-snowdrifts in bitter winter cold. Of 10
captured Sealion crewmen. Cobb is the sole survivor. ``I try
not to remember anything,'' he says. ``I want it to be a
four-year blank.''
One day in August 1945, Lester Tenney and his fellow POWs
saw a huge, mushroom-shaped cloud billowing from Nagasaki.
None of them, of course, knew it was the atom bomb that would
end the war. They found out on Aug. 15 that Japan has
surrendered when they were given Red Cross food packages for
the first time during their long captivity. They then found a
nearby warehouse crammed with similar packages and medical
supplies that had never been distributed. They also would
learn that the Japanese high command had a master plan to
exterminate all the POW slave laborers, presumably to cover
up their horrific ordeal.
After the POWs returned home, they were given U.S.
government forms to sign that bound them not to speak
publicly about what had been done to them. America was in a
geopolitical battle with the Soviet Union and, later, Red
China for the hearts and minds of the postwar Japanese and
did not want to do anything that might prove offensive to our
recent enemy. The State Department's chief policy adviser to
Gen. Douglas MacArthur, who headed up the occupation of
Japan, rhetorically asked: ``Is it believed that a Communist
Japan is in the best interests of the United States?''
But Tenney, possibly because of his extended
hospitalization, never got one of those forms. In 1946 he
wrote a letter to the State Department citing his experience
and requesting guidance on how to mount claims against those
who had beaten, tortured and enslaved him. The State
Department replied that it was looking into the matter and
advised him not to retain an attorney.
Hearing nothing further, Tenney, a high school dropout,
decided to get on with his life. He eventually earned a Ph.D.
in finance and taught at both San Diego State University and
Arizona State University. Meanwhile, the U.S. and Japan
finalized a peace treaty in 1951.
Two years ago, Tenney read that the U.S. government not
only had successfully worked on behalf of Holocaust victims
in Europe but also was brokering an agreement with Germany to
compensate those forced into slave labor during the Nazi
regime. It was then that he filed his own lawsuit against
Mitsui.
The U.S. State Department and Justice Department intervened
for the Japanses corporate defendants on the basis of the
1951 treaty, a clause of which purports to waive all future
restitution claims. But the treaty contains another clause,
which the U.S. government to date has chosen to ignore,
stating that all bets would be off if other nations got the
Japanese to agree to more favorable terms than our treaty.
Eleven nations--including the then Soviet Union, Vietnam and
the Philippines--got such terms.
There is still hope for the surviving POWs, their widows
and heirs. Last March, two California Congressmen, Republican
Dana Rohrabacher and Democrat Mike Honda, co-sponsored a bill
(H.R. 1198) calling for justice for the POWs.
Notably, Honda is a Japanese-American who, as an infant,
was interned by the U.S. with his mother and father during
World War II. The U.S. has since paid each surviving internee
$20,000 in restitution and, perhaps more important,
acknowledged that the internment was wrong. ``I believe,''
Honda told me, ``that these POWs not only fought for their
country but survived, and now they are trying to survive our
judicial system. They should have their day in court.''
Mr. SMITH of New Hampshire. Madam President, I think most of us are
familiar with or have heard discussions about the Bataan Death March.
That was a terrible experience for a lot of American GIs. But I think
what happened after the Bataan Death March, to some of those same
people, and others, is particularly outrageous.
I want to refer to a couple of paragraphs from this article because
it certainly sums up why they should have their day in court and what
exactly we are talking about with regard to these American GIs and
POWs. Let me read a couple of paragraphs.
On April 9, 1942, a gentleman by the name of Lester Tenney, one of
12,000 POWs, American soldiers, surrendered to the Japanese at the tip
of Bataan Peninsula. They were taken to a prison camp by the Japanese
Army on what became infamous as the 9-day, 55-mile-long Bataan Death
March during which 1,000 of them perished. I will not go into all of
the details, but a few details will show why a day in court is
justified and is important. The atrocities they suffered--some have
been revealed; some have not--and what happened afterward, where they
were forced into slave labor camps for some of Japan's biggest
corporations, remains largely unknown. Frankly, until I got involved in
this a few months ago, I didn't know some of this had happened.
Many of these corporations have become global giants today, including
some names that would certainly get one's attention: Mitsubishi,
Matsui, Kawasaki, and Nippon, to name just a few.
Through interviews with former POWs, we have come to learn a lot. But
to my amazement, the United States Government stepped in on behalf of
the Japanese and not only had lawsuits thrown out to get reparations
for what happened--they moved to Federal jurisdiction--but also
succeeded in getting them dismissed. I found that particularly
outrageous. This is all pointed out by Mr. Maas in his article.
I want to quote one paragraph as to what happened during that march
and then go into a little bit about what happened after the Bataan
Death March:
What befell Lester Tenney as a POW was by no means unique.
He got an inkling of what was to come on that April day in
1942 when he surrendered and one of his captors smashed his
nose with the butt end of a rifle. Forced to stumble along a
road of crushed rock and loose sand, the men--wracked with
malaria, jaundice and dysentery--were given no water.
Occasionally, they would pass a well. Anyone who paused to
scoop up a handful of water was more likely than not
bayoneted or shot to death. The same fate awaited most POWs
who could no longer walk. ``If you stopped,'' Tenney recalls,
``they killed you.''
As Tenney staggered forward, he saw a Japanese officer
astride a horse, wielding a samurai sword and chortling as he
tried, often successfully, to decapitate POWs. During a rare
respite, one prisoner was so disoriented that he could not
get up. A rifle butt knocked him senseless. Two of his fellow
POWs were ordered to dig a shallow trench, put him in it and
bury him while he was still alive. They refused. One of them
immediately had his head blown off with a pistol shot. Two
more POWs were then ordered to dig two trenches--one for the
dead POW, the other for the original prisoner, who had begun
to moan. Tenney heard him continue to moan as he was being
covered with dirt.
Tenney was one of 500 POWs packed into a 50-by-50-foot hold
of a Japan-bound freighter. The overhead hatches were kept
closed except when buckets of rice and water were lowered
twice daily. Each morning, four POWs were allowed topside to
hoist up buckets of bodily wastes and the corpses of anyone
who had died during the night. . . .
This is what happened to them after the Bataan Death March. When they
survived that, they were put on these freighters and taken into these
coal mines and basically made slaves.
Vicious beatings by Mitsui overseers at the mine were constant.
Tenney's worst moment came when two overseers decided he wasn't working
fast enough and went at him with a pickax and a shovel. His nose was
broken again. So was his left shoulder. The business end of the ax
pierced his side, just missing his hip bone but causing enough internal
damage to leave him with a permanent limp.
Most of us are familiar enough with stories that came out of the
Bataan Death March to know what happened there. But to think of
surviving that 55-mile trek over a 9-day period, basically being
bayonetted if you helped a
[[Page S9221]]
friend who fell down or beaten or whatever, to survive all of that and
then be placed into camps, slave labor camps on behalf of these
corporations by these corporations.
I want to read the amendment I am offering because it is important to
understand what the content is. All it says is:
None of the funds made available in this act may be used by
the Department of Justice or the Department of State to file
a motion in any court opposing a civil action against any
Japanese person or corporation for compensation or
reparations in which the plaintiff alleges that, as an
American prisoner of war during World War II, he or she was
used as a slave or forced labor.
All this says is that no funds will be used to block the right of
these folks to go to court. It doesn't provide any money to anybody. It
doesn't assume that anybody is going to win this case. It doesn't do
any of that. We are probably going to hear that. That is not the case.
All it says is that the State Department stays out of it, the Justice
Department stays out of it, and these folks are allowed to have their
day in court.
Let me explain why I introduced this amendment. As I said, to go
through what they went through in the Bataan Death March, and then to
be put into slave camps by Japanese companies was atrocious. I want to
make clear what I mean by Japanese corporations. War is a terrible
reality. I have said that. What happens during war is tragic, and
sometimes it just happens. There is not a heck of a lot you can do
about it. What happened in World War II at the hands of these private
Japanese companies is especially tragic because there has never been
anything done about it. We are not talking about the Japanese
Government torturing American prisoners. I want to make that clear. The
war is over. A treaty was signed. Whatever happened, happened. That is
behind us.
What we are talking about is private Japanese corporations, many of
which exist today, corporations that Americans know and trust, who used
Americans as slaves, who should have been offered protection under the
Geneva Convention--not the Japanese Government, please understand, the
Japanese corporations.
Out of the 36,000 U.S. soldiers who were captured by the Japanese,
5,300 roughly are alive today. They are not getting any younger.
Several of those veterans live in New Hampshire. I was astounded to
find out that eight or nine of them do actually live in New Hampshire.
I am sure they can be found in every State in the Union. I met with
some of those veterans during the August recess. It was a very
emotional meeting, but the interesting thing about it, there was no
anger presented to me about what happened in the war. The anger and
frustration that was expressed to me was what happened with these
private companies that went beyond what happened in the war.
Arthur Reynolds from Kingston, NH, spent 3\1/2\ years as a POW, 2
years of which he spent shoveling coal under unspeakable conditions for
a private Japanese company. He lost 100 pounds in captivity and weighed
less than 100 pounds when he was liberated. He survived on barely 500
calories a day, suffered countless beatings. Now he is being told by
his Government--not the Japanese Government, the United States
Government--that they are on the side of the Japanese corporation that
enslaved him.
I say to my colleagues, that is just flat out wrong. Whatever happens
in the courtroom happens in the courtroom. That is why we have lawyers
on both sides. But what we are talking about here is the right to sue.
That is what we are talking about--not the right to have a victory
when you sue, just the right to sue. However you feel, I have some very
strong feelings that they should win this case and many Americans--
most, I hope--also do. We are not asking for a victory, as much as I
would like to see it. We are asking for the right to sue.
Arthur is 85 years old. How much longer is Arthur going to live?
Manford Dusett from Seabrook, NH, spent 3\1/2\ years as a POW. Like
Arthur Reynolds, he is a survivor of the Bataan Death March and the so
called hell ships that transported the prisoners to Japan. He was
forced to work in a coal mine for 10 to 12 hours a day, with almost no
food and under the worst imaginable conditions. He suffered a broken
leg in the mine. Frankly, he is lucky to be alive today. He was able to
get just enough medical treatment to survive. Manford, as his
colleague, weighed less than 100 pounds when he was released. There
were others from New Hampshire. This gentleman in the picture here is
Roland Stickney from Lancaster. I met with him. There are others from
New Hampshire: Roland Gagnon from Nashua, Roland Stickney from
Lancaster, Arthur Locke from Hookset, Wesley Wells from Hillsburo, Bill
Onufrey from Freedom, Ernest Ouellette of Boscawen, and I am sure I
missed a few. I tried to find everybody.
My colleagues who might be familiar with the plight of these
veterans, I have submitted for the Record the Parade magazine article.
It is important you read that to understand not only what happened to
them in the Bataan Death March but, after that, how they survived when
they were put on those ships. Imagine being taken in those ships to the
coal mines and other places where they were reported to work as slaves.
These veterans are seeking compensation through our legal system--
that is all they are doing--from the Japanese corporations that used
them as slave laborers. That is all they are doing. Yet, believe it or
not, our Government, the U.S. Government, is trying to stop that. They
are opposing veterans' efforts to seek proper redress through our
judicial system. Is that constitutional?
Should our Government be stopping a private citizen from seeking his
or her day in court for a grievance? I don't think so. I think it is
wrong. I am, frankly, ashamed it is happening, which is why I am on the
floor of the Senate. I am not here to redebate the war, refight the
war, or bring up and point out the atrocities of the war. That is not
why I am here. I don't think the veterans would want me to do that. The
State Department facilitated, ironically, a recent agreement between
German companies and their victims who were used as slave laborers
during World War II. I commend them for that. That was the right thing
to do.
Last year this body passed S. Con. Res. 158, introduced by my
colleague and good friend, Senator Hatch, and urged the Secretary of
State to facilitate discussions between these veterans and the guilty
corporations. But the State Department chose to ignore this
recommendation, unlike what they did in the German case. When it comes
to the Japanese case, they chose to ignore this. In the case of the
Japanese companies, the State and Justice Departments argued--listen
carefully--that the private claims of the veterans were waived by the
1951 peace treaty with Japan. I will repeat that because it is very
important to the whole discussion of this case. The State and Justice
Departments argued that the private claims of veterans were waived by
the 1951 peace treaty with Japan. I am going to say, with the greatest
respect, that that is flatout wrong. Their rights were not waived. Why
do they maintain this position then?
Let me read from the 1951 peace treaty, article 14(b). Let me read
from article 14(b) in the 1951 peace treaty:
[E]xcept as otherwise provided in the present Treaty, the
Allied Powers waive all reparation claims of the Allied
Powers, other claims of the Allied Powers and their nationals
arising out of any actions taken by Japan and its nationals
in the course of the prosecution of the war and claims of the
Allied Powers for direct military costs of occupation.
If I had only read article 14(b), which I just read, I might have
agreed--and probably would have--that the claims of these veterans were
waived by the treaty because that is what it sounds like. But the issue
is a lot deeper than that. So if someone is going to read article 14(b)
on the Senate floor and say, therefore, these claims are waived, then
we have to go beyond that. Let me go beyond that:
Article 14(b) does not waive private claims against private
Japanese companies.
Don't be mistaken. The State Department knew this in 1951 when the
treaty was signed. In fact, John Foster Dulles, the chief negotiator
for the treaty--prior to his being Secretary of State--orchestrated a
confidential exchange of diplomatic notes between the Japanese and the
Dutch to address this very issue in 14(b). In short, the Dutch didn't
want any part of 14(b). They refused to waive the private claims of
[[Page S9222]]
their nationals because, as the United States--remember the fifth
amendment?--the Dutch were constitutionally barred from doing so
without due process of law. So they had a constitutional problem like
we have. They can't waive the private claims. Fortunately, the
diplomatic notes--and this is what burns me up, frankly, if I may say
it as nicely as I can. We find so much information classified in
Government. It is the old cover-your-you-know-what routine. That is why
we keep it classified. There are legitimate reasons to classify
materials, but 50 years later we finally get the truth declassified.
All these guys, for all these years, were being denied their day in
court when the truth was buried in the classified files. It is just
absolutely unbelievable. I am not saying I am the first to find it. I
know lawyers have found it for the others, for those doing this, those
who are suing. But let me go right at it.
What did those diplomatic notes say? We have it right here. This is
September 7, 1951, just declassified in 2000, 50 years later, after all
these guys have fought all these years trying to get reparations, and
most of them have died. Only 5,300 remain out of 12,000. Here we are. I
will read this letter:
Dear Mr. Prime Minister,
I beg to draw the attention of Your Excellency to the
paragraph in the address to President and Delegates of the
Peace Conference I made yesterday, reading as follows:
``Some question has arisen as to the interpretation of the
reference in article 14(b) to ``claims of Allied Powers and
their nationals''--
It sounded as if we waived everybody's rights--
which the Allied Powers agree to waive.
It is my Government's view that article 14(b) as a matter
of correct interpretation does not involve the expropriation
by each Allied Government of the private claims of its
national so that after the Treaty comes into force these
claims will be non-existent.
The question is important because some Governments,
including my own, are under certain limitations of
constitutional and other governing laws as to confiscating or
expropriating private property of their nationals.
Signed by the Prime Minister of Japan.
This one is signed by Dirk Stikker, Minister of Foreign Affairs of
the Netherlands. A copy was sent to the Japanese Government. It says,
in part:
Also, there are certain types of private claims by allied
nationals, which we would assume the Japanese Government
might want voluntarily to deal with in its own way as a
matter of good conscience or of enlightened expediency . . .
.
And so forth.
To get to the fourth chart, this is from the Prime Minister of Japan
to the Dutch, and I will read this portion outlined:
With regard to the question mentioned in Your Excellency's
note, I have the honor to state as follows:
In view of the constitutional legal limitations referred to
by the Government of the Netherlands, the Government of Japan
does not consider that the Government of the Netherlands by
signing the Treaty has itself expropriated the private claims
of its nationals so that, as a consequence thereof, after the
Treaty comes into force these claims would be nonexistence.
The Japanese Government is saying that:
However, the Japanese Government points out that, under the
Treaty, Allied nationals will not be able to obtain
satisfaction regarding such claims, although, as the
Netherlands Government suggests, there are certain types of
private claims by Allied nationals which the Japanese
Government might wish to voluntarily deal with.
These two documents remained classified for 50 years while these guys
tried for 50 years to get their day in court. Our own Government would
not give these documents to our own soldiers. What an outrage that is.
That is an absolute outrage.
The 1951 peace treaty in no way obligates the Government of Japan to
pay any private claims. I admit that. It does not obligate them to do
anything. We are not talking about the Government of Japan.
At the same time, the treaty does not waive private claims against
private Japanese companies, as the State and Justice Departments would
like you to believe, and it is right there in declassified documents
finally after 50 years.
How is an exchange of diplomatic notes between the Government of
Japan and the Government of the Netherlands relevant to the United
States and its citizens? Good question. The answer lies in article 26
of the peace treaty, and this is what article 26 says:
Should Japan make a peace settlement or war claims
settlement with any state granting that state greater
advantages than those provided by the present treaty, those
same advantages shall be extended to the parties of the
present treaty.
In other words, if they make a deal with the Netherlands, it does not
involve anybody else who has the same constitutional problems. This
occurred in an exchange of diplomatic notes. Japan made it clear the
treaty did not waive the private claims of Dutch citizens, and article
26 automatically extends this to American citizens. Pure and simple.
End of story.
This would have been resolved 20 or 30 years ago if somebody had just
declassified these documents. If somebody can please tell me why these
documents were classified for 50 years because of national security, I
will be happy to say we should classify them again.
The Departments of State and Justice are on the side of Japanese
corporations. That is what this amendment is about: Are you on the side
of our Justice Department and State Department that are on the side of
the Japanese corporations that did this to our Americans, against the
intent of that treaty, or are you on the side of the American GIs and
POWs who for 50 years have been denied their day in court?
That is it. There is nothing complicated about my colleagues' vote on
this one. That is it: You are either for the American GIs who served
and were prisoners and were slaves or you are on the side of the
Japanese corporations that put them in slave camps and your own Justice
Department and State Department which kept the documents classified for
50 years so they could not get their day in court. Whose side are you
on? That is it. There is nothing complicated about it.
What has happened is wrong. It goes against the historical record,
and my amendment simply prevents the unnecessary interference of the
Departments of State and Justice in this case. I repeat, because it is
very important to understand, I do not predetermine the outcome with my
amendment.
Before I yield the floor, I want to repeat what the amendment says so
that everybody understands it:
None of the funds made available in this act--
The underlying legislation, the Departments of Commerce, Justice,
State--
None of the funds made available in this Act may be used by
the Department of Justice or the Department of State to file
a motion in any court opposing a civil action . . . .
In other words, we do not want Justice and State to come in now and
oppose the action of this court, of these men, mostly men. Why? Because
for 50 years these documents were classified and they did not even have
the opportunity to do it. We did them a disservice. These are men who
fought and suffered horribly in a terrible war.
I urge my colleagues to please read my amendment when you come down
to the Chamber to vote to give these men--brave men, heroes--the
opportunity to go to court under the terms of the 1951 treaty, and give
them an opportunity to be heard. That is all we are doing.
I also want to point out in all that--I did not say it at the time,
but to give a little bit more credence to the argument, guess who
drafted the memos we are talking about between the Dutch and the
Japanese. Who was involved in that draft? None other than John Foster
Dulles. That is the great tragedy of this. John Foster Dulles himself
participated in the draft of those documents. We have all the evidence
to that as well.
I hope my colleagues in the Senate will say to Justice and State:
Step aside; it is the right thing to do. You kept this secret all these
years by classifying documents and did not allow our guys a day in
court. Step aside; do the decent thing and let these men go to court,
as it is determined under the treaty we now know, and allow them to
sue. If they lose, they lose. If they win, they win, but just let them
go to court.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
[[Page S9223]]
Mr. HARKIN. Madam President, I thank my colleague and friend, the
Senator from New Hampshire, Mr. Smith, for proposing this important
legislation and for offering this amendment today, which I am proud to
cosponsor.
Before I get into the need for the amendment and perhaps repeat some
of the facts that the Senator from New Hampshire brought up, let me
take a minute to summarize what happened in the Philippines and Japan
between 1942 and 1945.
On March 11, 1942, Gen. Douglas MacArthur reluctantly left behind
thousands of American troops in the Philippines. Arriving in Melbourne,
Australia, he pledged, of course, those famous words: ``I shall
return.''
General MacArthur did return. He liberated the Philippines and rolled
back the forces of imperial Japan. Sadly, MacArthur was too late for
the hundreds who had died in the infamous Bataan Death March. In that
3-day forced march, American troops were denied food and water, beaten
and bayoneted if they fell to the ground. As many as 700 Americans lost
their lives in those 3 days.
It also was too late for the thousands who lost their lives on the
so-called hell ships that transported surviving POWs to Japan and
Japanese-occupied territories. Packed into cargo holds, American POWs
struggled for air, as temperatures reached 125 degrees. Almost 4,000
American servicemen would lose their lives just on these journeys in
these cargo ships.
Those who survived Bataan and the hell ships would find little rest
as Japanese POWs. For more than 3 years, they would serve as slave
labor for private Japanese companies, the same companies whose names we
revere today and whose products we buy daily, weekly, and monthly in
the United States: Matsui, Mitsubishi, Nippon, and others.
Throughout the war, Americans worked in the mines of these companies,
their factories, their shipyards, their steel mills. They labored every
day for 10 hours or more a day in dangerous working conditions. Some of
those who went into the mines were sent into the mines because it was
too dangerous for Japanese to work in them. So they sent the American
POWs into the coal mines to dig the coal. They were beaten on a regular
basis.
Frank Exline of Pleasant Hill, IA, was one of those POWs. A Navy
seaman who was captured April 9, 1942, Frank spent 39 months working
for Japanese companies in Osaka, Japan. He began on the docks unloading
rock salt and keg iron. Later, he found himself toiling in the rice
fields. He was fed two rice bowls a day and given very little water.
During his time with these Japanese companies, Frank was tortured and
beaten, once for stealing a potato. Upon being caught, the potato was
shoved in his mouth as he was forced to stand at rigid attention
directly in the sun for 45 minutes. If he moved or even blinked, he was
hit in the face.
Then there is Frank Cardamon of Des Moines, a marine who was
stationed in China. His ship was sent back to the U.S. to get more
supplies. When it stopped in the Philippines, of course, the ship was
attacked and captured. Frank was captured at Corregidor and sent to
Japan to work in an auto parts factory and then in the lead mines.
He was never paid for his work, fed two cups of rice a day, and went
from 160 pounds to 68 pounds in his 3 years of capture. These men tell
me they survived on sheer will, not on the food.
Last month in Iowa, as Senator Smith did in New Hampshire, I met with
three other POWs and their families on this issue. I met with William
McFall of Des Moines, who received a Purple Heart and numerous other
medals. He worked in the coal mines and told me about how dangerous it
was working in the coal mines.
I met with the sisters of Jon Hood, a Navy seaman forced to work on
the shipping docks. I met with Gene Henderson of Des Moines. He
actually was not in the military. He was a civilian employee at the
Pacific Naval Air Base on Wake Island. Gene Henderson was captured and
sent to China to work on Japanese artillery ranges before he was sent
to work in the iron ore pits in Japan.
Although she could not attend the meeting I held, Margaret Baker of
Oelwin, IA, wrote me a letter in June about her late husband Charles
Baker. Charles Baker, who was an Army private, survived the Bataan
Death March before he was sent to work in the mines in Japan for 3
years. He died at age 54 in 1973. In her letter she wrote:
He suffered many injuries and hunger on the Death March
during his imprisonment. We feel that his early death was
caused by the suffering that he endured while working long
hours in the mines, without food, rest and clothing.
I speak for this amendment and support it on behalf of these veterans
and their families. These men and 700 of their fellow prisoners of war
and their families are now seeking long delayed justice. They have gone
to court to ask for compensation from the Japanese companies that used
them as slave laborers during the war.
They deserve their day in court. Yet as the Senator from New
Hampshire has pointed out, our own State Department has come down on
the side of the Japanese companies, not our POWs. The State Department
has taken the view that the peace treaty signed in 1951 prohibits
reparations from private Japanese companies for survivors such as Frank
Cardamon or Gene Henderson. In fact, State Department officials have
submitted statements to the Court in support of the view of the
Japanese companies. I do not think that is right. I do not think it is
fair. That is why I am a cosponsor of Senator Smith's amendment that
would stop the State Department and the Department of Justice from
using taxpayer dollars to defend the interests of these Japanese
companies.
I might add, the House passed this amendment in July by an
overwhelming 393-to-33 vote, an amendment stating the State Department
should not be allowed to use our tax dollars to fight against our
American POWs in court. Now again, as Senator Smith said, I am sure
while we both believe the Japanese companies ought to pay reparations
and ought to pay these POWs for the slave labor they provided during
the war, that is not what our amendment says. Our amendment simply says
let them go to court; let them make their case; let the Japanese
companies come in and defend themselves, if they will.
That is all we are asking. We are not preconditioning the outcome. We
are not setting up any kind of a standard by which they will be held in
one view over the Japanese companies. We are simply saying let them
have their day in court. We are saying our State Department should not
be intervening in State or Federal courts against these POWs. Let the
POWs have their own arguments and their day in court, and let us keep
our State Department out of it.
These men courageously served our country. They endured unspeakable,
wretched conditions as slave laborers for these Japanese companies.
MacArthur was forced to leave them behind in 1942. In 2001, let us not
leave them behind one more time. Let us give them their day in court.
My colleague has given all of the arguments. He has outlined what the
treaty said in article 14(b). He laid out very cogently and clearly the
side agreements that had been done by John Foster Dulles, at that time
the chief negotiator for the allied nations, whose letters and side
agreements were not brought to light until April of last year. So for
all of these years these POWs and their lawyers really perhaps did not
have a leg to stand on because of this treaty, but then after April of
2000 we found out the Japanese had made an agreement with the
Government of the Netherlands to allow the private citizens of the
Netherlands to pursue their private claims.
Then article 26 of the 1951 peace treaty sort of trumps article
14(b). Now article 14(b), as Senator Smith pointed out, basically said:
The allied powers waive all reparation claims of the allied powers,
other claims of the allied powers and their nationals arising out of
any actions taken by Japan and its nationals in the course of the
prosecution of the war.
On its face, that ends it. That ends it right there. For all of these
years, that is what sort of the basis in court was. Article 26 did
state, should Japan make a peace settlement or war claims settlement
with any state granting that state greater advantages than those
provided by the present treaty, those
[[Page S9224]]
same advantages shall be extended to the parties to the present treaty.
We did not know until April 2000 that the Japanese Government had
indeed made a war claims settlement with another state granting greater
advantages to the nationals of that state, and that was, of course, the
Dutch citizens because the diplomatic note to the Japanese Prime
Minister from the Dutch Foreign Minister--again which was read by the
Senator from New Hampshire, and I just repeat it for emphasis sake--it
said that: It is my Government's view--that is, the Government's view
of the Government of the Netherlands--that article 14(b), as a matter
of correct interpretation, does not involve the expropriation by each
allied government of the private claims of its nationals. So that after
the treaty comes into force, these claims will be nonexistent.
In other words, the Dutch Minister said: It is my Government's view
that 14(b) does not prohibit private claims of the nationals of the
Netherlands.
The Japanese Prime Minister responded:
In view of the constitutional legal limitations referred to
by the government of the Netherlands, the government of Japan
does not consider that the government of the Netherlands by
signing the treaty has itself expropriated the private claims
of its nationals so that, as a consequence thereof, after the
treaty comes into force these claims would be nonexistent.
Taken out of international State Department legalese, what that
basically says is the Government of Japan has said to the Government of
Netherlands that just signing this treaty does not mean you take away
from your citizens their right of private claims against the Government
of Japan or the nationals of the nation of Japan.
This is the document we did not know about until April of 2000. So we
know that article 26 of the treaty of 1951 now comes into full force
and play, and because Japan made a war claims settlement with the
Netherlands that gives them greater advantages than those provided in
the present treaty, those same advantages should be extended to all of
the parties of the present treaty. Therefore, we believe very strongly
that our private citizens, our POWs who worked as slave laborers, have
every right to pursue their claims in whatever courts they can find to
take up those claims.
Unfortunately, the Departments of State and Justice are not on the
side of our POWs. They convinced a Federal judge to dismiss these
lawsuits. This is fundamentally unfair. This amendment would correct
this injustice. I do not know whether or not in a court of law these
POWs will be able to prevail. I don't know all of the legal
implications. I do know they should have their day in court to argue
their claims against these private companies. It is not as if
Mitsubishi, Matsui, and Nippon are bankrupt. These are multinational
corporations. They are big.
As the Senator from New Hampshire said, our POWs are getting older
and not that many remain. It seems to me this is the fair and right
thing to do, to make final these reparations, and without interference
from the executive branch of the Government.
I am constrained to say I hope no one interprets this amendment or
our support for this amendment as somehow trying to bring up again
World War II or bringing up in a way that would be detrimental to the
present Government of Japan the actions taken during World War II. That
is not our intention at all. We all recognize the Government of Japan
is one of the great, strong democracies of our present world. They have
a system of free government and free enterprise in Japan that is the
envy of many places in the world.
For a year and a half I was privileged to serve my country as a Navy
pilot stationed at Atsugi airbase in Japan in the mid to late 1960's. I
spent a year and a half living on the Japanese economy. I worked every
day with men and women who worked for the Nippon Aircraft Corporation.
I was one of their test pilots. I worked with them every day. During my
year and a half there, I can honestly say I became an admirer of the
Japanese people and an admirer of many of the things they have done
after World War II. I don't for one minute admire anything they did
during World War II, what the warlords did, what they did to lead that
nation into World War II. The atrocities they committed during World
War II are a definite blot on their history.
Today, the Japanese Government stands as a beacon of democracy and
representative government. The Japanese people, I think, have expunged
themselves of this terrible legacy of World War II. I am saying this
because I don't want anyone to interpret that we are using this
amendment or offering this amendment as if making a detrimental
statement about the present Government of Japan. That is not so.
We are saying we believe in the rule of law, just as the Japanese
Government, since World War II, believes in the rule of law. This rule
of law we adhere to, that we believe in so strongly, says that people
who are wronged, people who believe they have a claim against another
person or a government, ought to have their day in court. That is all
we are saying. Let them make their case. If the Japanese companies want
to defend themselves and say they have already paid reparations, they
have already paid in full for all of this, let them come to court and
show us. That is all we are saying.
The administration argues this amendment violates our Constitution
regarding the separation of powers. This type of restriction we are now
placing on appropriations by the participation of the Attorney General
in private litigation has been enacted in Congress before and has been
accepted and complied with by the executive branch. There was an
example offered by Warren Rudman, another Senator from New Hampshire,
passed in 1983 that barred the Justice Department from intervening in
certain types of private antitrust lawsuits. We have done that many,
many times in the past. I don't think the argument that somehow this
violates our separation of powers holds any water.
I thank my colleague from New Hampshire for his leadership on this
issue, for sticking up for our POWs and for offering this amendment. I
hope it is passed overwhelmingly so we can coordinate with the House,
which passed it overwhelmingly, and permit these lawsuits to move ahead
and give POWs their long overdue day in court. They may have been left
behind in 1942 by General MacArthur; let's not leave them behind one
more time.
I yield the floor.
The PRESIDING OFFICER (Mr. Bayh). The Senator from Hawaii.
Mr. INOUYE. Mr. President, two of my most distinguished colleagues,
the Senator from New Hampshire, Mr. Smith, and the Senator from Iowa,
Mr. Harkin, have offered this amendment to the measure before the
Senate. I will share my thoughts on this amendment and the reasons why
I oppose it.
While listening to my colleagues' speak, I was reminded that a few
days ago I was called upon by one of my dear friends in the Senate,
advising me that I should not be involved in this matter; that it would
be, without question, an amendment of high emotions, and that it would
revive memories of a distant past, black memories.
Like some of my colleagues, I am old enough to recall those dark days
in our history. Like some Members, I was involved in that ancient war,
World War II. Sometimes I have my personal nightmares.
There is no question that none of us here would ever condone any of
the actions taken by the Japanese in the Bataan death march. Being of
Japanese ancestry becomes a rather personal matter. Who knows, one of
my cousins could have been the one with the bayonet and rifle. I have
no way of knowing. But those men who mistreated our men were of the
same ancestry.
Therefore, I stand before the Senate not with any great pleasure but
because I feel it must be done. Two days ago, officials of our Nation
and the high officials of Japan gathered in the city of San Francisco
to commemorate the 50th anniversary of the signing of the Treaty of San
Francisco which ended the hostilities of Japan in World War II. This
treaty was a farsighted document designed very deliberately to
eliminate the possibility of further Japanese aggression by paving the
way for an enduring peace between our two countries.
Central to this goal was the recognition by the United States that it
had a responsibility to rebuild war-torn Japan so that it could regain
its economic self-sufficiency. The economic abandonment of Germany
after World War I by the victorious nations of Europe and its horrific
consequences were
[[Page S9225]]
enough to convince the President and the Congress of the United States
to avoid inviting a repetition in the Pacific. Accordingly, the
provisions of the San Francisco treaty were specifically aimed at
protecting the recovering economy of Japan, and among the most
important of these was article 14(b) of that treaty. I think we should
read this article 14(b) once again:
[E]xcept as otherwise provided in the present Treaty, the
Allied Powers waive all reparations claims of the Allied
Powers, other claims of the Allied Powers and their nationals
arising out of any actions taken by Japan and its nationals
in the course of the prosecution of the war[.]
It was clear that this language was intended to waive, unless
otherwise provided in the treaty, all claims of the United States and
allied nationals against Japan and Japanese nationals arising from
World War II.
No one can deny the pain and the atrocities suffered by American
citizens who were prisoners of war in Japan, and by agreeing to article
14(b), our Nation did not intend to turn its back on its own citizens.
I have had the privilege and the great honor of serving in the
Congress now for nearly 42 years and during that time I believe my
record is very clear when it comes to the support of the men and women
in uniform. At this moment, I find myself in some disagreement with the
great leaders of this Senate as to how the Defense Appropriations
Subcommittee's bill should be handled. I have always maintained that we
cannot do enough for men and women in uniform. Less than one-half of 1
percent of this Nation has stepped forward to indicate to the rest of
us that they are willing to stand in harm's way and, if necessary, at
the risk of their lives. How can anyone say this is not something
worthy of our support? So my support for the men in uniform, I hope,
will not be questioned by any one of my colleagues.
When we signed the treaty and when we passed the War Claims Act of
1948 soon thereafter, our Nation assumed the responsibility of making
reparations to our people using the proceeds of Japanese assets ceded
by Japan under the treaty. We thought it was important enough at that
moment in our history to take over that responsibility.
I do not stand before you to present any rationale or apology for
Japanese war crimes because history has shown that during the war, as
in many great wars, officers and men of competing armies oftentimes
resort to treatment of prisoners so cruel and inhumane as to seem
barbaric. There are no good people in a war.
Those of us on the committee, the Defense Appropriations
Subcommittee, have one thing in mind--to prevent wars--because many of
us have seen what war can do. There is no question that American
prisoners in the hands of the Japanese suffered much. I think the
evidence is rather clear, as pointed out by the Senator from New
Hampshire and the Senator from Iowa. However, when the officials of our
nations met with representatives of the defeated nation, Japan, these
atrocities were recognized and taken into account in the consideration
and ratification of the treaty of San Francisco.
Moreover, the Government of Japan has acknowledged the damage and
suffering it caused during World War II. Last Saturday, September 8,
the Minister for Foreign Affairs, Mr. Tanaka, reaffirmed Japan's
feelings of deep remorse and heartfelt apologies that had been
previously expressed in 1995 by then-Prime Minister Murayama.
Unfortunately, the amendment presented by my two distinguished
colleagues attacks a central provision of the treaty by making it
difficult, if not impossible, for the Departments of Justice and State
to intervene in reparations suits and assert article 14(b) of the
treaty.
I think we should remind ourselves that article II of the
Constitution of the United States makes it very clear that it is the
President of the United States who has the responsibility of
negotiating treaties and making certain that the provisions of the
treaties are carried out. It is not the right of any State or any
individual, nor is it the right of this Congress.
Thus, if this amendment is approved by both Houses of Congress and
signed into law by the President, it would announce our intention to
abrogate a central term of the treaty of San Francisco. This action
will abrogate that treaty. Some have suggested it might be a slap in
the face of the Japanese. Yes, it might be, but, more importantly, it
will abrogate a treaty.
We who have stood on this floor time and again condemning other
nations for slight deviation of their treaties are now coming forth
deliberately to say that we are prepared to abrogate this treaty. This
would be contrary to U.S. foreign policy because it would signal to the
world that the United States cares little for its treaty obligations.
It would be also contrary to U.S. national security policy because the
San Francisco treaty is the cornerstone of U.S. security arrangements
in the Asia-Pacific region.
In addition to the foreign and security policy considerations, this
amendment might also encourage other nations to facilitate lawsuits
against the United States, and against U.S. companies and the U.S.
Government and its officials for actions by U.S. military and those who
support such actions.
This is not farfetched. It could expose our Nation and our Nation's
citizens to millions, if not billions, of dollars in claims. The
administration of President Bush, in its policy statement issued
through the Department of State, concurs with this analysis and
strongly opposes the amendment.
Indeed, the administration additionally objected to the amendment
because it would impair the executive branch's ability to carry out its
core constitutional responsibility relating to treaties, article II of
the Constitution. Accordingly, reopening this issue as the amendment
now proposes would have very serious negative consequences for United
States-Japan relations, and, sadly, would sow doubt about America's
word among other allies.
Therefore, I oppose the amendment and I hope all of my colleagues
will carefully consider the points that I have raised.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I want to respond to my great friend--he
is my great friend--and colleague from Hawaii. There is no one with
whom I have greater respect and admiration in the Senate for all the
years I have been here than the senior Senator from Hawaii, Mr. Inouye.
Certainly, I commend him for his statement and the courage he has shown
to take his position on this matter. No one should in any way
misinterpret the action taken by Senator Inouye in opposing this
amendment. I know he comes at it with conscience and with his own
feeling of what is right.
I may not agree with his position on it, and let no one think that in
any way Senator Inouye now or at any time has let down our country, or
our veterans, or our military establishment. By his own life and by his
own example, Senator Inouye has shown what it means to be a patriot and
to put himself in harm's way and possibly give one's life for his
country. He did that during World War II.
No one could have been more proud than all of us here when President
Clinton finally recognized his efforts, his dedication, and his
sacrifice during war in finally granting Senator Inouye the
Congressional Medal of Honor. It was a recognition that was long
overdue.
I hope that no one misinterprets what the Senator said in his opening
statement about taking his position. I certainly don't, and no one else
should.
As I said, we have a disagreement. And, quite frankly, I am hard
pressed to think of the last time I disagreed with the Senator from
Hawaii because I have high regard for him in matters pertaining to our
military, to our veterans, and the defense of our country. But I just
happen to have a disagreement on this one issue.
Again, I point out that all we are trying to do is give the day in
court for our rule of law. I believe we can do so without in any way
abrogating a treaty or harming our relations with Japan. As I said
earlier, I have the highest esteem for Japan and the people of Japan. I
would want nothing in any way to be misinterpreted that we are in any
way trying to bring up the dark days of World War II again. But I
believe just as strongly that our rule of law commands us not to do
otherwise.
[[Page S9226]]
We must permit them to have their day in court. It is their right.
Again, I thank the Senator from New Hampshire for offering the
amendment.
I particularly want to thank Senator Inouye for his years of
dedication to our country, for his leadership during World War II, and
for his 42 years of leadership in the Senate. I am sorry I have to
disagree with him on this issue.
Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, I want to associate myself
with every single word the Senator from Iowa just said regarding our
colleague, Senator Inouye. I want to state for the record that Senator
Inouye has earned the right to say anything he wishes on the floor of
the Senate with his distinguished service to our country. I think we
have a difference of opinion on what the treaty said or didn't say.
That is it as far as I am concerned, to make the record clear.
I want to respond to the point on the abrogation of treaties because
I think it is important we understand that, in my view--and I think in
the view of many--it doesn't abrogate the treaty at all. It limits the
State and the Justice departments from interfering. That is all. The
courts will decide the true intent of the treaty. That is what courts
are supposed to do. But they should be able to do so without what I
would consider unnecessary meddling.
Article 26 of the treaty makes it very clear that the Japanese
entered into a more advantageous agreement than those terms apply to
all the signatories of the treaty.
We are not abrogating the treaty. We are fulfilling the treaty.
I think it is very important to understand those points that were
made in the exchange between the Japanese Government and the Dutch
Government and article 26 in the sense that the person who offered
those documents, John Foster Dulles, made it very clear that we don't
want to deny individuals under a constitutional government the right to
have their constitutional rights fulfilled.
I would respond quickly to three or four points that were made by the
opponents and then yield the floor.
We just talked about those who say it undermines the treaty
obligations. It merely prevents the State and the Justice departments
from distorting the true facts. I am not saying the State and Justice
departments in any way directly are responsible for holding back
documents. The truth is our own Government for 50 years never released
these documents. Had these documents been available 50 years ago, I
think this matter would have been resolved.
For all these years our veterans never had the opportunity to have
this information and take it to court.
The judicial branch is perfectly capable and within its rights to
interpret treaties without any assistance from or deference to the
views of the executive branch or frankly, the legislative branch. This
is law. That is how things are settled.
In any event, the amendment does not prevent the executive branch
from executing the treaty. I want to make that very clear. It does not
prevent the executive branch from executing the treaty. It merely
prevents the executive branch from advocating a certain interpretation
in court.
All we are doing with my amendment and that of Senator Harkin and
others who cosponsored it is to say we are not going to provide
taxpayer dollars to allow that argument to be fought. Let it go to
court. That is all. I think it is very important that we understand
that.
Some say the amendment impairs the ability of the courts to interpret
treaties. The courts are perfectly capable of interpreting treaties
without the assistance of the executive branch. They are not bound by
executive interpretation. In fact, the Supreme Court noted in one of
its opinions that the courts interpret treaties for themselves. The
courts remain the final arbiter of a treaty's meaning and have the
right to interpret a treaty.
The courts observed that the views of the executive branch regarding
a treaty are entitled to no deference of any type when they appear to
have been adopted either solely for political reasons or in the context
of any particular litigation. I believe we are dealing with the latter
in this case.
Let me also get to the point of damaging relations with Japan. No one
wants to do that. I want to make it very clear that I believe Japan is
a valuable ally in the Far East and that they are very important to us,
especially as we look at the emergence of China and the threat of the
Chinese. This is not about the Japanese Government. It is not about
replaying the war. It is about interpreting a treaty the way it was
intended and allowing people to have their day in court without losing
their constitutional rights. That is for all of us.
It should not change our relationship with Japan. I do not know of
anybody who wants to do that. We are strong allies. We are close
friends. We are going to continue to be close friends after this. This
should not, in any way, be construed as an unfriendly act. Secretary
Powell, I think, recently called Japan our Pacific anchor. I think he
is right. But it does send a serious message that as long as these
veterans are with us, this is going to be an area of contention.
Frankly, I think it is better for Japanese-American relations to get
it behind us. Let's move on. And the best way to do it is to allow
these men to come to court without the interference of the Justice and
State Departments; let them come to court, have their day in court, and
get a decision. That was the right thing to do when the State
Department did that in relation to the activities in the German case,
and I think it is the right thing to do in this case.
Last year, again, as I said earlier in my statement, this body passed
S. Con. Res. 158, offered by Senator Hatch, which urged the Secretary
of State to facilitate discussions between the veterans and the
Japanese. Unfortunately, though, the State Department chose to ignore
that. All we are trying to do is to move forward and not have it hang
out there any longer.
Again, this is an issue between private Japanese companies and
private United States citizens who have been wronged by those
companies. It is also important to remind people that we do have a
Constitution and every single one of us has constitutional rights.
Under the fifth amendment: ``No person shall . . . be deprived of
life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.''
The Supreme Court has ruled that the Federal Government can take or
espouse private claims of United States citizens against foreign
governments and their agents, but this case involves private claims
against private corporations that are not agents of the Japanese
Government. There are no constitutional or legal precedents for the
Federal Government to take or espouse the private claims of its
citizens against private foreign entities.
In fact, if you read article 14(b), which we have done a couple
times, to mean ``private versus private claims,'' this raises very
serious fifth amendment concerns. The Federal Government does not have
the right to espouse private versus private claims. There is an
important difference between the private versus Government claims,
which the Federal Government can espouse, and the private versus
private claims, which the Federal Government cannot espouse. That is a
big difference.
Just like the United States Government, the Dutch were faced with the
same problem. The Dutch had a constitutional issue, which is why they
raised the issue at the time, which is why article 26 was written. John
Foster Dulles certainly had a hand in writing both of those letters and
the exchange of letters between the Japanese and the Dutch. He
understood both sides of it. And he understood it completely. That is
why the letters were written and why the Dutch raised the question. And
that is why they made certain that if another country raised similar
objections, such as the United States, they would have the opportunity
to have their citizens have their day in court.
So I hope that as we get to whatever point the leadership decides to
call a vote on this, we understand that this is not about bringing up
some old war stories or replaying the war or anything at all. It is
simply about the right of an American citizen, who happened to be a
POW, to get his or her
[[Page S9227]]
day in court against a private company in another country and not be
interfered with by our own Government.
All our amendment does is say that no funds under this act shall be
used by our country or our Government to interfere with that claim.
That is it.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. INOUYE. Point of inquiry: Will this matter be voted upon at 5:30?
Mr. HOLLINGS. I think so. We are ready to make that request, but I
want to say a word in debate.
Mr. INOUYE. Fine.
Mr. REID. Mr. President, will the Senator yield?
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I ask unanimous consent that the time until
3:15 p.m. be for debate with respect to the Smith amendment No. 1538;
that at 3:15 p.m. the amendment be set aside to recur at 5 p.m. today,
with all time equally divided and controlled between Senators Smith of
New Hampshire and Hollings or their designees; that a vote in relation
to the amendment occur at 5:30 p.m. today, with no second-degree
amendments in order prior to a vote in relation to the amendment;
further, that at 3 p.m. Senator Dorgan be recognized to offer an
amendment relating to TV Marti.
Mr. HOLLINGS. You mean 3:15.
Mr. REID. Yes, 3:15.
The PRESIDING OFFICER. Is there objection?
The Chair hears none, and it is so ordered.
Mr. REID. Mr. President, I extend my appreciation to the Senator from
Idaho, who is not in the Chamber, for allowing us to move forward on
this even though his amendment is pending.
Mr. HOLLINGS. Mr. President, I thank the distinguished Senator from
Nevada, who keeps the trains running--and on time --and, incidentally,
is fully informed on what is on that train. That is really the point to
be made with Senator Harry Reid.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, there is no question when the chorus is
formed to praise our distinguished senior colleague from Hawaii, I am
going to be in that chorus. There is no one I admire more.
I remember the debate with respect to the reparations, and I was
moved by our other wonderful Senator from Hawaii, Mr. Matsunaga. But
mind you me, that was a very different situation.
Here is an individual of Japanese descent, Daniel Inouye of Hawaii,
who fought for over a year to try and gain acceptance as a soldier in
the cause of the United States in World War II. And having done that--
because I was in that particular theater--to go forward in Italy with
the Nisei fighters, even after the armistice peace had been signed with
Italy, with his arm gone and 22 slugs in his body.
He only got the Distinguished Service Cross. It hit my conscience
that here was an individual, just because he was alone, and not
recognized at that time, who only received the Distinguished Service
Cross. And that was repaired last year when he, and others of those
brave Nisei fighters, received the Medal of Honor. So the record has
been made.
But this isn't on account of Senator Inouye's courage. I really am
grateful, managing this bill myself, that he has taken this position
that does take courage in one sense of the word. But under the
Constitution, which the distinguished Senator from New Hampshire points
out, there is no other course than to kill this particular amendment.
Let me speak again of my high regard for the Senator from New
Hampshire and the Senator from Iowa in their feeling for the veterans,
particularly those who suffered under that death march from Bataan,
because I was dragged into this thing myself in May of 1942, when
others just ahead of me got caught up not only in the Bataan march but
served as prisoners of war under such treatment that has been described
by the distinguished Senators from New Hampshire and Iowa.
I think of Jack Leonard. I think of other classmates who suffered in
that period of the war. So I share the feeling of the Senator from New
Hampshire. You cannot be more devastated and defaced and tortured than
these Japanese prisoners of war. They deserve every bit of
consideration they can get under the Constitution. But if we are going
to be a body of laws, there isn't any question about whose side--I was
taken by the Senator from New Hampshire who said you are either on the
side of the private Japanese corporations or you are on the side of the
veterans. Not at all. You are either on the side of the Constitution or
you are not. And our Constitution says: The treaty made duly ratified
is the law of the land. That terminated any particular claims or their
day in court.
To understand, read this amendment, not agreeing, if you please, with
the Senator from New Hampshire, not agreeing, if you please, with the
Senator from South Carolina, but it says:
None of the funds made available in this Act may be used by
the Department of Justice or the Department of State to file
a motion in any court opposing a civil action against any
Japanese person or corporation for compensation or
reparations in which the plaintiff alleges that, as an
American prisoner of war during World War II, he or she was
used as a slave or forced labor.
It says that the Department of Justice and the Department of State
cannot function as a Department of Justice and a Department of State.
Certainly, they don't want to do that. If it is to be that they have a
right or day in court--and certainly nothing we vote on this afternoon
will take away that right or day in court--it has been had, this time
last year in the California court. The judge found it and studied it
and objectively looked at it in every particular regard and found
otherwise. Nothing that we vote on today one way or the other is going
to take away their right in court.
But there is a right and a duty and a responsibility of the
Department of State and the Department of Justice to defend the
position of the United States. And we think that the position of the
United States is under article 14 of that particular treaty with Japan,
ratified in 1952 by an overwhelming vote that was entered into by
President Truman, ratified by a 66-10 bipartisan vote in the U.S.
Senate. If I raise my hand as a Senator, I hereby pledge to preserve,
protect, and defend. So it is not the side of the corporation or the
side of the veteran. It is the position under the Constitution. You
have to defend the laws of the land.
Certainly, I am not totally familiar with this particular issue,
certainly not as much so perhaps as the distinguished Senator from New
Hampshire. But there have been others who have studied it very
thoroughly.
I have a letter from a distinguished former Secretary of State. This
is in June. He writes to the House chairman of Foreign Relations, I
take it, at that particular time. I want to read from this letter from
George P. Shultz:
Dear Mr. Chairman: I am writing to you to express my deep
reservations about H.R. 1198, the Justice for the U.S.
Prisoners of War Act of 2001.
This was passed overwhelmingly, incidentally, in the House of
Representatives. We have too many pollsters in Government. My pollster,
my political consultant said: Why don't you keep your mouth shut. Let
Danny Inouye defend it and you don't have to say anything. And then in
the next election, you won't have to explain how the veterans now are
all against you.
Life is too short for that kind of nonsense. You have to take
positions here. Let me go ahead with Secretary Shultz's letter:
I express my opposition to the bill against the background
of tremendous sympathy for the problems of the United States'
citizens who have in one way or another been harmed, many
severely, in the course of war and its sometimes dehumanizing
impact.
But the bill in question would have the effect of voiding
the bargain we made and explicitly set out in the Treaty of
Peace between Japan, the United States, and forty-seven other
countries. President Truman with the advice and consent of
the Senate ratified the treaty and it became effective April
28, 1952.
The Treaty has served us well in providing the fundamental
underpinning for the peace and prosperity we have seen, for
the most part, in the Asia Pacific region over the past half-
century.
The Treaty addresses squarely the issue of compensation for
damages suffered at the hands of the Japanese. Article 14 in
the treaty sets out the terms of Japanese payment ``for the
damage and suffering caused by it during the war.'' The
agreement provides:
1. a grant of authority to Allied Powers to seize Japanese
property within their jurisdiction at the time of the
treaty's effective date;
[[Page S9228]]
2. an obligation of Japan to assist in the rebuilding of
territory occupied by Japanese forces during the war; and
3. waiver of all ``other claims of the Allied Powers and
their nationals arising out of any action taken by Japan and
its nationals of the war.''
Let me divert from the reading of this letter. One says ``to seize
the property.'' That was done. Japanese property was seized. You
constantly hear in the presentation that this is against private
corporations. The treaty was against private corporations and their
property and was distributed to the prisoners of war. It wasn't done
enough; you and I both agree on that in a flash. I sympathize with the
motivation of the distinguished Senator from New Hampshire, but we did
seize the property. And we did distribute it as reparations. That ended
all claims of all nationals.
The waiver of all other claims of the allied powers and their
nationals, that ended it. It didn't say whether 50 years from now we
can find some memo with respect to the Netherlands and whether or not
they had constitutional authority. There isn't any question that our
Secretary of State, John Foster Dulles, had authority. There isn't any
question that the President of the United States who signed the treaty,
the Congress itself, the U.S. Senate that ratified that treaty, had its
authority. This is by the board what was found 50 years later by the
Netherlands. Let's find out what was found by the United States of
America, its President and its Senate as constitutionally binding under
the treaty.
Let me go back to the letter from George P. Shultz:
The interests of Allied prisoners of war are addressed in
Article 16, which provides for transfer of Japanese assets in
neutral or even me jurisdictions to the International Red
Cross for distribution to former prisoners and their
families.
H.R. 1198 challenges these undertakings head on, as it
says, ``In any action in a Federal court . . . the court . .
. shall not construe section 14(b) of the Treaty of Peace
with Japan as constituting a waiver by the United States of
claims by nationals of the United States, including claims by
members of the United States armed forces, so as to preclude
the pending action.''
I read further:
I have read carefully an opinion of Judge Vaughn R. Walker
of the U.S. District Court in California rendered on July 21,
2000 . . .
I ask unanimous consent that the opinion be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
H.R. 1198--THE JUSTICE FOR U.S. PRISONERS OF WAR ACT OF 2001
In Re World War II Era Japanese Forced Labor, September 21, 2000,
Decision by Judge Vaughn R. Walker, U.S. District Court, N.D.
California
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA
Master File No MDL-1347.
In Re: World War II Era Japanese Forced Labor Litigation.
This Document Relates To:
Alfano v. Mitsubishi Corp, CD Cal No 00-3174
Corre v. Mitsui & Co., CD Cal No 00-999
Eneriz v. Mitsui & Co, CD Cal No 00-1455
Heimbuch, et al. v. Ishihara Sangyo Kaisha, Ltd, ND Cal No
99-0064
Hutchison v. Mitsubishi Materials Corp, CD Cal No 00-2796
King v. Nippon Steel Corp., ND Cal No 99-5042
Levenberg v. Nippon Sharyo, Ltd, ND Cal No 99-1554
Levenberg v. Nippon Sharyo, Ltd, ND Cal No 99-4737
Poole v. Nippon Steel Corp., CD Cal No 00-0189
Price v. Mitsubishi Corp., CD Cal No 00-5484
Solis v. Nippon Steel Corp., CD Cal No 00-0188
Titherington v. Japan Energy Corp., CD Cal No 00-4383
Wheeler v. Mitsui & Co., Ltd., CD Cal No 00-2057
On December 23, 1941, after mounting a brave resistance
against an overwhelming foe, the small American garrison on
Wake Island in the South Pacific surrendered to Imperial
Japanese forces. James King, a former United States Marine,
was among the troops and civilians taken prisoner by the
invaders. He was ultimately shipped to Kyushu, Japan, where
he spent the remainder of the war toiling by day as a slave
laborer in a steel factory and enduring maltreatment in a
prison camp by night. When captured, King was 20 years old, 5
feet 11 inches tall and weighed 167 pounds. At the conclusion
of the war, he weighed 98 pounds.
James King is one of the plaintiffs in these actions
against Japanese corporations for forced labor in World War
II; his experience, and the undisputed injustice he suffered,
are representative. King and the other plaintiffs seek
judicial redress for this injustice.
I
These actions are before the court for consolidated
pretrial proceedings pursuant to June 5, 2000, and June 15,
2000, orders of transfer by the Judicial Panel on
Multidistrict Litigation. On August 17, 2000, the court heard
oral argument on plaintiffs' motions for remand to state
court and defendants' motions to dismiss or for judgment on
the pleadings.
This order addresses, first, all pending motions for
remand. For the reasons stated below, the court concludes
that notwithstanding plaintiffs' attempts to plead only state
law claims, removal jurisdiction exists because these actions
raise substantial questions of federal law by implicating the
federal common law of foreign relations.
Second, the court addresses the preclusive effect of the
1951 Treaty of Peace with Japan on a subset of the actions
before the court, namely, those brought by plaintiffs who
were United States or allied soldiers in World War II
captured by Japanese forces and held as prisoners of war.
The court concludes that the 1951 treaty constitutes a
waiver of such claims.
This order does not address the pending motions to dismiss
in cases brought by plaintiffs who were not members of the
armed forces of the United States or its allies. Since these
plaintiffs are not citizens of countries that are signatories
of the 1951 treaty, their claims raise a host of issues not
presented by the Allied POW cases and, therefore, require
further consideration in further proceedings.
II
Defendants may remove to federal court ``any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction.'' 28 USC
Sec. 1441(a). ``The propriety of removal thus depends on
whether the case originally could have been filed in federal
court.'' Chicago v. International College of Surgeons, 522 US
156, 163 (1997).
Federal courts have original jurisdiction over cases
``arising under the Constitution, laws or treaties of the
United States.'' 28 USC Sec. 1331. For purposes of removal,
federal question jurisdiction exists ``only when a federal
question is presented on the face of the plaintiff's properly
complaint.'' Caterpillar Inc v. Williams, 482 US 386, 392
(1987). Since a defense is not part of a plaintiff's properly
pleaded statement of his claim, a case may not be removed to
federal court on the basis of a federal defense. Rivet v.
Regions Bank of La, 522 US 470, 475 (1998).
Defendants' assertion of the Treaty of Peace with Japan as
a defense to plaintiffs' state law causes of action does not,
therefore, confer federal jurisdiction. Recognizing this,
defendants rely on a line of cases committing to federal
common law questions implicating the foreign relations of the
United States.
In Banco Nacional de Cuba v. Sabbatino, 376 US 398, 425
(1964), a case in which federal jurisdiction was based on
diversity of citizenship, the Supreme Court held that
development and application of the act of state doctrine was
a matter of federal common law, notwithstanding the general
rule of Erie R Co v. Thompkins, 304 US 64, 78 (1938), that
federal courts apply state substantive law in diversity
cases. The court reasoned that because the doctrine concerned
matters of comity between nations, ``the problems involved
are uniquely federal in nature.'' Id at 424. Although the
applicable state law mirrored federal decisions, the Court
was ``constrained to make it clear that an issue [involving]
our relationships with other members of the international
community must be treated exclusively as an aspect of federal
law.'' Id at 425.
Under Banco Nacional, federal common law governs matters
concerning the foreign relations of the United States. See
Texas Indus, Inc v. Radcliffe Materials, Inc, 451 US 630,
641 (1981). ``In these instances, our federal system does not
permit the controversy to be resolved under state law, either
because the authority and duties of the United States as
sovereign are intimately involved or because the * * *
international nature of the controversy makes it
inappropriate for state law to control.'' Id.
If an examination of the complaint shows that the
plaintiff's claims necessarily require determinations that
will directly and significantly affect United States foreign
relations, a plaintiff's state law claims should be removed.
Republic of Phillipines v. Marcos, 806 F2d 344, 352 (2d Cir
1986). This doctrine has been extended to disputes between
private parties that implicate the ``vital economic and
sovereign interests'' of the nation where the parties'
dispute arose. Torres v. Southern Peru Copper Corp, 113 F3d
540, 543 n8 (5th Cir 1997).
The court concludes that the complaints in the instant
cases, on their face, implicate the federal common law of
foreign relations and, as such, give rise to federal
jurisdiction. Plaintiffs' claims arise out of world war and
are enmeshed with the momentous policy choices that arose in
the war's aftermath. The cases implicate the uniquely federal
interests of the United States to make peace and enter
treaties with foreign nations. As the United States has
argued as amicus curiae, these cases carry potential to
unsettle half a century of diplomacy.
After a thorough analysis, Judge Baird in the Central
District of California denied remand in one of the cases now
before the undersigned pursuant to the multidistrict
litigation transfer order. Poole v. Nippon Steel Corp, No.
00-0189 (CD Cal March 17, 2000). The court agrees with the
analysis and the conclusion in that case. (In another related
case in which remand was granted, Jeong v Onoda
[[Page S9229]]
Cement Co, Ltd, 2000 US Dist LEXIS 7985 (CD Cal May 18,
2000), the court did not consider the federal common law of
foreign relations as a basis for federal jurisdiction.) Judge
Baird held: ``[T]his case, on its face, presents substantial
issues of federal common law dealing with foreign policy and
relations. * * * As such, plaintiffs may not evade this
Court's jurisdiction by cloaking their complaints in terms of
state law.'' The motions for remand are DENIED.
III
In addressing the motions to dismiss, the court refers
again to a complaint that is representative of the actions by
United States and Allied POWs, King v. Nippon Steel Corp., No
99-5042.
As noted at the outset of this order, plaintiff King seeks
redress for wrongs inflicted by his captors half a century
ago. In count one of the complaint, he asserts a claim under
California Code of Civil Procedure Sec. 354.6, a new law that
permits an action by a ``prisoner-of-war of the Nazi regime,
its allies or sympathizers'' to ``recover compensation for
labor performed as a Second World War slave labor victim * *
* from any entity or successor in interest thereof, for whom
that labor was performed * * *.'' Cal Code Civ Pro
Sec. 354.6. Count two is an unjust enrichment claim in which
plaintiff seeks disgorgement and restitution of economic
benefits derived from his labor. In count three, plaintiff
seeks damages in tort for battery, intentional infliction of
emotional distress and unlawful imprisonment. Count four
alleges that defendant's failure to reveal its prior
exploitation of prisoner labor to present-day customers in
California and elsewhere constitutes an unfair business
practice under California Business and Professions Code
Sec. 17204.
Defendants move pursuant to Federal Rule of Civil Procedure
12(c) for a judgment on the pleadings, arguing: (1)
plaintiff's claims are barred by the Treaty of Peace with
Japan; (2) plaintiff's claims raise nonjusticiable political
questions; (3) the peace treaty, the War Claims Act of 1948
and the federal government's plenary authority over foreign
affairs combine to preempt plaintiff's claims and (4) because
the complaint alleges injuries caused by the Japanese
government, plaintiff's claims are barred by the act of state
doctrine and the Foreign Sovereign Immunities Act.
These arguments, and King's countervailing positions, arise
in all of the cases before the court brought on behalf of
Allied POWs against Japanese corporations. The court need not
address all of them. For the reasons stated below, the court
concludes that plaintiffs' claims are barred by the Treaty of
Peace with Japan.
A
A motion for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c) is the proper means to
challenge the sufficiency of the complaint after an answer
has been filed. Depending on the procedural posture of the
individual case, some defendants have filed motions pursuant
to FRCP 12(c) and others have filed motions to dismiss
pursuant to FRCP 12(b). The distinction in the present
context is not important. In the Ninth Circuit, the standard
by which the district court must determine Rule 12(c) motions
is the same as the standard for the more familiar motion to
dismiss under rule 12(b)(6): ``A district court will render a
judgment on the pleadings when the moving party clearly
establishes on the face of the pleadings [and by evidence of
which the court takes judicial notice] that no material issue
of fact remains to be resolved and that it is entitled to
judgment as a matter of law.'' Enron Oil Trading & Transp Co
v. Walbrook Ins Co, 132 F3d 526, 529 (9th Cir 1997)
(citations omitted).
B
The Treaty of Peace with Japan was signed at San Francisco
on September 8, 1951, by the representatives of the United
States and 47 other Allied powers and Japan. Treaty of Peace
with Japan, [1952] 3 UST 3169, TIAS No 2490 (1951). President
Truman, with the advice and consent of the Senate, ratified
the treaty and it became effective April 28, 1952. Id.
Article 14 provides the terms of Japanese payment ``for the
damage and suffering caused by it during the war.'' Id at Art
14(a). For present purposes, the salient features of the
agreement are: (1) a grant of authority of Allied powers to
seize Japanese property within their jurisdiction at the time
of the treaty's effective date; (2) an obligation of Japan to
assist in the rebuilding of territory occupied by Japanese
forces during the war and (3) waiver of all ``other claims of
the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the
prosecution of the * * *.'' Id at Art 14(a)-(b) (emphasis
added).
It is the waiver provision that defendants argue bars
plaintiffs' present claims. In its entirety, the provision
reads: ``(b) Except as otherwise provided in the present
Treaty, the Allied Powers waive all reparations claims of
the Allied Powers, other claims of the Allied Powers and
their nationals arising out of any actions taken by Japan
and its nationals in the course of the prosecution of the
war, and claims if the Allied Powers for direct military
costs of occupation.'' Id at Art 14(b).
On its face, the treaty waives ``all'' reparations and
``other claims'' of the ``nationals'' of Allied powers
``arising out of any actions taken by Japan and its nationals
during the course of the prosecution of the war.'' The
language of this waiver is strikingly broad, and contains no
conditional language or limitations, save for the opening
clause referring to the provisions of the treaty. The
interests of Allied prisoners of war are addressed in Article
16, which provides for transfer of Japanese assets in neutral
or enemy jurisdictions to the International Committee of the
Red Cross for distribution to former prisoners and their
families. Id at Art 16. The treaty specifically exempts from
reparations, furthermore, those Japanese assets resulting
from ``the resumption of trade and financial relations
subsequent to September 2, 1945.'' Id at Art
14(a)(2)(II)(iv).
To avoid the preclusive effect of the treaty, plaintiffs
advance an interpretation of Article 14(b) that is strained
and, ultimately, unconvincing. Although the argument has
several shades, it comes down to this: the signatories of the
treaty did not understand the Allied waiver to apply to
prisoner of war claims because the provision did not
expressly identify such claims, in contrast to the
corresponding Japanese waiver provision of Article 19.
Article 19(b) states that the Japanese waiver includes ``any
claims and debts arising in respect to Japanese prisoners of
war and civilian internees in the hands of the Allied Powers
* * * .''
That the treaty is more specific in Article 19 does not
change the plain meaning of the language of Article 14. If
the language of Article 14 were ambiguous, plaintiffs'
expressio unius argument would have more force. But
plaintiffs cannot identify any ambiguity in the language of
Article 14. to do so would be to inject hidden meaning into
straightforward text.
The treaty by its terms adopts a comprehensive and
exclusive settlement plan for war-related economic injuries
which, in its wholesale waiver of prospective claims, is not
unique. See, for example, Neri v. United States, 204 F2d 867
(2d Cir 1953) (claim barred by broad waiver provision in
Treaty of Peace with Italy). The waiver provision of Article
14(b) is plainly broad enough to encompass the plaintiffs'
claims in the present litigation.
C
The court does not find the treaty language ambiguous, and
therefore its analysis need go no further. Chan v. Korea
Airlines, 490 US 122, 134 (1989) (if text of treaty is clear,
courts ``have no power to insert an amendment.''). To the
extent that Articles 19(b) raises any uncertainty, however,
the court ``may look beyond the written words to the history
of the treaty, the negotiations, and the practical
construction adopted by the parties.'' Air France v. Saks,
470 US 392, 396 (1985). These authorities are voluminous and
therefore of doubtful utility due to the potential for
misleading selective citation. Counsel for both sides have
proved themselves skilled in scouring these documents for
support of their positions, and that both sides have
succeeded to a certain degree underscores the questionable
value of such resort to drafting history. Nevertheless,
the court has conducted its own review of the historical
materials, and concludes that they reinforce the
conclusion that the Treaty of Peace with Japan was
intended to bar claims such as those advanced by
plaintiffs in this litigation.
The official record of treaty negotiations establishes that
a fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the
possibility of future claims would be an unacceptable
impediment to a lasting peace:
``Reparation is usually the most controversial aspect of
peacemaking. The present peace is no exception.
``On the one hand, there are claims both vast and just.
Japan's aggression caused tremendous cost, losses and
suffering. * * *
``On the other hand, to meet these claims, there stands a
Japan presently reduced to four home islands which are unable
to produce the food its people need to live, or the raw
materials they need to work. * * *
``Under these circumstances, if the treaty validated, or
kept contingently alive, monetary reparations claims against
Japan, her ordinary commercial credit would vanish, the
incentive of her people would be destroyed and they would
sink into a misery of body and spirit that would make them
easy prey to exploitation. * * *
``There would be bitter competition [among the Allies] for
the largest possible percentage of an illusory pot of gold.''
See US Dept of State, Record of Proceedings of the Conference
for the Conclusion and Signature of the Treaty of Peace with
Japan 82-83 (1951) (Def Req for Judicial Notice, Exh I).
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of the
Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished
nation and with a view to reparations payments. See SCAP,
Reparations: Development of Policy and Directives (1947). It
soon became clear that Japan's financial condition would
render any aggressive reparations plan an exercise in
futility. Meanwhile, the importance of a stable, democratic
Japan as a bulwark to communism in the region increased.
[[Page S9230]]
At the end of 1948, MacArthur expressed the view that ``[t]he
use of reparations as a weapon to retard the reconstruction
of a viable economy in Japan should be combated with all
possible means'' and ``recommended that the reparations issue
be settled finally and without delay.'' Memorandum from
General Headquarters of SCAP to Department of the Army (Dec.
14, 1948) at para. 8 (Def Req for Judicial Notice, Exh E).
That this policy was embodied in the treaty is clear not
only from the negotiations history but also from the Senate
Foreign Relations Committee report recommending approval of
the treaty by the Senate. The committee noted, for
example: ``Obviously insistence upon the payment of
reparations in any proportion commensurate with the claims
of the injured countries and their nationals would wreck
Japan's economy, dissipate any credit that it may possess
at present, destroy the initiative of its people, and
create misery and chaos in which the seeds of discontent
and communism would flourish. In short, [it] would be
contrary to the basic purposes and policy of * * * the
United States * * *.''
Japanese Peace Treaty and Other Treaties Relating to
Security in the Pacific, S Rep No 82-2, 82d Cong, 2d Sess 12
(1952) (Def Req for Judicial Notice, Exh F). The committee
recognized that the treaty provisions ``do not give a direct
right of return to individual claimants except in the case of
those having property in Japan,'' id at 13, and endorsed the
position of the State Department that ``United States
nationals, whose claims are not covered by the treaty
provisions * * * must look for relief to the Congress of the
United States,'' id at 14.
Indeed, the treaty went into effect against the backdrop of
congressional response to the need for compensation for
former prisoners of war, in which many, if not all, of the
plaintiffs in the present cases participated. See War Claims
Act of 1948, 50 USC Sec. Sec. 2001-2017p (establishing War
Claims Commission and assigning top priority to claims of
former prisoners of war).
Were the text of the treaty to leave any doubt that it
waived claims such as those advanced by plaintiffs in these
cases, the history of the Allied experience in post-war
Japan, the drafting history of the treaty and the
ratification debate would resolve it in favor of a finding of
waiver.
D
As one might expect, considering the acknowledged
inadequacy of compensation for victims of the Japanese regime
provided under the treaty, the issue of additional
reparations has arisen repeatedly since the adoption of that
agreement some 50 years ago. This is all the more
understandable in light of the vigor with which the Japanese
economy has rebounded from the abyss.
The court finds it significant, as further support for the
conclusion that the treaty bars plaintiffs' claims, that the
United States, through State Department officials, has stood
firmly by the principle of finality embodied in the treaty.
This position was expressed in recent congressional testimony
by Ronald J. Bettauer, deputy legal advisor, as follows:
``The 1951 Treaty of Peace with Japan settles all war-related
claims of the U.S. and its nationals, and precludes the
possibility of taking legal action in United States domestic
courts to obtain additional compensation for war victims from
Japan or its nationals--including Japanese commercial
enterprises.''
POW Survivors of the Bataan Death March, Hearing before the
Senate Committee on the Judiciary (June 28, 2000) (statement
of Ronald J Bettauer, United States Department of State) (Def
Req for Judicial Notice, Exh P).
In another recent example, in response to a letter from
Senator Orrin Hatch expressing ``disappointment'' with the
``fifty-five year old injustice imposed on our military
forces held as prisoners of war in Japan'' and urging the
Secretary of State to take action, a State Department
representative wrote: ``The Treaty of Peace with Japan has,
over the past five decades, served to sustain U.S.
security interests in Asia and to support peace and
stability in the region. We strongly believe that the U.S.
must honor its international agreements, including the
[treaty]. There is, in our view, no justification for the
U.S. to attempt to reopen the question of international
commitments and obligations under the 1951 Treaty in order
now to seek a more favorable settlement of the issue of
Japanese compensation.
``This explanation obviously offers no consolation to the
victims of Japanese wartime aggression. Regrettably, however,
it was impossible when the Treaty was negotiated--and it
remains impossible today, 50 years later--to compensate fully
for the suffering visited upon the victims of the war * *
*.'' Letter of Jan 18, 2000, from US Dept of State to The Hon
Orrin Hatch at 2.
The conclusion that the 1951 treaty constitutes a waiver of
the instant claims, as stated above and argued in the brief
of the United States as amicus curiae in this case, carries
significant weight. See Kolovrat v. Oregon, 366 US 187, 194
(1961) (``While courts interpret treaties for themselves, the
meaning given them by the departments of government
particularly charged with their negotiation and enforcement
is given great weight.''); Sullivan v. Kidd, 254 US 425, 442
(1921) (``[T]he construction placed upon the treaty before us
and consistently adhered to by the Executive Department of
the Government, charged with the supervision of our foreign
relations, should be given much weight.''). The government's
position also comports entirely with the court's own analysis
of the treaty and its history.
Plaintiffs raise several additional arguments that bear
only brief mention. First is the characterization of these
claims as not arising out of the ``prosecution of the war,''
as that phrase is used in the treaty. Plaintiffs attempt to
cast their claims as involving controversies between private
parties.
It is particularly far-fetched to attempt to distinguish
between the conduct of Imperial Japan during the Second World
War and the major industry that was the engine of its war
machine. The lack of any sustainable distinction is apparent
from the complaints in these cases. For example, the King
complaint alleges that a class of war prisoners were forced
to work ``in support of the Japanese war effort,'' Compl
para. 56, and pursuant to a directive from the Japanese
government that the ``labor and technical skill' '' of
prisoners of war ``be fully utilized for the replenishment of
production, and contribution rendered toward the prosecution
of the Greater East Asiatic War,' '' id at para. 30.
Furthermore, the complaint asserts that plaintiff worked in a
factory ``where motor armatures were manufactured for the war
effort.'' Id at para. 35. These allegations quite clearly
bring this action within the scope of the treaty's waiver of
all claims ``arising out of any actions taken by Japan and
its nationals in the course of the prosecution of the war.''
Treaty at Art 14(b).
Plaintiffs also argue that waiver of plaintiffs' claims
renders the treaty unconstitutional and invalid under
international law. This position is contrary to the well-
settled principle that the government may lawfully exercise
its ``sovereign authority to settle the claims of its
nationals against foreign countries.'' Dames & Moore v.
Regan, 453 US 654, 679-80 (1981); See also Neri, 204 F2d
at 868-69 (enforcing treaty waiver of reparations claims).
Finally, plaintiffs assert that subsequent settlements
between Japan and other treaty signatories on more favorable
terms than those set forth in the treaty should ``revive''
plaintiff's claims under Article 26, which provides in
relevant part: ``Should Japan make a * * * war claims
settlement with any State granting that State greater
advantages than those provided by the present Treaty, those
same advantages shall be extended to the parties to the
present Treaty.'' Treaty at Art 26. Without deciding whether
the evidence plaintiff cities of other agreements implicates
Article 26, the court finds that that provision confers
rights only upon the ``parties to the present treaty,'' i.e.,
the government signatories. The question of enforcing Article
26 is thus for the United States, not the plaintiffs, to
decide.
IV
The Treaty of Peace with Japan, insofar as it barred future
claims such as those asserted by plaintiffs in these actions,
exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And while
full compensation for plaintiffs' hardships, in the purely
economic sense, has been denied these former prisoners
countless other survivors of the war, the immeasurable bounty
of life for themselves and their posterity in a free society
and in a more peaceful world services the debt.
The motions to dismiss and/or for judgment on the pleadings
are GRANTED. The clerk shall enter judgment in favor of
defendants in the above-captioned cases.
IT IS SO ORDERED.
Vaughn R. Walker,
United States District Judge.
Mr. HOLLINGS. Quoting, again, from the letter:
I have read carefully an opinion of Judge Vaughn R. Walker
of the U.S. District Court in California rendered on
September 21, 2000, dealing with claims, many of a heart-
rending nature. His reasoning and his citations are incisive
and persuasive to me. He writes, ``The cases implicate the
uniquely federal interests of the United States to make peace
and enter treaties with foreign nations. As the United States
has argued as amicus curiae, there cases carry potential to
unsettle half a century of diplomacy.'' Just as Judge Walker
ruled against claims not compatible with the Treaty, I urge
that Congress should take no action that would, in effect,
abrogate the Treaty.
The chief negotiator of the Treaty on behalf of President
Truman was the clear-eyed and tough-minded John Foster
Dulles, who later became Secretary of State for President
Eisenhower. He and other giants from the post World War II
period saw the folly of what happened after World War I, when
a vindictive peace treaty, that called upon the defeated
states to pay huge reparations, helped lead to World War II.
They chose otherwise: to do everything possible to cause
Germany and Japan to become democratic partners and, as the
Cold War with the Soviet Union emerged, allies in that
struggle.
As Judge Walker notes in his opinion, ``the importance of a
stable, democratic Japan as a bulwark to communism in the
region increased.'' He says, ``that this policy was embodied
in the Treaty is clear not only from the negotiations
history, but also from the Senate Foreign Relations Committee
report recommending approval of the Treaty by the Senate . .
. and history has vindicated the wisdom of that bargain.''
This is George P. Shultz, and I quote further:
[[Page S9231]]
I served during World War II as a Marine in the Pacific. I
took part in combat operations. I had friends--friends close
to me--friendships derived from the closeness that comes from
taking part in combat together, killed practically beside me.
I do not exaggerate at all in saying that the people who
suffered the most are the ones who did not make it at all. I
have always supported the best of treatment for our veterans,
especially those who were involved in combat. If they are not
being adequately taken care of, we should always be ready to
do more.
If you have fought in combat, you know the horrors of war
and the destructive impact it can have on decent people. You
also know how fragile your own life is. I recall being the
senior Marine on a ship full of Marines on our way back from
the Pacific Theater after 3 years overseas. We all knew that
we would reassemble into assorted forces for the invasion of
the Japanese home islands. As Marines, we knew all about the
bloody invasion of Tarawa, the Palaus, Okinawa, Iwo Jima, and
many other Islands. So we knew what the invasion of the
Japanese home islands would be like.
Not long after we left port, an atomic bomb was dropped on
Japan. None of us knew what that was, but we sensed it must
be important since the event was newsworthy enough to get to
our ships at sea. Then we heard of a second one. Before our
ship reached the States, the war was over.
I have visited Japan a number of times and I have been
exposed to Hiroshima and Nagasaki. Civilians there were
caught up in the war. I am sympathetic toward them. I have
heard a lot of criticism of President Truman for dropping
those bombs, but everyone on that ship was convinced that
President Truman saved our lives. Yes, war is terrible, but
the treaty brought it to an end.
I can divert and express those same sentiments. I didn't get back
until November. He is talking about August when those bombs were
dropped in 1945. But there is no question that President Truman was the
hero for dropping those bombs. But under the International Criminal
Court, somebody could try to file a claim 50 years later that he was a
war criminal. A kind of thinking that is going on today is that this is
politically correct. I will resume reading the letter from George P.
Shultz:
The Bill would fundamentally abrogate a central provision
of a 50 year old treaty, reversing a longstanding foreign
policy stance. The Treaty signed in San Francisco nearly 50
years ago and involving 49 nations could unravel. A dangerous
legal precedent would be set.
Once again, I would say to you, where we have veterans,
especially veterans of combat who are not being adequately
supported, we must step up to their problems without
hesitation. But let us not unravel confidence in the
commitment of the United States to a Treaty properly
negotiated and solemnly ratified with the advice and consent
of the United States Senate.
I submit this letter to you and other members of the House
of Representatives with my deep respect for the wisdom of the
congressional process, and for the vision embodied in the
past World War II policies that have served our country and
the world so well.
Sincerely yours,
George P. Shultz.
The PRESIDING OFFICER. The time of the Senator has expired. The time
between now and 3:15 was to have been equally divided between the
Senator from South Carolina and the Senator from New Hampshire.
Mr. HOLLINGS. Let me ask--my distinguished colleague from New
Hampshire, I am sure, will say a word to extend the time. My
understanding in the agreement was that it was 3:15.
I just say that the distinguished Senator's amendment is clear. It
says, look, Mr. Secretary of State, Mr. Attorney General of the Justice
Department, you shall not defend the U.S. position. Now, come on. If
there is a dispute--and there obviously is--with the Senator's
amendment with respect to the right of these veterans, then let it be
determined with a comprehensive review, with all the documents and
everything else in a court of law. This doesn't prevent the veterans
from moving forward, but it certainly prevents the United States of
America, through its Department of Justice and Department of State,
from defending the position of the United States under this particular
treaty.
The distinguished Senator from New Hampshire could well say, wait a
minute, here is this information that has come to light 50 years later.
Whether that has an effect or not is to be determined. No rights have
been taken away from my veteran friend here who might stand at my side
and say, Hollings, I want you to bring the case. Nothing prevents the
case from being brought. But this amendment says no one defends this
particular treaty. The Senate, which ratified the treaty, doesn't want
to take the position that its ratification cannot even be commented on
by this particular amendment because all funds are removed, no motion
can be made, no defense can be made. On that basis alone, I will
support the Senator from Hawaii in his opposition and commend him again
for his courage, and I commend my friend from New Hampshire for raising
this particular question because it is a serious one, but it ought to
be discussed in a court of law and both sides heard fully, without
saying one particular side can't be defended at all.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, I wish to respond briefly
to a couple of the points my colleague from South Carolina made. The
argument that our former POWs have already been compensated under the
War Claims Act and 1951 peace treaty is ridiculous, to be candid about
it. POWs who were enslaved by private Japanese corporations received
next to nothing in compensation. Many POWs received nothing--nothing,
zippo.
A Federal judge who dismissed many of the lawsuits wrote in his
opinion--listen to this:
The immeasurable bounty of life for themselves and their
posterity in a free society services the debt.
That is what he said. If that is not a ridiculous statement, even if
it did come from a judge, I have never heard one. Here it is again:
The immeasurable bounty of life for themselves [POWs] and
their posterity in a free society services the debt.
It is true under the War Claims Act POWs could receive minimal
compensation--a dollar a day--for their claims against the acts of
powers. They could not be compensated for claims against private
corporations and nationals who were not agents.
I want to make it clear to my colleagues that a treaty that is signed
between the United States and another government that says that a U.S.
citizen cannot sue another U.S. citizen--excuse me, another citizen in
a foreign country without due process--it is wrong. You can't do that.
You cannot deny due process. John Foster Dulles realized it when they
wrote the side agreement and they wrote this memorandum of
understanding and then buried it. They classified it. Senator Inouye
and others have pointed out what article 14(b) says. I read it, and I
agree. If article 14(b) is read alone without knowing any other
background, then one could make the case these folks should not have
that opportunity to proceed.
This is right out of the memorandum of understanding, and this was
partially written by Dulles himself:
Following the conversation of September 3, 1951, between
the Secretary of the Dutch Foreign Ministry . . . Dutch
Ambassador, and others, we emphasize that the purpose of this
statement was not to obligate the Japanese actually to pay
out any money to the claimants. He realized fully this was an
unlikely possibility. He emphasized, however, the statement
he had made to the Secretary the day before that the Dutch
Government was faced with a difficult legal problem; namely,
without a proper interpretation agreed to by the Japanese, it
would appear the Dutch Government was, by the act of signing
the Japanese peace treaty, giving up without due process
rights held by Dutch subjects.
That is the same issue with the United States, and Dulles realized
it. You cannot sign a treaty that says we have no due process against
another citizen in another country. You simply cannot do it.
Talk about sticking to the Constitution and defending the
Constitution. That is exactly what I am doing, and that is exactly what
John Foster Dulles and others were doing because they realized article
14(b) was wrong. Then in an effort to cover it all up to satisfy the
Dutch, he buried it. He classified it and kept it classified for 50
years to keep these people from having the right to go to court. That
is what he did. That is what the U.S. Government did. That is wrong,
and we need to correct it. We can correct it right here today.
We cannot say we are not defending the Constitution. We are not only
defending the Constitution, we are defending the rights of individuals
who live under this Constitution to have due process. That is what we
are doing, and that is what this debate is about.
[[Page S9232]]
I yield the floor, Mr. President.
Mrs. FEINSTEIN. Mr. President, I rise to express my opposition to the
Smith Amendment to the Commerce-Justice-State Authorization.
I do not do so because I think that the lawsuits filed against the
Japanese corporations by the former Prisoners of War who were used as
slave labor during World War II should not go forward--just the
opposite--but because I believe that this Amendment takes the wrong
approach to this issue.
I strongly support the right of the POWs to file lawsuits against the
Japanese corporations. The POWs and veterans are only seeking justice
from the private companies that enslaved them, and these claims should
be allowed to move forward.
In fact, Senator Hatch and I introduced legislation earlier this
year, S. 1272, the POW Assistance Act of 2001, precisely because I
believe that it is important for those POWs who were used as slave
labor during World War II to have their day in court, and an
opportunity to press their claims for remuneration and compensation.
There are serious questions about whether the 1951 Treaty between
Japan and the United States has settled these claims, and these
questions should be dealt with seriously. But as these lawsuits go
forward, I do not think that it is right and proper to enjoin the
Department of State and the Department of Justice from offering the
court their opinion on the meaning and interpretation of the 1951
Treaty. That opinion--which may ultimately be determined to be
incorrect--is a perfectly legitimate part of the proceedings.
I strongly support the right of the POWs to seek justice. This is a
matter that belongs before the courts. But I do not think that the
Smith Amendment is the right way to go, and I urge my colleague to
oppose its passage.
Mr. NELSON of Florida. Mr. President, I want to express my support
for amendment No. 1538 of Senators Smith and Harkin regarding American
POWs held in Japan. I do so with much respect for those who have served
and suffered horrible treatment as a result of their service. I was
traveling with President Bush in Florida when the vote occurred, but
had I been present, I would have voted ``nay'' to the motion to table
the amendment.
We do have an international treaty with Japan to which we are bound.
But, this amendment is not about what the Treaty signed 50 years ago
does or does not allow. It is about due process to those Americans who
suffered a grievous wrong. The point is that these brave Americans be
allowed their day in court to have their case heard. Actions by the
Departments of Justice and State to block such actions deprive them of
fairness and due process. Congress should not be a party to such
deprivations.
I support the Smith-Harkin amendment and wish to be on record as
opposed to the motion to table it.
Mr. BYRD. Mr. President, during World War II, 36,000 Americans were
captured and held prisoner by Japan. The story of the often horrific
treatment of these prisoners is punctuated by episodes such as the
Bataan Death March, where ten Americans lost their lives for every mile
of the gruesome journey, and by the pictures of the emaciated soldiers
who spent years in confinement on starvation rations. I cannot think of
any way in which we, as a nation, could begin to repay the men who
suffered through such abhorrent treatment.
The amendment before us today, offered by Senator Smith and Senator
Harkin, however, puts in jeopardy constitutional principles that each
member of the Armed Forces, and each member of this body, swore to
uphold. The amendment would prevent the Department of State and the
Department of Justice from defending the U.S. Government in court
against lawsuits that challenge whether provisions in the Treaty of San
Francisco will continue to be in force as the law of the land.
The treaty, which brought peace between Japan, the United States, and
our Allies in World War II, explicitly settled all wartime reparations
claims that might arise against Japan. The text of the peace treaty is
very clear in this regard. Because, under Article VI of the
Constitution, a ratified treaty is the supreme law of the land, it is
equally clear that this treaty prohibits the Government of the United
States, or its people, from seeking further reparations from the
Government of Japan, or its people. This is the position that the
Department of State and the Department of Justice have maintained since
ratification of the treaty in 1952.
The amendment before us would prohibit those departments from arguing
in court against lawsuits that violate the peace treaty. It would
prevent the U.S. Government from upholding a supreme law of our land.
It would prohibit our government from acting in a responsible manner in
support of our international obligations. It would stop the executive
branch from taking action on this issue, which affects our foreign
policy. I cannot support an amendment that challenges so many of our
basic constitutional principles on the importance of treaties and the
conduct of foreign policy.
This is not to say that our veterans who were held prisoner by Japan
must be denied compensation or restitution for the inhumane treatment
they suffered. Those veterans were eligible for compensation
distributed by the U.S. Government under the War Claims Act of 1948.
The proponents of the amendment before us may believe that compensation
was not sufficient, which may be true. There are other ways to
compensate our veterans that do not tread upon constitutional
principles. One proposal is in the Fiscal Year 2002 Defense
Authorization bill, as reported by the Armed Services Committee last
Friday.
The bill authorizes the Department of Veterans Affairs to pay $20,000
to former prisoners, or their surviving spouses, who were forced to
perform slave labor while held by Japan. Such a proposal would allow
those veterans to receive the compensation they seek, without
challenging the legal status of a ratified treaty. There may be other
proposals to compensate the veterans in question as well.
We must also consider how other countries would react to an action by
Congress that would question our Nation's adherence to a 50-year-old
treaty with one of our closest allies. Already this year, the United
States has shown an alarming tendency toward unilateralism in regard to
a number of international agreements: the Kyoto Protocol, the Anti-
Ballistic Missile Treaty, the International Criminal Court, the
Biological Weapons Convention, and the U.N. convention on small arms. A
move to reverse a major provision of such a longstanding peace treaty
would be an disconcerting confirmation, and escalation, of this trend.
This is a particularly inopportune time to raise further questions
about our Nation's ability to cooperate with other countries.
I urge my colleagues not to view the vote on the Smith-Harkin
amendment as an up-or-down vote on our veterans. There are serious
constitutional and foreign policy issues at stake, and other means to
compensate these veterans have not yet been exhausted. We should take a
closer look at alternative means of compensation, and reject this
attempt to tie the hands of our government in discharging its
constitutional duty to defend a ratified treaty.
The PRESIDING OFFICER (Mr. Wyden). The Senator from Hawaii.
Mr. INOUYE. Mr. President, I ask unanimous consent that the Senator
from Nebraska be given 10 extra minutes to present his statement.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Nebraska.
Mr. HAGEL. Mr. President, I thank my friend, the distinguished senior
Senator from Hawaii, who is, as we have heard today, one of the most
distinguished veterans of World War II, as is his colleague, the
distinguished Senator from South Carolina.
I am a bit of an interloper on this issue, except to say my father
spent 3 years in the South Pacific during World War II in the Army Air
Corps. So I know some of what my distinguished colleagues are talking.
I am most appreciative of the efforts and the motives of the
distinguished Senator from New Hampshire, Mr. Smith. I know of his
father's great sacrifice during World War II, meaning the sacrifice
Senator Smith's family made to this country. I do not tread upon this
subject lightly.
I rise to oppose this amendment. The Senator from South Carolina and
the Senator from Hawaii have made very significant, substantive points
as to
[[Page S9233]]
why it is the wrong course of action, in the opinion of some, including
this Senator from Nebraska.
I will say first, there is surely no way a grateful nation can ever
adequately compensate or express our feelings to those brave men and
women who gave so much to this country, who were the subjects of the
slave labor camps, the forced marches, the unspeakable brutality,
except this: We should put some of this in some perspective. What,
indeed, was it that these brave men and women fought and endured for?
It was freedom. It was the liberty for a nation, an individual, to have
the kind of life and dignity for which America has stood for over 200
years. That is what it was about.
How do we compensate, how do we adequately thank these men and women?
We cannot, of course, but we should remember this: What they fought
for, what they endured, can be, in fact, recognized by knowing and
understanding that the greatest legacy any of us can leave in life is a
family, the world better than we found it, and accomplishing something
much greater than our own self-interests. That is the most important
dynamic for me as I have listened to this debate and as I have read the
reasons and listened to the reasons that Senator Smith has put forward
to essentially change our treaty obligations.
Make no mistake. This is a very significant step that this body, this
Congress, this Nation will take if, in fact, we vote for this
amendment. Great nations honor their treaty commitments. Treaty
commitments are important, and we can debate the specifics of sections
and paragraphs of law and treaties, and as has been articulated rather
directly and plainly this afternoon, there are various interpretations
of that. But we should make it very clear that this great Nation will,
in fact, live up to its commitments of our treaties, a commitment that
we made 50 years ago when that treaty was signed in San Francisco,
which was, as expressed here, commemorated last weekend. It is a 50-
year treaty.
Was it awkward? Was it done not exactly the right way? Were parts of
that treaty misclassified? Why did we classify some of it in the way we
did? I suppose we could take days, weeks, and months debating that, but
that is part of a smaller issue. The bigger issue really, in fact, is:
Are we, in fact, going to unilaterally reinterpret the commitment we
gave to 48 other nations that signed this treaty 50 years ago? That is
really the issue.
American prisoners of war forced into slave labor by Japan during
World War II suffered unspeakable brutality, and their treatment by
Japanese overseers violated every standard of human decency. Their
sacrifice and heroism now forms one of the most distinguished chapters
in American history.
While we must not forget these Americans who suffered so greatly, we
also must not forget our country's historic and principled decision in
the aftermath of this terrible conflict. Our peace treaty with Japan
was not punitive. Although the United States had defeated a brutal
enemy, we chose not to claim the spoils of war. Instead, the peace
treaty with Japan reflected the great humanity, vision, spirit and
generosity of the American people. Referred to at the time as a ``Peace
of Reconciliation,'' it looked forward to Japan's economic recovery and
not backward to its defeat. Most important, it reflected the new
stirrings of a great and magnanimous superpower.
In 1945, most Americans felt the terms of surrender with Japan were
too lenient. By 1951, most Americans began to see Japan in a very
different light--as a potential friend and ally in East Asia, not as an
implacable foe. When John Foster Dulles negotiated our generous peace
with Japan, waiving all reparation claims, the American public
supported the treaty, and the Senate ratified it with a lopsided
majority, 66-10, on March 20, 1952. The United States has stood behind
this decision for 50 years. Last Saturday, on September 8, Secretary of
State Powell and Japanese Foreign Minister Tanaka commemorated the 50th
anniversary of the Treaty of San Francisco at San Francisco's War
Memorial Opera House, and formally renewed the strategic partnership
between the United States and Japan. This relationship stands as one of
this country's most important--a tie of friendship and common interest
that will grow stronger and become increasingly important to our
strategic interest in East Asia and the world in the coming decades.
Senate amendment No. 1157, which has been offered today, would
prevent the State and Justice Departments from stating our San
Francisco Treaty obligations in court. This action is not
insignificant. It would hamper the President's ability to conduct
United States foreign policy, and it would violate the spirit, and
likely the letter, of one of the most significant treaties of the 20th
century. This would set a dangerous precedent. While many of my
distinguished colleagues may no longer agree with the decision made by
the United States in 1951, it still stands as a treaty obligation and
the official United States position in U.S. court cases. We are a
nation that upholds the rule of law and honors its treaty commitments.
How then should we honor and fairly compensate the Americans who
suffered grievously as slave or forced labor in World War II without
violating our long-held treaty obligation with Japan? Two of our World
War II allies, Canada and the United Kingdom, recently provided
compensation to their prisoners of war--recognizing that Japan has no
obligation to do so under the Treaty of San Francisco. This is a model
that we might consider using for the surviving American prisoners of
war who suffered as Japanese slaves or forced laborers, without
undermining our treaty obligations. Under the War Claims Act of 1948,
and its 1952 amendment, the United States Government took all
responsibility for compensating World War II prisoners of war. Our
prisoners of war received some compensation in the decade following
World War II. Senators Bingaman and Hatch introduced legislation, S.
1302, early last month to provide $20,000 to each veteran or civilian
internee, or their surviving spouses.
The last Congress, the 106th Congress, enacted Senate Concurrent
Resolution 158 calling on the Secretary of State to facilitate
discussions between American prisoners of war forced into slave labor
during World War II and the Japanese companies that benefitted from
their enslavement. The issue of forced and slave labor has been raised
with the Japanese government at a variety of levels by our State
Department. The recent decision by Germany to compensate slave and
forced laborers during World War II may provide a model on this issue.
Japan and the United States commemorated the 50th anniversary of the
Treaty of San Francisco over the weekend. The treaty underpins and
supports the United States security structure in East Asia, and forms
the basis of our friendship with Japan. Treaty commitments and
symbolism are important. We should not risk our reputation as a
reliable treaty partner by unilaterally reinterpreting an important
provision of this treaty that has stood for 50 years. Great nations are
consistent. We should act appropriately.
I will oppose this amendment.
Once again, I ask my colleagues to pay careful attention to this
amendment, and in the next couple of hours, if you are not aware of
what this amendment does, please make yourself aware of it because if
we vote for this amendment, it will be about much bigger things than
the specific point of this amendment. I do not believe that is in the
best interests of our country, the best interests of the world, and,
quite honestly, the best interests of the very families and the
legacies these brave men and women will leave behind and what they
endured for us.
I ask my colleagues to oppose this amendment as we vote this
afternoon and once again recognize the Senator from New Hampshire for
his motives, for his intent, but in this Senator's opinion it is the
wrong approach to accomplish something that is important.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. I believe there is no further statement to be made with
respect to the Smith amendment and that now the unanimous consent
agreement takes place whereby the distinguished Senator from North
Dakota will ask to set the Smith amendment aside, to be brought up at 5
p.m. with the time equally divided between 5 p.m. and 5:30 p.m., and
the vote to
[[Page S9234]]
occur at 5:30 p.m. Until then, the agreement is the Senator from North
Dakota will be recognized for him to offer an amendment.
The PRESIDING OFFICER. The Senator from North Dakota.
Amendment No. 1542
Mr. DORGAN. Mr. President, thank you and I thank the Senator from
South Carolina.
I actually have two amendments. I will talk about the first, offer
the amendment following my discussion of it, and then ask that it be
set aside by consent and offer the second amendment.
I will take a moment to begin discussing the first amendment. The
first amendment is an amendment to increase the amount of resources we
are putting in this appropriations bill to deal with trade compliance
and trade enforcement. The area of international trade is a very
important area, and we are losing a lot of ground despite what one
hears from some in Washington, DC.
I will put up a chart which shows the trade deficits we now have.
This chart shows the ballooning trade deficits year after year after
year. These are the merchandise trade deficits. They have risen from
$132 billion a year in 1993 to over $450 billion a year in 2000, and
will likely to go even higher in the year 2001.
Our trade deficits are out of control. They are growing larger and
larger and larger. Now this trade deficit comes from the following
sources: In the year 2000, we had an $81 billion trade deficit with
Japan; an $84 billion trade deficit with China; a $56 billion trade
deficit with the European Union; a $50 billion trade deficit with
Canada; and a $24 billion trade deficit with Mexico. Many of our
trading partners, as we all know, have a very poor record of complying
with trade agreements.
This red book, which my colleague from South Carolina frequently
holds up in debate, is a book called ``Foreign Trade Barriers.'' It is
a rather thick book that describes all of the trade barriers American
producers and workers confront when trying to send American products
abroad.
Let us talk for a moment about China, Japan, Canada, and Mexico. Do
you know that the number of people at the Department of Commerce who
are monitoring our trade with China has declined from 10 to 7 people
between 1994 and the year 2000? We used to have 10 people monitoring
our trade with China; last year we had only 7.
What do we have with China? An $84 billion trade deficit. In 1992,
China agreed to eliminate import licenses. Shortly after that agreement
was signed, Beijing announced a new series of import registration
requirements that covered many of the same products. They have reneged
on commitments to make public the rules and regulations affecting
foreign trade and investment. But that is just an example of how we
negotiate agreements. We just negotiated a new bilateral agreement with
China. Nobody seems to ever care whether the other country complies
with its half of the bargain.
With respect to China, we used to have 10 people monitoring trade
with China. Now we have seven, at a time when our trade deficit with
China is $84 billion.
How about Japan? With Japan, we have an $81 billion trade deficit. In
1992, we had 17 people monitoring trade with Japan with respect to
trade enforcement. In 2000, it was seven. So we went from 17 people
down to 7 people monitoring trade agreements with Japan. Is that moving
in the right direction, with a country that has an $81 billion trade
surplus with us or we a deficit with them? I do not think so.
With respect to Canada and Mexico, the number of trade monitors has
gone from 33 to 13 people. Our ballooning deficit with both Canada and
Mexico continues to increase. We used to have 33 people monitoring
trade compliance and trade enforcement with Mexico and Canada. Last
year, we had only 13.
The Senator from South Carolina has brought a bill that moves in the
right direction. It is the right step. It increases these areas. I
propose to further increase them to the point where we have a more
robust ability to enforce and monitor these trade agreements. My
amendment proposes to add $10 million for these activities. This is
less than the $30 million that the Senate Budget Resolution called for,
but it's a step in the right direction. I will state where I want to
get the money, but first let me continue on this trade issue and why it
is important.
I spoke last week about international trade and why I get so upset
about it from time to time. I mentioned in the area of trade, we have
problems with China, Japan, Korea, Europe, Mexico, Canada. I mentioned
we have nearly 570,000 motor vehicles coming into this country from
Korea every year. Do you know how many vehicles we send to Korea? A
little more than seventeen hundred. Think of that.
Today in Canada, they are loading molasses with Brazilian sugar. It
is called stuffed molasses. Do you know what it is? It is a scheme. It
is a fraud in international trade. Stuffed molasses is a way to
artificially take Brazilian sugar and move it from Canada into this
country in contravention of our trade agreement. Does anybody care much
about it? No, not much.
China, I could go forever on China. Japan, the same thing. I could
talk forever about the trade impediments and the barriers to try to get
American products into those countries or to stop unfairly subsidized
products from those countries coming into our country.
I come from a State where we produce wonderful potatoes up in the Red
River Valley. We produce a lot of potatoes. Some are turned into potato
flakes which are used in fast food. Try to send potato flakes to South
Korea. Do you know what happens when you try to send potato flakes to
Korea? They impose a 300-percent tariff on potato flakes. Outrageous.
And we have a huge deficit with Korea.
How about with Mexico? We have a very large deficit with Mexico.
Incidentally, before NAFTA we had a tiny surplus, and then we passed a
trade agreement and turned it into a huge deficit. We try to send high
fructose corn syrup to Mexico, and they put the equivalent of a 33- to
a 73-percent tariff on it.
The fact is, this country does not stand up for its economic
interests. Too many people in this country do not seem to care. This
burgeoning trade deficit will make a difference. It will be repaid
someday in some way by a lower standard of living in this country. We
ought to get it under control now. We ought to do it by insisting on
other countries owning up to the trade agreements they have reached
with us and by insisting in this country that our own trade negotiators
begin to negotiate trade agreements they do not lose in the first week
of the discussion.
What am I proposing? I am proposing that we reverse the trend we have
regarding a reduction in the number of people enforcing our trade
agreements and monitoring compliance of these agreements. As I
mentioned, this number has gone from 10 people monitoring China down to
7 people; from 17 people monitoring Japan down to 7 people; from 33
people monitoring Canada and Mexico to 13 people. I am suggesting we
reverse that trend.
How do we reverse it? By adding $10 million as a first step back to
this appropriations bill. How would I get the money to do that? To get
the money to enforce our trade laws, I propose we cut funding for
something called TV Marti. TV Marti, boy, that will spark some interest
among some. Let me describe what TV Marti is.
TV Marti is the basis by which we broadcast television signals into
Cuba to tell the Cubans the truth. The Cubans need to know the truth.
They can get a lot of Miami radio stations and from Radio Marti. I
support Radio Marti. It costs $14 or $15 million a year. Having been in
Cuba, I understand the Cubans listen to and appreciate the broadcasts.
Good for Radio Marti. Count me as a supporter.
But nobody sees TV Marti. Each year we spend lots of money on TV
Marti, despite the fact that it is absurd to do so. Here is the
television picture seen on TV Marti in Havana. Does it look like snow
and only snow? It does, because it is jammed. The signal does not get
through. It is a jammed signal.
We spend a substantial amount of money, about $10 million a year, on
TV Marti. TV Marti has 55 employees, broadcasting 4\1/2\ hours a day,
from 3:30 a.m.--yes, that is right, 3:30 a.m.--until about 8 a.m. We
broadcast a jammed signal, 4\1/2\ hours a day, starting at 3:30 a.m. We
spend $10 million a year to broadcast a signal no one can see. That is
what we do as taxpayers. Is that a
[[Page S9235]]
good deal? I don't think so. I think we ought to cut that and use the
money to enhance our compliance in the area of international trade.
To make the rest of the case, I will describe more about TV Marti. As
I said, I fully support Radio Marti. I know it is effective. TV Marti,
on the other hand, is a total, colossal waste of the taxpayers' money,
providing no picture to anyone, and does so at 3:30 in the morning.
Last year, we spent $10.8 million beaming TV Marti to Cuba, where the
viewership was approximately zero. Since the inception, we have spent
about $150 million of taxpayers' money on TV Marti. We continue to
broadcast 4\1/2\ hours a day--31\1/2\ hours a week--from 3:30 a.m.
until 8 a.m. What we broadcast are fuzzy lines, as I indicated before.
TV Marti's broadcast to Cuba has been consistently jammed to the
public. No one can view the programs.
To lessen the effects of jamming, the TV Marti signal is randomly
shifted east and west of Havana during broadcast hours. Those who want
to watch a snowy jammed signal that one cannot see have to catch it as
a signal that moves around Havana somewhere between 3:30 in the morning
and 8 a.m.
TV Marti is seen by those who would visit the visa department at our
Interest Section in Havana where they play videotapes of the program.
Thus, it reaches those who have already decided they want to leave
Cuba. We have plenty of evidence there are people who want to leave
Cuba. I don't know that we have to tell the Cubans the difference
between living in the United States and in Cuba. People living in Cuba
understand what is happening in Cuba.
Let me talk about the question of whether we want to spend money on
something that is not effective. We broadcast TV Marti through an
antenna and a transmitter mounted on a tethered balloon 10,000 feet
above Cudjoe Key in Florida. This is a picture of Fat Albert. Fat
Albert is the aerostat balloon which we send up to 10,000 feet which
broadcasts a line of sight signal to Cuba that is jammed at 3:30 in the
morning. A Cuban television set can have snow. Fat Albert, of course,
is not invincible. Television is easy to jam. TV Marti is easy to jam.
TV Marti's signal, according to experts, is able to be jammed by
several off-the-shelf antennas and 100-watt transmitters, the power of
a light bulb. The antennas cost about $5,000 each to block the signals.
Why waste money when the message can get through by radio and you
can't get the message through by television signal? Transmitting by
aerostat balloon is not perfect. They have to be taken up and down.
They regularly require maintenance. They are affected by weather
conditions.
TV Marti employs 55 people and keeps spending money even if the
balloon cannot go up for various reasons. TV Marti did not broadcast
from October 1999 to October 2000 because it lost its transmission
balloon in a storm. Fat Albert got lost in a storm and they did not
broadcast for an entire year. But they continued to operate at TV Marti
at $27,000 a day.
This was not the first time that a Fat Albert-type balloon had
problems at Cudjoe Key. In the early 1990s, a Fat Albert balloon broke
from its cable and landed in the Everglades 70 miles away where it was
recovered by a team with a helicopter. And a balloon like Fat Albert
escaped in 1981--before TV Marti started, of course--and local
fishermen caught it and tethered it to the bow of the boat. As the sun
warmed up the blimp, it started to rise higher and higher and actually
lifted the fishing boat out of the water and the poor folks in the
fishing boat had to dive off the boat. So much for Fat Albert and so
much for tethered balloons.
That is how we broadcast a blocked signal to Cuba. We have an
aerostat balloon, Fat Albert, broadcasting a jammed signal to Havana,
Cuba, at 3:30 in the morning so people with a television set are unable
to see a picture. And this is paid for with U.S. taxpayers' funds.
One might be able to ask the question with a straight face, is this
good public policy? Does it serve the taxpayers interests? With Radio
Marti, the answer to that would be yes. Radio Marti works. The signal
gets through to Cuba and people listen to it. I think it is an
effective piece of public policy.
TV Marti has been supported, notwithstanding the fact it does not
work, by this Congress year after year because even waste has a
constituency. No more, in my judgment.
Let Congress, where we are wasting money, stop wasting money and
invest that money in something that is important for this country. In
this case, we have a crying need to better enforce our trade laws and
make sure that other countries comply with the trade laws that they
have entered into with us. Let's not see a continued degradation of our
ability to comply and enforce our trade laws with China and Japan and
Europe and Mexico and Canada. Let's enhance that. Let's not degrade it.
Yet, what we have seen in recent times is a substantial diminution of
our ability to require others to comply with our trade laws and to
enforce those trade laws.
My proposition is simple: Abolish that which is wasteful, TV Marti.
And, yes, we will get people coming to the floor who say: Gosh, this
would be the wrong signal to send to Fidel Castro. He doesn't get the
signal nor do the Cuban people get the signal. This is not about
signaling anybody except the American taxpayer that we will quit
wasting money.
I am sure people will make the point: We should not give aid and
comfort to Fidel Castro. I am not interested in that. I am interested
in giving aid and comfort to the American taxpayer. Cuba is a country
that, in my judgment, needs a new government; its people deserve a new
government. The approach that we use to deal with it ought not be an
approach that wastes American taxpayers' money. It ought to be an
approach that is effective, investing in the things that can help us
give the Cuban people some assistance. Radio Marti does that. TV Marti
does not.
I hope that if we decide to abandon a failed policy, we do not get
into a debate about this failed policy somehow giving comfort to Fidel
Castro. It does not make any sense to me.
In 1991 and 1994, the President's Task Force on U.S. Government
International Broadcasting found there was not enough of an audience
for TV Marti to continue funding it. That was nearly a decade ago when
that judgment was made. A decade later we are still doing it. In 1994,
it was concluded it was pointless and wasteful to continue TV Marti's
operations unless the viewing audience could be substantially expanded.
The viewing audience in 2001 is about the same as it was in 1994,
nearly zero.
It is time, in my judgment, long past the time, to use these funds in
a more effective way. We should pursue a public policy that will
strengthen the United States and help it with respect to its problems
in international trade.
So that is my proposal. As I indicated, I know it will be
controversial for some, not perhaps because I want to invest more in
making sure we better enforce our trade law and have people monitoring
its compliance with respect to other countries. It will be
controversial because I propose abolishing the $10 million of funding
for TV Marti.
Again, let me say almost everyone will concede that virtually no one
in Cuba sees the signals of TV Marti. As I mentioned before, Radio
Marti is effective, but TV Marti is a colossal and tragic waste of
taxpayers' money. I hope my amendment will be accepted as one that is
thoughtful, useful, and one that will advance this country's interests.
Mr. President, I am going to ask the amendment at the desk be called
up at this point.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. I have an amendment at the desk, and I ask for its
immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from North Dakota [Mr. Dorgan] proposes an
amendment numbered 1542.
Mr. DORGAN. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To increase funds for the trade enforcement and trade
compliance activities of the International Trade Administration and to
reduce funds for TV Marti)
On page 44, line 1, strike ``$347,090,000'' and insert
``$357,090,000''.
[[Page S9236]]
On page 44, line 6, strike ``$27,441,000'' and insert
``$32,441,000''.
On page 44, line 7, strike ``$42,859,000'' and insert
``$47,859,000''.
On page 88, line 7, strike ``and television''.
On page 88, line 9, strike ``and television''.
On page 88, line 10, strike ``$24,872,000'' and insert
``$14,872,000''.
Mr. DORGAN. Mr. President, the amendment does exactly what I
described with respect to the numbers.
That is all I have to say about the amendment. If there are others
who wish to speak on it, I will be happy to entertain questions or
engage in a discussion with them. If not, I ask consent to offer a
second amendment to this legislation. I therefore ask unanimous consent
to set aside the pending amendment so I may offer my second amendment.
The PRESIDING OFFICER. Is there objection?
Mr. HOLLINGS. Reserving the right to object, let me say a word. Will
the Senator yield?
Mr. DORGAN. Perhaps the Senator from South Carolina should seek
recognition, after which I will seek to be recognized.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, the distinguished Senators from Florida,
both of them--Senator Graham, I am sure, will be here momentarily. I
think he is on the way to the floor. I am double-checking that now.
The junior Senator, Senator Bill Nelson, was with the President in
Florida. Maybe that is where Senator Graham is also. But that is why
they are not here to be heard. It is very vital to their interests to
be heard.
Barring that, let me say defending Fat Albert has always been a role
of this particular subcommittee. Time and again, since its institution
over 15 years ago, we have had reports--the most recent one, of course,
is the one referred to by my distinguished colleague from North
Dakota--the Report of the Advisory Panel on Radio Marti and TV Marti.
While it found it might not be economically feasible, I read the
finding:
TV Marti's broadcasts are technically sound and contain
essential information not otherwise available to the Cuban
people. Persistent Cuban jamming does limit viewership on the
island, however. These broadcasts could prove vital to the
United States interests and to the welfare of the Cuban
people now and in the future.
True it is, it comes on in the middle of the night, 3 in the morning,
but then it goes on to early morning when it is generally picked up,
except for that year's period when Fat Albert was down.
Our distinguished friend Larry King made himself famous. I used to be
on his program when it was out on the west coast at 1 in the morning.
It was only, what, 10 o'clock or 11 o'clock in California. But he came
on at midnight to 3 in the morning and got so famous that we can't get
him off the air now. He is on the east coast at 9 o'clock every night.
I don't think he should be off the air. I think it is wonderful
programming.
So my emphasis is on the timing of it. We are going to have these
debates back and forth on this particular amendment. As I understand
the unanimous consent agreement, we are going to vote on the Smith
amendment after a half hour equally divided, from 5 to 5:30. We are
going to vote at 5:30 on the Smith amendment. Then we'll have the other
votes with respect to the amendment of the distinguished Senator from
Idaho relative to the International Crime Commission. The Fat Albert
amendment, which the Senator from North Dakota has up, is subsequent
thereto.
Having the floor, I cannot pass the opportunity, because as my friend
from West Virginia carries around the Constitution, I carry around the
record of waste. I heard the word ``waste'' but it was in regard to
about $10 million. Let's talk about billions--$1 billion a day waste.
I hold in my hand the public debt to the penny, put out by the
Department of Treasury as of this morning. We are already in the red
this fiscal year, which is going to end now in about 3 weeks' time,
$100 billion.
That didn't happen overnight. I guess $74 billion came from that tax
cut--that didn't help the economy--and the rest just followed suit. But
that is another debate to be had at a different time.
But let's pay attention to the fact that the public debt is $100
billion. If anybody wants to get into this yin-yang about the public
debt and the Government debt--yes, the public debt has gone down $59
billion but the Government debt has gone up $159 billion. So it is
paying off your Visa card with your MasterCard. That gets people
confused. But there is not any confusion on the actual figure put out
by the Treasury Department of $100 billion.
Under President Bush's budget and under the CBO budget, both of them
submitted within the last 3 weeks, they estimate a deficit ending the
fiscal year, that is September 30--today is the 10th, 20 days from now,
of $123 billion or $124 billion.
Consequently, since we ran a deficit last year of $23.2 billion, and
we are going to run a deficit this year--where is the surplus that
everyone talks about? I have been on the floor since January saying:
Wait a minute, there is not any surplus, there is not any surplus. But
everybody was talking surplus to get that tax cut. Now they are all
running around saying where has the money gone?
The big waste is the interest cost, when the debt goes up, up and
away, from $5.674 trillion at the end of the last fiscal year, to now,
this minute, it is at $5.774 trillion. The interest costs necessarily
go up. As that interest goes up, the waste goes up.
Having talked about waste, let me say a word about the current
account deficit, or the deficit in the balance of trade. This is a
favorite subject of mine. It used to be just $17 billion. Monitoring
that $81 billion deficit in the balance of trade with Japan, that $17
billion is down to $7 billion; or that $10 billion, monitoring the $84
billion deficit in the balance of trade with the People's Republic of
China, is down to $7 billion.
There is a question about this particular International Trade
Commission receiving more money. I have found from some 34, almost 35
years' experience, that the International Trade Commission is a
gimmick. The reason I call it a gimmick, advisedly, is through hard
experience.
Time and again, corporate America has taken its trade violation case
against Japan, against China etc., to the International Trade
Administration in the Department of Commerce, and they have found a
dumping case, that the goods are being sold at less than cost.
I have a Lexus. Let's say that Lexus costs $35,000. Go buy that same
Lexus in Tokyo, Japan. Its cost is $45,000.
The Japanese article imported into this country is sold here for much
less. Time and time again it is proven that it is being sold at less
than cost. Take the Kodak case. What happens? That is what I call a
gimmick. Then they go for a fix before the Finance Committee of the
Senate to find out, even though there is dumping, if there is injury.
That is the question before the International Trade Commission. And
they file for injury.
It is very interesting that there is now a steel case the President
is disturbed about because over 20 mills have closed down in the last
18 months with a loss of 40,000 steel jobs. Since NAFTA, the State of
South Carolina has lost 48,600 textile jobs, which are just as
important as the steel jobs to the economy--found so by a special
hearing under President Kennedy. But time and again you go before the
International Trade Commission, and that is why they don't enforce the
laws.
There is no such thing as free trade.
That was a pretty good wag at the end of World War II when we had the
whole industry and we were in the cold war and wanted capitalism to
defeat communism. We put in the Marshall Plan. We more or less gave up
our manufacturing sector in pursuit of the defeat of communism with
capitalism. It has worked. Nobody is complaining about that. It has
persisted in Europe, even with the fall of the Soviets, and certainly
is strong and viable in the Pacific rim.
I was just in the People's Republic of China. They are on the right
track. But don't misunderstand my statement. China is communist, and
many human rights abuses occur there. But as the seed of capitalism
takes over more and more each day, as it finally prevailed in the
Soviet Union, the hope of the free world will prevail in the People's
Republic of China.
[[Page S9237]]
We have really gone awry with respect to international trade that the
distinguished Senator talks about.
I say there is no such thing as free trade. Let's go back to the
earliest day when this country was built on protectionism. The debate
ensued. Colonies had just won their freedom. The United Kingdom said to
the fledgling colonies, you trade with us what you produce best and we
will trade back with you what we produce best. Early economist David
Ricardo put forth his doctrine of comparative advantage. However, the
trade debate really was between Thomas Jefferson, the agriculturalist,
and Alexander Hamilton, the industrialist. Hamilton wrote a booklet
called ``Reports on Manufacturing.'' There is one copy left in the
Library of Congress. But in a line, without reading that booklet, he
told the Brits to bug off; we are not going to remain your colony and
ship you our agriculture, our foodstuffs, our timber, our iron ore, and
bring in the finished products from England.
As a result, the second act that passed this Congress in its entire
history--the first act was for the seal--but on July 4, 1789, the
second act in its history that passed Congress was an act of
protectionism and a 50-percent tariff on 60 articles.
We began the United States by building up its manufacturing capacity.
Lincoln kept it going at the very beginning of the War Between the
States whereby we were trying to build a transcontinental railroad.
They said we were going to get the steel rails from England. President
Lincoln said no. He said we would build up our own steel capacity, and
when we were through, we would have not only the transcontinental
railroad, but we would have a steel industry.
It comes right on down the line with America's agriculture and the
darkest days of the Depression when the only hope we had was hope
itself. It was Roosevelt who put in the best of the best protections.
We will be passing an agriculture bill. I don't know where we are
going to find the money. But you can bet your boots it will be $5
billion to $6 billion for America's agriculture. We subsidize--protect,
if you please.
My point was made best by Akio Morita of Sony some 20 years ago up in
Chicago when we had a conference up there, and he was addressing the
emerging Third World nations. He admonished that they had to develop a
strong manufacturing sector to become a nation state. He pointed at me
and said: Senator, the world power that loses its manufacturing
capacity will cease to be a world power.
Where are we? From 41 percent of the workforce in manufacturing down
to 12--making what? Nothing.
I was sort of amazed at Alan Greenspan saying in February that we
have so much productivity we must have a surplus as far as the eye can
see, and so we ought to have a tax cut when the productivity has gone
overseas.
We have lost 1 million manufacturing jobs in the last year in the
United States of America. That is the problem that we have with respect
to trade. There is no question that if we don't begin to compete--as
the distinguished Senator from North Dakota wants to do with respect to
these trade deficits going up, up, and away--we will finally learn the
lesson that has already been given us.
In 1989, we passed a resolution to have hearings with respect to
China on human rights. And the Chinese went down to New Zealand, to
Australia, and over to Africa and their friends. They never had a
hearing on that resolution. About 5 months ago the United States was
kicked off the Human Rights Commission. Sudan and Libya remained on the
commission.
The atom bomb, the aircraft carrier, forget it. It is the economy,
stupid. It is the industrial power, and your money in international
affairs as well as domestic politics.
We don't seem to realize that the name of the game out there is
market share. The name of the game in the United States is standard of
living. So we continue to add not just a minimum wage, Social Security,
Medicare, Medicaid, plant closing notices, clean air and clean water,
safe workplace conditions, safe machinery, and on and on. Ergonomics
was the last one. I am glad we voted it down. But they think up all
kinds of things here for the high standard of living, and then don't
want to protect the economy of the United States.
The security of our Nation is like a three-legged stool. You have the
values as a nation, the one leg; unquestioned. Everyone knows that
America stands for indivisible rights and freedom. The second leg is
the military; unquestioned. But the third leg is industrial capacity.
Industrial capacity has been fractured.
I am glad the distinguished Senator from North Dakota brought this
subject up when we have just a few minutes.
What we should be doing is paying the bill. What we should be doing
is getting competitive and enforcing the laws on the books.
Does the Senator from North Dakota want to set aside his amendment
and go to another amendment?
I yield the floor.
The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from
North Dakota.
Mr. DORGAN. Mr. President, there is nothing quite like the sight of
the Senator from South Carolina in full voice in support of things he
cares about passionately. Among them are trade and related issues. He
is kind of like a jockey on a horse who are is running when he is
moving on these issues. Then I watched him turn to the support of Fat
Albert. He had the body language of someone headed toward a dental
chair. There is no one, in my judgment, less capable of defending Fat
Albert, based on his good record of public service, than the Senator
from South Carolina.
I would only like to refer to the 1994 CRS report to Congress about
TV Marti. It said TV Marti is worthless. It does not reach the
population. It is easily jammed. It broadcasts at 3:30 in the morning.
Nobody sees it.
I am not interested in being soft on Castro, nor am I interested in
being hard on the American taxpayer. So my point is very simple: Let's
get rid of wasteful spending. I understand why some have to defend Fat
Albert, but Fat Albert is indefensible. So let's get rid of that $10
million and move on and invest in something that really does strengthen
this country and our manufacturing center. Let's demand and insist that
other countries with whom we have trade relationships own up to those
trade relationships and begin to exhibit fair trade practices with this
country.
Again, let me say to my friend, the Senator from South Carolina, I
have always enjoyed the Senator from South Carolina when he gets a full
head of steam on the issue of international trade. He is interesting to
listen to and knows his stuff. I hope he agrees with me that we should
increase the number of people engaged in monitoring the compliance and
requiring the enforcement of our trade laws with respect to other
countries. Compliance and enforcement has decreased rather than
increased, and as a result, our trade deficit has dramatically
ballooned.
Amendment No. 1543
Having said all that, let me now turn to my next amendment. I will be
mercifully brief. I will offer this amendment because I think it is
important to have this discussion and to pass a piece of legislation
such as it.
This amendment deals with the Small Business Administration. Many of
you will remember the disaster in the State of North Dakota when the
city of Grand Forks--the Red River Valley, in fact--experienced a very
large flood in 1997. The city of Grand Forks, a city of nearly 50,000
people, had to be nearly completely evacuated. It is almost an
unprecedented event in this country, in the last 150 years, to have a
city of that size be nearly completely evacuated as a result of a
flood.
In the middle of that flood, a fire broke out in the downtown
business section. So we had a raging flood of the Red River, that had
required the evacuation of a city. Then, we had a roaring fire in the
middle of that downtown that had been evacuated. You might remember on
television the images of firefighters trying to fight a fire in the
middle of a flood. It was really quite a remarkable sight.
That disaster, as other disasters in this country, prompted the Small
Business Administration, and other agencies, including FEMA and HUD, to
come in with some assistance. We do that in times of disaster. Our
Government programs are meant to say to people who are down and out,
flat on
[[Page S9238]]
their back, hit with a natural disaster: We are here to help you. Here
is a helping hand. We want to help you during troubled times. So we
did that.
One of the things we did was provide Small Business Administration
low-interest loans, 4-percent loans. There were some grants and other
things as well, but the centerpiece was an SBA loan to a homeowner or a
business that had been dramatically flooded and was in very difficult
trouble.
What I did not know at the time, and what I think many of you perhaps
do not know in this Chamber, is that those loans by the SBA, including
the disaster loans I am now discussing, were later packaged together
and then sold to the highest bidder. Companies that are engaged to
bring money together to invest in Government loans decide: We are going
to now buy a package of loans from the SBA. Then they bid 50 cents on
the dollar or 60 cents on the dollar, and they buy the loans from the
Small Business Administration.
I never thought much about that. I suspect most people have not
thought about that. The problem is when the SBA sells disaster loans,
you have the potential for a second disaster for a family or business.
Here is why.
The SBA, when it serviced those disaster loans itself, was always
reasonably flexible in dealing with people. Oh, we want people to pay
those loans back. That is for sure. But if someone got stuck in a tough
situation, the SBA would work with them. For example, if a business had
to sell one asset and replace it with another asset that was more
efficient and if the old asset had an SBA disaster lien on it, the SBA
would say: Yes, we will work with you on that; we will transfer the
lien. And the business was able to deal with that.
Now these disaster loans are sold to financial companies, and the
financial companies say: We are sorry, we don't intend to transfer any
liens. We are sorry, there is no flexibility here. We are not going to
do what the SBA did for you.
I will give you an example--there are many--but I will offer an
example of a woman in Grand Forks, ND. This is one of many letters I
have received:
I'm another flood victim trying to find a way to transfer
the current loan I have from the SBA to another property. My
SBA loan was sold to [blank--I will not name the company--]
and I've been told by them they don't transfer loans, period.
So I am out of luck. Personal circumstances made it necessary
for me to sell my property. And I need this low interest rate
in order to afford another property to get back on my feet.
She had the disaster. The disaster still hurts, but something
happened in her circumstance where she had to sell that property and
replace it with another property because of family circumstances. In
the past, the SBA always would have said: Yes, we will work with you to
transfer the lien, as long as we still have a lien on the property. The
new investors--now that the loans have been sold--say: We're sorry, we
won't change the interest rate on you. We won't change the terms of the
loan. But there is no flexibility. Any changes at all might cost you a
huge fee. And in some cases they say: There's no fee because there are
no changes. We have no flexibility.
So I have talked to the head of the SBA. I had a visit with him, in
fact, on Friday of this past week. He understands there can be some
problems in these areas. He told me he is going to try to put an
advisory panel together to see if they can work on individual cases.
But I really believe we ought not be selling disaster loans. I do not
object to selling other loans, if they want loan processing to be done
by someone else in ordinary circumstances, but I do not believe
disaster loans represent ordinary circumstances. I believe disaster
loans ought to be serviced by the SBA. That way, the SBA controls and
maintains the policies with respect to how these loans are treated.
My preference is that the SBA go ahead and sell whatever loans they
want, except disaster loans. The SBA, I believe, has a responsibility
and an obligation to service those disaster loans.
CBO tells me there is no scoring on this amendment.
So I am offering the amendment. I do not know whether a copy of my
amendment is at the desk. If not, I will send it to the desk at this
point.
The PRESIDING OFFICER. The clerk will report the amendment.
The senior assistant bill clerk read as follows:
The Senator from North Dakota [Mr. Dorgan] proposes an
amendment numbered 1543.
Mr. DORGAN. Mr. President, I ask unanimous consent reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To prohibit the sale of disaster loans authorized under
section 7(b) of the Small Business Act)
At the appropriate place, insert the following:
SEC. . PROHIBITION ON SALE OF DISASTER LOANS.
Notwithstanding any other provision of law, no amount made
available under this Act may be used to sell any disaster
loan authorized by section 7(b) of the Small Business Act (15
U.S.C. 636(b)) to any private company or other entity.
Mr. DORGAN. Mr. President, I will not continue further. I have been
appreciative of the efforts by the Senators from South Carolina and New
Hampshire to allow me to offer these amendments. I know they will set
them aside to proceed with other things on the bill.
I will continue to work with those in the authorizing committee on a
couple of these issues. But it is my hope we will be able to consider
both pieces of legislation favorably. I know one of them is--or can
be--controversial; it should not be. As I said, even waste has a
constituency, I guess, in Congress and perhaps in some parts of the
country. But I think, to the extent we can--especially as we suffer an
economic downturn in this country--when we see waste, we really ought
to eliminate it. On behalf of the American taxpayer, we ought to take
action. So my hope is that the Senate will find its way to be
supportive of both amendments I have offered.
Mr. President, I understand there will be a request to set these
aside. I will be happy to work with the chairman and the ranking member
to see if we can find a way to clear one or both of these amendments as
we proceed.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, I want to hear momentarily from the
Small Business Administration with respect to the handling of these
disaster loans. The position of the distinguished Senator from North
Dakota is very appealing. It sounds logical to me.
On the other hand, think of it for a second, and you understand that
SBA is selling these particular loans and taking the funds and
leveraging even more SBA loans. Because of some of the wrongs that may
have occurred with the private sector purchasing the loans, as well as
other administrative problems, I want to hear from the Small Business
Administration.
I am not trying to put it off, but I will learn quite shortly. I know
there will be opposition to Fat Albert. There are a lot of people on a
diet, but not Fat Albert.
Mr. DORGAN. Mr. President, if the Senator from South Carolina will
yield, my hope is that as he continues to consider this issue, he will
be the last to come to the aid of Fat Albert, having heard my
discussion about Government waste and knowing his position on
Government waste. My hope is he will be the last in line to be
supportive of the aerostat balloon called Fat Albert, a balloon that
broadcasts a signal no one can see at 3:30 in the morning.
Mr. HOLLINGS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HOLLINGS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HOLLINGS. Mr. President, as I understand the pending business,
and I ask the Chair to confirm, at 5 o'clock we come back to the Smith-
Harkin amendment relative to compensation for the POWs, Japanese
prisoners of war, with the time equally divided between Senator Smith
and Senator Inouye, 15 minutes per side.
The PRESIDING OFFICER. The Senator is correct.
Mr. HOLLINGS. I suggest the absence of a quorum, with the time to be
equally allocated to both Senator Smith and Senator Inouye.
[[Page S9239]]
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent
the order for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SMITH of New Hampshire. Mr. President, it is my understanding we
have the vote on the Smith amendment at 5:30. Is that correct?
The PRESIDING OFFICER. That is correct.
Mr. SMITH of New Hampshire. I say to my colleagues who are also here
to speak, I will be very brief in deference to those on both sides who
wish to speak.
I want to say what the Smith amendment does. It says:
None of the funds made available in this Act may be used by
the Department of Justice or the Department of State to file
a motion in any court opposing a civil action against any
Japanese person or corporation for compensation or
reparations in which plaintiff alleges that, as an American
prisoner of war during World War II, he or she was used as
slave or forced labor.
All this says is that no funds in this act will be used to block that
lawsuit.
That is it. We are not making any editorial comment on the merits or
demerits of the lawsuit or who should win it. I have personal feelings
about who should win it. I believe the Ameican POWs should win the
lawsuits. That is up to the courts. All we want to do is let that
process proceed.
I also want to make it very clear that this amendment does not
abrogate the 1951 peace treaty with Japan. I repeat, It does not
abrogate the 1951 peace treaty with Japan. It merely limits the State
and Justice departments from interfering in the veterans' lawsuits.
Why does it not do it? Because article 26 makes it very clear that if
the Japanese should enter into any agreement that is more advantageous,
then the same terms apply to all the signatories to the treaty. That is
what it says. Should Japan make a war claims settlement with any state
granting that state greater advantage than those provided by the
present treaty, those same advantages shall be extended to the parties
to the present treaty.
Did that happen? The answer is, yes, it did--right here in an
agreement that was written between the Japanese Government and the
Dutch. The point is it did happen.
We are not violating the treaty. Article 26 is part of the treaty. We
are simply complying with the treaty.
The bottom line is we are not only not abrogating it, but we are
complying with the treaty. This is about whether or not we are going to
side with Japanese companies or American war heroes. That is the bottom
line. That is the issue. As Senator Hollings said a while back, this is
about the Constitution and about the treaty; it is not. We are
complying with the treaty with this amendment.
This is about siding with Japanese companies in this lawsuit or with
American war heroes.
That is the issue. We are not even doing that. We are just allowing
the process to move forward because American war heroes can have their
day in court. That is all we are doing. The treaty allows for that very
clearly.
As I indicated in my previous remarks today, John Foster Dulles, when
he did the background and memorandum of understanding and wrote some of
this language, understood it, too. Then this was classified for 50
years.
We didn't know about it. The lawyers who are trying to present these
lawsuits on behalf of American war heroes--the greatest generation--
didn't have access to this information until it was declassified a year
ago. That is what this is about, pure and simple. There is nothing
complicated.
You are either for allowing American war heroes who were in the
Bataan Death March and who were forced into slave labor camps to have
their day in court--you don't even have to be for them winning, as I
happen to be, and as I know many others are. You just have to be for
allowing them their day in court as is prescribed under that 1951
treaty, period. That is what it is about. You are either for that or
you are for the Japanese companies that basically forced them into
slave labor.
That is the difference. That is what we are talking about in this
amendment.
I yield the floor.
The PRESIDING OFFICER (Mr. Corzine). The Senator from Hawaii is
recognized.
Mr. INOUYE. Mr. President, I believe all of us will agree that the
atrocities committed and the inhumane treatment of our war prisoners
cannot be condoned and cannot in any way be justified. We condemn those
atrocities. It is not a question of Japanese corporations versus
American heroes. What is involved is the Constitution of the United
States. Article II makes it very clear that treaties are to be
negotiated by the President or the executive branch of this country--
not by any State, nor by any individual, nor by the Senate. It will be
by the executive branch. There is no question about that.
The document that my dear friend from New Hampshire has referred to
which was arranged by our then-Secretary of State, John Foster Dulles,
should be praised and not condemned. I would like to explain.
I believe the references to this arrangement is a bit misleading. I
say so most respectfully. This arrangement which was engineered by
Secretary Dulles was simply a side agreement designed to address a
domestic issue for the Dutch and thereby enabling the Dutch to sign on
as a signatory to the treaty of peace in San Francisco.
It does not in any way change the terms of the treaty. My colleagues
from New Hampshire and Iowa have read the documents. But somehow we
have slid over certain words. If I may, very carefully I will quote
from their document.
However, the Japanese Government points out that under the
treaty allied nationals will not be able to obtain
satisfaction regarding such claims. Although, as the
Netherlands government suggests, there are certain types of
private claims by allied nationals which the Japanese
Government might wish voluntarily to deal with.
We have somehow skimmed over that word ``voluntarily.''
At this moment, Mr. President, if you wanted to sue me and I said to
you, I voluntarily open myself up to you, we need not go to court, no
one is going to fuss over that. If at this moment a prisoner of war of
the United States should decide that he wants to sue the Japanese
Government or a Japanese national notwithstanding the treaty, and if
that Japanese national or the Japanese Government should say, yes, they
voluntarily expose themselves, we don't have to break the treaty. But
if the Japanese Government or the Japanese national should resist and
challenge that claim, then I say the executive branch of the Government
of the United States should have every right to intervene in such a
suit because it does impact upon the treaty of San Francisco.
I think we should read this again:
There are certain types of private claims by allied
nationals which the Japanese Government might wish
voluntarily to deal with.
This amendment is not necessary. If you want to sue the Japanese
Government or its national at this moment, and the Government and the
national said to you, yes, they will voluntarily enter into an
agreement with you to compensate you for whatever claims you may have,
no one is going to complain. But this amendment will without question
impact upon the treaty. It will abrogate the treaty. Then other
countries will begin to doubt our good word. Is our word good? Are the
promises made by the United States good? We are constantly criticizing
other nations for violating, if I may say, provisions of treaties.
This is very simply an attempt on the part of the United States to
violate a provision of a treaty. I hope that my colleagues will not
lead us down this very dangerous path. If we violate, how can we be
critical of other nations violating provisions of their treaties? So I
hope this matter will be settled. And accordingly, if I may, Mr.
President, I move to table the Smith amendment.
The PRESIDING OFFICER. The motion is premature while time remains.
Mr. INOUYE. I assumed the Senator had finished.
Mr. SMITH of New Hampshire. Senator Harkin wishes to speak.
[[Page S9240]]
Mr. INOUYE. I am sorry.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. How many minutes do we have?
The PRESIDING OFFICER. Six minutes.
Mr. HARKIN. Mr. President, first of all, we are not abrogating any
treaties with this amendment. How could we abrogate a treaty with an
amendment that simply says: No moneys can be expended by the State
Department Attorney General to go into court opposing our POW cases
against private Japanese companies? That is all we are saying. Again,
we have done this time and time and time again in the history of this
country. This is not something new.
We have the power to do that. We have the power of the purse strings.
We are not abrogating the treaty. We are just saying that the U.S.
Government cannot go into court using taxpayer money to oppose the POWs
who are filing these lawsuits.
If the court upholds the treaty and says that they cannot get
anything, that they have already been compensated, well, that's the end
of it. I guess they can appeal it to the Supreme Court of the United
States, but if the courts find, as my friend from Hawaii says, that
this treaty holds and would be abrogated, and we can't do that, then
that is the end of the case, but at least the POWs will have had their
day in court.
That is all we are asking with this amendment. We are not abrogating
any treaties; we are simply trying to uphold the rule of law and our
own private citizens' rights.
Let's keep in mind whom we are talking about: 30,000 men who served
their country in unbearable conditions in Japanese prisoner-of-war
camps. Now we are talking about at least 700 of them--some from my own
State of Iowa--seeking some long-delayed justice. They have gone to
court to demand compensation from the Japanese companies that used them
as slave laborers.
And who were these companies? Mitsubishi, Mitsui, Nippon Steel. These
are not tiny, little companies that are going to go broke because they
might have to pay these people some back wages and compensation for
what they endured during those war years.
I think it is unconscionable that our own State Department has
intervened in the courts to keep them from pressing their case. That is
not right. It is not fair.
So, No. 1, this amendment does not, in any way, undermine the treaty.
Let the court decide that. All we are saying is, the State Department
cannot use our taxpayers' money--the very taxes paid by these former
POWs--to go into court to keep them from seeking redress.
No. 2, this does not violate a separation of powers. We have, time
and time again, used the power of the purse strings to say that the
Attorney General cannot intervene in certain court cases. That is
nothing new. We have done that before.
No. 3, they have said the POWs have already been compensated by the
United States. Well, I talked to three POWs from Iowa who were slave
laborers in Japan during the war, and not one of them got paid. So I do
not know whom they are talking about, but they did not get a dime.
No. 4, it has been said this opens up the United States to lawsuits
from other countries. Again, the United States was known to treat our
POWs more decently. Many of the German POWs who worked here in the
cotton fields were indeed paid for their work when they worked in the
United States as POWs.
Again, we can get wrapped up in all these details, but let's keep in
mind what we are talking about. We are talking about men who survived
on a cup of rice a day. The one person I knew in Iowa, who is still
alive, went from 160 pounds down to 68 pounds in 3 years working in a
Japanese auto parts factory and then in the lead mines in Japanese
occupied territory.
Again, these survivors and their families should at least give them
their day in court. That is all we are asking. Mitsubishi, they have a
lot of money. Nippon Steel, they can hire the best lawyers if they want
to argue this case.
Mr. President, I ask unanimous consent to have printed in the Record
the number of former POWs in various States who would be affected by
this class action suit: 1,454 in California, 200 in Arizona, 200 in
Colorado, 150 in Georgia, 150 in Illinois--I am not going to read the
whole list, but I ask to have that list printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
State by State Listing of Survivors and Their Families who Would
Benefit or Would Be Affected by the Class Action Suit
Arizona: 200.
California: 1,454
Colorado: 200.
Georgia: 150.
Illinois: 150.
Louisiana: 140.
Maryland:, 1,154.
New York: 240.
Virginia: 189.
Oregon: 250.
Texas: 972.
Washington: 350.
Wisconsin: 106.
Ohio: 100.
North Carolina: 100.
Pennsylvania: 100.
Massachusetts: 100.
Mr. HARKIN. Mr. President, again, let's keep in mind that all the
Smith-Harkin amendment says is: Do not use taxpayers' money to have the
State Department come into court to fight our former POWs who are
seeking compensation from Japanese companies that never paid them. That
is all we are asking. If the judge and the Supreme Court of the United
States find that they cannot abrogate that treaty, that is the end of
it, but at least give them their day in court.
Let's not turn our backs on them. They suffered long enough. It is
time they get their just compensation.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, just a unanimous consent
request.
I ask unanimous consent that Senator Wayne Allard be added as a
cosponsor to the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The sponsors' time has expired.
Who yields time?
The Senator from Hawaii.
Mr. INOUYE. Mr. President, as I indicated earlier this afternoon, it
was certain that this debate would become a highly emotional one. A few
of us were involved in that ancient war, and we know what the Bataan
Death March was all about. We do not condone that; we condemn it. We
are not here to justify or provide a rationale for the actions taken by
the Japanese troops; far from it. But we are here to maintain the
integrity of our country and our treaties.
Yes, we have provided provisions in the appropriations bill stopping
our Departments from suing on certain issues, but never on a treaty.
This one will break a treaty.
So, Mr. President, I hope my colleagues will go along in support of
my motion to table.
Mr. SMITH of New Hampshire. Mr. President, before the motion is made,
I have one more unanimous consent request.
I ask unanimous consent that Senator Ben Campbell also be added as a
cosponsor to the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Who yields time?
Mr. INOUYE. Mr. President, what is the time situation?
The PRESIDING OFFICER. The opposition has 2 minutes remaining.
Mr. INOUYE. I yield back the remainder of our time and move to table
the Smith amendment.
Mr. HOLLINGS. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be.
The question is on agreeing to the motion. The clerk will call the
roll.
The legislative clerk called the roll.
Mr. REID. I announce that the Senator from Missouri (Mrs. Carnahan),
the Senator from North Carolina (Mr. Edwards), the Senator from
Massachusetts (Mr. Kerry), the Senator from Florida (Mr. Nelson), the
Senator from Michigan (Ms. Stabenow), and the Senator from New Jersey
(Mr. Torricelli) are necessarily absent.
Mr. NICKLES. I announce that the Senator from Arizona (Mr. Kyl) and
the Senator from Arizona (Mr. McCain) are necessarily absent.
[[Page S9241]]
The PRESIDING OFFICER (Mr. Carper). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 34, nays 58, as follows:
[Rollcall Vote No. 276 Leg.]
YEAS--34
Akaka
Biden
Bond
Byrd
Carper
Chafee
Cleland
Corzine
Daschle
Dodd
Enzi
Feinstein
Fitzgerald
Gregg
Hagel
Helms
Hollings
Inouye
Jeffords
Kohl
Levin
Lott
Lugar
McConnell
Mikulski
Murkowski
Nelson (NE)
Nickles
Reed
Reid
Rockefeller
Sarbanes
Stevens
Thompson
NAYS--58
Allard
Allen
Baucus
Bayh
Bennett
Bingaman
Boxer
Breaux
Brownback
Bunning
Burns
Campbell
Cantwell
Clinton
Cochran
Collins
Conrad
Craig
Crapo
Dayton
DeWine
Domenici
Dorgan
Durbin
Ensign
Feingold
Frist
Graham
Gramm
Grassley
Harkin
Hatch
Hutchinson
Hutchison
Inhofe
Johnson
Kennedy
Landrieu
Leahy
Lieberman
Lincoln
Miller
Murray
Roberts
Santorum
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Thomas
Thurmond
Voinovich
Warner
Wellstone
Wyden
NOT VOTING--8
Carnahan
Edwards
Kerry
Kyl
McCain
Nelson (FL)
Stabenow
Torricelli
The motion was rejected.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 1538) was agreed to.
Mr. SMITH of New Hampshire. I move to reconsider the vote.
Mr. NICKLES. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. I rise very briefly to give my colleagues some bad news and
some good news. The bad news is the house of my colleague, Senator Jean
Carnahan, was struck by lightening Saturday evening. It suffered
serious damage from a fire and also from water.
I spoke with Senator Carnahan. She is in Rolla, MO. There are about
30 good friends helping her retrieve her belongings and to work with
insurance companies. It is a real mess and she is therefore unable to
attend this vote.
The record should show because of this grave, unfortunate
circumstance, she did not vote. The good news is she sounded to be in
good spirits, no one was hurt, and she expects to return to this body
as soon as she can complete arrangements in Rolla. I thank the
Chairman, and I thank my colleagues.
The PRESIDING OFFICER. Who seeks recognition?
The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, we made some good progress this
afternoon. Aside from this particular vote, we have three amendments
pending, two by the distinguished Senator from North Dakota, Mr.
Dorgan, on both the aerostat of TV Marti and the Small Business
Administration amendment.
We have the amendment by the Senator from Idaho, Mr. Craig, relative
to the International Criminal Court. There being no further debate, as
I understand it, I am waiting to check with the leadership on both
sides of the aisle on how they intend to continue, but we will meet
early in the morning and I am asking all Senators, please, if they have
any amendments, get ready and let us bring them up and let us see if we
can move along like we did today.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Connecticut.
Amendment No. 1536
Mr. DODD. Mr. President, I want to be heard on the Craig amendment,
unless there is some reason why I cannot. Is that in order?
The PRESIDING OFFICER. The Senator from Connecticut is recognized on
the Craig amendment.
Mr. DODD. I thank the President, and I thank my colleagues.
Mr. President, I rise to speak in opposition to the amendment offered
by my good friend from Idaho. I do so because it goes back a long time.
As a matter of revealing past history, I take great pride in the fact
that the person at whose desk I now stand and in whose chair I now sit
from time to time was the executive trial counsel at the Nuremberg
trials. I was about a year old, a year and 2 months old, when my father
went off to Nuremberg as a young lawyer and became an executive trial
counsel at the end of those historic trials at the end of World War II.
I remember vividly growing up with my father and others of his
generation arguing most strongly that had there been in the 1920's or
1930's criminal courts of international justice the tragedies of World
War II might have been avoided.
He never said it would have been absolutely because obviously that
would be an impossibility to predict, but there was no place, there was
no forum in which the civilized world could gather, in a sense, to
denounce or to indict a madman such as Adolf Hitler.
As a result of the world's silence, in many ways, through the 1930's,
the events and the tragedies in the latter part of that decade, of
course, the events of the first part of the 1940's occurred. So after
World War II, there were many highly responsible individuals in this
country and elsewhere who argued most strongly for the establishment of
such a court. In fact, it was the United States that led the way to
establish a United Nations system. It was the Eisenhower
administration.
In fact, some of the strongest conservatives of that era argued very
strongly that it was in the interest of the United States, in our own
self-interest, as the leader of free peoples around the globe to have
some place where we could indict those who would commit the horrors and
tragedies of human rights violations.
So it is somewhat ironic--in a way sadly so--that we find ourselves
at the outset of the 21st century with the United States apparently
leading the charge to see to it that no such organization should ever
come into existence.
Let me quickly say to my colleagues, I do not at all support the
present configuration or proposal on an international criminal court.
It is tremendously flawed as a proposal. It is very much in our
interest, as a nation, to be at the table to help fashion this court.
Ultimately we may vote against it. We may try to see to it that it
does not become established. However, there is a great risk that it
will become established. In the absence of our participation, it could
end up being a lot worse--for us, for men and women in uniform in this
country, for the interests of the United States in an ever-shrinking
global community.
I am deeply concerned, as I am now told the administration is as
well, with this amendment as presently proposed. As I understand it,
the Craig amendment bars the United States from using funds in support
of the International Criminal Court or to continue to participate in
meetings of the Preparatory Commission which is working to finalize
matters relating to the Court.
I think this is a dangerous amendment in many ways. I have proposed
language which we have not yet considered in the Foreign Relations
Committee dealing with one of the major concerns being raised about the
establishment of a criminal court; that is, the vulnerabilities of our
men and women in uniform.
The legislation that I have drafted is gathering wide-range support.
The administration itself finds an awful lot included in the bill that
they would like to support. We are working with them to fashion
something to meet their support.
The adoption of this amendment, however, is a major setback, in my
view, in this effort. As currently drafted, the Craig amendment
forecloses one of the options the Bush administration is currently
reviewing with respect to how to remain actively engaged
internationally in support of the rule of law.
It is my understanding that the Bush administration strongly opposes,
in fact, what our good friend and colleague from Idaho is suggesting
with this amendment. Under existing law, the administration is
currently prohibited from expending funds in support of the Court. That
is the law today. That was adopted in 1999. The law has left the door
open for the Bush administration to determine whether or not it wishes
to participate in the work of the Preparatory Commission. It makes all
the sense in the world to be so involved. The structure of the
Preparatory Commission is such that it is
[[Page S9242]]
charged with finalizing the details of the implementing language of the
Court in resolving outstanding definitions, ambiguities, and
difficulties with the Rome statute.
The Craig amendment closes the door with respect to the possibility
of U.S. participation in the Preparatory Commission. This, in my view,
is very shortsighted since there are a number of issues which we would
want to and should work to resolve or clarify, even if we never decide
to become a party to the treaty.
Clearly, I am hopeful President Bush will choose to stay part of the
Preparatory Commission process, but the decision as to whether or not
to do so is up to him, not up to the Congress. Frankly, to prohibit the
President from participating in the Preparatory Commission is probably
a violation of the President's constitutional treaty power to conduct
negotiations with other states on behalf of our own Nation. Moreover, I
think this amendment sends a terrible signal just as the international
community gathers in New York to listen to President Bush address the
United Nations for the first time since coming to office. What message
will they derive from yet another U.S. unilateral rejection of
internationalism? Perhaps they will take it as a signal that we in the
United States no longer intend to be leaders in the international
advocacy of the rule of law and human rights.
How ironic, how truly ironic that is. How quickly we seem to have
forgotten the Holocaust and the international community's decision to
convene the Nuremburg trial of the leading Nazi war criminals following
World War II, or that this war crimes tribunal was largely an American
initiative. Justice Robert Jackson's team drove the process of the
drafting of the indictments, the gathering of the evidence, and the
conducting of that extraordinary trial. The trial was a landmark in the
struggle to deter and punish crimes of war and genocide, setting the
stage for the Geneva and Genocide Conventions.
The surrender of Slobodan Milosevic to the International Criminal
Tribunal for Yugoslavia is a strong reminder that war crimes are not a
thing of the distant past. At Nuremberg Justice Jackson said: It is
common to think of our own time as standing at the apex of
civilization. The reality is that in the long perspective of history,
the present century will not hold an admirable position, unless its
second half is to redeem its first.
My father, Thomas Dodd, served as executive trial counsel at the
trials at Nuremberg, among his proudest accomplishments as a human
being. But it was also part of the common theme that rang through a
lifetime of public service. He believed that America had a special role
to make the rule of law relevant in every corner of the globe. I
believe my father was correct, that Justice Jackson was correct, and
those who came after that generation, the reason they fought so hard at
the trials and subsequently was that they believed that had there been
a forum, a place for the rule of law where natural law could reside, we
might very well have avoided the Holocaust and other such events that
gripped the midpart of the 20th century.
I believe my father would have endorsed President Clinton's decision
to sign the Rome statute last December on behalf of the United States.
President Clinton did so, knowing full well much of the work remained
to be done before the United States would ever become a party to the
U.N. convention establishing an international criminal court.
The Bush administration is currently reviewing its options with
respect to the Rome statute and with respect to the ongoing preparatory
work that will make the Court operational only once 60 parties have
ratified it. If the Craig amendment is adopted, it will foreclose the
Bush administration from opting to stay engaged as a participant in the
work of the Preparatory Commission in order to protect U.S. interests
and interact with friends and allies on these matters.
Let there be no doubt; at some date in the future an international
criminal court will come into existence; 36 states have already
ratified the treaty, including all members of the European Community.
For the United States to be totally on the sidelines as the last
details of procedures are hashed out is clearly contrary to our
national self-interests. There may also be times when, on a case-by-
case basis, the United States may want to assist in the prosecution of
foreign war criminals, particularly those cases where the crimes are
against American citizens.
We just debated, ironically, a proposal dealing with the war crimes
of World War II. I think but for the treaty of San Francisco, it would
have been adopted 100 to 0. As related in the persuasive arguments of
Dan Inouye and others, we believe treaties are important and should not
be violated. How ironic that we find ourselves in this particular
matter, depriving ourselves of the opportunity to be able to fight hard
where war crimes are committed, and, in fact, U.S. citizens may be the
victims because we will not allow the option to be involved in the
Preparatory Commission of such a court.
Elie Wiesel has warned that legislation of this kind would erase
America's Nuremberg legacy by ensuring that the United States will
never again join the community of nations to hold accountable those who
commit war crimes and genocide. A vote to shut the door forever on the
International Criminal Court and bar the United States from being
engaged, ironically, may be read by some as a signal that the United
States accepts immunity from the world's worst atrocities. What a
terrible possibility.
It is a sad day, as we embark on the 21st century, that the U.S.
Senate, the great bastion of debate on international matters of such
importance and weight, might vote to deprive us of even being involved
in the Preparatory Commission considering an international court of
criminal justice where human rights and genocide matters can be
debated, where those who commit those crimes can be brought to the bar
of justice.
I urge my colleagues to think more carefully about this vote. I
accept there are problems with the Rome treaty as currently written. I
would not support it. If the Rome treaty came to this Chamber as
written, I would vote against it. But that is not the case. There is
work to be done. We ought to be engaged in that work. That is why I
introduced legislation before the August recess to protect U.S.
interests until we can successfully work out our differences on this
issue.
I hope the Foreign Relations Committee will hold hearings on this
legislation as soon as possible.
This bill, the American Citizens Protection and War Criminal
Prosecution Act of 2001--the American Citizens Protection Act, would
both protect America's Nuremberg legacy while at the same time
safeguarding the rights of American citizens who might be brought
before foreign tribunals even if we are not a party to them. This bill
calls for active U.S. diplomatic efforts to ensure that the ICC
functions properly mandates the assertion of U.S. jurisdiction over
American citizens and bars the surrender of U.S. citizens to the ICC
once the U.S. has acted.
The Bush administration is currently studying this and other
approaches to issues related to the ICC. We should permit that review
to continue and give the President the flexibility to decide how best
to serve U.S. interests in this important area.
The world is a global village in this new millennium. The U.S. must
strike the right balance between protecting our citizens and our men
and women in the armed forces who may be traveling or deployed abroad,
and preserving United States leadership and advocacy of universal
adherence to principles of international justice and the rule of law.
For those reasons, I urge my colleagues to reject the Craig amendment
and let existing law stand with respect to limitations on funding in
support of the ICC at this time.
This is no time for us to be walking away from a responsibility which
we have shouldered proudly for the past half century.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. ALLEN. Mr. President, I rise to speak on the Craig amendment.
The PRESIDING OFFICER. The Senator is recognized.
Mr. ALLEN. Mr. President, I rise in support of the amendment of our
colleague, Senator Craig of Idaho, of which I am a cosponsor. I
listened very
[[Page S9243]]
carefully to the eloquent words of the Senator from Connecticut, Mr.
Dodd, and his arguments in opposition to this amendment. In my view,
the proposed International Criminal Court is a threat to the
sovereignty of the United States and our individual God-given rights
that are protected in the Constitution of the United States and in the
constitutions and laws of several states. President Clinton, in my
view, made a serious mistake when he signed the Rome treaty in the
waning days of his administration. That treaty, which would establish a
permanent international criminal court, creates a number of
undesirable, unprecedented challenges for the people of the United
States. The ICC will have the power to investigate and prosecute a
series of international criminal offenses such as crimes against
humanity, heretofore enforceable only in national courts or tribunals
of limited application which have broad international support, such as
the Nuremberg trials, which Senator Dodd brought up.
Obviously, everyone here thinks the Nazis should be prosecuted.
We do support, obviously, the tribunal that is trying Milosevic right
at this moment. The International Court in The Hague is the proper
approach, which does not impinge upon our sovereignty.
Senator Dodd, in arguing against this amendment, did mention he would
oppose the Rome treaty as written if we were going to be voting on it
at this moment. But if the Senate were to ratify this ill-advised
treaty, this International Criminal Court would have the authority to
try to punish Americans for alleged offenses abroad or in the United
States, and that Court will be entirely unaccountable for its actions.
This International Criminal Court, in fact, would be in a position to
punish individual American officials for the foreign policy and
military actions of the United States and would not offer even minimum
guarantees afforded in the Bill of Rights to any defendants before it.
At the heart of the ICC is an independent prosecutor accountable to
no one. The international prosecutor is empowered to enforce justice as
that prosecutor sees fit. If the international prosecutor believes that
a local trial in our U.S. courts has been inadequate, he or she is
authorized to indict an alleged human rights abuser and demand a new
international trial. The international prosecutor may think a local
pardon or an amnesty or a finding of not guilty was improper. That
international prosecutor can ignore that finding.
What this authority symbolizes is the theory that all nations,
including constitutional democracies, should surrender their
sovereignty to the altar of international control.
Control of our own courts is one of our most cherished internal
decisions about justice and order in our civilization. The United
States was founded on the basic principle that the people of the States
and our country have the right to govern themselves and chart their own
course. The elected officials in the United States, as well as our
military and citizenry at large, are ultimately responsible to the
legal and political institutions established by our Federal and State
constitutions, which reflect the values and the sovereignty of the
American people.
The Rome treaty would erect an institution in the form of the ICC
that would claim authority superior to that of the Federal Government
and the States and superior to the American voters themselves. This
Court would assert the ultimate authority to determine whether the
elected officials of the United States as well as any other American
citizen have acted unlawfully on any particular occasion.
In this, the Rome treaty is fundamentally inconsistent with the first
tenet of our American Republic, that anyone who exercises power must be
responsible for its use to those subject to that power. In our country,
the Government derives its just powers from the consent of the people.
That is foundational and fundamental.
The values of the ICC's prosecutor and judges are unlikely to be the
same values of those of the United States. The Rome treaty has been
embraced by many nations with legal and political traditions
dramatically different from those of our own. This includes such states
as Cambodia, Iran, Haiti, Nigeria, Sudan, Syria, and Yemen, all of
which have been implicated in torture or extrajudicial killings or
both.
Even our closest allies, including European states following the
civil law system, begin with a very different assumption about the
powers of courts and the rights of the accused. Nevertheless, if it is
permitted to be established, the ICC will claim the power to try
individual Americans, including U.S. service personnel and officials
acting fully in accordance with U.S. law and our interests. The Court
itself would be the final arbiter of its own power, and there would be
no appeal from its decisions.
In 1791, Thomas Jefferson, our country's first Secretary of State,
said:
No court can have jurisdiction over a sovereign nation.
Last year this Congress prohibited the use of taxpayers' money to
support the International Criminal Court. I say, let's put another lock
on that door by adopting this amendment, the Craig amendment, and let's
put a lock on the door to the Preparatory Commission as well.
In closing, I quote again from Mr. Jefferson. Thomas Jefferson said:
It is the right of every nation to prohibit acts of
sovereignty from being exercised by any other within its
limits.
I urge my colleagues to join me in exercising this right and
supporting this amendment to protect the sovereignty of the American
people.
I yield the floor.
Mr. LEAHY. Mr. President, I rise today to voice my strong opposition
to the Craig amendment to the International Criminal Court (ICC). While
I have great respect for the Senator from Idaho, I believe it is
unnecessary, damaging to the cause of international justice, and would
further erode our standing with our European allies.
Even the Bush administration, which has no intention of sending the
Rome treaty to the Senate for its advice and consent, opposes the Craig
amendment.
Since the Rome treaty was approved over two years ago, it has been
signed by more than 120 nations including all of the European Union
members, all of our NATO allies except Turkey, as well as Israel, and
Russia.
Joining our friends and allies, President Clinton signed the Rome
treaty late last year, a decision which I wholeheartedly supported, as
the ICC represents a significant step forward in bringing to justice
those responsible for committing the most heinous crimes.
Throughout the negotiations on the ICC, the United States got almost
everything it wanted and was able to obtain important safeguards to
prevent American soldiers from being subjected to politically-motivated
actions by the Court.
There is room for improving the treaty, and that is precisely why I
oppose the Craig amendment. The Craig amendment would prevent our
diplomats from being at the table during the ongoing Preparatory
Commissions on the ICC.
While this may make some feel good, the practical effect would be
self-defeating. It would put us in a far worse position to advance U.S.
interests within the ICC and obtain additional protections, ensure that
the safeguards we already obtained operate effectively, and make sure
that the Court serves its intended purpose of prosecuting crimes
against humanity.
I do support the International Criminal Court. But, again, this vote
is not about whether you support it or not. We already have a
prohibition against the expenditure of U.S. funds for the ``use by or
support of'' the ICC, unless the U.S. ratifies the treaty, which it is
not going to do any time soon.
The issue is whether we will participate in discussions on the
procedures of the court, or whether we are going to tie the hands of
the administration by preventing the United States from even sitting at
the table.
And, both the Clinton and Bush administrations have stated that they
would not submit the Treaty to the Senate for consideration.
While some may want to ``block'' the treaty, this is very unlikely to
be possible. The EU is already engaged in a campaign to obtain the
ratifications that are needed to reach the required number of 60.
Blocking the International Criminal Court from coming into existence
is likely to require a head-to-head confrontation with our European
allies
[[Page S9244]]
and over 80 countries outside of Europe that have signed the Treaty but
not yet ratified.
Because the reality is that the Court will come into existence and
have jurisdiction over non-parties, our best strategy is to remain
engaged with the ICC to shape a Court that best represents our
interests and values.
Irrespective of one's views on the ICC, it makes no sense to bury our
heads in the sand and hope for the best. That is precisely what the
Craig amendment will do and one of the major reasons why I strongly
oppose it.
The other reason that I oppose the Craig amendment is the long-term
harm that it could have on U.S. efforts to prosecute war criminals.
Year after year, Senator McConnell and myself, alternating as chairman
and ranking member of the Foreign Operations Subcommittee, have
struggled to find enough money to help support the efforts of the
international tribunals for the former Yugoslavia, Rwanda, and Sierra
Leone.
Moreover, we may now be asked to contribute millions of dollars to
support a tribunal to prosecute crimes of genocide by the Khmer Rouge
in Cambodia, if the tribunal there meets international standards of
justice.
The negotiations on these tribunals often takes years and involves
endless wrangling over costs, over the laws and rules that will be
applied to the proceedings, and over whether to even establish an ad
hoc tribunal in the first place.
One of the primary goals of the ICC is to have a permanent forum to
prosecute these heinous crimes wherever they may occur, and our allies
have embraced the ICC for precisely this reason.
Once the ICC comes into existence, and our allies and the Security
Council will no longer support establishing new ad hoc tribunals--which
at that point could be unnecessary and duplicative--what will the
United States do?
No longer help with the prosecution of war criminals, because we do
not support the ICC? That would be ridiculous for a country whose Bill
of Rights is a beacon of hope for victims of human rights abuses around
the world.
Clearly, we all want to protect U.S. interests within the ICC. This
amendment does not do that. In fact, it makes things worse by not even
allowing our negotiators to be in the room while important issues are
being discussed and could ultimately hinder our efforts to prosecute
war criminals.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. I checked with several Senators interested in this
amendment as well as its proponent, Senator Craig. If there is no other
question, we need to move these amendments along as best we can.
I think we are ready for a voice vote.
I urge the question on the Craig amendment.
The PRESIDING OFFICER. Is there further debate on the amendment? If
not, the question is on agreeing to the amendment in the second degree.
The amendment (No. 1537) was agreed to.
Mr. GREGG. Mr. President, I urge the question on the underlying
amendment, as amended.
The PRESIDING OFFICER. Is there further debate? If not, the question
is on agreeing to the amendment, as amended.
Mr. GREGG. Mr. President, I ask unanimous consent that the yeas and
nays be vitiated on the amendment in the first degree.
The PRESIDING OFFICER. Without objection, it is so ordered.
Without objection, the amendment is agreed to.
The amendment (No. 1536), as amended, was agreed to.
Mr. HOLLINGS. Mr. President, I move to reconsider the vote.
Mr. GREGG. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HOLLINGS. I thank the distinguished Chair, and thank my
colleagues from New Hampshire and Virginia.
Mr. CONRAD. Mr. President, I rise to offer for the Record the budget
Committee's official scoring for S. 1215, the Department of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations
Act for Fiscal Year 2002.
The Senate bill provides $38.627 billion in discretionary budget
authority, which will result in new outlays in 2002 of $26.026 billion.
When outlays from prior-year budget authority are taken into account,
discretionary outlays for the Senate bill total $38.747 billion in
2002. The Senate bill is within its Section 302(b) allocation for
budget authority and outlays. Once again, the committee has met its
target without the use of any emergency designations.
I again commend Chairman Byrd and Senator Stevens, as well as
Senators Hollings and Gregg, for their bipartisan effort in moving this
and other appropriations bills quickly to make up for the late start in
this year's appropriations process.
I ask unanimous consent that a table displaying the budget committees
scoring of this bill be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
S. 1215, DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATION, 2002
[Spending comparisons--Senate-Reported Bill (in millions of dollars)]
----------------------------------------------------------------------------------------------------------------
General
purpose Defense Conservation Mandatory Total
----------------------------------------------------------------------------------------------------------------
Senate-reported bill:
Budget Authority........................................ 37,772 604 251 572 39,199
Outlays................................................. 37,885 660 202 581 39,328
Senate 302(b) allocation:*
House-passed:
Budget Authority........................................ 37,534 567 440 572 39,113
Outlays................................................. 37,913 632 360 581 39,486
President's request:
Budget Authority........................................ 37,178 465 284 572 38,499
Outlays................................................. 38,016 538 259 581 39,394
SENATE-REPORTED BILL COMPARED TO:
Senate 302(b) allocation:*
Budget Authority........................................ 0 0 (133) 0 (133)
Outlays................................................. 0 0 0 0 0
House-passed:
Budget Authority........................................ 238 37 (189) 0 86
Outlays................................................. (28) 28 (158) 0 (158)
President's request:
Budget Authority........................................ 594 139 (33) 0 700
Outlays................................................. (131) 122 (57) 0 (66)
----------------------------------------------------------------------------------------------------------------
Notes: Details may not add to totals due to rounding. Totals adjusted for consistency with scorekeeping
conventions. For enforcement purposes, the budget committee compares the Senate-reported bill to the Senate
302(b) allocation.
* The 2002 budget resolution includes a ``firewall'' in the Senate between defense and nondefense spending that
will become effective once a bill is enacted increasing the discretionary spending limit for 2002. Because the
firewall is for budget authority only, the appropriations committee did not provide a separate allocation for
defense outlays. This table combines defense and nondefense outlays together as ``general purpose'' for
purpose of comparing the Senate-reported outlays with the subcommittee's allocation.
Mountain View House
Mr. GREGG. Mr. President, I would like to briefly mention to Senator
Hollings an EDA project that is of significant importance to employment
in a section of New Hampshire that has traditionally experienced high
levels of unemployment. The project is the Mountain View House. This
project was inadvertently left out of the Senate Report, but it would
be my hope that the Economic Development Administration would consider
an application for the Mountain View House within applicable procedures
and guidelines
[[Page S9245]]
and provide a grant if warranted. Will you join with me in urging the
EDA to consider this vital initiative in New Hampshire?
Mr. HOLLINGS. I would certainly join with the Senator from New
Hampshire in recognizing and supporting the Mountain View House
project. I will work with my colleague during conference to include
this project in the committee report.
INS Inspectors at Port of Detroit
Mr. LEVIN. Mr. President, I would like to thank the chairman for
addressing in this bill the severe INS staffing shortages at certain
land border ports of entry. I would also like to thank him for
recognizing and addressing the severe shortage of INS inspectors at
Detroit's port of entry on the U.S.-Canadian border, which includes the
Ambassador Bridge and the Detroit-Windsor Tunnel. I am pleased this
bill provides $25,408,000 for 348 additional land border inspectors and
specifically indentifies the Detroit bridge and tunnel port of entry as
being understaffed by a whopping 151 people. I appreciate the efforts
of this Committee to address the significant INS staffing shortages on
the Detroit-Canadian border and that a portion of the increase in INS
inspectors funded by this bill will be allocated to address the Detroit
shortfall.
I wish to seek clarification from the chairman of the Commerce-
Justice-State Appropriations Subcommittee as to whether a significant
portion of the funding provided for additional INS inspectors by this
bill will be allocated to address the Detroit shortfall. The Ambassador
Bridge is the most heavily traveled bridge and the most heavily
traveled tunnel on the U.S.-Canadian border. Total traffic at the
bridge has nearly doubled over the past 14 years. According to data
compiled by the Bridge and Tunnel Operator's Association, in 1999 more
than 12,000,000 auto and commercial vehicles crossed the Ambassador
Bridge and more than 9,500,000 auto and commercial vehicles passed
through the Detroit-Windsor Tunnel.
Ms. STABENOW. Mr. President, I too would like to express my thanks to
the distinguished chairman for increasing INS staffing levels to
address the past under funding of land border inspectors, and to also
seek clarification concerning the Detroit Port of Entry. The committee
notes that the Detroit Port of Entry, which includes the Ambassador
Bridge and the Detroit-Windsor Tunnel, requires a total of 175
personnel yet is currently staffed at only 23 inspectors. That leaves
the port understaffed by 151 inspectors, the third worst staffing level
at a U.S. port of entry as a percentage of total workload. This is a
serious concern, particularly because the Detroit Port is the nation's
busiest northern border crossing, and has resulted in unnecessary
traffic congestion and delays. I appreciate the committee having
recognizing the Port of Detroit as one of the nation's ports of entry
most in need of these additional inspectors and look forward to more
efficient INS inspections at the Detroit-Canada border once these
additional inspectors are in place. Is it the intent of the chairman,
that a significant number of these additional INS inspectors would go
to the Detroit Port of Entry?
Mr. HOLLINGS. Mr. President, the Senators from Michigan are correct.
This committee recognizes the problems faced at the Port of Detroit and
its shortfall of 151 INS land border inspectors, and it is the
committee's intent that a significant number of these additional INS
inspectors funded in our bill will help fill that shortfall.
CLEARMADD, UNIVERSITY OF GEORGIA
Mr. CLELAND. Mr. President, I have previously brought to your
attention the important capabilities of the Center for Leadership in
Education and Applied Research in Mass Destruction Defense (CLEARMADD).
This Center, to be supported by a consortium of institutions including
the University of Georgia, the Medical College of Georgia, and the
Savannah River Ecology Laboratory in South Carolina, has available
substantial expertise regarding the threat posed domestically from
weapons of mass destruction (WMD). In recent years, concerns have
increased about the potential for terrorists or foreign states to use
biological, nuclear or chemical weapons to inflict mass casualties in
the United States. As a nation, we are only just beginning to develop
an adequate response capability for such an attack. The consequences of
the use of WMD in the United States would be catastrophic, particularly
in terms of the ability of our health care system to respond. While
other programs have focused on research and training to assist first
responders in the event of a WMD, very little has been done to develop
proper curriculum and training, including advanced degrees, for medical
responders including doctors, nurses, emergency room personnel,
pharmacists, toxicologists, and veterinarians. The experts assembled
with CLEARMADD have significant capability to provide such curriculum
development and training for these so-called second responders.
I understand that a total of $364 million is included in the Senate
version of the Fiscal Year 2002 Commerce-Justice-State appropriations
bill for the Office of State and Local Domestic Preparedness Support
(OSLDPS) of the Department of Justice to assist with training in the
U.S. to respond to potential terrorist attacks. This is an increase of
more than $100 million over funding for Fiscal Year 2001. It is my view
that the programs and expertise of CLEARMADD fit well within the OSLDPS
mission and I believe funds should be found within the Fiscal Year 2002
budget of OSLDPS to take advantage of CLEARMADD's expertise to help
develop model curricula and training programs to assist local health
care professionals.
Mr. HOLLINGS. I appreciate the gentleman from Georgia, Mr. Cleland,
bringing CLEARMADD to my attention. There is a significant need for
training of health professionals in the event of a chemical or
biological attack. From what I have learned, CLEARMADD has significant
capabilities in this regard, and is clearly a program that could
provide significant assistance in helping achieve the mission of the
OLSDPS. I will continue to work with Senator Cleland to see that the
Department of Justice takes advantage of the expertise within the
CLEARMADD consortium and finds ways to include CLEARMADD within the
overall programs of the DOJ anti-terrorism program.
Mr. CLELAND. I thank the Senator for his support and attention to
this matter and I look forward to working with you in the future on
this issue of mutual interest.
hartsfield Atlanta international airport ins officers
Mr. CLELAND. Mr. President, we have discussed on previous occasions
the compelling need for additional Immigration and Naturalization
Service (INS) officers assigned to Hartsfield Atlanta International
Airport. The present staffing of 78 positions to handle 2.8 million
arriving international passengers per year at Hartsfield is
consistently generating extremely long lines, and is damaging the
reputation of Hartsfield as an international gateway. The desired INS
45-minute processing time limit is being exceeded frequently with lines
overflowing the inspection hall into the adjoining concourse. The 95
passengers per inspector during peak periods do not match the annual
growth rate of 16 percent. As a result of the 1996 Olympics Games,
Hartsfield has more than an adequate number of processing booths. Yet,
today, at least 75 percent of those booths go unused on any given day.
Hartsfield now has more arriving international passengers from Latin
America and Africa, who require longer processing times, than from
Europe. Overall, the airport has experienced a 108 percent increase in
international flight arrivals from 1994 to 2000.
Mr. HOLLINGS. I appreciate the fact that the Senator from Georgia
brought this matter to my attention. In fact, the fiscal year 2002
Commerce/Justice/State Appropriations bill includes 348 additional
inspectors for the Nation's newest and busiest airports. These
inspectors will help alleviate the long lines at several airports,
including airports in the Southeast which have experienced tremendous
growth over the last few years. The airports in my own home state of
South Carolina illustrate this need as airlines and increasing numbers
of passengers require more flights with fewer delays.
Mr. CLELAND. I applaud the chairman's decision to boost the number of
INS inspectors for this next fiscal year. I would like to bring to the
Senator's attention that of the 150 new INS inspectors placed at
various points of
[[Page S9246]]
entry last year, Hartsfield received no new positions. There are other
notable disparities. For example, Atlanta conducts 70 percent more
inspections than Boston, but has only 30 percent more inspectors. The
number of passengers processed annually per inspector in Atlanta is
35,782. In comparison, Miami has a higher ratio of inspectors per
passenger than Atlanta, and, as a consequence, the average inspector in
Miami processes 10,000 fewer passengers each year. Honolulu inspects
less passengers than does Atlanta, but has twice as many inspectors.
And because Hartsfield generates between $18 million and $19 million in
user fees each year with less than $8 million spent at Hartsfield there
is concern that the Atlanta Airport is subsidizing inspections at other
airports in the Nation.
In addition, the airlines serving Hartsfield are planning major
expansions in their international service. Furthermore, recent census
data reflects tremendous population growth in metro Atlanta over the
past 10 years. This dynamic population increase, second only to that of
New York, will cause ever greater demand for international travel.
Given the time it takes to hire and train new inspectors, it is
critical that INS address the shortfall at Hartsfield now, or we will
lose our ability to attract international passengers, and the economic
development of the region will suffer.
Mr. HOLLINGS. As chairman of the Commerce Committee, I am very aware
of the increase in the number of flight delays at the Nation's
airports. We have held numerous hearings on the increase in domestic
and foreign travel and it is clear that additional INS agents are
needed at the Nation's busiest airports. United States airports have
experienced significant growth over the last several years and
additional INS agents are needed to address the increased demand not
only at the Atlanta airport but throughout the Nation's airports,
including in my home State of South Carolina. I will continue to work
with Senator Cleland to ensure that the nation's business airports,
Hartsfield Atlanta International Airport, receive the additional INS
agents that it needs.
Mr. CLELAND. Mr. President, I thank you for your support and
attention to this matter and I look forward to working with you in the
future on this issue of national importance.
vote explanation
Mr. EDWARDS. Mr. President, I was unavoidably detained and therefore
was unable to cast my vote on the motion to table the Smith-Harkin
amendment No. 1538 to H.R. 2500. Had I been present, I would have voted
against the motion to table.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________