Congressional Record, Volume 147 Issue 129 (Monday, October 1, 2001)

[Congressional Record Volume 147, Number 129 (Monday, October 1, 2001)]
[Senate]
[Pages S9948-S9954]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

USE OF FORCE AUTHORITY BY THE PRESIDENT

Mr. BYRD. Mr. President, up until a few days ago, the Senate was
moving with lightning-like speed to complete consideration of the
Defense authorization bill. Complications arose last week and slowed
the bill down, but it appears that the Senate may be poised to shift
back into high gear--or something like it--tomorrow and attempt to
finish the bill. A cloture motion was filed last week. If cloture is
invoked on Tuesday, passage of the bill will be more nearly assured.
Clearly, the Senate has many weighty matters to consider, both in
this bill and in other measures waiting in the wings. We should proceed
with all due haste to complete our work. The September 11 terrorist
attack on the United States reordered our priorities and imposed a new
measure of urgency on much of the business that is yet to come before
the Senate.
But in the heat of the moment, in the crush of recent events, I fear
we may be losing sight of the larger obligations of the Senate. Our
responsibility as Senators is to carefully consider and fully debate
major policy matters, to air all sides of a given issue, and to act
after full deliberation. Yes, we want to respond quickly to urgent
needs, but a speedy response should not be used as an excuse to trample
full and free debate.
I am concerned that the Defense bill may be a victim of this rush to
action, despite the respite offered by last week's delays. For example,
the Defense bill, as reported by the Senate Armed Services Committee,
contained language conditioning the expenditure of missile defense
funds on U.S. compliance with the Antiballistic Missile Treaty, the ABM
Treaty. I worry that that language--which was somewhat controversial in
committee and which was only narrowly approved--was dropped without a
word of debate being uttered on the Senate floor. I understand the
reluctance to engage in divisive public debate at a time when we are
all seeking unity, but I caution that debate over such an important
subject as the ABM Treaty is not to be lightly dismissed. There is no
question about the unity. The unity is here. And certainly, insofar as
I am concerned, debate over an issue of this kind is not going to be an
apple of discord thrown into the mix. We may just happen to disagree on
some matters with respect to the ABM Treaty.

So I cannot understand why there needs to be such ``unity'' that it
would require keeping our voices completely mute on a matter of this
kind. It would be no indication of disunity in this country and our
need to be unified in dealing with the terrorists or nations that
harbor terrorists. As a matter of fact, the mere fact that we would
disagree on a matter before the Senate--the ABM Treaty, for example--is
no indication of disunity when it comes to facing the common foe. Not
to me, at least.
The Defense authorization bill provides up to $8.3 billion for
missile defense, including activities that may or may not violate the
ABM Treaty in the coming months. Many experts believe the ABM Treaty is
the cornerstone of international arms control and that to abrogate or
withdraw from the treaty can only lead to a new, dangerous, and costly
international arms race. Other experts, on the other hand, are of the
opinion that the ABM Treaty has outlived its usefulness, that it is a
relic of the cold war that makes it impossible for the United States to
protect its citizens against a new world order of rogue nations armed
with ballistic missiles and transnational terrorists who may very well
be armed with chemical, biological, and nuclear weapons.
This is a major policy issue. That is what it is--a major policy
issue. I am not sure where I stand on the ABM Treaty, but I do know I
am not prepared to trade it in on a still-to-be-developed, still-to-be-
proven national missile defense program without giving the matter a
great deal of thought and consideration.
The language that was dropped from the Defense bill would have
provided Congress the opportunity to vote on funding any missile
defense expenditure that would violate the ABM Treaty. It was a
sensible provision, as I see it. I would have supported it, probably,
and I would have been eager to engage in debate over it. Although I
might have little to say, I would still like to hear it. I would like
to hear others. That opportunity was given away to avoid what? To avoid
a debate that some might have called divisive on this bill. So be it.
But having postponed that debate on this bill, we have an obligation to
find another venue in which to have that debate. And we should have
that debate sooner rather than later.
The resolution granting the President the authority to use force to
respond to the September 11 terrorist attack is another example of
Congress moving quickly to avoid the specter of acrimonious debate at a
time of national crisis. The resolution Congress approved gives the
President broad authority to go after the perpetrators of the terrorist
attack regardless of who they are or where they are hiding. I am not
saying we ought to debate that ad infinitum, but at least we could have
had 3 hours or 6 hours of debate. Why do we have to put a zipper on our
lips and have no debate at all?
It also authorizes the President to take all appropriate actions
against nations, organizations, or persons who aided or harbored those
perpetrators. In his address to Congress following the attack,
President Bush vowed to take the battle against terrorism to those
persons, such as Osama bin Laden; to those organizations, such as the
Taliban; to those networks, such as Al-Qaida, and to any nations that
acted as conspirators in the attack on the United States.

[[Page S9949]]

I supported the resolution granting the President the authority to
use military force against the perpetrators of this terrible attack,
and I applauded his address to Congress and to the Nation. I note that
the President wisely drew lines of discrimination, specifying that the
punishment must be directed against those who are guilty of this crime,
so that we cannot be accused of broadening our response to those who
were not involved in the September 11 attack. Our resolve and our
ferocity of response must carefully discriminate against the guilty,
and surely if we do so, all men of reason, all nations of conscience,
will support and applaud us.

I was reassured by the President's remarks. But as I delved more
deeply into the resolution passed by Congress, I began to have some
qualms over how broad a grant of authority Congress gave him in our
rush to act quickly. Because of the speed with which it was passed,
there was little discussion establishing a foundation for the
resolution. Because of the paucity of debate, it would be difficult to
glean from the record the specific intent of Congress in approving S.J.
Res. 23. There were after-the-fact statements made in the Senate, and
there was some debate in the House, but there was not the normal level
of discussion or the normal level of analysis of the language prior to
the vote that we have come to expect in the Senate. And so I think it
is important to take a second look at S.J. Res. 23, to examine its
strengths and weaknesses, and to put on record the intent of Congress
in passing the resolution.
I am not sure we are doing that. Just as this is my speech, just as
it is one Senator's observations, those observations might have been
worth a little more had we made them before we passed that resolution
in such a great hurry.
Two aspects of the resolution are key: First, the use of force
authority granted to the President extends only to the perpetrators of
the September 11 attack. It was not the intent of Congress to give the
President unbridled authority--I hope it wasn't--to wage war against
terrorism writ large without the advice and consent of Congress. That
intent was made clear when Senators modified the text of the resolution
proposed by the White House to limit the grant of authority to the
September 11 attack.
Let me at this point read into the Record the original text of
proposed joint resolution submitted to the Senate leadership by the
White House on September 12 this year of our Lord, 2001. And I read it:
``Joint resolution.'' The title: ``To authorize the use of United
States Armed Forces Against Those Responsible for the Recent attacks
Lunched Against the United States.''

Whereas, on September 11, 2001, acts of treacherous
violence were committed against the United States and its
citizens; and
Whereas, such acts render it both necessary and appropriate
that the United States exercise its rights to self-defense
and to protect United States citizens both at home and
abroad, and
Whereas, in light of the threat to the national security
and foreign policy of the United States posed by these grave
acts of violence, and
Whereas, such acts continue to pose an unusual and
extraordinary threat to the national security and foreign
policy of the United States,
Now, therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled--

And here is the resolving clause that was in the proposed legislation
submitted by the White House to the Senate leadership--

That the President is authorized to use all necessary and
appropriate force against those nations, organizations or
persons he determines planned, authorized, harbored,
committed, or aided in the planning or commission of the
attacks against the United States that occurred on September
11, 2001, and to deter and pre-empt any future acts of
terrorism or aggression against the United States.

That completes the proposed resolution the White House submitted to
the Senate leadership. Senators modified this text that was proposed by
the White House to limit the grant of authority, and that limitation is
extremely important because the resolution also gives the President
unprecedented authority to wage war not only against nations involved
in the September 11 terrorist attacks, but also against individuals and
organizations.
The resolution as passed by the Senate on September 14 is as follows:

S.J. Res. 23. Whereas, on September 11, 2001, acts of
treacherous violence were committed against the United States
and its citizens; and
Whereas, such acts render it both necessary and appropriate
that the United States exercise its rights to self-defense
and to protect United States citizens both at home and
abroad, and
Whereas, in light of the threat to the national security
and foreign policy of the United States posed by these grave
acts of violence, and
Whereas, such acts continue to pose an unusual and
extraordinary threat to the national security and foreign
policy of the United States,
Whereas, the President has authority under the Constitution
to take action to deter and prevent acts of international
terrorism against the United States.
Resolved by the Senate and the House of Representatives of
the United States of America in Congress assembled:
Section 1. Short Title.
This joint resolution may be cited as the ``Authorization
for Use of Military Force''.
Sec. 2. Authorization for Use of United States Armed
Forces.
(a) That the President is authorized to use all necessary
and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against
the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements.--
(1) Specific Statutory Authorization.-- Consistent with
section 8(a)(1) of the War Powers Resolution, the Congress
declares that this section is intended to constitute specific
statutory authorization within the meaning of section 5(b) of
the War Powers Resolution.
(2) Applicability of Other Requirements.-- Nothing in this
resolution supersedes any requirement of the War Powers
Resolution.
So, S.J. Res. 23 invokes the War Powers Resolution. Quite an addition
to the proposal that was sent to the Senate from the White House.
The crux of the War Powers Resolution is that it provides specific
procedures for Congress to participate with the President in decisions
to send U.S. forces into hostilities. Section 2(b) of S.J. Res. 23
specifically invokes section 5(b) of the War Powers Resolution and
further declares that nothing in S.J. Res. 23 supercedes any
requirement of the War Powers Resolution.
Section 5(b) of the War Powers Resolution provides that the President
must terminate any use of United States Armed Forces after 60 days
unless Congress has declared war or has enacted a specific
authorization for such use of United States Armed Forces. S.J. Res 23
provides that authorization within the context of the September 11th
attack.
Let me read that again because the emphasis is on the word ``that.''
I am going to redo this. S.J. Res. 23 provides that authorization--that
we have just read about--within the context of the September 11 attack.
Those persons, organizations or nations that were not involved in the
September 11 attack are, by definition, outside the scope of this
authorization.
By signing S.J. Res 23 into law, as he did on September 18th, it
would seem that the President explicitly, or at least implicitly,
accepted the terms of the Resolution, including the constraints imposed
by the War Powers Resolution.
However, as clear as the language appears on its face, it is
noteworthy that President Bush, like other presidents before him,
including his father, specifically noted in the statement he issued
when he signed the resolution that despite his signature, he maintains
``the longstanding position of the executive branch regarding the
President's constitutional authority to use force, including the Armed
Forces of the United States and regarding the constitutionality of the
War Powers Resolution.''
Every President since the enactment of the War Powers Resolution in
1973 has taken the position that the War Powers Resolution is an
unconstitutional infringement of the President's constitutional
authority as Commander in Chief to deploy U.S. forces into hostilities.
This does not mean that President Bush will use that argument to
completely shut Congress out of the process of deploying troops where
hostilities are taking place or immediately threatened to take place.
But it

[[Page S9950]]

does mean that President Bush, like his predecessors, is likely to use
that argument to consult with Congress and report to Congress on his
own terms and his own timetable instead of the terms and timetable
spelled out in the war powers resolution.
Last week, President Bush submitted his first report to Congress on
the new U.S. Campaign Against Terrorism. In his letter, the President
said, ``I am providing this report as part of my efforts to keep the
Congress informed, consistent with the war powers resolution and Senate
Joint Resolution 23. . . .'' While the intent may have been to inform,
the letter was decidedly lacking in details. Notwithstanding the
requirement of the War Powers Resolution, the President provided no
details on the proposed scope and duration of the deployment. The only
indication of a timetable was the president's assertion that the
campaign against terrorism ``Will be a lengthy one.''
Mr. President, I ask unanimous consent that a copy of the President's
report to Congress be included in the Record following these remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit No. 1.)
In short, what appeared to be crystal clear to Congress when it
passed the use of force resolution appears to be a matter of very
different interpretation to the President. I wonder, in retrospect, if
a few hours, or indeed if a very few hours, of searching debate and a
little more research prior to the passage of S.J. Res. 23 might not
have resulted in a more clearly defined grant of power. We may never
resolve the political tension between the executive and legislative
branches over the constitutional division of war powers, but we might
have been able to better clarify the intent of S.J. Res. 23. Such
clarity is important.
This is not a matter that no lack of goodwill will end tomorrow, or a
week from tomorrow, or perhaps a year from tomorrow. This resolution,
such as the use of force resolutions granted in the past, has no sunset
clause. These resolutions remain in force unless Congress repeals them.
For all we know, this President could just simply dust off, just that
easy--dust it off; dust it off--dust off the 1991 gulf war resolution.
The President could just as easily dust off the 1991 gulf war
resolution which granted use of force authority to his father, to cite
congressional authority to sweep Iraq into the current conflict
regardless of whether it had anything to do with the September 11
attack.
The President, of course, does have limited authority under the War
Powers Resolution to prosecute terrorist organizations that operate
against our interests and the interests of all peace-loving nations. He
has that power regardless of whether Congress has passed a resolution
granting him specific authority. He has that inherent power under the
Constitution, but he may not exercise it without triggering the
reporting and termination requirements of the War Powers Resolution. In
his address to Congress, the President cited organizations which are
known terrorist organizations in the world. Regardless of their
history, if those organizations were not involved in the September 11
attack, they fall outside of the broad grant of authority provided by
the Congress for the President to act in S.J. Res 23.
I am not making the case for them by any means. I am simply saying
that we in the Senate should have had some things to say publicly about
this resolution before we passed it.
We should have had some debate. The President could take action
against them if he deemed it necessary, but such action would trigger
the War Powers Resolution, wouldn't it? By law, the President would
have to report to the Congress on any actions he might take in regard
to those organizations, and seek new specific authorization from
Congress if he planned to engage in military action for more than 60
days. But will he? Will he?
The intent of the use of force authorization Congress approved in the
aftermath of the attack on America is clear. It is firmly anchored to
those individuals, organizations, or nations who were complicit in the
September 11th attack. Extended operations against other parties or
nations not involved in the attack would require--or would it--
additional specific authorization beyond the 60 day period provided for
in the War Powers Resolution. Whether the language of S.J. Res. 23
adequately supports the intent is another matter.
Mr. President, it may seem to some as though I am belaboring a fine
point--splitting hairs, if you please--during a time of national
crisis. One need not be mistaken about it--I support our President in
his efforts to bring to justice the evildoers who attacked the United
States on September 11th. Congress has clearly demonstrated its resolve
and its unity in that regard. I don't think anyone need have any doubts
about that. But I have also taken an oath to protect and defend--so has
every Senator in this body--the Constitution of the United States.
Article I Section 8 of the Constitution grants to Congress the
exclusive power to declare war. In taking any action to cede that
authority to the Executive Branch, Congress must act with extreme care
and caution.
Despite the speed with which Congress passed S.J. Res. 23, an effort
to inject care and caution into the process was certainly made. The
ramifications of the proposed resolution sent here by the White House
were weighed and they were considered. Important modifications were
made to the text originally proposed. I would not have voted for it
otherwise. I had no time to study it. I was busy in my Appropriations
Committee working on the bill appropriating $40 billion, so I had no
time whatever to participate in the study and modifications of that
resolution. But it was considerably modified. So there was considerable
modification made to the text originally proposed.
In an effort to achieve the goal of enabling the President to wage
war, as he calls it, against those responsible for the September 11
attack on the United States, while ensuring that the war cannot be
broadened to encompass other targets without the knowledge and the
consent of Congress, whether those modifications went far enough,
whether the resolution ultimately adopted by Congress accomplishes
precisely what we wish to accomplish, we have yet to know with
certainty.
The President has declared ours to be a nation at war with global
terrorism. We have united behind him in this hour of crisis, but we
remain mindful of the somber history of this nation, of the blood that
has been shed over the centuries to protect and defend the ideals
enshrined in our Constitution. We must, therefore, be as constant in
our vigilance of the Constitution as we are strong in our battle
against terrorism.
I urge my colleagues to keep clearly in mind their fundamental
responsibility to support and defend the Constitution. That is the oath
we took with our hands, at least figuratively speaking, on the Bible
``so help me God.'' Every one of these Senators took that oath, a
fundamental responsibility to support and defend the Constitution and
to fully and fairly debate the major policy issues of the moment
because this is going to be a long time. Whatever powers we cede will
have been ceded for a long time, perhaps.
As we move through the rest of this session of Congress, let us stop,
let us look, let us listen, listen to what our hearts are telling us.
Let us listen to what this Constitution is telling us. Let us act as
expeditiously as possible on the urgent matters before us, but let us
also act with calm, careful, and thorough deliberations.

Exhibit No. 1

Original Text of Proposed Joint Resolution Submitted to the Senate
Leadership by the White House, September 12, 2001

Joint resolution to authorize the use of United States Armed Forces
against those responsible for the recent attacks launched against the
United States

[[Page S9951]]

force against those nations, organizations or persons he
determines planned, authorized, harbored, committed, or aided
in the planning or commission of the attacks against the
United States that occurred on September 11, 2001, and to
deter and pre-empt any future acts of terrorism or aggression
against the United States.
____

S.J. Res. 23

(Passed by the Senate, September 14)

Whereas, on September 11, 2001, acts of treacherous
violence were committed against the United States and its
citizens; and
Whereas, such acts render it both necessary and appropriate
that the United States exercise its rights to self-defense
and to protect United States citizens both at home and
abroad, and
Whereas, in light of the threat to the national security
and foreign policy of the United States posed by these grave
acts of violence, and
Whereas, such acts continue to pose an unusual and
extraordinary threat to the national security and foreign
policy of the United States,
Whereas, the President has authority under the Constitution
to take action to deter and prevent acts of international
terrorism against the United States.
Resolved by the Senate and the House of Representatives of
the United States of America in Congress assembled.

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the ``Authorization
for Use of Military Force''.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) That the President is authorized to use all necessary
and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against
the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements.--
(1) Specific statutory authorization.--Consistent with
section 8(a)(1) of the War Powers Resolution, the Congress
declares that this section is intended to constitute specific
statutory authorization within the meaning of section 5(b) of
the War Powers Resolution.
(2) Applicability of other requirements.--Nothing in this
resolution supersedes any requirement of the War Powers
Resolution.
____

The White House,

Office of the Press Secretary,

September 24, 2001.

Letter to Congress on American Campaign Against Terrorism

(Text of a Letter from the President to the Speaker of the House of
Representatives and the President Pro Tempore of the Senate)

Dear Mr. Speaker: (Dear Mr. President:) On the morning of
September 11, 2001, terrorists hijacked four U.S. commercial
airliners. These terrorists coldly murdered thousands of
innocent people on those airliners and on the ground, and
deliberately destroyed the towers of the World Trade Center
and surrounding buildings and a portion of the Pentagon.
In response to these attacks on our territory, our
citizens, and our way of life, I ordered the deployment of
various combat-equipped and combat support forces to a number
of foreign nations in the Central and Pacific Command areas
of operations. In the future, as we act to prevent and deter
terrorism, I may find it necessary to order additional forces
into these and other areas of the world, including into
foreign nations where U.S. Armed Forces are already located.
I have taken these actions pursuant to my constitutional
authority to conduct U.S. foreign relations and as Commander
in Chief and Chief Executive. It is not now possible to
predict the scope and duration of these deployments, and the
actions necessary to counter the terrorist threat to the
United States. It is likely that the American campaign
against terrorism will be a lengthy one.
I am providing this report as part of my efforts to keep
the Congress informed, consistent with the War Powers
Resolution and Senate Joint Resolution 23, which I signed on
September 18, 2001. As you know, officials of my
Administration and I have been regularly communicating with
the leadership and other Members of Congress about the
actions we are taking to respond to the threat of terrorism
and we will continue to do so. I appreciate the continuing
support of the Congress, including its passage of Senate
Joint Resolution 23, in this action to protect the security
of the United States of America and its citizens, civilian
and military, here and abroad.
Sincerely,
George W. Bush.

The PRESIDING OFFICER. The Chair recognizes the Senator from
Minnesota.
Mr. WELLSTONE. I know the Senator from Michigan said he wanted to
speak. I am anxious to respond to some of what Senator Byrd said. I ask
unanimous consent I be allowed to follow the Senator from Michigan.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I thank my good friend from Minnesota.
While Senator Byrd is on the floor, let me thank him for another of a
long series of pleas that we be aware of our responsibility under the
Constitution of this country, particularly when it comes to issues of
war and peace. Surely the cautionary language of the great Senator from
West Virginia is something which I hope all Members will heed.
I, personally, treasure the copy of the Constitution which he has
autographed for me. I have it on my desk, and I look at it constantly.
It is not quite as close to my heart as the Constitution which the
Senator from West Virginia carries with him at all times, but it is
always a few feet away from me when I sit at my desk. I thank him for
again pointing out to the Senate the responsibility we have in these
particularly difficult days.
Mr. WARNER. I associate myself with those remarks from a member of
the Senate Armed Services Committee. We are pleased that he has
continued this long association, although his duties are very heavy in
other areas. It is interesting that only John Stennis was ever chairman
of the Appropriations Committee and also served on the Senate Armed
Services Committee. He was a great and dear friend of yours, we know,
and teacher to all Members.
We thank our colleague for this very important speech he has given
today.
Mr. BYRD. If the Senator will yield, I thank my friend from Virginia,
the State which gave to our country George Washington and James
Madison, the father of the Constitution. I thank him very much.
Mr. WARNER. I thank my good friend and colleague.
Mr. LEVIN. Mr. President, the Senator from West Virginia has made
reference to two actions we have taken in the Senate. I would like to
comment briefly on both.
First, on the second action we took, giving the President authority
to respond to the attacks of September 11, the Senator did us a great
service by laying out the version of that resolution with which we
started and the version with which we ended. I made the same effort
that day we voted on it, but I do not believe I actually put the drafts
in the Record. I made reference to them, but I think that perhaps this
is the first time the actual draft we began with is in the
Congressional Record. I think that is a very important service.
The resolution we adopted, as the Senator from West Virginia said, is
much narrower in terms of its authority. The draft we began with, that
the White House submitted to us, had unprecedented broad authority, far
too broad for most of us. It was unlimited by time and by other limits,
as to what the President could do in response to these attacks.
The final resolution we adopted provided that the authority granted
to the President is to respond to the attack of September 11--not to
some unspecified future attacks but to that particular attack of
September 11, and also, as the Senator from West Virginia said, made
specific reference and inclusion by reference to the provisions of the
War Powers Act.
Those and other changes in the language of the resolution were
significant. Our good friend from West Virginia pointed out that there
was much greater care and caution--to use his words--in the final
resolution we adopted. I hope history proves that those of us who
worked so hard on that final resolution indeed used enough care and
caution to satisfy the requirements of the Constitution and just good
common sense. But history will judge that one--and I hope will judge it
well--because the differences between the original draft resolution
submitted to us and the one we adopted are indeed significant changes,
major changes.
As a matter of fact, I want to give our staff some real credit
because they worked through the night with us in order to craft those
changes which we were then able to adopt unanimously in the Senate.
On the first matter the Senator from West Virginia raised, which was
the language which was in the original bill on national missile
defense--as a member of the Armed Services Committee I

[[Page S9952]]

know he is familiar with this history--let me recount it for those who
are not members of the committee.
As chairman of that committee, we asked the White House and the
administration to tell us whether or not the activities for which they
were requesting funding, the test activities for missile defense, were
consistent with the ABM Treaty or would conflict with the ABM Treaty.
We made many requests for that information, and we never received the
answer to it.
That is critically important information because if we, as the
appropriators and authorizers, are going to put funds into a bill for
testing activities which are in conflict with an arms control agreement
and which could have huge ramifications in terms of our own security,
in the view of many of us resulting in a unilateral withdrawal which
could make us less secure rather than more secure--if we are going to
take that action as a Congress to appropriate those funds, we should do
so knowingly.
We could not get that information. And so, as chairman of the
committee, I drafted language which gave us an opportunity down the
road, if and when the administration determined that the testing
activities conflicted with the Anti-Ballistic Missile Treaty--would
give us the opportunity to vote whether or not we approved such
expenditures.

If we couldn't find out then, if we couldn't get that information to
allow us to make that kind of an informed judgment, then I thought it
was critically important to have that information so we could at a
later point decide whether or not we would approve that expenditure. We
won that argument by one vote in the Armed Services Committee. I was
disappointed that all of our Republican colleagues voted against it. We
were then informed that if that language remained in the bill, the bill
would be vetoed by the President. So we started with that premise.
That doesn't mean the language was not the right language. In my
judgment, it was and is the right language. But what it means is that
we knew the bill would be vetoed.
Then came along the events of September 11, and the question was then
whether or not that would make it possible for us to preserve that
language in a totally different environment or whether or not it would
make it more difficult to preserve language which I, as its author,
thought was very significant, very important language.
There are many Members of this body who have devoted large amounts of
time to arms control issues, including the chairman of the Foreign
Relations Committee, but I must say I have spent a good deal of time in
my career working on these arms control issues, so this became a very
significant issue to me. I believe this unilateral withdrawal from the
arms control agreement will make us less secure and not more secure. If
I thought unilateral withdrawal from this treaty would make us more
secure, I would favor the unilateral withdrawal. I would give notice to
withdraw if I believed it would make us more secure--because that is
the issue. We are not here to defend a treaty; we are here to defend
the country. In my judgment, the unilateral withdrawal from this treaty
would result in such a negative reaction on the part of a number of
countries that would respond to that withdrawal that overall, on
balance, we would end up being less secure, and we would do so in order
to commit ourselves to testing a system which is a defense against the
least likely means of attack, a missile attack.
We have been told by the Joint Chiefs over and over again that the
least likely way we would be attacked, the least likely delivery system
for a weapon of mass destruction, would be a missile. The most likely
means would be a truck or a ship, some more conventional means--for a
number of reasons, one of which being those conventional means--trucks,
ships, whatever--are more accurate, cheaper, and--critically
important--do not have what we call a return address like a missile. A
missile attack would lead to the instantaneous destruction of any
country that attacked us, including North Korea. And since the
maintenance of their regime is their No. 1 goal in North Korea,
according to our intelligence community, it is very unlikely that North
Korea would attack us with a missile. It would lead to their
instantaneous, or almost instantaneous, destruction.
So I believe that to unilaterally withdraw from a treaty in order to
put us closer to a defense against the least likely means of attack,
and doing so unilaterally, which would produce a reaction on the part
of a number of countries, including Russia and China, which would
overall make us less secure since they would build up their forces
faster, they would not dismantle their weapons as Russia is doing, they
would put multiple warheads on missiles--called MIRVing--they would no
longer participate in dismantling weapons, which means we would have
more and more nuclear material on Russian soil subject to
proliferation, subject to pilferage, it struck me and strikes me that
unilateral withdrawal leaves us, overall, less secure.
That is why I worked so hard on getting that language included. I
thought, if Congress is going to provide the funds for that kind of
activity that leads to the unilateral withdrawal from an arms control
treaty, Congress should take the responsibility, under that oath to
uphold the Constitution of the United States, to know what we are
doing.
That was the driving force behind the language I drafted. So that
language comes in the bill that is now being considered on the floor
giving Congress the opportunity to have a voice before funds it
appropriates are used for that purpose. It gives us an opportunity to
know that in fact the funds are going to be used for an activity which
conflicts with the Anti-Ballistic Missile Treaty.
Then came the event of September 11. The argument which the opponents
of my language made was that my language tied the hands of the
Commander in Chief, because no longer could he move on his own without
authority for appropriations; he would have to first come back to us
for that authority.
Frankly, I don't think that argument comes close to outweighing the
arguments on the other side of this issue. Nonetheless, in that
environment I reached the conclusion that that argument was going to
prevail and it was not the time, immediately following the events of
September 11, for that argument to be resolved.
It was a very practical judgment on my part as its author that it was
about the worst time we could possibly pick--not that it was the time
of our choosing, but it would have been the worst time to have a debate
which had such crucial importance. It struck me as being far preferable
that we preserve our opportunity to present this issue later in a
separate bill that went on the calendar and that the majority leader
could then attempt to call up. That language is now part of a bill that
is on the calendar which the majority leader can at a later point call
up.
Will it be more difficult for him to call it up than it would have
been under the language had it remained embedded in the bill? The
answer is yes, it will be more difficult because he will have to move
to proceed if he cannot get the unanimous consent.
But given the fact that the President was going to veto this bill and
therefore this language was not going to end up in this bill in any
event even if it survived the Senate, and there were those of us who
had very strong feelings about the importance of avoiding a unilateral
rift in a strategic relationship with Russia that has produced such
stability, and for such little advantage, I made the judgment that it
would be wise to preserve that argument by placing it in a separate
bill that the majority leader at least could attempt to call up at a
later date and which would be on the calendar. But what I saw otherwise
was that this language was going to be removed by a vote of the Senate,
and having an added disadvantage that we would be debating a security
issue showing disunity at a time when we wanted to have unity.
That was but one factor in my thinking, the other factor being that,
as a matter of timing, this issue should be debated at a time when at
least there would be a fairer opportunity and a setting separated from
the events of September 11 where the argument that we were tying the
hands of the Commander in Chief would have less of an emotional impact.
I may have been right; I may have been wrong. But it was a judgment

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which I expressed to the body before the actions were taken. I
indicated that prior to those actions being taken where we divided this
language and put it into a separate bill, we should leave this debate
to a later time.
Those are key words which are sometimes forgotten. This debate has
not gone away. It will not go away. I believe it is very unlikely that
the President under these circumstances is going to withdraw
unilaterally from this treaty.

That is my own judgment. Surely the events of September 11 have made
it so clear that collective action against terrorism and collective
action for our security is essential and that unilateral action on our
part is not going to make us secure, we need a lot of other countries
to join with us if we are going to be secure. Acting unilaterally to
withdraw from an arms control treaty in this setting it seems to me is
highly unlikely.
I know that the White House and the President say they are determined
to get beyond the ABM Treaty, as they put it. But surely these events
have shown that we need to act collectively in a civilized world
against the uncivilized terror which has been perpetrated and inflicted
upon us.
I again thank my friend from West Virginia. I don't know of anybody
in this body who more eloquently and more consistently describes the
responsibilities of this body. I have outlined in the best way I can
what I believe my responsibility is and what my responsibility was.
My committee made a decision and the Senate made a decision after we
described the language that was in this bill. I think we made the right
decision. It allows those of us who believe strongly in the importance
of avoiding a rift in a relationship and a unilateral withdrawal from
an arms control treaty--it is consistent with our beliefs--to preserve
this argument for a later date. As I said on the floor prior to the
action we took, we should leave this debate for a later time; and, I
must add, as I have tried to say a number of times since, at a time
when I think we have a better chance of arguing the pros and cons of
our position in an environment where we at least maximize our
opportunity to prevail. That doesn't mean I am confident that we will.
I hope we will prevail if and when that moment comes. At least I
believe we have a greater opportunity when the debate takes place at a
later time and in a different setting than we do in the short term.
I thank my friend from Minnesota. I have taken more time than I told
him I would take.
Mr. WARNER. Mr. President, if I might take a few minutes, I think it
is important that the Record of the proceedings today also make
reference to the fact that I and many others believe that the events of
September 11 spoke volumes for the President's position that we should
not at this time be in any way less than forceful in trying to explore
all the options to develop a limited defense system protecting this
Nation against a limited attack such as future generations, when they
look back at this hour of tragedy, will say that our country did not
move forward on all fronts. None of this would have been envisioned. We
did not envision the tragedies of September 11. In many respects, some
still cannot envision that this country needs a defense against limited
attack.
I must say yes, I accept my distinguished chairman's statement to the
effect that he made certain decisions. I commend him for it. But I
believe several of us had spoken to him in the context of what was
going to be undertaken had that decision not been reached by our
chairman.
I inquire of the chairman: We want to have our colleague have his
opportunity to speak here momentarily. Could we get some time estimate
because work is being done on this side.
Mr. LEVIN. The Senator from Minnesota was kind enough to allow me to
precede him, although he was recognized first so we could comment on
Senator Byrd's comments. It would now be up to the Senator from
Minnesota.
Mr. WELLSTONE. Mr. President, I probably need about 20 minutes.
Mr. LEVIN. Mr. President, I ask unanimous consent that after the
Senator from Minnesota concludes his remarks we then return to
consideration of the bill.
Mr. WARNER. Mr. President, reserving the right to object, is the
subject matter of the address of the Senator from Minnesota relevant to
the pending matter before the Senate; namely, the Armed Forces bill?
Mr. WELLSTONE. That is correct, although I want to respond to Senator
Byrd's statement.
Mr. WARNER. May I also inquire of the chairman and the Senator from
Minnesota, our colleague from Connecticut has an amendment directly
related in some respects to aspects of the bill----
Mr. WELLSTONE. Mr. President, I have been here a long time, and I
asked unanimous consent to follow Senator Levin. I will speak and try
to cover the topic, and then I will yield the floor.
Mr. LEVIN. Mr. President, if the Senator will yield for one
additional unanimous consent request, I ask unanimous consent that
following the remarks of the Senator from Minnesota, we return to the
consideration of the bill and that Senator Dodd be immediately
recognized to offer an amendment.
Mr. WARNER. Again, reserving the right to object, we do have a stack
of agreed-upon amendments. As soon as we get that behind us, our staffs
can devote their time to additional amendments.
So I ask the Senator from Connecticut, how much time will he want for
the presentation of his amendment and such rebuttal or concurrence that
may be made or voiced by other colleagues? Then we can get some better
idea how soon we can return to the issue of amendments.
Mr. DODD. Mr. President, if my colleague and friend from Virginia
will yield, I anticipate taking no longer than 15 minutes myself.
Others may want to be heard.
Just for the purpose of letting Members know, this will be an
amendment for which, frankly, the chairman and ranking member are very
much responsible; and that is the fire assistance program in which we
are dedicating, in this case, to the 350 or so firemen who lost their
lives in New York on September 11, and those who fought here at the
Pentagon, to increase the authorization levels.
Others may want to be heard on that. On my part, 15 minutes ought to
be more than adequate.
Mr. WARNER. On that subject, while I personally am supportive of the
goals of the amendment, I must reserve the rights of Senators on this
side, particularly those on the Commerce Committee. I would presume
that the chairman and ranking member may desire to at least address the
Senate on this matter prior to any final action on the Senator's
amendment.
Mr. DODD. I say to my friend, we have notified the Commerce Committee
about this amendment. Again, I think they understand that given the
constraints remaining for us to offer a freestanding proposal, and
given the history of this bill associated with the DOD bill, I will
leave it to them to address it themselves. But we have talked about it.
Mr. WARNER. I say to my distinguished chairman, I would presume then
that this amendment would have a rollcall vote sometime tomorrow.
Mr. DODD. Right.
Mr. WARNER. Would you permit me to incorporate in your UC a request
that 30 minutes be granted to the chairman and ranking member of the
Commerce Committee prior to any vote on the amendment by our colleague
from Connecticut?
Mr. DODD. The only request I would make is this amendment be
considered prior to the cloture vote.
Mr. WARNER. I beg your pardon.
Mr. DODD. That it be considered prior to the cloture vote.
Mr. WARNER. I am not sure. The vote takes place at 9:30 tomorrow
morning. As I understand it, there is an order to that effect.
My understanding is that the standing order is that the Senate will
vote at 10 o'clock tomorrow morning on a cloture motion; is that
correct?
The PRESIDING OFFICER (Mr. Corzine). That is correct.
Mr. WARNER. Then I would say to my colleague from Connecticut, how do
we achieve that?
Mr. DODD. We could have a voice vote. We do not need a recorded vote.
Mr. WARNER. I would have to object to a voice vote. I am dutybound,
you

[[Page S9954]]

understand, to protect colleagues on this side, particularly those on
the Commerce Committee which has overall jurisdiction.
Mr. DODD. If my colleague will yield, if there is no objection to the
amendment being incorporated in the bill, this may be the one
opportunity where we will be able to do something about these
firefighters.

Mr. WARNER. I want to help you. I am going to vote with you. But I am
dutybound, as you understand, to protect those on this side. I do not
know what the chairman of the Commerce Committee, on your side, has
said about this issue, but I do know members of the Commerce Committee,
on this side, certainly must be protected--at least be given an
opportunity to speak to this amendment if it is brought up for purposes
of a rollcall vote.
Mr. DODD. Why don't we proceed this way, if we could: After the
Senator from Minnesota has been heard, if I can offer the amendment, I
would like to discuss it. In the meantime, we can have conversations.
We have already had conversations with members of the Commerce
Committee. If they are going to object to us voting on this prior to
the cloture vote tomorrow, or allow us to have a voice vote on this,
then so be it. But if not, then it could go through this evening. We
ought to try to do it.
Is that all right?
Mr. WARNER. Mr. President, that seems to me to be an orderly
procedure.
Mr. LEVIN. Mr. President, I ask unanimous consent that immediately
following the statement of the Senator from Minnesota, we return to the
Defense authorization bill and Senator Dodd be recognized to offer an
amendment.
The PRESIDING OFFICER. Is there objection?
Mr. WARNER. Reserving the right to object, could that be 15 minutes?
Mr. LEVIN. Just to offer it.
Mr. WARNER. He wanted 15 minutes to offer it, which is fine. I have
no objection, but I do want to get back to this question of amendments.
Mr. LEVIN. And that Senator Dodd's speech be limited to 15 minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Minnesota.

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