[Congressional Record Volume 149, Number 116 (Thursday, July 31, 2003)]
[Senate]
[Pages S10599-S10602]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IRAQ AND AMERICAN FOREIGN POLICY
Mr. CARPER. Mr. President, I rise to call the Senate's attention to a
very important address that my distinguished senior colleague, the
ranking member of the Foreign Relations Committee, delivered today on
America's foreign policy and our ongoing operations in Iraq. I commend
Senator Biden for his wise and eloquent words, and I hope that all of
my colleagues will take note of this insightful address.
Senator Biden delivered this address today on the one-year
anniversary of the bipartisan hearings he held last year as chairman of
the Foreign Relations Committee, in which the committee explored many
of the very questions that are bedeviling us today in post-war Iraq.
Those hearings raised, before the war, all of the questions we are
confronted with today with respect to how many troops we will need to
maintain in Iraq and for how long, as well as how much the
reconstruction of Iraq will cost and how we can best secure
international cooperation to share the burdens of bringing peace and
democracy to Iraq. Indeed, Chairman Biden said at the very first of
those hearings last year, ``We need a better understanding of what it
would take to secure Iraq and rebuild it economically and politically.
It would be a tragedy if we removed a tyrant in Iraq, only to leave
chaos in his wake.'' One can only wish that the administration had paid
more attention to the questions the committee raised and some of the
warnings that the committee received from the distinguished witnesses
that testified during those hearings.
Senator Biden's speech today was an unapologetic defense of the
decision to go to war in Iraq. ``Anyone who can't acknowledge that the
world is better off without [Saddam] is out of touch,'' he said. ``The
cost of not acting against Saddam would have been much greater, and so
is the cost of not finishing the job.'' At the same time, Senator
Biden's speech today was also a ringing affirmation of the historical
tradition of bipartisan foreign policy that has been the hallmark of
this institution and of the Senate Foreign Relations Committee, in
particular. He suggests that today, and I quote, ``the stakes are too
high and the opportunities too great to conduct foreign policy at the
extremes.''
In very convincing terms, Senator Biden argues that we need to chart
a sensible path between the prescriptions of neo-conservative purists,
who affirm a strident unilateralism, and multi-lateral purists, who
shrink from forcefully acting in the absence of international
consensus. Again I quote: ``What we need isn't the death of
internationalism or the denial of stark national interest, but a more
enlightened nationalism--one that understands the value of institutions
but allows us to use military force, without apology or apprehension if
we have to, but does not allow us to be so blinded by the overwhelming
power of our armed forces that we fail to see the benefit of sharing
the risks and the costs with others.''
As Senator Biden argues, we need to act forcefully, but humbly in the
world today. We need to be unapologetic in the post-9/11 world about
fighting for the security of our people. But we need to pursue our
goals, as Thomas Jefferson once said, ``with a decent respect to the
opinions of mankind.'' The course that Senator Biden outlined today is
the course we should follow, Mr. President. Ultimately, I believe that
most Americans will conclude that we were right to act in Iraq. We also
need to see the job through. But we need to reengage with the
international community and make them partners in the noble work of
securing the peace in Iraq and spreading freedom and democracy
throughout the region. Again, I commend Senator Biden's address to my
colleagues' attention, and I ask unanimous consent that the full text
of it be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The National Dialogue on Iraq + One Year
(By Senator Joseph R. Biden, Jr., The Brookings Institute, July 31,
2003)
Introduction: America's Place in the World
Most Americans don't know what you and I know, that there's
a war being waged in Washington to determine the direction of
our foreign policy. It goes well beyond the ordinary
skirmishes that are the stuff of politics and tactics. This
war is philosophical. This war is strategic and its outcome
will shape the first fifty years of the twenty-first century,
just as the consensus behind containment shaped the last
fifty years.
Right now, the neo-conservatives in this Administration are
winning that war. They seem to have captured the heart and
mind of the President, and they're controlling the foreign
policy agenda. They put a premium on the use of unilateral
power and have a set of basic prescriptions with which I
fundamentally disagree. Just as I disagree with those in my
own Party who have not yet faced the reality of the post-9-11
world, and believe we can only exercise power if we act
multilaterally.
I don't question the motives of either the neo-
conservatives or the pure multilateralists. They genuinely
view the world differently than I do. Suffice it to say, in
my view the neo-cons and the pure multilateralists are both
wrong. What we need isn't the death of internationalism or
the denial of stark national interest, but a more enlightened
nationalism--one that understands the value of institutions
but allows us to use military force, without apology or
apprehension if we have to, but does not allow us to be so
blinded by the overwhelming power of our armed forces that we
fail to see the benefit of sharing the risks and the costs
with others.
In my view, the stakes are too high and the opportunities
too great to conduct foreign policy at the extremes.
One Year Ago
Exactly one year ago today, when I was Chairman of the
Foreign Relations Committee we began a series of bipartisan
hearings on America's policy toward Iraq.
Our purpose was to start a national dialogue and give the
American people an informed basis upon which to draw their
own conclusions. At that first hearing, I said ``President
Bush has stated his determination to remove Saddam from power
a view many in Congress share . . .'' and I was among them. I
also said as clearly as I could ``If [removing Saddam] is the
course we pursue . . . it matters profoundly how we do it and
what we do after we succeed.''
Now, a year later, Saddam is no longer in power and that's
a good thing. His sons Ouday and Qusay have been killed.
That's another good thing. They deserve their own special
place in hell. But the mission is hardly accomplished. The
new day in the Middle East has not yet dawned.
We're still at war. American soldiers are still dying, one,
two, three at a time. Iraq is still not secure. Still no one
has told our troops that they'll have to stay for a long time
in large numbers; that they'll have to tough it out. Most
Americans still don't realize it's costing us a billion
dollars a week to keep our troops in Iraq, and billions more
in reconstruction, and revenue from Iraqi oil will not cover
these costs.
And we still haven't heard a single clear statement from
the President articulating what his policy is in general and,
specifically, that securing Iraq will cost billions of
dollars, require tens of thousands of American troops for a
considerable amount of time, and that it's worth it. And,
most importantly, why it's in our national interest to stay
the course.
Some in my own Party have said it was a mistake to go into
Iraq in the first place, and the benefit is not worth the
cost. I believe they're wrong. The cost of not acting against
Saddam would have been much greater, and so is the cost of
not finishing the job. The President is popular. The stakes
are high. The need for leadership is great.
I wish he'd used some of his stored-up popularity to make
what I admit is an unpopular case. I wish the President,
instead of standing on an aircraft carrier in front of a
banner that said: ``Mission Accomplished'' would have stood
in front of a banner that said: ``We've Only Just Begun.''
I wish he would stand in front of the American people and
say: ``My fellow Americans, we have a long and hard road
ahead of us in Iraq, but we have to stay in Iraq. We have to
finish the job. If we don't, the following will
[[Page S10600]]
happen. Here's what I'll be asking of you and, by the way,
I'm asking the rest of the world to help us as well. And I am
confident we'll succeed and as a consequence be more
secure.''
I'm waiting for that speech.
I said a year ago that, ``In Afghanistan, the war was
prosecuted exceptionally well, but the follow-through
commitment to Afghanistan's security and reconstruction has
fallen short.''
Our failure to extend security beyond Kabul has handed most
of the country to the warlords. The Taliban is regrouping.
The border area with Pakistan is a Wild East of lawlessness.
Afghanistan is now the number one opium producer in the
world. The proceeds will fund tyrants and terrorists, who
will fill the security vacuum, just as they did a decade ago.
And the billion dollars the Administration is talking about
sending Karzai is a year late and about 2 billion short. The
failure to win the peace in Afghanistan risks being repeated
in Iraq with even graver consequences.
Those failures could condemn both countries to a future as
failed states, and we know from bitter experience that failed
states are breeding grounds for terrorists.
If we don't write a different future, Americans will be
less secure.
I said at that first hearing and I still believe today that
``We need a better understanding of what it would take to
secure Iraq and rebuild it economically and politically. It
would be a tragedy if we removed a tyrant in Iraq, only to
leave chaos in his wake.''
But that's exactly what could happen unless we make some
significant changes.
Dr. Hamri, in his report to the Secretary of Defense and in
testimony before the Committee, said that the window of
opportunity is closing and it's closing quickly.
The Road to Baghdad
Nine months ago, I voted to give the President the
authority to use force. I would vote that way again today.
Why? Because for more than a decade Saddam defied more than a
dozen U.N. Security Council Resolutions. He lost the Gulf
War, sued for peace, and was told by the U.N. what he had to
do to stay in power. Then he violated those agreements and
thumbed his nose at the U.N. He played cat-and-mouse with
weapons inspectors and failed to account for the huge gaps in
his weapons declarations that were documented by the U.N.
weapons inspectors in 1998. He refused to abide by the
conditions and, when he refused, it became the fundamental
right of the international community to enforce those rules.
I voted to give the President authority to use force
because Saddam was in violation of his agreements. He was a
sadistic dictator who used chemical weapons against the Kurds
and the Iranians. He killed thousands of Shiites. He invaded
his neighbors, crossed a line in the sand, fired missiles
into Israel. And if we'd left him alone for five years with
billions of dollars in oil revenues I'm convinced he'd have
had a nuclear weapon that would have radically changed the
strategic equation to our detriment.
In my view, anyone who can't acknowledge that the world is
better off without him is out of touch. That was the case
against Saddam. The President made it well.
But then the ideologues took over and made Iraq about
something else. They made it about establishing a new
doctrine of preemption. And, in so doing, we lost the good
will of the world. Let me be clear. We face a nexus of new
threats and it requires new responses. Deterrence got us
through the Cold War but it can't be the only answer now.
The right to act preemptively in the face of an imminent
threat must remain part of our foreign policy tool kit, as it
always has been.
But this Administration has turned preemption from a
necessary option into an ill-defined doctrine. Iraq was to be
the test case. In my view, Iraq wasn't about preemption--It
was about the enforcement of a surrender agreement drafted by
the international community and signed by Saddam.
Making Iraq the case for preemption, putting it at the
heart of our foreign policy, made it harder to get the world
to join us. Why? Because not one of our allies wanted to
validate the preemption doctrine. Raising preemption to a
doctrine sends a message to our enemies that their only
insurance against regime change is to acquire weapons of mass
destruction as quickly as they can.
It sends a message from India and Pakistan, to China and
Taiwan, to Israel and its Arab neighbors--if the United
States can shoot first and ask questions later, so can they.
Preemption demands a high standard of proof that can stand
up to world scrutiny and ``murky intelligence'' is hardly
enough to meet that standard.
Instead of a preemption doctrine, we need a prevention
doctrine that defuses problems long before they are on the
verge of exploding. And I'll be talking more about that in
the coming weeks.
For now, suffice it to say, the Administration was wrong to
make Iraq about preemption. But we were right to confront the
challenge posed by Saddam.
Contrary to what some in my Party might think, Iraq was a
problem that had to be dealt with sooner rather than later. I
commend the President--He was right to enforce the solemn
commitments made by Saddam. If they're not enforced, what
good are they?
For me, the issue was never whether we had to deal with
Saddam, but when and how. And it's precisely the when and how
that this administration got wrong. We went to war too soon.
We went with too few troops. We went without the world. And
we're paying a price for it now.
We authorized the President to use force. Congress gave him
a strong hand to play at the United Nations. The idea was
simple.
We would convince the world to speak with one voice to
Saddam: disarm or be disarmed. In so doing we hope to make
war less likely. If Saddam failed to listen and forced us to
act, we'd have the world with us.
But the Administration mis-played that hand . . .
undercutting the Secretary of State allowing our military
strategy to trump our diplomatic strategy. The world was
convinced that we were determined to go to war no matter what
Saddam did, and there were those in Europe who said they'd
never go to war no matter what Saddam did or didn't do.
We insulted our allies and the U.N. weapons inspectors. We
failed to be flexible in securing a second U.N. resolution.
For the price of a 30-day deadline, we could have brought a
majority of the Security Council along with us. We didn't.
We flip-flopped between trying to bully and bribe the
Turks. We lost the option to attack from the North and as a
result, we by-passed the Sunni triangle, which is the source
of so much of our trouble today. And worst of all, we hyped
the intelligence. I said ``hyped'', not ``lied about it.'' I
don't believe the President lied. But I do believe he was
incredibly ill-served by those in his administration who
exaggerated the very pieces of intelligence most likely to
raise alarms with the American people.
It's not just 16 words in the State of the Union. It's that
consistently, in speech after speech, TV appearance after TV
appearance, the most senior Administration officials left the
impression with the American people that Iraq was on the
verge of reconstituting nuclear weapons. In fact, the Vice
President Cheney said they had already done it that it was in
league with Al Qaeda and complicit in the events of 9-11;
that it had already weaponized chemical agents that could
kill large numbers of Americans; and that it was developing
missile capability to strike well beyond its borders.
The truth is there's little intelligence to substantiate
any of these claims. The truth is that there was an on-going
debate within our intelligence community about each of these
allegations. Yet the administration consistently presented
each of these allegations as accepted facts.
I believe the purpose was to create a sense of urgency, the
sense of an imminent threat, and to rally the country into
war. The result is: we went to war before we had to--before
we had done everything we could to get the world with us.
Does anyone in this room really, seriously believe that our
interests would have been severely hurt if we had waited to
go to war until this September or this October when we would
have had much of the world with us? And there's another
terrible result the damage done to our credibility.
What happens now when we need to rally the world about a
weapons program in North Korea or Iran? Will anyone believe
us?
In 1962, President Kennedy sent former Secretary of State
Dean Acheson to France to brief DeGaulle about Soviet
missiles in Cuba. Acheson offered DeGaulle a full
intelligence report to back up the allegations. The French
President said that wasn't necessary, he didn't need to see
the report.
He told Acheson he trusted Kennedy. That he knew the
President would never risk war unless he was sure of his
facts. After the way this Administration handled Iraq, will
we ever recover that level of trust with any of our key
allies?
What price will we have to pay for the mistrust we've
created?
Getting It Right In Iraq
Last month, Senators Lugar, Hagel and I traveled to
Baghdad. We left behind two of our senior staffers for an
extra week to see more of the country and talk to Iraqis. We
saw first hand that we have the best people on the ground. We
met with military commanders with officers and with enlisted
men and women and we spent time with Ambassador Bremer and
the A-team he's assembled. There's no doubt we've got the
right people in place. And we've made some real progress.
It was clear to us that the vast majority of the Iraqi
people are happy Saddam is no longer in power. They want us
to stay as long as it takes to get them back on their feet.
Much of the country beyond Baghdad is relatively calm--
hospitals and schools are open; the newly formed Iraqi
Governing Council is encouraging; and so are the local
councils, one of which we visited.
But this very real progress is being undermined by our
failure so far to come to grips with some very fundamental
problems, and security is problem-number-one. It's always
problem-number-one. I've seen it in the Balkans. I saw it in
Afghanistan. And it's just as true in Iraq. Without security,
little else is possible. The problem breaks down into two
parts: First, we haven't put down the opposition from forces
loyal to Saddam. General Abizaid finally admitted we're
facing ``guerilla war.'' Almost every day that our troops
continue to get picked off, sometimes by a lone sniper, other
times by roadside bombs that kill two, three, four, or more
at a time. This cannot, it must not continue.
There's a short-term fix: more foreign troops to share our
mission and more Iraqis
[[Page S10601]]
to guard hospitals, bridges, banks, and schools. If we had
them, we could concentrate our troops in the Sunni triangle--
where they're needed and where they can do the type of
military job for which they were trained.
The second security issue is the pervasive lawlessness that
makes life in Iraq so difficult for so many of its citizens.
During the day, many Iraqis are afraid to leave home, go to
work, go shopping even for the basic needs of their family.
At night that fear makes much of Baghdad a ghost town.
Without cops, there are countless reports of rapes and
kidnapings.
When I was at the Baghdad police academy run by former New
York City Police Chief Bernie Kerik, they told us just how
far we have to go to get a functioning police force up and
running.
Under Saddam, Iraqi cops rarely left their headquarters. If
there was a murder, they wouldn't investigate out in the
field. They'd ask people to come to them, and if they
didn't--they'd get shot. We're not just RE-training Iraq's
cops, we're training them from the ground up.
We've got to build back to the 18,000 police cars that are
needed from the 200 available now. We've got to rebuild
Iraq's major prisons, virtually all of which were burned or
looted. Ultimately, only Iraqis can provide for their own
security.
The Iraqi Civil Defense Corps we've begun to establish will
help, but all of our experts agree that it'll take five years
to train the necessary police force of 75,000 and three years
to field an army of 40,000. Until then, security is on our
shoulders.
Meanwhile, the Administration seems to have lost interest
in the very issue they told us was the reason to go to war--
Iraq's WMD. I can't fathom how we failed to secure the known
WMD sites after the war, leaving them vulnerable to looting
and smuggling.
And I can't understand how the Deputy Secretary of Defense
could say, just last week, that he's ``not concerned about
weapons of mass destruction.''
On top of these overwhelming security challenges, the
country's infrastructure is suffering from almost 30 years of
neglect. That certainly shouldn't have been a surprise.
Even before the war, demand for electricity exceeded
supply--6000 megawatts were needed; 4000 was the capacity.
There were brownouts and blackouts. Today we're not even back
to 4000 megawatts and may not get there until September.
It'll take several years and more than 13 billion dollars to
stay even with demand. The same is true with water--we'll
need five years and more than 15 billion dollars to meet
Iraqi demand. This feeds the gnawing sense of insecurity that
paralyzes life in the capital.
Ultimately, our goal has to be to revive Iraq's economy
because idle hands, rising frustration, and 5 million AK-47s
is not a recipe for security. Finally, we're doing a terrible
job of letting Iraqis know how Saddam destroyed their country
and that we're working to make their lives better.
In fact, when I was in Baghdad, the CPA was broadcasting
just 4 hours a day. I'm told we're up to nearly 14 hours but
the programming--bureaucrats reading dry, dull official
scripts--makes public access television look good! Meanwhile,
Al Jazeera and Iranian TV dominate the airwaves 24/7 with
more sophisticated programming. The bottom line is this:
Iraqis simply can't understand how the most powerful nation
on earth, which toppled Saddam in three weeks, and, with
exact precision, directed laser guided bombs through the side
door of a house, how that all-powerful nation can't
get lights turned on.
In short, Iraqis have high expectations and we're not
coming close to meeting them. Some of this is out of our
control but we've brought a large part of this on ourselves.
And that's because the problems in Iraq today were compounded
by the false assumptions this Administration made going in,
and by its failure to listen to its own people and outside
experts. They assumed we'd be greeted as liberators. They
assumed our favorite exiles would be embraced by the Iraqi
people as new leaders. They assumed that the civil service,
the army, and the police would remain intact and that all
we'd have to do is replace their Baathist leadership. They
assumed that Iraqi oil revenues would pay for the lion's
share of reconstruction. All these assumptions were wrong,
wrong, wrong.
The result is: They failed to begin planning for post-
Saddam Iraq until just weeks before we attacked forgetting
that we began planning for post-war Germany three years
before the end of World War II. They failed to plan for the
looting and sabotage. They failed to account for the decay
and destruction of Iraq's infrastructure. They failed to
secure commitments from other countries to help pay for
Iraq's reconstruction. They failed to see the critical
importance of putting enough boots on the ground, both our
own and those of other countries.
Back in 1999, our military planners ran an exercise that
concluded we'd need 400,000 troops--not to win, but to secure
Iraq. Just before we invaded, the National Security Council
prepared a memo that said the number was more like 500,000. I
don't know if the President read the memo--I wish he had!
We might have planned differently. We might have thought
twice about trying out Secretary Rumsfeld's theory that the
U.S. should put fewer boots on the ground in military
conflicts. And all of this has led us into a box where we
have few good choices left. If we don't change course if we
don't bring others along with us; if we don't get 5,000
foreign cops to train and patrol with the Iraqis; if we don't
bring in more than 30,000 foreign troops to help relieve us,
as the Chairman of the Joint Chiefs says we must; if we don't
get the water running; if we can't make sure that a woman can
leave home or send her children to school safely; if we can't
get the lights on; if we fail to bridge the expectations gap
by better communicating to the Iraqi people; if paralysis of
progress continues for more than a couple more months; if ALL
of this happens, we'll lose not only the support of the Iraqi
people but the support of the American people as the
discontent and the death toll rise. At that point, I predict,
this Administration will be seriously tempted to abandon
Iraq. They'll hand over power to a handpicked strongman dump
security and reconstruction responsibility on the U.N., and
we'll lose Iraq.
Imagine if we lost Iraq. In a worst case scenario, there'd
be chaos and the threat of Iranian and fundamentalist
domination of the country. The Middle East peace process
would likely be derailed. Iraq would become a failed state
and a source of instability. We'll have jeopardized our
credibility in the world. And we'll be far less secure than
when we went in.
So that leaves us with three options: We can pull out, and
lose Iraq. That's a bad option. We can continue to do what
we're doing: provide 90 percent of the troops, 90 percent of
the money, and nearly 100 percent of the deaths. That's
another, really bad option. Or, we can bring in the
international community and empower Iraqis to bolster our
efforts and legitimize a new Iraqi government which will
allow us to rotate our troops out and finally bring them
home.
That to me is the clear choice.
We have to bring in our allies. And you may ask: why would
they want to help? The answer is . . . it's in their
interest. Iraq is in Europe's front yard. Most European
countries have large Muslim populations. They have commercial
interests. Stability in Iraq is vital for our European
allies, and it's vital for the Arab world as well. They need
to get invested just as we are.
Three Steps We Can Take
So what do we do to bring in the international community
and sustain the support of the Iraqi as well as the American
people? First, we need a new U.N. Resolution. We may not like
it, but most of the rest of the world needs it if we expect
them to send the troops we need and to help pay for Iraq's
reconstruction. Let's keep in mind, the President personally
tried for weeks to persuade India to send another 17,000,
and they said ``no--not without a U.N. resolution. With
such a resolution, I think we could persuade France, and
Germany, and NATO to play a larger and official role to
secure the peace. But not without a resolution.
We have to understand that leaders whose people opposed the
war need a political rationale to get them to support
building the peace. We have to understand and be willing to
accept that giving a bigger role to the United Nations and
NATO means sharing control, but it's a price worth paying if
it decreases the danger to our soldiers and increases the
prospects of stability.
Second, it's time to act magnanimously toward our friends
and allies. We are a superpower and we should be magnanimous
because it's not just the right thing to do, but because it's
the practical thing to do. Not simply because it's consistent
with our values as a nation but because if we don't make the
on-going war on the ground in Iraq the world's problem, it
will remain our problem alone.
The truth is, we missed a tremendous opportunity after 9-11
to bring our friends and allies along with us and to lead in
a way that actually encouraged others to follow. We missed an
opportunity, in the aftermath of our spectacular military
victory to ask those who were not with us in the war to be
partners in the peace. Instead we served `freedom toast' on
Air Force One.
The American people get it. They intuitively understand
that we can't protect ourselves from a dirty bomb on the Mall
in DC; a vial of anthrax in a backpack; or a homemade nuke in
the hold of a ship steaming into New York harbor without the
help of every intelligence service and every customs service
in the world, without Interpol and yes, the French and the
Germans and even the U.N.
Third, and most importantly, I said it a year ago, and I'll
say it again: no foreign policy can be sustained without the
informed consent of the American people. We learned that
lesson in Vietnam, but we haven't applied it to Iraq. I
cannot overstate the importance of keeping the American
people fully informed of the risks, the costs, to the extent
we know them, and the importance of staying the course in
Iraq.
This Administration has been good at projecting power, but
it hasn't been anywhere near as good at staying-power. Nor
has it been good at convincing the American people that
securing Iraq is a necessary, if costly, task--but that it's
do-able.
If we learned one thing last year, it should be that the
role of those of us in positions of leadership is to speak
the truth to the American people--to lay out the facts to the
extent we know them and to explain to the American people
exactly what's expected of them in terms of time, dollars,
and commitment.
Our role as leaders is not to color the truth with cynicism
and ideological rhetoric but to
[[Page S10602]]
animate that truth with the same resilience the same dignity,
the same decency, and the same pragmatic approach the
American people have applied to every task and every
challenge.
It's long past time for the President to address the
American people in prime time, to level with us about the
monumental task ahead, to summon our support.
I and most of my colleagues will stand with him.
So yes, when it comes to foreign policy, I have a
fundamental difference of opinion with some in this
Administration and I'll be talking more about it in the next
few weeks. But that's okay because I'm reminded of the words
of Senator Arthur Vandenberg who said: ``Bipartisan foreign
policy does not involve the remotest surrender of free debate
in determining our position. On the contrary, frank
cooperation and free debate are indispensable to ultimate
unity. It simply seeks national security ahead of partisan
advantage. Every foreign policy must be totally debated and
the loyal opposition is under special obligation to see that
this occurs.''
I think it is my obligation to articulate an opposing view.
____
Memorandum
To: Senator Carper
From: Margaret Simmons
Re: Mandatory Minimum Sentencing
Date: April 28, 2003
Background
The Anti-Drug Abuse Act of 1986 provided mandatory minimum
sentences of imprisonment for possession with intent to
distribute powder and crack cocaine. In this statute Congress
established a quantitative 100-to-1 sentence ratio between
the two (i.e., it takes 100 times as much powder cocaine as
crack cocaine to trigger the same sentence). Under this
distinction, a person convicted of possession with intent to
distribute a pound of powder cocaine (453.6 grams) would
serve considerably less time in a federal prison than one
convicted of possession with intent to distribute 5 grams of
crack. The United States Sentencing Commission incorporated
the ratio into its generally binding sentencing guidelines.
Since enactment, it has become apparent that the incidence of
this sentencing differential falls disproportionately on
African-American defendants.
Instructed to study the situation, the Sentencing
Commission proposed amendments that would equate crack and
powder cocaine for sentencing purposes and recommended that
Congress drop the 100-to-1 ratio from its own mandatory
penalties. Congress rejected both the amendments and the
suggestion for equation, but directed the Commission to re-
examine the issue and report back recommendations reflecting
more moderate adjustments.
In May 2002 the Sentencing Commission issued its report to
Congress on cocaine and federal sentencing policy. In that
report, the Commission recommended a three-pronged approach
for revising federal cocaine sentencing policy: increase the
five-year mandatory minimum threshold quantity for crack
cocaine offenses to at least 25 grams (and the ten-year
threshold quantity to at least 250 grams); provide direction
for more appropriate sentencing enhancements within the
guidelines' structure that target the most serious drug
offenders for more severe penalties without regard to the
drug involved; and maintain the current mandatory minimum
threshold quantities for powder cocaine offenses. The
Commission found that there does not appear to be evidence
that the current quantity-based penalties for powder cocaine
are inadequate.
Drug Sentencing Reform Act of 2001
In the last Congress, Senator Sessions introduced
legislation to reduce the disparity in punishment between
crack and powder cocaine offenses, and to focus the
punishment for drug offenders on the seriousness of the
offense and the culpability of the offender. The legislation
reduces the disparity in sentences for crack and powder
cocaine form the ratio of 100-to-1 to 20-to-1. (Under state
law in Delaware, the ratio is 1-to-1.) It does so by reducing
the penalty for crack and increasing the penalty for powder
cocaine. For example, for the five-year mandatory minimum,
the bill would decrease the trigger amount for powder
cocaine from 500 grams to 400 grams, and increase the
trigger amount for crack cocaine from 5 grams to 20 grams.
In addition, the bill shifts some of the sentencing
emphasis from drug quantity to the nature of the criminal
conduct. The bill increases penalties for the worst drug
offenders that use violence and employ women and children as
couriers to traffic drugs. The bill also decreases mandatory
penalties on those who play only a minimal role in a drug
trafficking offense, such as a girlfriend or child of a drug
dealer.
Recommendation
Senator Sessions legislation is a good start to address the
disparities in mandatory sentencing between crack and powder
cocaine, and achieves the recommended 20-to-1 sentencing
ratio proposed by the Sentencing Commission. The bill does so
by lowering the threshold quantities for powder cocaine, and
increasing the threshold for crack cocaine.
However, the Sentencing Commission's recommendation was to
leave the quantity-based penalties for powder cocaine
unchanged. Given that this recommendation was unanimous, I
think it should be given considerable weight. Thus, I would
not recommend supporting legislation that adjusts the
disparity in sentencing between crack and powder cocaine by
changing the threshold amounts for powder cocaine.
In addition, Hispanic groups and civil rights groups are
very opposed to Senator Sessions' legislation since his bill
essentially increases the penalties for powder cocaine by
lowering the amount needed to receive a mandatory sentence.
In addition, the legislation does not address the 5-year
mandatory minimum for simple possession of crack cocaine.
Crack cocaine is the only drug that has a mandatory minimum
sentence for simple possession.
Finally, Senator Biden's Subcommittee held a hearing in the
last Congress to review the recommendations of the Sentencing
Commission. It is clear from the transcript of that hearing
that Senator Biden believes that the mandatory minimum
sentencing should be changed, but he does not support Senator
Sessions' approach. According to Senator Biden's staff; the
Senator had been interested in developing his own legislation
to address the mandatory minimum sentence issue in the last
Congress. Therefore, given Senator Biden's history on this
issue, from writing the original mandatory sentencing law in
1986 to his interest in adjusting this law, I would strongly
recommend that you speak with him directly before taking any
action on this subject.
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