[Congressional Record (Bound Edition), Volume 147 (2001), Part 12]
[Senate]
[Pages 16622-16660]
[From the U.S. 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.


                           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.

[[Page 16623]]

  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.
  For the INS, the bill includes $5.5 billion, $2.1 billion of which is 
derived from fees. This funding provides the

[[Page 16624]]

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

[[Page 16625]]

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 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

[[Page 16626]]

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 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.

[[Page 16627]]

  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.
  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].

[[Page 16628]]


       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.
  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

[[Page 16629]]

     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 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

[[Page 16630]]

     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 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

[[Page 16631]]

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 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

[[Page 16632]]

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 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

[[Page 16633]]

     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 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

[[Page 16634]]

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 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,

[[Page 16635]]

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 
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:


[[Page 16636]]

       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.
  Mr. WARNER. Mr. President, I rise today in support of the Smith 
amendment allowing American veterans--our U.S. citizens--who were used 
as slave laborers in Japan during WWII to have their day in court.
  I appreciate the sensitive nature of this issue. Just prior to the 
recess, I received correspondence from my dear friend and former 
Secretary of State, George Schultz. He outlined the provisions of 
article 14 of the 1951 peace treaty with Japan which seemingly settles 
the question of restitution for the former POWs. His letter, quite 
properly, has been referred to in order to address this issue. I must, 
however, respectfully disagree with my valued friend and adviser.
  I believe we must look at the entire treaty. Article 26 contains a 
provision which states that if Japan enters into any future treaties 
with other countries providing better terms than those extended to the 
United States, then those more favorable terms will be extended to the 
United States as well. It is my understanding that several other 
countries such as Sweden and Denmark have received such terms.
  I have listened closely to my esteemed colleague from Hawaii speak on 
this subject, and I recognize our duty to honor our treaties. However, 
we must be sure to look at the entire treaty and honor our obligations 
to our veterans who survived under such horrible conditions.
  I have been contacted by a significant number of veterans from my 
State, and I feel duty-bound to let them have their day in court. I ask 
my colleagues to consider their views and the entire treaty when making 
their vote.
  The PRESIDING OFFICER. The Senator from Iowa.
  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

[[Page 16637]]

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 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

[[Page 16638]]

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 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

[[Page 16639]]

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. 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

[[Page 16640]]

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 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

[[Page 16641]]

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;
       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

[[Page 16642]]

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 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.

[[Page 16643]]



                                  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 16644]]

     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

[[Page 16645]]

     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:

       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.

[[Page 16646]]

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.
  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

[[Page 16647]]

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 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.

[[Page 16648]]

  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 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

[[Page 16649]]

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 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

[[Page 16650]]

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''.
       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

[[Page 16651]]

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.
  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.

[[Page 16652]]

  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 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--

[[Page 16653]]

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.
  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.

[[Page 16654]]

  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.
  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.

[[Page 16655]]

       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.
  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

[[Page 16656]]

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 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

[[Page 16657]]

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 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

[[Page 16658]]

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 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.

[[Page 16659]]

  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 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.

[[Page 16660]]




                    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 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.




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