[Congressional Record (Bound Edition), Volume 147 (2001), Part 13]
[Senate]
[Pages 18135-18141]
[From the U.S. Government Publishing Office, www.gpo.gov]



                USE OF FORCE AUTHORITY BY THE PRESIDENT

  Mr. BYRD. Mr. President, up until a few days ago, the Senate was 
moving with lightning-like speed to complete consideration of the 
Defense authorization bill. Complications arose last week and slowed 
the bill down, but it appears that the Senate may be poised to shift 
back into high gear--or something like it--tomorrow and attempt to 
finish the bill. A cloture motion was filed last week. If cloture is 
invoked on Tuesday, passage of the bill will be more nearly assured.
  Clearly, the Senate has many weighty matters to consider, both in 
this bill and in other measures waiting in the wings. We should proceed 
with all due haste to complete our work. The September 11 terrorist 
attack on the United States reordered our priorities and imposed a new 
measure of urgency on much of the business that is yet to come before 
the Senate.
  But in the heat of the moment, in the crush of recent events, I fear 
we may be losing sight of the larger obligations of the Senate. Our 
responsibility as Senators is to carefully consider and fully debate 
major policy matters, to air all sides of a given issue, and to act 
after full deliberation. Yes, we want to respond quickly to urgent 
needs, but a speedy response should not be used as an excuse to trample 
full and free debate.
  I am concerned that the Defense bill may be a victim of this rush to 
action, despite the respite offered by last week's delays. For example, 
the Defense bill, as reported by the Senate Armed Services Committee, 
contained language conditioning the expenditure of missile defense 
funds on U.S. compliance with the Antiballistic Missile Treaty, the ABM 
Treaty. I worry that that language--which was somewhat controversial in 
committee and which was only narrowly approved--was dropped without a 
word of debate being uttered on the Senate floor. I understand the 
reluctance to engage in divisive public debate at a time when we are 
all seeking unity, but I caution that debate over such an important 
subject as the ABM Treaty is not to be lightly dismissed. There is no 
question about the unity. The unity is here. And certainly, insofar as 
I am concerned, debate over an issue of this kind is not going to be an 
apple of discord thrown into the mix. We may just happen to disagree on 
some matters with respect to the ABM Treaty.
  So I cannot understand why there needs to be such ``unity'' that it 
would require keeping our voices completely mute on a matter of this 
kind. It would be no indication of disunity in this country and our 
need to be unified in dealing with the terrorists or nations that 
harbor terrorists. As a matter of fact, the mere fact that we would 
disagree on a matter before the Senate--the ABM Treaty, for example--is 
no indication of disunity when it comes to facing the common foe. Not 
to me, at least.
  The Defense authorization bill provides up to $8.3 billion for 
missile defense, including activities that may or may not violate the 
ABM Treaty in the coming months. Many experts believe the ABM Treaty is 
the cornerstone of international arms control and that to abrogate or 
withdraw from the treaty can only lead to a new, dangerous, and costly 
international arms race. Other experts, on the other hand, are of the 
opinion that the ABM Treaty has outlived its usefulness, that it is a 
relic of the cold war that makes it impossible for the United States to 
protect its citizens against a new world order of rogue nations armed 
with ballistic missiles and transnational terrorists who may very well 
be armed with chemical, biological, and nuclear weapons.
  This is a major policy issue. That is what it is--a major policy 
issue. I am not sure where I stand on the ABM Treaty, but I do know I 
am not prepared to trade it in on a still-to-be-developed, still-to-be-
proven national missile defense program without giving the matter a 
great deal of thought and consideration.
  The language that was dropped from the Defense bill would have 
provided Congress the opportunity to vote on funding any missile 
defense expenditure that would violate the ABM Treaty. It was a 
sensible provision, as I see it. I would have supported it, probably, 
and I would have been eager to engage in debate over it. Although I 
might have little to say, I would still like to hear it. I would like 
to hear others. That opportunity was given away to avoid what? To avoid 
a debate that some might have called divisive on this bill. So be it. 
But having postponed that debate on this bill, we have an obligation to 
find another venue in which to have that debate. And we should have 
that debate sooner rather than later.
  The resolution granting the President the authority to use force to 
respond to the September 11 terrorist attack is another example of 
Congress moving quickly to avoid the specter of acrimonious debate at a 
time of national crisis. The resolution Congress approved gives the 
President broad authority to go after the perpetrators of the terrorist 
attack regardless of who they are or where they are hiding. I am not 
saying we ought to debate that ad infinitum, but at least we could have 
had 3 hours or 6 hours of debate. Why do we have to put a zipper on our 
lips and have no debate at all?
  It also authorizes the President to take all appropriate actions 
against nations, organizations, or persons who aided or harbored those 
perpetrators. In his address to Congress following the attack, 
President Bush vowed to take the battle against terrorism to those 
persons, such as Osama bin Laden; to those organizations, such as the 
Taliban; to those networks, such as Al-Qaida, and to any nations that 
acted as conspirators in the attack on the United States.
  I supported the resolution granting the President the authority to 
use military force against the perpetrators of this terrible attack, 
and I applauded his address to Congress and to the Nation. I note that 
the President wisely drew lines of discrimination, specifying that the 
punishment must be directed against those who are guilty of this crime, 
so that we cannot be accused of broadening our response to those who 
were not involved in the September 11

[[Page 18136]]

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

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

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

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

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

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

[[Page 18137]]

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

                             Exhibit No. 1

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

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

       Whereas, on September 11, 2001, acts of treacherous 
     violence were committed against the United States and its 
     citizens; and
       Whereas, such acts render it both necessary and appropriate 
     that the United States exercise its rights to self-defense 
     and to protect United States citizens both at home and 
     abroad, and
       Whereas, in light of the threat to the national security 
     and foreign policy of the United States posed by these grave 
     acts of violence, and

[[Page 18138]]

       Whereas, such acts continue to pose an unusual and 
     extraordinary threat to the national security and foreign 
     policy of the United States,
       Now, therefore, be it
       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled, That the 
     President is authorized to use all necessary and appropriate 
     force against those nations, organizations or persons he 
     determines planned, authorized, harbored, committed, or aided 
     in the planning or commission of the attacks against the 
     United States that occurred on September 11, 2001, and to 
     deter and pre-empt any future acts of terrorism or aggression 
     against the United States.
                                  ____


                              S.J. Res. 23

                  (Passed by the Senate, September 14)

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

     SECTION 1. SHORT TITLE.

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

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

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

                                                  The White House,


                                Office of the Press Secretary,

                                               September 24, 2001.

       Letter to Congress on American Campaign Against Terrorism

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

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

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

[[Page 18139]]

well--because the differences between the original draft resolution 
submitted to us and the one we adopted are indeed significant changes, 
major changes.
  As a matter of fact, I want to give our staff some real credit 
because they worked through the night with us in order to craft those 
changes which we were then able to adopt unanimously in the Senate.
  On the first matter the Senator from West Virginia raised, which was 
the language which was in the original bill on national missile 
defense--as a member of the Armed Services Committee I know he is 
familiar with this history--let me recount it for those who are not 
members of the committee.
  As chairman of that committee, we asked the White House and the 
administration to tell us whether or not the activities for which they 
were requesting funding, the test activities for missile defense, were 
consistent with the ABM Treaty or would conflict with the ABM Treaty. 
We made many requests for that information, and we never received the 
answer to it.
  That is critically important information because if we, as the 
appropriators and authorizers, are going to put funds into a bill for 
testing activities which are in conflict with an arms control agreement 
and which could have huge ramifications in terms of our own security, 
in the view of many of us resulting in a unilateral withdrawal which 
could make us less secure rather than more secure--if we are going to 
take that action as a Congress to appropriate those funds, we should do 
so knowingly.
  We could not get that information. And so, as chairman of the 
committee, I drafted language which gave us an opportunity down the 
road, if and when the administration determined that the testing 
activities conflicted with the Anti-Ballistic Missile Treaty--would 
give us the opportunity to vote whether or not we approved such 
expenditures.
  If we couldn't find out then, if we couldn't get that information to 
allow us to make that kind of an informed judgment, then I thought it 
was critically important to have that information so we could at a 
later point decide whether or not we would approve that expenditure. We 
won that argument by one vote in the Armed Services Committee. I was 
disappointed that all of our Republican colleagues voted against it. We 
were then informed that if that language remained in the bill, the bill 
would be vetoed by the President. So we started with that premise.
  That doesn't mean the language was not the right language. In my 
judgment, it was and is the right language. But what it means is that 
we knew the bill would be vetoed.
  Then came along the events of September 11, and the question was then 
whether or not that would make it possible for us to preserve that 
language in a totally different environment or whether or not it would 
make it more difficult to preserve language which I, as its author, 
thought was very significant, very important language.
  There are many Members of this body who have devoted large amounts of 
time to arms control issues, including the chairman of the Foreign 
Relations Committee, but I must say I have spent a good deal of time in 
my career working on these arms control issues, so this became a very 
significant issue to me. I believe this unilateral withdrawal from the 
arms control agreement will make us less secure and not more secure. If 
I thought unilateral withdrawal from this treaty would make us more 
secure, I would favor the unilateral withdrawal. I would give notice to 
withdraw if I believed it would make us more secure--because that is 
the issue. We are not here to defend a treaty; we are here to defend 
the country. In my judgment, the unilateral withdrawal from this treaty 
would result in such a negative reaction on the part of a number of 
countries that would respond to that withdrawal that overall, on 
balance, we would end up being less secure, and we would do so in order 
to commit ourselves to testing a system which is a defense against the 
least likely means of attack, a missile attack.
  We have been told by the Joint Chiefs over and over again that the 
least likely way we would be attacked, the least likely delivery system 
for a weapon of mass destruction, would be a missile. The most likely 
means would be a truck or a ship, some more conventional means--for a 
number of reasons, one of which being those conventional means--trucks, 
ships, whatever--are more accurate, cheaper, and--critically 
important--do not have what we call a return address like a missile. A 
missile attack would lead to the instantaneous destruction of any 
country that attacked us, including North Korea. And since the 
maintenance of their regime is their No. 1 goal in North Korea, 
according to our intelligence community, it is very unlikely that North 
Korea would attack us with a missile. It would lead to their 
instantaneous, or almost instantaneous, destruction.
  So I believe that to unilaterally withdraw from a treaty in order to 
put us closer to a defense against the least likely means of attack, 
and doing so unilaterally, which would produce a reaction on the part 
of a number of countries, including Russia and China, which would 
overall make us less secure since they would build up their forces 
faster, they would not dismantle their weapons as Russia is doing, they 
would put multiple warheads on missiles--called MIRVing--they would no 
longer participate in dismantling weapons, which means we would have 
more and more nuclear material on Russian soil subject to 
proliferation, subject to pilferage, it struck me and strikes me that 
unilateral withdrawal leaves us, overall, less secure.
  That is why I worked so hard on getting that language included. I 
thought, if Congress is going to provide the funds for that kind of 
activity that leads to the unilateral withdrawal from an arms control 
treaty, Congress should take the responsibility, under that oath to 
uphold the Constitution of the United States, to know what we are 
doing.
  That was the driving force behind the language I drafted. So that 
language comes in the bill that is now being considered on the floor 
giving Congress the opportunity to have a voice before funds it 
appropriates are used for that purpose. It gives us an opportunity to 
know that in fact the funds are going to be used for an activity which 
conflicts with the Anti-Ballistic Missile Treaty.
  Then came the event of September 11. The argument which the opponents 
of my language made was that my language tied the hands of the 
Commander in Chief, because no longer could he move on his own without 
authority for appropriations; he would have to first come back to us 
for that authority.
  Frankly, I don't think that argument comes close to outweighing the 
arguments on the other side of this issue. Nonetheless, in that 
environment I reached the conclusion that that argument was going to 
prevail and it was not the time, immediately following the events of 
September 11, for that argument to be resolved.
  It was a very practical judgment on my part as its author that it was 
about the worst time we could possibly pick--not that it was the time 
of our choosing, but it would have been the worst time to have a debate 
which had such crucial importance. It struck me as being far preferable 
that we preserve our opportunity to present this issue later in a 
separate bill that went on the calendar and that the majority leader 
could then attempt to call up. That language is now part of a bill that 
is on the calendar which the majority leader can at a later point call 
up.
  Will it be more difficult for him to call it up than it would have 
been under the language had it remained embedded in the bill? The 
answer is yes, it will be more difficult because he will have to move 
to proceed if he cannot get the unanimous consent.
  But given the fact that the President was going to veto this bill and 
therefore this language was not going to end up in this bill in any 
event even if it survived the Senate, and there were those of us who 
had very strong feelings about the importance of avoiding a unilateral 
rift in a strategic relationship with Russia that has produced such 
stability, and for such little advantage, I made the judgment that it

[[Page 18140]]

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

[[Page 18141]]

then that this amendment would have a rollcall vote sometime tomorrow.
  Mr. DODD. Right.
  Mr. WARNER. Would you permit me to incorporate in your UC a request 
that 30 minutes be granted to the chairman and ranking member of the 
Commerce Committee prior to any vote on the amendment by our colleague 
from Connecticut?
  Mr. DODD. The only request I would make is this amendment be 
considered prior to the cloture vote.
  Mr. WARNER. I beg your pardon.
  Mr. DODD. That it be considered prior to the cloture vote.
  Mr. WARNER. I am not sure. The vote takes place at 9:30 tomorrow 
morning. As I understand it, there is an order to that effect.
  My understanding is that the standing order is that the Senate will 
vote at 10 o'clock tomorrow morning on a cloture motion; is that 
correct?
  The PRESIDING OFFICER (Mr. Corzine). That is correct.
  Mr. WARNER. Then I would say to my colleague from Connecticut, how do 
we achieve that?
  Mr. DODD. We could have a voice vote. We do not need a recorded vote.
  Mr. WARNER. I would have to object to a voice vote. I am dutybound, 
you understand, to protect colleagues on this side, particularly those 
on the Commerce Committee which has overall jurisdiction.
  Mr. DODD. If my colleague will yield, if there is no objection to the 
amendment being incorporated in the bill, this may be the one 
opportunity where we will be able to do something about these 
firefighters.
  Mr. WARNER. I want to help you. I am going to vote with you. But I am 
dutybound, as you understand, to protect those on this side. I do not 
know what the chairman of the Commerce Committee, on your side, has 
said about this issue, but I do know members of the Commerce Committee, 
on this side, certainly must be protected--at least be given an 
opportunity to speak to this amendment if it is brought up for purposes 
of a rollcall vote.
  Mr. DODD. Why don't we proceed this way, if we could: After the 
Senator from Minnesota has been heard, if I can offer the amendment, I 
would like to discuss it. In the meantime, we can have conversations. 
We have already had conversations with members of the Commerce 
Committee. If they are going to object to us voting on this prior to 
the cloture vote tomorrow, or allow us to have a voice vote on this, 
then so be it. But if not, then it could go through this evening. We 
ought to try to do it.
  Is that all right?
  Mr. WARNER. Mr. President, that seems to me to be an orderly 
procedure.
  Mr. LEVIN. Mr. President, I ask unanimous consent that immediately 
following the statement of the Senator from Minnesota, we return to the 
Defense authorization bill and Senator Dodd be recognized to offer an 
amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. WARNER. Reserving the right to object, could that be 15 minutes?
  Mr. LEVIN. Just to offer it.
  Mr. WARNER. He wanted 15 minutes to offer it, which is fine. I have 
no objection, but I do want to get back to this question of amendments.
  Mr. LEVIN. And that Senator Dodd's speech be limited to 15 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Minnesota.

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