35936 CONGRESSIONAL RECORD-SENATE December 8, 1995 SENATE-Friday, December 8, 1995

The Senate met at .10 a.m. and was The PRESIDING OFFICER. Without ways of expressing these views without called to order by the President pro objection, it is so ordered. defacing the flag? tempore [Mr. THURMOND]. Mr. HATCH. Mr. President, in listen­ In June, a flag was burned in Hays, ing to the debate on the flag amend­ KS. Just a short time ago, I saw a news PRAYER ment on Wednesday and some of the re­ clip about a motorist at a gas station The Chaplain, Dr. Lloyd John marks of some of my colleagues here using an American flag to wipe the Ogilvie, offered the following prayer: on the floor, my reaction with respect car's dipstick. A veteran-a veteran­ Let us pray: to some of their arguments and some of called it to the police's attention but, Lord of all life, thank You for the the arguments of the opponents of the of course, the individual cannot be gift of time. You have given us the flag amendment comes down to, there prosecuted today for that desecration hours of this day to work for Your they go again. The same tired, old, of the flag. He can keep using it as he glory by serving our Nation. Remind us worn out arguments, again and again. has, or perhaps he will next use it to that there is enough time in any one One of my colleagues from Arkansas wash his car. day to do what You want us to accom­ says we are here because of "pure, My friend from Arkansas raised a plish. Release us from that rushed feel­ sheer politics." Evidently, some oppo­ concern about a person being punished ing when we overload Your agenda for nents of the amendment believe there for refusing to salute or honor the flag. us with things which You may not have is only one side to this argument, and No law enacted under the flag amend­ intended for us to cram into today. everybody else must be playing poli­ ment can compel anyone to salute or Help us to live on Your timing. Grant tics. Tell that to Rose Lee, a Gold Star honor the flag, to say nice things about us serenity when we feel irritated by Wife and past president of the Gold the flag, or otherwise compel anyone to trifling annoyances, by temporary frus­ Star Wives of America. respect the flag. There is an obvious tration, by little things to which we She testified in support of this con­ difference between prohibiting physical must give time and attention. May we stitutional amendment to prevent desecration of the American flag and do what the moment demands with a desecration of the American flag, our compelling someone to express respect heart of readiness. Also give us the national symbol. She testified in sup­ for it. So it is totally irrelevant, in this courage to carve out time for quiet port of this amendment on June 6, 1995, debate, to talk about punishment for thought and creative planning to focus before the Constitution Subcommittee, failing to respect or salute the flag or our attention on the big things we and brought with her the flag that had pledge allegiance to it. The pending must debate, and eventually decide draped her husband's coffin. She said: amendment simply does not authorize with a decisive vote. Help us to be si­ It's not fair and it's not right that flags such punishment. Nor does it authorize lent, wait on You, and receive Your like this flag, handed to me by an honor punishment for saying critical things guidance. May the people we serve and guard 23 years ago, can be legally burned by about the flag or anything else. those with whom we work sense that in someone in this country. It is a dishonor to Some of my friends who have spoken the midst of pressure and the rough our husbands and an insult to their widows here also drew attention to a chart and tumble of political life, we have to allow this flag to be legally burned. with various flags on it from places had our minds replenished by listening Go tell Rose Lee she supports the like Nazi Germany, the Soviet Union, to You. In the name of our Lord. Amen. flag protection amendment out of pure, Cuba, and Iraq, with the American flag sheer politics. in the middle. One of my colleagues Go tell the members of the American RESERVATION OF LEADER TIME pointed out that these other countries Legion who have been visiting our of­ prohibited flag desecration. The PRESIDENT pro tempore. Under fices. Go tell our colleague, Senator But when opponents of the amend­ the previous order, the leadership time HEFLIN, a Silver Star winner from ment trot out these comparisons is reserved. World War II, that he is playing poli­ among countries and their flag desecra­ tics. Tell the Senate Democratic whip, tion laws, they never really explain FLAG DESECRATION Senator FORD, that he is playing poli­ fully their point. To begin with, the CONSTITUTIONAL AMENDMENT tics by cosponsoring and supporting difference between the American flag this amendment, a man who has suf­ and these other flags is certainly self­ The PRESIDENT pro tempore. Under fered a lot for this country. Tell the evident to all of my colleagues and to the previous order, the Senate will now Democratic leader of the other body, the American people. And, of course, I proceed to the consideration of Senate Congressman RICHARD GEPHARDT, and know that those of my colleagues who Joint Resolution 31, which the clerk 92 other House Democrats that they think these comparisons are useful rec­ will report. played politics when they voted for ognize the difference between what the The legislative clerk read as follows: this amendment. American flag represents and what A joint resolution (S.J. Res. 31) proposing an amendment to the Constitution of the As for the number of flag desecra­ Nazi Germany's flag represents. United States to grant Congress and the tions-again, my friend from Arkansas So what really is the point of the States the power to prohibit the physical was wrong. He said there were none comparisons of flag desecration laws in desecration of the flag of the United States. this year. In fact, there have been pub­ these countries? Is it that, in some un­ The Senate proceeded to consider­ lished reports of at least 20 American defined way, there is a kind of moral ation of the joint resolution. flags destroyed at a cemetery in equivalence between Nazi Germany, Mr. HATCH. Mr. President, I suggest Bloomington, IN, alone. They were cut Iraq, and the United States if all three the absence of a quorum. or ripped from flagpoles and burned. prohibit physical desecration of their The PRESIDING OFFICER (Mr. These desecrations were also reported flags? That is too nonsensical to be the DEWINE). The clerk will call the roll. on local television. point. Indeed, until 1989, 48 States and The legislative clerk proceeded to In July of this year, according to Congress had outlawed physical dese­ call the roll. USA Today, a flag was defaced with ob­ cration of the flag. Did any opponent of Mr. HATCH. Mr. President, I ask scene messages about President Clin­ the amendment feel they were in a po­ unanimous consent that the order for ton and Speaker GINGRICH in New lice state during that time? I do not the quorum call be rescinded. Hampshire. Are there not countless think anybody did. Did the American

e This "bullet" symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35937 people not have numerous ways to ex­ glorious American flag, because I know what will be made at the request of a num­ press themselves without physically it represents not only to me, but to millions ber of Senators who are concerned, as I around the world . . . . am, about that possibility. At the ap­ desecrating our flag? Indeed, as I ex­ Protest if you wish. Speak loudly, even plained in my opening remarks on curse our country and our flag, but please, in propriate time, an amendment to make Wednesday, freedom of speech actually the name of all those who died for our free­ that change will be filed. expanded in this country through 1989, doms, don't .,Physically harm what is so sa­ All this amendment does is restore even as flag protection statutes were cred to me and countless others. the symbol of our American flag to a being enacted. Go tell Stephen Ross that protecting constitutionally protected status. And If I told my colleagues that Nazi Ger­ the American flag from physical dese­ it allows the Congress, if it chooses many also had stringent gun control cration is in any way like protecting to-it does not have to, but if it choos­ laws, do the opponents of the flag pro­ the Nazi flag from such desecration, or es to-to enact implementing legisla­ tection amendment believe, for that in any way represents some notion, tion to protect the flag. reason, America better not adopt a par­ however small, of moral equivalence There is no one in Congress who is ticular gun control measure? They did. between Nazi Germany and the United going to go beyond reason in protect­ To use that kind of reasoning, why States, or in any way puts the United ing the flag. We will still have our em­ would that not follow? States on some kind of par with Nazi blems on athletic equipment. We will If I told the opponents of the flag Germany. That analogy just will not still have little flags. We will still be protection amendment that a police float. able to have scarves and other beau­ state had liberal abortion laws, would Mr. Ross still has the flag the Amer­ tiful and artistic renditions of the flag. that turn them into pro-lifers in Amer­ ican tank commander gave him in 1945. What we will not have is the ability to ica? Would it turn them into support­ Mr. Ross is a supporter of this amend­ physically desecrate the American ers of the Partial-Birth Abortion Ban ment, and one can read about his story flag. Act of 1995? on the front page of the July 4, 1995, All we are asking here is to let the So what is the point of comparing USA Today. American people decide this. If we have whether Nazi Germany, Iraq, and the Mr. President, some of my other col­ enough support, 66 people in favor, we United States protect their respective leagues argue that enactment of this will pass this amendment through the flags? flag amendment would be the begin­ Senate. That is, of course, only the be­ Certainly, it is not to compare those ning of a long· slide down a slippery ginning of the process, because three­ who voted for a measure protecting the slope to further restrictions on free quarters of the States will then have to flag, such as the Biden statute, includ­ speech. Give me a break. They even ratify this amendment before it be­ ing the Senator from Arkansas and al­ make a thinly veiled comparison be­ comes the 28th amendment to the Con­ most every other Senator, with the dic­ tween prohibiting physical desecration stitution. I believe three-quarters of tators of Nazi Germany and Iraq. of the American flag with the Chinese the States will ratify it, because al­ I was struck by the highlighting of Government's execution of three dis­ most all of the States have already sidents. Give me a break. This argu­ called for this amendment through ef­ the Nazi flag on the same chart as the fective legislative enactment. American flag. It reminded me of an­ ment is incredibly overblown. In an­ But what will ensue once this amend­ other use of these two flags. swer to this, I would like to quote from ment passes-something that is worth Stephan Ross is a psychologist in a letter of Bruce Fein, an opponent of every effort we put forward-is a tre­ Boston, MA. He gave a presentation in the amendment who testified against mendous debate in our country about the Hart Senate Office Building earlier the amendment. He wrote to the Judi­ values, about patriotism, about what is this year. He began by displaying a ciary Committee in June of this year right or wrong with America, about Nazi flag, and told the audience he had in response to my questions. He states: things that really will help us to resur­ lived under that flag for several years. The proposed amendment is a submicro­ rect some of the values that have made In 1940, at the age of nine, the Nazis scopic encroachment on free expression that America the greatest country in the seized him from his home in Krasnik, would leave the U.S. galaxies beyond any other nation in history in tolerating free world. It will be a debate among the Poland. He was a prisoner for 5 years in people. 10 Nazi death camps. The American speech and press. If foreign nations were to emulate the constitutional protection of For those who do not want a con­ army liberated Mr. Ross from Dachau freedom of expression in the United States stitutional amendment passed, they in April 1945. In Mr. Ross's words: even with a flag burning amendment, they will have a right to go to every one of We were nursed for several days by these would earn glittering accolades in the State our 50 States and demand that people war-weary, but compassionate men and Department's annual Human Rights reports not allow us to protect the flag from women until we had enough strength to trav­ and from Amnesty International and Human desecration. They will have an equal el to Munich for additional medical atten­ Rights Watch. right with anybody else to make their tion. Mr. President, it is time for us to rec­ As we walked ever so slowly and case. We are here to make the decision unsteadily toward our salvation, a young ognize that the American flag is our to let that debate over values, over American tank commander-whose name I national symbol; that it has meaning right and wrong, over patriotic have never known-jumped off his tank to to millions and millions of Americans thoughts and principles ensue. It is help us in whatever way he could. When he all over this country, many of whom worth it. saw that I was just a young boy, despite my have fought for this country, many of I personally resent anybody indicat­ gaunt appearance, he stopped to offer me whom have suffered as family members ing that this is just politics. I have comfort and compassion. He gave me his own who have lost somebody who has heard some people say, "Well, if this food. He touched my withered body with his fought for this country under our flag. was a secret ballot, it would not pass hands and his heart. His love instilled in me a will to live, and I fell at his feet and shed About 80 percent of the American peo­ at all." I do not agree with that. I be­ my first tears in five years. ple are for this amendment. The re­ lieve there are enough people in this The young American tank com­ maining 20 percent either do not know, body who realize that we are talking mander gave Mr. Ross what he at first or are people who would not be for any­ about something pretty valuable here, thing that contrasts values. something pretty personal, something believed to be a handkerchief. Mr. Ross Mr. President, all this amendment that really makes a difference in all of said: would do is allow the Congress to enact our lives; our national symbol. The It was only later, after he had gone, that I a law prohibiting physical desecration symbol that soldiers rally behind, fight realized that his handkerchief was a small American flag, the first I had ever seen. It of the American flag. We are going to under, went up San Juan Hill to re­ became my flag of redemption and free­ take out of the amendment the three trieve. For those of us who have lost dom .. . . words " and the States," so that we will loved ones in various wars, this par­ Even now, 50 years later, I am overcome not have 51 different interpretations of ticular debate plays an especially sig­ with tears and gratitude whenever I see our what flag desecration is. This change nificant role. 35938 CONGRESSIONAL RECORD-SENATE December 8, 1995 There are those here who are them­ he was evolving as a high school grad­ nobody has ever amended the Bill of selves heroes, and who may disagree, uate to the great person that he really Rights. Let me tell you something. The and they have a right to do so. I think was. Bill of Rights was no sooner passed they do so legitimately in their eyes, My mom and dad died-my mother when the 11th amendment was passed and certainly sincerely. I respect them last June and my dad 2 years before. to overcome a faulty Supreme Court and respect their viewpoints, just as I They would have given their lives to decision. A number of the other amend­ hope that those on the other side will save the American flag. My brother ments have been passed since then to respect the viewpoints of those of us did. One of my most prized possessions overcome Supreme Court decisions who believe that this is an important is the American flag that draped my that were wrong. It is a legitimate thing, that this is a value in America brother's coffin. I have that in my thing. that is important, that ought to be home out at Salt Lake as well, along Keep in mind that Earl Warren, Abe upheld. with his medals. Fortas, Hugo Black, three of the most In my case, our family has seen suf­ There have been hundreds of thou­ liberal members ever on the Supreme fering. I can remember as a young boy sands of Americans who died to pre­ Court, wrote that they believed the playing in the woods down in front of serve liberty around the world who flag could be protected. It had nothing our very, very humble home that my fought-maybe not for the flag, but to do with first amendment rights or dad had built from a burned-out build- under the flag-and who have revered freedoms in the sense of denigrating . ing. In fact, for the early years of my the American flag. Who could forget the first amendment. life our house was black. I always the Iwo Jima Monument, commemo­ The fact that in the Johnson case, thought all houses were black, or rating the soldiers who risked their the Supreme Court alluded to the first should have been. One side of it had, as lives to see that our Nation's flag was amendment, and spoke of the first I recall, a Meadow Gold Dairy sign on lifted and flown above that island, a amendment right of free speech being the whole side of the house, because he symbol for all of them. violated, does not make it right. How had to take that wood from another You can go through literally thou­ can anybody say that we are trying to building. It was either that or a Pills­ sands of stories on why the flag is im­ stop any person from saying whatever bury Flour sign. I believe it was a portant. I do not want to make this so they want to, to denigrate the flag. Meadow Gold Dairy sign. It was one or emotional, but the fact is that it is They can denigrate the flag all they the other. I always thought that was a emotional. I think it is wrong for any­ want to, with all the free speech in the pretty nice thing to have on our house body to come here and say that this is world, and I am certainly going to up­ as a young kid. just a political exercise. That is not a hold their right to do it. I was down in front of the house play­ knock at my dear friends who feel that What we are against here, and what ing in the woods, when I heard my way. I am sure they are sincere, but I we need to establish through a con­ mother and dad. I could tell there was think they are sincerely wrong. stitutional amendment, is that this something wrong. I ran out of the Paul was sincere, I guess, when he does not involve speech. It involves im­ woods and ran up to the front porch of held the coats of the people who stoned proper and offensive conduct. And that our house, this humble place, and there the first Christian martyr. He was as is what Justices Warren, Fortas, and was a representative of the military in­ sincere as anyone could be. He held Black basically said. This is not a vio­ forming my folks that my brother, my their coats. He believed in what they lation of first amendment protected only remaining brother, who we all were doing. He persecuted the saints. free speech. Anybody can speak any loved dearly, Jess Hatch, Jess Morlan But Paul was sincerely wrong, and I be­ way they want. Physically desecrating Hatch, was missing in action. It was a lieve anybody that denigrates the in­ the American flag, however, is a viola­ sad occasion. My folks were just bro­ tentions of those who want to preserve tion of the sensitivities and the values ken up about it. They loved all nine of and protect the flag is, in this case, of America by means of offensive, im­ us kids, two of whom had predeceased sincerely wrong. proper conduct, physically treating our Jess, who was missing in action. I guess what I am saying here is that national symbol with contempt. When my brother was home, my this is a much more important issue And even though desecrations of the mother had some beautiful yellow than just a political issue. To me, poli­ flag occur more than they should, but roses that she had grown. She really tics does not even enter into this. It is certainly not in overwhelming num­ had a green thumb. She could raise an issue of whether we value the values bers, every one of them is reported by beautiful flowers. He used to kid her of. our country, the things that made the media, seen by millions of people. about taking those yellow roses and this country great. It is an issue of So it is a lot bigger issue than some giving them to his girlfriend, or taking whether we want to have this debate would make it on the floor. I have to the plants and giving them to his over values, whether we want to let the say, I hope that our colleagues will girlfriend. She always laughed. She American people really decide for vote for this amendment. It is worth­ knew he would never do it. But, for a themselves whether the flag is impor­ while to do it. All we are going to do is couple of months after my brother was tant or whether it is not. give Congress the right to define this listed as missing in action, my mother In a day and age where we seem to be matter once and for all, and then we received a dozen yellow roses from my denigrating values all the time, why are going to have a debate in this coun­ brother. She believed right up until the should we not stand up for one of the try about values, one that I think is day that they found his body and values that really has helped make this long overdue. I hope that our col­ brought him back that he was still country great, that has meant some­ leagues will consider that, and I per­ alive. thing from the beginning of this Na­ sonally believe we can pass this amend­ He had flown in that fateful Foggia, tion? Why should we not have that de­ ment, although it is always uphill on a Italy mission and helped knock out the bate? For those who disagree, however constitutional amendment. We under­ oil fields that really helped to shorten sincerely their opposition, I invite stand that, and that we may have to the war. He flew in a B-24 bomber. He them to join the debate. Prove us keep bringing this amendment forth. was a hero, and one of the few people wrong, not only here on the floor, but Ultimately, however, this amendment who ever shot down a German jet, do it, once this amendment passes, is going to pass. I guarantee it is going which were new planes. I have his Pur­ with the American people. I think they to pass someday, even if it does not ple Heart in our home out in Salt Lake are going to find that the vast major­ pass this time. But I personally believe City, as well as a number of his mili­ ity of the American people do not agree we have a good shot at it this time. tary memorabilia. I also have all of his with them. Mr. President, I will yield the floor letters to my mom and dad. I have read Last but not least, there are those to my colleague from Wisconsin. every one of them within this last who would argue that this is a denigra­ The PRESIDING OFFICER. The Se~­ year, and it was interesting to see how tion of the First Amendment, or that ator from Wisconsin. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35939 Mr. FEINGOLD. I thank the Chair. otic and just as full of values as the "Allegiance that is voluntary is some­ I certainly want to join with the emotions that drive this effort, I think thing beyond price. But allegiance ex­ chairman's comment that this is a wor­ is clear on its face and that this is a tracted by statute-or, worse yet, by thy debate and one that people should first step that could lead to many constitutional fiat-wouldn't be worth join in if they have either strong feel­ other steps that could leave the first the paper the amendment was drafted ings in favor of or against the constitu­ amendment in tatters. on. It is the very fact that the flag is tional amendment regarding flag dese­ Since the adoption of the Bill of voluntarily honored that makes it a cration. Rights in 1791, the Constitution has great and powerful symbol." Mr. President, in response to the been amended on only 17 occasions. I think that is a great statement one chairman's challenge, I would like to Yet, Mr. President, this is the third of our Wisconsin newspapers made. rise today in opposition, strong opposi­ amendment that has been considered Mr. President, the suggestion that we tion, to the proposed constitutional by our Judiciary Committee in the can mandate, through an amendment amendment relating to the flag. first term of the 104th Congress alone, to the Constitution, respect for the flag I do so with the utmost respect for with hearings being held on what could or any other symbol ignores the my colleagues and especially the dis­ very well be a fourth constitutional premise underlying patriotism; more tinguished chairman of the Judiciary amendment. According to the Congres­ importantly, it belies the traditional Committee and the many Americans sional Research Service, over · 115 notions of freedom found in our own who support this effort and, of course, amendments---115 amendments-have Constitution. in the spirit of my own utmost respect been introduced thus far just in the Mr. President, some would argue this for the flag of this country. 104th Congress-amendments to the debate is simply about protecting the Mr. President, I and all Members of U.S. Constitution. flag, that it is just a referendum over this body share the enormous sense of While I do not question the sincerity who loves the flag more. This faulty pride that all Americans have when of these efforts, there is much to be premise overlooks the underlying issue they see the flag in a parade or at a said for exercising restraint in amend­ which I think is at the heart of the de­ ball game or simply hanging from store ing this great document. The Constitu­ bate, that being to what degree are we fronts and porches all across their tion has served this Nation well and as a free society willing to retreat from home State. It is one of my favorite withstood the test of time, and the rea­ fundamental principles of freedom sights regardless of the occasion. It son it has withstood the test of time is when faced with the actions of just a makes me feel great to be an American that we have typically, almost always handful of misguided individuals? when I see all those flags. resisted the urge to respond to every In my estimation, Mr. President, the I appreciate that this is a deeply adversity, be it real or imagined, with emotional issue, and rightly so. Like answer is clear. The cost exacted by that natural instinct to say, "Let us this amendment in terms of personal most Americans, I find the act of burn­ · pass a constitutional amendment." It ing the American flag to be abhorrent freedom-in terms of personal free­ is a gut feeling we have when we see a dom-is just far too great a price to and join with the millions of Ameri­ wro:ng. Let us just nail it down. Let us cans who condemn each and every act pay to protect a flag which already en­ not pass a law-put it in the Constitu­ joys the collective respect and admira­ of flag desecration. I understand those tion and forever deal with the issue. who revere our flag and seek to hold it However, history, as well as common tion and love of an entire nation. If out as a special symbol of this Nation. sense, counsel that we only amend the adopted, this amendment will have an It is a very special symbol of our Na­ Constitution under very limited cir­ unprecedented direct and adverse effect tion. cumstances. I strongly believe that on the freedoms embodied in the Bill of However, I think the key to this those circumstances do not exist in the Rights. These are freedoms which bene­ whole issue is that we are not a nation case of the so-called flag burning fit each and every citizen of this Na­ of symbols-we are a nation of prin­ amendment. Proponents of this amend­ tion. ciples. Principles of freedom, of oppor­ ment argue that we must amend the Yes, Mr. President, it is true, despite tunity, and liberty. These are the prin­ Constitution in order to preserve the what the chairman said today, it is ciples that frame our history and these symbolic value of the U.S. flag. How­ true that for the first time in our his­ are the principles, not the symbols but ever, they do so in the absence of any tory, for the first time in this great the principles, that define our great evidence that flag burning is rampant Nation's history, the Constitution and Nation. These are the principles found today or that it is likely to be in the the Bill of Rights, both premised on in the U.S. Constitution and the Bill of future. But perhaps more importantly, limiting the Government-they are Rights. this amendment is offered in the ab­ premised on limiting the Government­ No matter how dearly we all hold the sence of any evidence, any evidence at will be used to limit individual rights, flag, it is these principles we must pre­ all, that the symbolic value of the flag and, in particular, for the first time serve above all else, and it is adherence has in any way been compromised in the constitutional process will be used to these principles which forms the this great Nation. It has not. No evi­ to limit, not guarantee, but limit indi­ basis of my opposition to the proposed dence has been offered to show that the vidual freedom of expression. constitutional amendment. small handful of misguided individuals I do not know how you could over­ As a threshold, Mr. President, let me who may burn a flag each year have state the significance of such a new say that I view any effort, any effort at any effect whatsoever on this Nation's course in our constitutional history. all, to amend the U.S. Constitution as love of the flag or our Democratic way As Dean Nichols of the Colorado Col­ something that we should regard with of life. lege of Law noted before the Constitu­ trepidation. The chairman in his com­ The inescapable fact of the matter is tion Subcommittee of the Judiciary ments this morning said to those of us that the respect of this Nation for its Committee, said, "I think there would who suggest that maybe if we do the flag is unparalleled. The citizens of be a real reluctance to be the first flag amendment, it might lead to other this Nation love and respect the flag American Congress to successfully similar amendments, a slippery slope if for varied and deeply personal reasons, amend the first amendment." you will. The chairman kept saying, some of which were eloquently ex­ Do not let anyone kid you. That is "Give me a break. Give me a break"­ pressed today by the distinguished what this would do. It would amend the that this was unlikely; that the emo­ chairman of the Judiciary Committee. first amendment. It will have a dif­ tions that fuel this issue would not fuel That is why they love the flag, not be­ ferent number, it will be listed in the other attempts to amend the Constitu­ cause the Constitution imposes the re­ high twenties, but it will change and tion. sponsibility of love of the flag on them. alter the first amendment. That those emotions would be just as As a recent editorial in the La The chairman tries to address that worthy and just as heartfelt and patri- Crosse, WI, newspaper pointed out, by saying, well, shortly after the Bill 35940 CONGRESSIONAL RECORD-SENATE December 8, 1995 of Rights was passed, the 11th amend­ reluctant States with the assurance exact parameters of speech subject to ment was passed in 1798. That is accu­ and the comfort necessary so they limitation here because the expression rate. But it did not change the right to would approve the Constitution, so in question, political expression, is free speech. It did not limit the scope they would enter into this great Fed­ clearly protected under the first of the Bill of Rights. eral Union. And everyone today in the amendment. This points out the fact In fact, the 11th amendment was con­ 104th Congress should understand this. that the one defining standard that has sistent with the spirit of the Bill of What is so much of the rhetoric of marked the history of free expression Rights by guaranteeing that the States the 104th Congress about? The concern in this Nation is that speech cannot be cannot be compromised by the Federal that the Federal Government is too regulated on the basis of its content. Government. The 11th amendment was strong, that it does too much, that we The presumptive invalidity of con­ not about limiting free expression or ought to leave enough power to the tent regulation protects all forms of any other freedom of the Bill of Rights. States and to individuals. That is what speech, that which we all agree with, It states: all the rhetoric is about today. Well, as well, of course, as the speech we The Judicial power of the United States that is what the Bill of Rights was may disagree with or find objection­ shall not be construed to extend to any suit about also. And that is why we have able. To do otherwise would make the in law or equity, commenced or prosecuted never changed it. Because the notion of promise of free speech a hollow prom­ against one of the United States by Citizens the Contract With America is not a ise. What does it mean if we only pro­ of another State, or by Citizens or Subjects new one. It is a heartfelt feeling of all tect that which we like to hear or is of any Foreign State. Americans that the Federal Govern­ pleasant to our ears? It is not about free speech. The point ment must be tightly limited in its As the Supreme Court stated in is really that this would be the first powers so that our liberties as individ­ Street versus New York: time-the first time-in this Nation's uals and as States cannot be com­ . . . freedom to differ is not limited to history that we would change some­ promised. things that do not matter much. That would thing I consider to be very sacred, the From this beginning in compromise, be a mere shadow of freedom. The test of its Bill of Rights. That we would choose almost exactly 204 years ago, the Bill substance is the right to differ as to things now, after 200 years of the most unpar­ of Rights has evolved into the single that touch the heart of the existing order. alleled liberty in human history, to greatest protector of individual free­ Yet, Mr. President, this amendment limit the Bill of Rights in the name of dom in human history. It has done so departs from that noble and time-hon­ patriotism is inherently flawed. And I in large measure, I believe, because at­ ored standard. It seeks instead to pro­ think it is really, ironically very trag­ tempts to alter its character have to hibit a certain kind of expression sole­ ic. date been rejected. If this great docu­ ly, solely because of its content. Some will argue that we should not ment was changed every few years, as I The committee report accompanying attach too much significance to this am sure every Congress has been . this amendment makes it explicit that unprecedented step, while still others tempted to do, it would not be the this effort is directed at that expres­ argue that the amendment has no ef­ great Bill of Rights that not only sion which is deemed disrespectful­ fect whatsoever on the first amend­ Americans revere but people around disrespectful. This amendment at­ ment. This is despite the fact that this the world revere as well. tempts to deal only with disrespectful amendment, if adopted-make no mis­ That individuals should be free to ex­ expression. Even more troubling is that take about it-if it is adopted, it would press themselves, secure in the knowl­ this amendment leaves the determina­ criminalize-make it a crime-the very edge that Government will not sup­ tion of what is disrespectful to the same expression that the Supreme press their expression based solely Government, the very Government Court has previously held to be explic­ upon its content, is a premise on which that we were trying to limit after we itly protected under the first amend­ the Nation was founded. The Framers won the Revolutionary War and got to­ ment. came to this land to escape oppression gether and passed a constitution. It is So it is clearly an erosion of the Bill at the hands of the state. Obviously, that Government that we are going to of Rights. You may argue that it is a there is no dispute about that, that allow to define what is objectionable justified erosion or a necessary erosion, Government should not limit one's by this amendment. but it clearly limits what the U.S. Su­ ability to speak out. That is estab­ What could be more contrary to the preme Court has said is part and parcel lished in our Constitution by the sim­ very foundations of this country? For of our freedom as an American to ex­ ple words in the first amendment, the purpose of free expression to be ful­ press ourselves. "Congress shall make no law * * * "­ filled, the first amendment must pro­ Mr. President, I think it is essential no law-"* * *abridging the freedom of tect those who rise to challenge the ex­ to carefully consider the basis for the speech* * *.'' isting wisdom, to raise those points adoption of the Bill of Rights before we Of course, over time this Nation has which may anger or even offend or be go ahead and alter it for the first time had to grapple with the exact param­ disrespectful. in our Nation's history. Many who eters of free speech, regulating in re­ As the great jurist, William 0. Doug­ originally opposed the Constitution, gard to defamation or obscenity for ex­ las, observed, free speech: those not entirely comfortable with ample. However, the fact that some ex­ ... may indeed serve its high purpose the ratification, sought the Bill of pression may be proscribed, can be when it induces a condition of unrest, cre­ Rights in particular because, in their stopped, does not obviate the presump­ ates dissatisfaction with conditions as they view, the Constitution in its original tive invalidity of any content-based are, or even stirs people to anger. form without the Bill of Rights, failed regulation. Mr. President, adherence to this ideal to properly consider and protect the In the words of Justice Scalia of the is exactly what separates America basic and fundamental rights of the in­ U.S. Supreme Court: from oppress! ve regimes across the dividuals of this country. That is why ... the Government may proscribe libel; world. We tolerate dissent, we protect we have a Bill of Rights. but it may not make the further content dis­ dissenters, while those other countries Although many Federalists, includ­ crimination of proscribing only libel critical suppress dissent and jail dissenters or, ing Madison, felt that the limited pow­ of the Government. for example-and I can give you many ers conferred to the Government by the In other words, you cannot choose examples, as I know the Chair can-as Constitution, the limitations in the which messages you like and which recent events illustrate in Nigeria, the Constitution itself, were sufficiently messages you do not like. You cannot condemnation of dissenters to a fate narrow so as to leave those rights safe say libel against this Government is far more grave than incarceration: and unquestioned, people still felt we different than other kinds of content summary execution. had to go ahead and have a Bill of that might also be libel. Although we The first amendment to the U.S. Con­ Rights adopted in order to provide the need not concern ourselves with the stitution is not infallible. It cannot December 8, 1995 CONGRESSIONAL RECORD-SENATE 35941 sanitize free expression any more than not the speech and expression emanat­ Senator HATCH, the chairman, has in­ it can impart wisdom on thoughts ing from the Colonies in the form of dicated today that the States will be which otherwise have none. Nor can the Boston Tea Party or the Articles of removed from the amendment. If that the first amendment ensure that free Confederation, should be sustained, the is not the case, leaving them in would expression will always comport with answer, I think, we all know would raise a second practical problem with the views of a majority of the Amer­ have been a resounding no. Could not this effort to amend the Bill of Rights, ican public or the American Govern­ the same be said of messages of the that being that the fundamental con­ ment. civil rights and suffrage movements? stitutional rights would be explicitly But what the first amendment does This Nation was born of dissent and, subject to the geographic boundaries of promise is the right of each individual contrary to the view that it weakens political subdivision. in this Nation to stand and make their our democracy, this Nation stands The report accompanying this meas­ case, regardless of their particular today as the leader of the free world ure acknowledges that the extent to point of view, and to do so in the ab­ because we tolerate those varying which this amendment will limit your sence of a Government censor. In my forms of dissent, not because we per­ freedom of expression could well de­ estimation, this right is worthy of pre­ secute them. pend on where you live. Therefore, if serving, and I think that right is at In seeking to protect the U.S. flag, you live in Madison, WI, your rights risk today on the floor of the U.S. Sen­ this amendment asks us to depart from could be vastly different than the ate. the fundamental ideal that Govern­ rights of your cousin who lives in Se­ When we start down the road to dis­ ment shall not suppress expression attle, WA, for example. tinguishing between whose message is solely because it is disagreeable. Furthermore, the rights of the States appropriate and whose is not, we risk As Justice Brennan wrote for the ma­ to limit the first amendment would not something far greater than the right to jority in Texas versus Johnson: prohibit subsequent legislative bodies burn a flag as political expression. If there is a bedrock principle underlying from expanding or further limiting Much of what is clearly protected ex­ the first amendment, it is that the Govern­ rights under the first amendment. In ment may not prohibit expression of an idea other words, fundamental rights to free pression can easily be deemed objec­ simply because society finds the idea itself tionable. For example, as I said many speech could vary from one election to offensive or disagreeable. We have not recog­ the next. times before and a lot of people have nized an exception to this principle even So I will await with interest the said before me, I deplore those who where our flag has been involved. amendment regarding the States, but proudly display the swastika as they In charting a divergent course, this as the amendment is written now there parade through our neighborhoods. I amendment would create that excep­ will be at leas~at leas~for the first deplore these who hide behind white tion, an exception at odds with free ex­ time in our country's history, 51 inter­ sheets and espouse their litany of hate pression and with our history of lib­ pretations of the first amendment. and ignorance under a burning-a burn­ erty. If adopted, this amendment I think this is counter to the very ing-cross. I deplore those comments would, for the first time in our history, premise of the Bill of Rights, that which suggest that the most effective signal an unprecedented, misguided being that the rights of individuals way to deal with law enforcement is to and troubling departure from our his­ should remain beyond the purview of shoot them in the head. We hear that tory as a free society. unwarranted governmental intrusion these days. Just as I object to speech Mr. President, there are also defini­ or intervention. That is what led to the which seeks to equate particularly vile tional and practical flaws with this adoption of the Bill of Rights in the criminal acts with a particular politi­ amendment. Beyond the proposed first place. cal ideology. amendment's departure from tradi­ In the words of Justice Jackson, Each of these forms of expression, tional notions of free expression, there speaking for the Supreme Court in 1943: Mr. President, is reprehensible to me are practical aspects .that raise con­ The very purpose of the Bill of Rights was and to traditional American values of cerns, not just for those who may offer to withdraw certain subjects from the vicis­ decency and tolerance. But they are all objectionable points of view, not just situdes of political controversy, to place protected forms of expression nonethe­ for the purported or possible flag burn­ them beyond the reach of majorities and of­ less, and they would continue to be ers, but for all Americans. This amend­ ficials, to establish them as legal principles protected after this amendment was ment will subject the constitutional to be applied by the courts. One's right to life, liberty and property, to free speech, a passed and ratified. So do I believe that rights of all Americans to potentially free press, freedom of worship and assembly, we ought to outlaw them through an an infinite number of differing inter­ and other fundamental rights may not be amendment to the Constitution of the pretations, the parameters of which submitted to vote; they depend on the out­ United States? Of course not. the proponents themselves cannot even come of no elections. So too it is with flag burning. As the define. Yet, this amendment does exactly . Supreme Court has repeatedly stated, Without any guidance as to the defi­ that and subjects those fundamental the act of flag burning cannot be di­ nition of the key terms, the proposed rights to the outcome of elections. vorced from the context in which it is amendment provides the Congress and What comfort is a first amendment occurring, and that is political expres­ the States the power to prohibit the which tells the American public that sion. It was pretty clear from our Judi­ physical desecration of the U.S. flag. the appropriateness of their political ciary Committee hearings if somebody Testimony was received by the Con­ expression will be left up to the Gov­ is out in the backyard grilling on July stitution Subcommittee that the term ernment? 4th and accidentally burns their flag, "flag of the United States," as used in At the core of this proposed amend­ that would not be the necessary intent. this amendment, is, as they said, ment is the desire to punish that ex­ There has to be some mental elemen~ "problematic" and so "riddled with pression which is disrespectful. The it cannot just be an accident. So this ambiguity" as to "war with the due ability to accomplish this troubling amendment is about what somebody is process norm that the law should warn goal turns upon the interpretation that thinking. It is about what somebody is before it strikes." Even supporters of would be given to the term "desecra­ thinking when they burn the flag. It is this amendment, including former At­ tion." Mr. President, despite attempts about the content of their mind. torney General of the vUnited States to argue that it means to "treat with This Nation has a proud and storied William Barr, have acknowledged that contempt" or "disrespect" or to vio­ history of political expression, much of the term "flag" could mean many dif­ late the "sanctity" of the flag, it is which, obviously, can be characterized ferent things. The simple fact of the just obvious that this is subject to in­ and is characterized sometimes as ob­ matter is that no one can lend any terpretation. The word "desecration" jectionable. Does any Member of this guidance as to what the term "flag" could not be more subject to interpre­ body believe that if the question had will mean, other than to suggest that tation. It is almost an inherently been put to the Crown as to whether or it will be up to various jurisdictions. vague term. 35942 CONGRESSIONAL RECORD-SENATE December 8, 1995 If, as the report accompanying this and far too important to be subjected the Bill of Rights. While I do not op­ measure suggests, every form of dese­ to the uncertainty created by this pose this effort with anything less than cration is not the target of this amend­ amendment. We must not abandon 2 the utmost respect for the American ment, then it logically follows that the centuries of free expression in favor of flag, my belief that we must be vigilant Government-the Federal Government an unwarranted and ill-defined stand­ in our preservation of the Bill of -will make distinctions between types ard which allows Government to Rights and the individual freedoms of political expression, and the distinc­ choose whose political message is wor­ found therein really dictates my oppo­ tion will be this: that which is accept­ thy of protection and whose is not. sition. able and that which is not. The flaws in This is counter to the very freedoms Mr. President, to conclude, the meas­ this process should be obvious to every the flag symbolizes. ure before us limits the Bill of Rights. American. The very idea that a handful of mis­ It actually limits the Bill of Rights in So long as your political expression guided people could cause this Nation­ an unprecedented, unwarranted, and comports with that of the governing a Nation which has, from its inception, ill-defined manner. As such, I intend to jurisdiction, you are going to have been a beacon of individual liberty, and oppose this resolution. your freedom of expression, and it will a Nation which has defended, both at Mr. President, I ask unanimous con­ be preserved. We can certainly debate home and abroad, the right of individ­ sent that a series of editorials from this point, but in punishing only that uals to be free-to retreat from the throughout the State of Wisconsin, all expression which is "disrespectful," fundamental American principle that opposed to flag burning and also to this someone-in this case the Govern­ speech should not be regulated based amendment, be printed in the RECORD. ment-has to decide what is disrespect­ upon its content is really cause for There being no objection, the articles ful and what is not. great concern. were ordered to be printed in the For those of us who think that this is I cannot believe we are going to let a RECORD, as follows: an easy distinction and there is not few people who are not even around, as [From the Wisconsin State Journal, June 14, going to be a problem deciding what is far as we know, not even doing this 1995] desecration and what is disrespectful, I flag desecration, cow us into passing OUR OPINION: FLAG BURNING AMENDMENT have an example. A Vietnam war vet­ this amendment. That would give the UNPATRIOTIC eran, a friend of mine from Wisconsin, victory to the flag burners. It would be Today, Flag Day, is an occasion to cele­ Marvin J. Freedman, recently wrote in score one for the flag burners if we are brate liberty. And one of the best ways you an article, aptly entitled, "The Fabric foolish enough to amend the Constitu­ can celebrate liberty is to write your con­ of America Cannot Be Burned," that tion and Bill of Rights, for the first gressman to urge a vote against the proposed the fatal flaw in this amendment will time in our history, just to deal with constitutional amendment to ban flag burn­ be its application. In Mr. Freedman's such misguided people. ing. Again, Mr. President, there is no It may seem unpatriotic to stand up for a words: right to burn the American flag. But the pro­ The real potential for crisis is one of con­ doubt that the American people care posed amendment is not about whether it is text. Consider the star spangled bandanna. deeply about the flag. But I really be­ patriotic to burn a flag. It is about whether Let's say a highly decorated veteran is plac­ lieve they care just as deeply about the it is right to limit the liberties for which our ing little American flags on the graves at a Constitution. I was recently contacted flag flies. A true patriot would answer no. veterans cemetery for Memorial Day, works by a man from Sturgeon Bay, WI, a Consider: up a sweat and wipes his brow with one of veteran of the Navy. What did he have It's futile, even counter-productive,- to try those red, white, and blue bandannas. If the to say? He wrote: to require patriotism by law. flag amendment were on the books, would In fact, it would inspire greater respect for the veteran's bandanna be deemed a "flag of The most important part of the Constitu­ our nation to refrain from punishing flag the United States" ? Probably not. But if it tion is the Bill of Rights, the first ten burners. As conservative legal scholar Clint were, would his actions be interpreted as amendments. The most important one of those is the first amendment. Burning a flag, Bolick of the institute for Justice told a "desecration"? I cannot imagine anyone House subcommittee, we can lock up flag thinking so. in my opinion, is expressing an opinion in a very strong way. While I may disagree with burners and by doing so make them martyrs, Mr. Freedman continues: that opinion, I must support the right to ex­ "or we can demonstrate by tolerating their However, if a bedraggled-looking antiwar press that opinion. To me, the first amend­ expression, the true greatness of our repub­ protester wiped his brow with the same ban­ ment is the most important thing. The flag lic." danna after working up a sweat and denounc­ is a symbol of that and all other rights, but Laws to protect the flag would be unwork­ ing a popular President and the United only that, a symbol. able. States Government's m111tary policy, a dif­ The proposal now before the House seeks a ferent outcome could be a distinct possibil­ My constituent, I think, said it quite constitutional amendment to allow Congress ity. Whether the bandanna would be deemed well. I appreciated very much the time and the states to pass laws banning physical a "flag" and the sweat-wiping considered and effort taken to write to me, not be­ desecration of the flag. It would require ap­ desecration would very likely be directly re­ cause we share the same perspective, proval by two-thirds of the House and Senate lated to the relative popularity of the Presi­ but because the letter makes the very and three-fourths of the states. dent and the war being protested. That is important point that, in the final anal­ It's called the flag burning amendment be­ where the flag amendment and the first ysis, and as the proponents of the cause many of its supporters consider burn­ amendment would bump into each other. ing the flag to be the most egregious form of amendment readily concede, the flag is desecration. Mr. President. we are all free to draw but a symbol of this Nation. As I said But what counts as desecration of the flag? our own conclusions as to the validity at the outset, Mr. President, we are not What 1f someone desecrated something made of Mr. Freedman's hypothetical. I a nation built on symbols; we are a na­ up to look like a flag with some flaw, like think it does a good job in pointing tion buil.t on principles. the wrong number of stars or stripes? Does out, in very simple terms, that which We will be paying false tribute to the that count? What 1f a flag is used in art that the Supreme Court has often stated: flag, in my opinion, if in our zeal to some people consider rude or unpatriotic? Does that count as desecration? You cannot divorce flag desecration protect it we diminish the very free­ The arguments could rage on and on, en­ from the political context in which it doms it represents. The true promise of riching lawyers and diminishing the nation. occurs. Ultimately, value judgments this great and ever-evolving Nation is A ban on flag burning would set a dan­ have to be made, and I think these are rooted in its Con·stitution. Ultimately, gerous precedent. judgments that this amendment, unfor­ the fulfillment of this promise lies in The proposed amendment is a reaction to tunately, reserves to the Government. the preservation of this great docu­ 1989 and 1990 Supreme Court rulings that in­ For the first time in our history, it ment, not just of that which symbol­ validated federal and state laws banning flag desecration. The court rules that peaceful gives that judgment to the Govern­ izes it. If we sacrifice our principles, flag desecration is symbolic speech, pro­ ment, not to individuals, not to the ultimately, our symbols will represent tected by the First Amendment freedom of citizens of this country. something less than they should. speech clause. Mr. President, the rights at the heart Therefore, Mr. President, I must re­ Supporters.of a ban on flag burning argue of this debate are far too fundamental spectfully oppose this effort to amend that burning a flag is not symbolic speech at December 8, 1995 CONGRESSIONAL RECORD-SENATE 35943 all but hateful action. But if today's cause is statute-or, worse yet, by constitutional consequences surely will not be draconian to ban flag burning because it is hateful ac­ flat-wouldn't be worth the paper the enough that flag burning would rank next tion, tomorrow's cause may be to ban the amendment was drafted on. It is the very best thing to a capital offense. display of the Confederate flag because many fact that the flag is voluntarily honored that Congress has more pressing things to do people consider it to be hateful action. Or to makes if a great and powerful symbol. than put time into this amendment. ban the use of racial or sexist comments be­ The posslb111ty of the Balkanization of the cause they amount to hateful actions. And American people into bickering special in­ [From the Milwaukee (WI) Journal Sentinel, on and on until we have given up our free­ terest groups based on ethnicity or gender or June 12, 1995) doms because we are intolerant. age or class frightens all of us, and it's FLAG AMENDMENT ILL-ADVISED The right to protest ls central to democ­ tempting to try to impose some sort of arti­ racy. ficial unity. But can the flag unite us? No. Probably nine-tenths of the knuckleheads A democracy must protect the right to We can be united under the flag, but we can't who get their jollies from burning the Amer­ protest against authority, or it is hardly a expect the flag to do the job of uniting us. ican flag or desecrating it in other ways have democracy. It is plainly undemocratic to We oppose flag burning-or any other show no idea what freedoms that flag symbolizes. take away from dissenters the freedom to of disrespect for the American flag. There Because these people are stupid as well as protest against authority by peacefully are better ways to communicate dissent than ungrateful, they never think about the pre­ burning or otherwise desecrating a flag as trashing a symbol Americans treasure. But cious gift they have been given. the symbol of that authority. making respect for the flag compulsory The irony is that the American flag stands If the protesters turn violent or if they would, in the long run, decrease real respect for, among other things, the freedom to ex­ steal a flag to burn, existing laws can be for the flag. press yourself in dumb and even insulting used to punish them. The 104th Congress should put the flag ways, like burning the flag. This is a freedom Flag burners are not worth a constitu­ burning issue behind it and move on to the literally not conferred on hundreds of mil­ tional amendment. nuts-and-bolts goal it was elected to pursue: lions of people. A good rule of thumb about amending the a smaller, less intrusive, fiscally responsible A few years ago, several states passed laws U.S. Constitution is: Think twice, then think federal government. A constitutional amend­ that made it illegal to desecrate the flag, but twice again. Flag burning is not an issue ment protecting the flag runs precisely in 1989 the Supreme Court ruled that such that merits changing the two-centuries-old counter to that goal. statutes violated the Bill of Rights. Congress blueprint for our democracy. ls now moving to amend the Constitution it­ This nation's founding fathers understood [From the Oshkosh (WI) Northwestern, May self, so that flag desecration laws can be en­ the value of dissent and, moreover, the value 28, 1995) acted. of the liberty to dissent. So should we. That movement is as ill-considered as it ls BEWARE TRIVIALIZING OUR CONSTITUTION understandable. The Constitution should be OUR VIEW: THE AMERICAN FLAG-OLD GLORY It is difficult to come out against anything amended only reluctantly and rarely, when a DOESN'T NEED AMENDMENT so sacrosanct as the American flag amend­ genuine threat to our nation emerges and [From the La Crosse (WI), Tribune, June 7, ment-dlfficul t but not impossible. when there ls no other way to guard against 1995) An amendment to protect the flag from it. The U.S. Supreme Court ruled in a Texas desecration ls before Congress and has all That ls why the founding fathers made it case in 1989 that flag burning is protected by the lobbying in its favor. so difficult to revise the Constitution, and the First Amendment as a form of speech. The trouble ls, it ls an attempt to solve, why, as a Justice Department spokesman The court's decision didn't go over very through the Constitutional amendment proc­ pointed out the other day, the Bill of Rights well with friends of Old Glory then, and six ess, a problem that really is not a problem. has not been amended since it was ratified in years later that ruling stlll sticks in the Flag burning is not rampant. It occurs oc­ 1792. craw of many patriots-so much so that con­ casionally; it brings, usually, society's scorn The unpatriotic mischief of adolescent stitutional amendments protecting the flag upon the arsonist, and does no one any harm, punks ls infuriating. But it ls not a serious against desecration have picked up 276 co­ except the sensitivities of some. enough act to warrant revision of the na­ sponsors in the U.S. House of Representa­ These sensitivities give rise to the effort to tion's charter. The Blll of Rights exists to tives and 54 in the Senate. abridge the freedom of expression guaran­ protect people whose behavior, however re­ The House Judiciary Committee takes up teed by the First Amendment, which has pugnant, injures nothing but people's feel­ the amendment today, with a floor vote ex­ been held by the courts to include expres­ ings. pected on June 28. The Senate Judiciary sions of exasperation with government by The American flag protects even people Committee tackled a similar amendment on burning its banner. who burn it; it prevails over both them and Tuesday. At worst, this flag protection is an opening their abuse. That is one of the reasons the For two centuries soldiers have given their wedge in trimming away at the basic rights flag and the nation it stands for are so lives to keep the American flag flying. It is of all Americans to criticize its leaders. That strong. right was so highly esteemed by the Found­ a symbol of freedom and hope for mlllions. Mr. KYL addressed the Chair. That is what infuses the stars and stripes ing Fathers that they made free speech vir­ with meaning and inspires the vast majority tually absolute. The PRESIDING OFFICER (Mr. GOR­ of Americans to treat it with respect. At best, the flag protection amendment TON). The Senator from Arizona. But to take away the choice in the matter, trivializes the Constitution. Mr. KYL. Mr. President, I would like to make respect for the flag compulsory, di­ That is no small consideration. The Con­ to respond briefly to the remarks of minishes the very freedom represented by stitution was trivialized once before. The the Senator from Wisconsin and other the flag. prohibition amendment had no business arguments in opposition to this pro­ Do we follow a constitutional amendment being made a constitutional chapter. It was posed amendment and to speak briefly banning flag desecration with an amendment not of constitutional stature. It could have requiring everyone to actually sing along been done by statute alone. Its repeal showed in favor of the amendment. Senator when the national anthem is played at sports that it was a transitory matter rather than ROTH from Delaware is here to speak to events? An amendment making attendance being one of transcendent, eternal concern. an important subject as well. So what at Memorial Day parades compulsory? The flag protection amendment is trivial I will do is truncate my remarks, and Sen. Howell Heflin, D-Ala., argues that the in that flag burning is not always and every­ Senator HATCH will be here a little bit flag unites us and therefore should be pro­ where a problem. If the amendment suc­ later to speak at greater length on the tected. But Heflin and like minded amend­ ceeds, what else is out there to further constitutional amendment. ment supporters are confusing cause and ef­ trivialize the document? Mr. fect. The flag ls a symbol of our unity, not Must the bald eagle be put under constitu­ President, I think we need to the source of it. tional protection if it ls no longer an endan­ start with some fundamentals. I have Banning flag burning is simply the flip side gered bird? never questioned the sincerity, or the of the same coin that makes other shows of This is a "feel good" campaign. People feel judgment, or reasoning, or conclusions, patriotism compulsory. What are the names they accomplish something good by protect­ even, of those who oppose a constitu­ of the countries that make shows of patriot­ ing the flag from burning. (Isn't the ap­ tional amendment on desecration of ism compulsory? Try China. Iraq. The old proved method of disposing of tattered flags the flag. There are very sound con­ Soviet Union. to burn them, by the way?) Coerced respect for the flag isn't respect at But it offers about the same protection to stitutional arguments on both sides of all, and an amendment protecting the Amer­ flags that the 18th offered to teetotaling. this issue. It is one of those classical ican flag would actually denigrate that flag. If someone has a political statement to issues on which people on both sides Allegiance that ls voluntary is something make and feels strongly enough, he'll do the can marshal evidence, historical com­ beyond price. But allegiance extracted by burning and accept the consequences. The mentary, and reasoning to support 35944 CONGRESSIONAL RECORD-SENATE December 8, 1995 their views. In my view, it is not an that then-Governor Clinton had signed be visited on the U.S. Constitution and easy question to resolve. But I do take months earlier which prohibited the in­ the people of America. some offense at the suggestion that tentional desecration of the flag, You cannot have it both ways. The those who propose the amendment-­ though the President now opposes this truth of the matter is it is true that just to use one quotation used before­ particular amendment. this is not a big problem, but it does are involved in misguided rhetoric, and The House passed a companion meas­ not follow from that that we should terminology of that sort. We can dis­ ure to that which is being considered not offer the States the ability to re­ agree over something of this impor­ here, on June 28, by a vote of 312 to 120. store the protection of the flag that it tance, without suggesting that those This has bipartisan support. The Sen­ enjoyed for 200 years. Mr. President, 49 who hold a different view are dan­ ate Judiciary Committee, with equally States seem to think this is important gerous, misguided, or simply engaged bipartisan support, approved the enough to have memorialized Congress, in rhetoric. amendment on July 20 by a vote of 12 asking for the ability to once again re­ I think, to some extent, that while to 6. store that protection. nothing-except perhaps declaring The purpose of this resolution is to Now, the passing of a constitutional war-is a more solemn right and re­ restore the authority to adopt statutes amendment would not prevent those sponsibility of the Congress than protecting the U.S. flag from physical who hate America or who have particu­ amending the Constitution, it is also desecration. As I said, it is not a choice lar grievances from expressing this possible that some in Congress, from between the flag and the Constitution. contempt through any other speech or time to time, become consumed by We proved for 200 years that both are even certain conduct as the Supreme their own importance. It is easy to do. possible to protect. Court has permitted. You do not have Yet, I think it is equally important for The flag is worthy of protection. It is to burn the flag to express your views. us to recognize that we do not amend a unique national symbol, representa­ I suggest in civilized society people the Constitution, that while it is im­ tive, among other things, of the men should be able to express themselves in portant for us to raise all of these ques­ and women who have served this coun­ ways that are not so personally and tions and to debate this as solemnly as try. It is draped over the coffins of viscerally offensive, for example, to a we can, that we do not amend the Con­ those who have paid the ultimate price family grieving over the flag-draped stitution, Mr. President. The people to preserve our freedom and invokes coffin of a loved one. amend the Constitution. All we can do very strong emotions in all Americans. Mr. President, let me just conclude is recommend an amendment. It is the It is important to protect the symbol by quoting from some people who have people who make the ultimate deci­ for these reasons. spoken to this issue before in a way sion. You cannot burn or deface other na­ which I think is instructive. This is not To put it in the simplest terms, what tional symbols which have far less we are suggesting is we ask the Amer­ misguided rhetoric by extremists or emotional symbolic value than the superpatriots. I refer, Mr. President, to ican people: Do you want to amend the flag, but we allow it because the Su­ Constitution to protect the flag? If the the words of Chief Justice Earl Warren, preme Court said a few years ago we an eminently respected jurist of this people say no, then it will not happen; would allow the desecration of the flag. if the people say yes, I suggest that we country: "I believe that the States and This resolution, frankly, is in direct the Federal Government do have the should rely upon their judgment in this response to the Texas versus Johnson matter, the very people who, after all, power to protect the flag from acts of decision in Texas of the Supreme desecration and disgrace." elect us to represent them in all other Court. It was a 5-to-4 decision. So lit­ matters except amending the Constitu­ A famous liberal jurist, a man great­ erally, one unelected judge decided ly respected on the Supreme Court of tion, which under our document is re­ that a law that had existed for over 200 served to the people for final decision. the United States, Justice Hugo Black: I think we have to put some trust in years was now mysteriously unconsti­ It passes my belief that anything in the the American people here to do the tutional. Federal Constitution bars a State from mak­ right thing. The Court later ruled in United ing the deliberate burning of the American It is interesting to me that histori­ States versus Eichman that Congress flag an offense. It is immaterial that the cally in this country for 200 years we could not by statute protect the flag words are spoken in connection with the making it very clear that our only re­ burning. It is the burning of the flag that the got along very well living under a Con­ State has set its face against. stitution that protected free speech, sponse could be a proposed constitu­ and yet in 49 of the 50 States, pre­ tional amendment. And Justice Abe Fortas, a respected vented desecration of the flag. This is Mr. President, I am not going to re­ liberal, a Democrat, not an extremist not a choice between protecting the spond to each of the arguments made conservative patriot: "* * * the States flag and the U.S. Constitution, as was because Senator ROTH has some impor­ and the Federal Government have the suggested a moment ago. That is a tant things to say on another subject. power to protect the flag from acts of false choice. For 200 years we did both. Let me just respond to a couple. desecration* * *." We can do both. One of the arguments and probably Let me quickly also demonstrate this Since the decision of the Supreme the key argument of the proponents is point further by noting the names of Court which struck down the protec­ that we would be trampling on the many respected members of the Demo­ tion of the flag, 49 States, including my right of free speech by adopting this cratic Party who have sponsored or State of Arizona, have passed memori­ amendment. I understand that argu­ voted for this amendment. This is not alizing resolutions calling on Congress ment. It is not a frivolous argument. a partisan issue, as I said: 93 House to pass a flag desecration amendment The argument of some opponents Democrats voted for the flag amend­ so that the States could consider it. that flag burning is a nonproblem be­ ment, including RICHARD GEPHARDT the In 1991, Arkansas, while President cause it is hardly ever done and there­ minority leader, Deputy Whips BILL Clinton was still serving as Governor, fore why would we even want to bother RICHARDSON and CHET EDWARDS, and a became the 11th of 49 States to "urge with this, I think is a good argument host of other ranking and subcommi t­ Congress of the United States to pro­ against the notion that this would be a tee members and key members of the pose an amendment to the U.S. Con­ significant intrusion on the first Democratic Party. Democrats and Re­ gress, for ratification by the States, amendment. publicans alike, liberals and conserv­ specifying that the Congress and the It seems to me opponents cannot atives, can appreciate the importance States shall have the power to prevent argue on the one hand that this is in­ of doing this. the physical desecration of the flag of significant, never happens, why are you And the final argument that was the United States." worrying about it, and on the other made that these words are so subject to I also note that the decision of the hand say it would be the biggest trav­ interpretation, "desecration" and Supreme Court invalidated the law esty and impingement on free speech to "flag"-who knows what "flag" means? December 8, 1995 CONGRESSIONAL RECORD-SENATE 35945 Mr. President, the American experi­ right and from one end fluttered a flag. That stay on welfare without working for ence of 200-plus years teaches us what ascent had cost nearly 6,000 liv~s. more than a couple of years. After the word "flag" means, and "desecra­ Mr. President, that sacrifice could that, you should have to work and earn tion" has meaning which can be inter­ never be put adequately into words, income just like everybody else." He preted by judges of good will. but the flag symbolizes perfectly what went on to say, "And if you put the The Bill of Rights and the 14th words cannot describe. And it is that building blocks in, you can have a 2- amendment to the U.S. Constitution symbol that we see when we go to the year limit on welfare as we know it. are filled with general statements monument just a couple of miles south You would end the system as it now ex­ which the Framers of the Constitution of here and see the flag being raised ists.'' and of the 14th amendment clearly un­ over Mt. Suribachi that recalls so Mr. President, that is a strong state­ derstood need to be phrased relatively many memories and evokes so many ment and a bold challenge. H.R. 4, the generally in order to deal with the va­ emotions among Americans, that we "Personal Responsibility and Work Op­ riety of circumstances to which they come to the conclusion that this one portunity Act of 1995," meets this first would be applied. Words like "estab­ very special symbol of America and ev­ principle. We require people to work lishment of religion," "unreasonable erything for which it stands should re­ after 2 years and place a 5-year limit searches and seizures," leaving "unrea­ ceive minimal protection by the people on the receipt of Federal benefits. Let sonable" to the interpretation of the of the United States. That is why I me repeal this. We provide not a 2-year courts. "Due process of law"-! can urge my colleagues to follow the lead limit on benefits, but a 5-year limit. hear the arguments now. What do you of the House of Representatives and And, I might add, the conference report mean by "due process"? What do you submit this question to the people of on H.R. 4 allows the States to exempt mean by "just compensation," by the United States to determine wheth­ up to 15 percent of their caseload from "speedy trial"? You need to define it. er or not they want to amend the Con­ this limit. Mr. President, one of the geniuses of stitution to protect the flag from dese­ The President's support for time lim­ the Constitution is that it is not de­ cration. its, by the way, is one of the many iro­ fined with all of the precision that we Mr. President, I yield the floor to nies throughout the welfare reform de­ apply to legislation, to laws, and the Senator ROTH. At the time that Sen­ bate. A good deal of attention has been even greater precision that is applied ator HATCH comes, he will speak fur­ focused on the analysis done by the De­ to regulations to execute those laws. ther to the issue of the flag. partment of Health and Human Serv­ That is tlie genius of the Constitution. The PRESIDING OFFICER. The Sen­ ices on the impact the various welfare So, all of the generalized phrases, the ator from Delaware. bills would have on families and chil­ "cruel and unusual punishment," Mr. ROTH. Mr. President, first of all, dren. The single greatest reason fami­ "equal protection of the laws," and let me express my appreciation to the lies would become ineligible for bene­ other generalized statements have distinguished Senator from Arizona for fits is the 5 year limit. It is a bit incon­ served us very well for over 200 years. his courtesy and compliment him on sistent for the President to embrace a Certainly for words like "flag," which I his most eloquent statement. time limit but invite criticism of our suggest has a pretty specific meaning, Mr. President, I ask unanimous con­ proposal for a 5-year limit on benefits. and even "desecration," which is less sent to speak as in morning business. The second principle, as outlined by so, it is possible to interpret those The PRESIDING OFFICER. Without the President, is "we need to make words in a meaningful and consistent objection, it is so ordered. work pay." The President indicated, way, particularly, as was noted earlier, that through the earned income credit program, "we ought to be able to lift if we amend the proposal here to pro­ WELFARE REFORM vide for the Federal Government, the people who work 40 hours a week, with Congress, rather than the States, to Mr. ROTH. Mr. President, there are kids in their home, out of poverty." adopt the legislation that would pro­ alarming signals coming from the The Republican balanced budget plan vide for the protection of the flag. White House that President Clinton is consistent with this second principle So, much more will be said about this may veto welfare reform. Instead of outlined by the President. Under our amendment. Senator HATCH will be ending welfare as we know it, the Ad­ plan, the EIC continues to grow. We here in a moment to discuss the ministration apparently intends to are targeting the EIC program to those amendment in more detail, to explain continue politics as usual. most in need. the reasons why the Judiciary Commit­ From the early days of his adminis­ The administration has criticized the tee was able to pass it out with such an tration, President Clinton promised Balanced Budget Act for its provisions overwhelming majority. welfare reform to the American people. on EIC. But I believe it is both fair and I am going to close by quoting from On February 2, 1993, he told the Na­ accurate to point out that in expanding Chief Justice Rehnquist in his dissent­ tion's Governors that he would an­ the EIC, the Clinton administration ing opinion from the decision in the nounce the formation of a welfare re­ and the Democratic 103d Congress went Texas versus Johnson case, which pre­ form group within 10 days to work with far beyond the President's stated goal cluded the Congress and the States the Governors to develop a welfare re­ as well as beyond the original goals of from any longer protecting the flag. I form plan. At that meeting, the Presi­ this program. For example, they ex­ think these words are appropriate as dent outlined four principles which panded the credit to individuals who we think about the possibility that would guide his administration to re­ did not have children at home. American soldiers will again be sent to form welfare. We have found unacceptable levels of foreign lands to fight, and the concern The first principle as outlined by the errors, abuse, and waste in this pro­ for those people who we put in harm's President is that "welfare should be a gram. Spending for the EIC is quite way, people who defend the ideals of second chance, not a way of life." In simply out of control. We have pro­ our country. It is appropriate to reflect further defining what these means, the posed a responsible and reasonable re­ upon the value of the flag as a symbol President stated that people should form of the EIC program separate from to those people. work within 2 years and that, "there H.R. 4. Our welfare bill does not con­ Let me quote again, as I said, from must be-a time-certain beyond which flict with the President's principle on the dissenting opinion of Justice people don't draw a check for doing work. Rehnquist in Texas versus Johnson. He nothing when they can do something." The third principle of welfare reform said: On July 13, 1993, President Clinton outlined by President Clinton some 34 At Iwo Jima, United States Marines fought went even further and told the Na­ months ago is that tougher child sup­ hand to hand against thousands of Japanese. tional Association of County Officials port enforcement is needed. H.R. 4 fully By the time the Marines reached the top of that a 2-year limit could be put on wel­ meets this principle. In an October 18, Mt. Suribachi they raised a piece of pipe up- fare. He said, "you shouldn't be able to 1995 letter, the Director of the Office of 35946 CONGRESSIONAL RECORD-SENATE December 8, 1995 Management and Budget informed the to maintain their own funding. H.R. 4 former Governor, the President surely majority leader that: imposes such requirements. Further­ knows well the duplication in the de­ The Administration strongly supports bi­ more, the conference agreement pro­ livery of benefits. It costs over $6 bil­ partisan provisions in both the House and vides $3.5 billion in more funding for lion just to administer the AFDC and Senate bills to streamline paternity estab­ the block grants to States for tem­ Food Stamp Programs. When you in­ lishment, require new hire reporting, estab­ porary assistance for needy families clude the cost of errors, fraud, and lish State registries, make child support than under the Senate bill which abuse in these two programs, another laws uniform across State lines, and require passed 87-12. $3 billion is wasted. States to use the threat of denying drivers' We have therefore proposed an op­ and professional licenses to parents who The President indicated his interest refuse to pay child support. in a performance bonus which forces tional block grant for the Food Stamp Program. At a town meeting this past Clearly H.R. 4 meets the President's the bureaucracy and recipients to focus on work. Establishing performance June, the President told the people of position on child support enforcement. New Hampshire that his administra­ The fourth principle outlined by the standards is a subject which I have per­ sonally worked on for years. H.R. 4 in­ tion has given 29 States waivers to use President was his commitment to en­ food stamps and welfare checks to em­ courage experimentation in the States. cludes work-based performance stand­ ards. ployers as a wage supplement. If it is To his credit, his administration has It is clear we have responded posi­ good policy as a waiver, it is good pol­ approved a number of waivers to allow tively to all of these concerns. icy to allow Governors to accept an op­ the States the flexibility to experi­ The President also indicated he was tional block grant. ment. But waivers are not enough as willing to give the States more flexibil­ Another important area of reform is the President himself, as a former Gov­ ity in child nutrition, adoption, and the Supplemental Security Income ernor, realizes. child protective services. H.R. 4 pro­ Program. The SSI Program was estab­ When he spoke to the Governors tects the current entitlements of foster lished 21 years ago principally to pro­ again this year on June 6, in Balti­ care and adoption assistance mainte­ vide a welfare retirement program for more, ~he President told the Gov­ nance payments. Between 1995 and 2002, aged and disabled adults who were un­ ernors, funding for foster care will increase by able to contribute enough into the So­ You could not design a program that would nearly 80 percent. Funding for child nu­ cial Security system. With this purpose be too tough on work for me. You could not trition will increase from less than $8 in mind, one would think that the cost design a program that would give the States of this program should at least be sta­ any more flexibility than I want to give billion in fiscal year 1995 to over $11 billion in 2002. ble as the elderly SSI population has them as long as we recognize that we ... actually declined by more than one­ have a responsibility to our children and to These are the fundamental principles that in the end, our political and economic the President outlined to the Gov­ third since 1974. policies must reinforce the culture we are ernors and to the Nation. Congress will Instead, SSI is the largest cash as­ trying to create. They must be pro-family shortly send a welfare reform bill sistance program for the poor and one and pro-work. which meets these principles. It would of the fastest growing entitlement pro­ grams. Programs costs have grown 20 At the same time, President Clinton be regrettable if the President walks also told the Governors that, "we can percent annually in the last 4 years. away from all of these things which he The SSI reforms in H.R. 4 are de­ save some money and reduce the defi­ so recently pledged. signed to slow the growth in the two cit in this welfare area.'' The need to reform the welfare sys­ populations which have seen tremen­ Then, on July 20 this year, he told tem is as critical today as it was near­ the National Conference of State Leg­ dous increases in recent years, nonciti­ ly 3 years ago when the President took zens and children. In 1982, noncitizens islatures that "what I want to do in office. The number of children receiv­ constituted 3 percent of all SSI recipi­ the welfare reform debate is to give ing AFDC increased nearly threefold ents. In 1993, noncitizens constituted you the maximum amount of flexibil­ between 1965 and 1993. By comparison, nearly 12 percent of the entire SSI ity, consistent with some simple objec­ the total number of children in the caseload. From 1986 through 1993, the tives. I do think the only place we need United States aged O to 18 declined by number of aged or disabled noncitizen Federal rules and welfare reform * * * 5.5 percent during this period. recipients grew an average of 15 per­ is in the area of child support enforce­ In 1965, the average monthly number cent annually, reaching nearly 700,000 ment because so many of those cases of children receiving AFDC was 3.3 mil­ in 1993. Today, almost one out of every cross State lines." lion; in 1970, it was 6.2 million; in 1980, four elderly SSI recipients is a nonciti­ The President went on to say, "so I it was 7.4 million; and in 1993, there zen. GAO calculates that noncitizens am going to do my best to get you a were nearly 9.6 million children receiv­ are actually more likely to receive SSI welfare reform proposal which gives ing AFDC benefits. than citizens. The majority of these el­ more flexibility to the States and The Department of Health and derly noncitizens, 57 percent, have been doesn't have a lot of ideological pro­ Human Services has estimated that 12 in the United States less than 5 years. scriptions * * * and just focuses on one million children will receive AFDC In total, our reforms directed at non­ or two big things that need to be done. benefits by the year 2005 under current ci tizens will save the taxpayers more I think that is the right way to do it." law. If he vetoes welfare reform, Presi­ than $20 billion. If President Clinton Mr. President, we will provide the op­ dent Clinton will be accepting the sta­ vetoes H.R. 4, these savings will be portunity to make good on these tus quo in which another two and one­ lost. words. half million children will fall into the According to the General Accounting The President has told the Governors welfare system. Office, the growth in the number of dis­ he wants to protect the States even If the President vetoes welfare re­ abled children receiving cash payments when there is an economic downturn. form, he will be preserving a system under SSI was moderate before 1990, We have done this with an $800 million which costs and wastes billions of tax­ averaging 3 percent annually between contingency fund and a $1. 7 billion loan payers dollars. The General Accounting 1984 and 1990. Then, from the beginning fund. President told them he wanted Office has estimated, for example, that of 1990 through 1994, the growth aver­ funding for child care. H.R. 4 provides nearly $1.8 billion in overpayments aged 25 percent annually, and the num­ S17 billion for child care for welfare and were made in the Food Stamp Program ber tripled to nearly 900,000. Their low-income families. This is over $700 in 1993 alone. share of the disabled SSI population million more than under current law. A critical point of welfare reform is grew from about 12 percent before 1990 He told the Governors the pro bl em to give the States both the authority to 22 percent in 1994. The number of with a block grant was that States and the responsibility for efficiently, children who are disabled and receive would cut their own funding and there­ compassionately, and effectively ad­ benefits has increased by 166 percent fore he wanted requirements for States ministering these programs. As a just since 1990. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35947 I would remind my colleagues that Mr. President, vetoing welfare reform "§ 700. Incitement; damage or destruction of the changes in the definition of child­ will seriously undermine the American property involving the flag of the United hood disability included in H.R. 4 was people's confidence in our political sys­ States adopted on a bipartisan basis. tem. The American people know the "(a) ACTIONS PROMOTING VIOLENCE.-Any The conference agreement maintains welfare system is a failure. They are person who destroys or damages a flag of the the commitment to children who are also tired of empty rhetoric from poli­ United States with the primary purpose and disabled. All children currently receiv­ intent to incite or produce imminent vio­ ticians. Words without deeds are mean­ lence or a breach of the peace, and in cir­ ing SSI benefits will continue to re­ ingless. The time to enact welfare re­ cumstances where the person knows it is rea­ ceive the full cash benefit to which form is now. sonably likely to produce imminent violence they are entitled through January 1, Mr. President, I yield the floor. or a breach of the peace, shall be fined not 1997. Mr. McCONNELL addressed the more than $100,000 or imprisoned not more The conference report increases Fed­ Chair. than 1 year, or both. eral spending on welfare programs. Ex­ The PRESIDING OFFICER. The Sen­ "(b) DAMAGING A FLAG BELONGING TO THE penditures for the programs under H.R. ator from Kentucky. UNITED STATES.-Any person who steals or 4 totaled $83.2 billion in 1995. Under knowingly converts to his or her use, or to H.R. 4, they will increase by one-third the use of another, a flag of the United to total $111.3 billion in 2002. Between States belonging to the United States and 1995 and 2002, total expenditures for intentionally destroys or damages that flag FLAG DESECRATION shall be fined not more than $250,000 or im­ these programs will be $753.7 billion. prisoned not more than 2 years, or both. The conference report also provides CONSTITUTIONAL AMENDMENT "(c) DAMAGING A FLAG OF ANOTHER ON FED­ support for other areas in which the The Senate continued with the con­ ERAL LAND.-Any person who, within any President has indicated support. The sideration of the joint resolution. lands reserved for the use of the United President has called for action to pre­ Mr. McCONNELL. Mr. President, on States, or under the exclusive or concurrent vent teen pregnancies. We provide $75 Monday I will be offering an amend­ jurisdiction of the United States, steals or million for abstinence education. ment in the nature of a substitute to knowingly converts to his or her use, or to The President has called for tough the use of another, a flag of the United the underlying proposed constitutional States belonging to another person, and in­ child support enforcement. Our welfare amendment, and I ask unanimous con­ tentionally destroys or damages that flag reform bill includes significant im­ sent that this amendment appear in shall be fined not more than $250,000 or im­ provements in child support enforce­ the RECORD at this point. It will be co­ prisoned not more than 2 years, or both. ment which will help families avoid sponsored by Senator BENNETT of Utah, "(d) CONSTRUCTION.-Nothing in this sec­ and escape poverty. Senator DORGAN, and Senator BUMP­ tion shall be construed to indicate an intent The failure of an absent parent to ERS. on the part of Congress to deprive any State, pay child support is a major reason the There being no objection, the amend­ territory or possession of the United States, number of children living in poverty or the Commonwealth of Puerto Rico of ju­ ment was ordered to be printed in the risdiction over any offense over which it has increased. Between 1980 and 1992, RECORD, as follows: the nationwide child support enforce­ would have jurisdiction in the absence of ment caseload grew 180 percent, from PROPOSED AMENDMENT this section. Strike all after the enacting clause and in­ "(e) DEFINITION.-As used in this section, 5.4 to 15.2 million cases. The sheer the term 'flag of the United States' means growth in the caseload has strained the serting the following: SECTION I. SHORT TITLE. any flag of the United States, or any part system. thereof, made of any substance, in any size, There have been improvements in the This Act may be cited as the "Flag Protec­ in a form that is commonly displayed as a child support enforcement system as tion and Free Speech Act of 1995". flag and would be taken to be a flag by the collections have increased to $10 billion SEC. 2. FINDINGS AND PURPOSE. reasonable observer.''. per year, but we clearly need to do bet­ (a) FINDINGS.-The Congress finds that- (b) CLERICAL AMENDMENT.-The table of ter. The House and Senate have in­ (1) the flag of the United States is a unique sections for chapter 33 of title 18, United symbol of national unity and represents the States Code, is amended by striking the item cluded a number of child support en­ values of liberty, justice, and equality that relating to section 700 and inserting the fol­ forcement reforms. These include ex­ make this Nation an example of freedom un­ lowing new item: pansion of the Federal Parent Locator matched throughout the world; "700. Incitement; damage or destruction of Service, adoption of the Uniform Inter­ (2) the Bill of Rights is a guarantee of property involving the flag of state Family Support Act-UIFSA­ those freedoms and should not be amended in the United States.". use . of Social Security numbers for a manner that could be interpreted to re­ Amend the title so as to read: "A joint res­ child support enforcement, improve­ strict freedom, a course that is regularly re­ olution to provide for the protection of the ments in administration of interstate sorted to by authoritarian governments flag of the United States and free speech, and cases, new hire reporting, and report­ which fear freedom and not by free and for other purposes.". democratic nations; Mr. McCONNELL. Mr. President, ing arrearages to credit bureaus. Our (3) abuse of the flag of the United States conference report provides increased causes more than pain and distress to the every single Senator believes in the funding for child support data automa­ overwhelming majority of the American peo­ sanctity of the American flag. It is our tion. ple and may amount to fighting words or a most precious national symbol. The As I have already mentioned, these direct threat to the physical and emotional flag represents the ideas, values and provisions have been endorsed by the well-being of individuals at whom the threat traditions that unify us as a people and administration. Let me also note that I is targeted; and as a nation. Brave men and women recently received a letter from the (4) destruction of the flag of the United have fought and given their lives and American Bar Association in which the States can be intended to incite a violent re­ are now entering a war-torn region in sponse rather than make a political state­ ABA states it "strongly supports the ment and such conduct is outside the protec­ defense of the freedom and way of life child support provisions in the con­ tions afforded by the first amendment to the that our flag represents. ference report.'' The letter goes on to United States Constitution. For all these reasons, those who dese­ say, "If these child support reforms are (b) PURPOSE.-lt is the purpose of this Act crate the flag deserve our contempt. enacted, it will be an historic stride to provide the maximum protection against After all, when they defile the flag, forward for children in our nation." If the use of the flag of the United States to they dishonor America. But the issue the President vetoes welfare reform, he promote violence while respecting the lib­ before this body is: How do we appro­ will f orfei t this historic opportunity. erties that it symbolizes. priately deal with the misfits who burn On January 24, 1995 President Clinton SEC. 3. PROTECTION OF THE FLAG OF THE UNIT­ the flag? ED STATES AGAINST USE FOR PRO· declared at a joint session of Congress, MOTING VIOLENCE. Many of my colleagues who support a "Nothing has done more to undermine (a) IN GENERAL.-Section 700 of title 18, constitutional amendment to ban flag­ our sense of common responsibility United States Code, is amended to read as burning say the only way to ensure than our failed welfare system. follows: flag-burners get the punishment they 35948 CONGRESSIONAL RECORD-SENATE December 8, 1995 deserve is to amend the Bill of Rights types of illegal flag desecration. First, manifestation of the symbol, without for the first time in over 200 years. The anyone who destroys or damages a U.S. more, does not diminish or otherwise first amendment, which they propose flag with a clear intent to incite immi­ affect the symbol itself in any way." to alter, contains our most fundamen­ nent violence or a breach of the peace But, Mr. President, you do not have tal rights: free speech, religion, assem­ may be punished by a fine of up to to take my word on it. The Congres­ bly, and the right to petition the Gov­ $100,000, or up to 1 year in jail, or both. sional Research Service has offered ernment. The freedoms set forth in the Second, anyone who steals a flag that legal opinions to Senators BENNETT first amendment, arguably, were the belongs to the United States and de­ and CONRAD concluding that this ini­ foundation on which this great Repub­ stroys or damages that flag may be tiative will withstand constitutional lic was established. fined up to $250 ,000 or imprisoned up to scrutiny: Amending the Constitution was made 2 years, or both. "The judicial precedents establish an arduous process by the Founding And third, anyone who 8teals a flag that the [amendment]"-referring to Fathers for good reason. The require­ from U.S. property and destroys or the amendment I have just been dis­ ments-approval by two-thirds of each damages that flag may also be fined up cussing-"if enacted, while not revers­ House of Congress and ratification by to $250,000 or imprisoned up to 2 years, ing Johnson and Eichman, should sur­ three-fourths of the State legisla­ or both. vive constitutional attack on first tures-ensure that highly emotional is­ Some of my colleagues will argue amendment grounds." sues of the day will not tear at the fab­ that we've been down the statutory In addition, Bruce Fein, a former of­ ric of the Constitution. Since the addi­ road before and the Supreme Court has ficial in the Reagan administration and tion of the Bill of Rights, the Constitu­ rejected it. respected constitutional scholar con­ tion has been amended on only 17 occa­ However, the Senate's previous stat­ curs: sions. utory effort wasn't pegged to the well­ "In holding flag desecration statutes Let me repeat, Mr. President, after established Supreme Court precedents unconstitutional in Johnson, the Court the initial 10 amendments known as in this area. cast no doubt on the continuing vital­ the Bill of Rights, we have altered the This amendment differs from the ity of Brandenburg and Chaplinsky as Constitution only 17 times in the his­ statutes reviewed by the Supreme applied to expression through use or tory of our country. Court in the two leading cases: Texas abuse of the flag. [The amendment] "­ And only one of those amendments­ versus Johnson (1989) and U.S. versus referring to my amendment-falls well prohibition-actually constricted free­ Eichman (1990). within the protective constitutional dom, and it was soon repealed. The 22d In Johnson, the defendant violated a umbrella of Brandenburg and amendment also restricts freedom by Texas law banning the desecration of a Chaplinsky * * * [and it] also avoids limiting the President to two terms, venerated object, including the flag, in content-based discrimination which is but we will have the term limits debate a way that will offend-offend, Mr. generally frowned on by the First another day. President-one or more persons. John­ Amendment.'' The proposed constitutional amend­ son took a stolen flag and burned it as Mr. President, several other constitu­ ment before us does just that-it rips part of a political protest staged out­ tional specialists also agree that this the fabric of the Constitution at its side the 1984 Republican Convention in initiative will withstand constitutional very center: the first amendment. Dallas. The State of Texas argued that challenge. A memo by Robert Peck, Our respect and reverence for the flag its interest in enforcing the law cen­ and Prof. Robert O'Neil and Erwin should not provoke us to cause damage tered on preventing breaches of the Chemerinsky concludes that the to the Constitution, even in the name peace. amendment "conforms to constitu­ of patriotism. But the Government, according to tional requirements in both its purpose Mr. President, I seek no protection, the Supreme Court, may not-may and its provisions." no safe harbor, no refuge for those who not-"assume every expression of a Mr. President, I ask unanimous con­ heap scorn on our Nation by desecrat­ provocative idea will incite a riot sent that the ORS memos, the Bruce ing the flag. * * * " Johnson, according to the Fein letter, and the legal memo from The only thing that those who pro­ Court, was prosecuted for the expres­ Robert Peck, Professors O'Neil and vocatively burn the flag deserve is sion of his particular ideas: dissatisfac­ Chemerinsky, and Johnny Killian be swift and certain punishment. tion with Government policies. And it printed in the RECORD at this point. Therefore, the statutory amendment is a bedrock principle underlying the There being no objection, the mate­ I hav& proposed would ensure that acts first amendment, said the Court, that rial was ordered to be printed in the of deliberately confrontational flag­ an individual cannot be punished for RECORD, as follows: burnings are punished with stiff fines expressing an idea that offends. I re­ GREAT FALLS, VA, October 21, 1995. and even jail time. peat, the Court said you cannot be pun­ Senator MITCH MCCONNELL, My amendment will prevent desecra­ ished for engaging in offensive speech. U.S. Senate, Russell Senate Office Building, Washington, DC. tion of the flag and at the same time, The Johnson decision started a na­ DEAR SENATOR: This letter responds for protect the Constitution. tional debate on flag-burning and as a your request for an appraisal of the constitu­ Those malcontents who desecrate the result, Congress, in 1989, enacted the tionality of the proposed " Flag Protection flag do so to grab attention for them­ Flag Protection Act. In seeking to and Free Speech Act of 1995. " I believe it eas­ selves and to inflame the passions of safeguard the flag as the symbol of our ily passes constitutional muster with flying patriotic Americans. And, speech that Nation, Congress took a different tack banners or guidons. incites lawlessness or is intended to do from the Texas Legislature. The Fed­ The only non-frivolous constitutional question is raised by section 3(a). It so, the Supreme Court has made abun­ eral statute simply outlawed the muti­ criminalizes the destruction or damaging of dantly clear, merits no first amend­ lation or other desecration of the flag. the flag of the United States with the intent ment protection. From Chaplinsky's But in Eichman, the Supreme Court to provoke imminent violence or a breach of "fighting words" doctrine in 1942 to found congressional intent to protect the peace in circumstances where the provo­ Brandenburg's "incitement" test in the national symbol insufficient--in­ cation is reasonably likely to succeed. In 1969 to Wisconsin versus Mitchell's sufficient-to overcome the first Chaplinsky v. New Hampshire (1942), the Su­ "physical assault" standard in 1993, the amendment protection for expressive preme Court upheld the constitutionality of Supreme Court has never protected conduct exhibited by flag-burning. laws that prohibit expression calculated and likely to cause a breach of the peace. Writ­ speech which causes or intends to The Court, however, clearly left the ing for a unanimous Court, Justice Frank cause physical harm to others. door open for outlawing flag-burning Murphy explained that such " fighting" And, that, Mr. President, is the basis that incites lawlessness. The Court words "are no essential part of any expo­ for this amendment, that I am discuss­ said: " the mere destruction or dis­ sition of ideas, and are of such slight social ing. My amendment outlaws three figurement of a particular physical value as a step to truth that any benefit that December 8, 1995 CONGRESSIONAL RECORD-SENATE 35949 may be derived from them is clearly out­ (1995). This memorandum concludes that the lean flag (Eichman, 496 U.S. at 317-19; Texas v. weighed by the social interest in order and bill conforms to constitutional requirements Johnson, 491 U.S. 397, 405--07 (1989)). In both morality." in both its purpose and its provisions. instances, law was employed in an attempt In Brandenburg v. Ohio (1969), the Court It would be a mistake to conclude that S. to reserve use of the flag for governmentally concluded that the First Amendment is no 1335 is unconstitutional simply because the approved viewpoints (Le., patriotic pur­ bar to the punishment of expression "di­ U.S. Supreme Court invalidated the Flag poses). The Court held such a reservation rected to inciting or producing imminent Protection Act of 1990 in its decision in Unit­ violated bedrock First Amendment prin­ lawless action and is likely to incite or ed States v. Eichman, 496 U.S. 310 (1990). In ciples in that the government has no power produce such action." this decision, as well as its earlier flag-dese­ to "ensure that a symbol be used to express In holding flag desecration statutes uncon­ cration opinion, the Court specifically left only one view of that symbol or its stitutional in Texas v. Johnson (1989), the open a number of options for flag-related referents." (Id. at 417.) Court cast no doubt on the continuing vital­ laws, including the approach undertaken by Johnson had been charged with desecrating ity of Brandenburg and Chaplinsky as applied S. 1335. The Court reiterated its stand in its a venerated object, rather than any of a to expression through use or abuse of the 1992 cross-burning case, indicating that flag number of other criminal charges that he flag. See 491 U.S. at 409-410. burning could be punishable under cir­ could have been prosecuted for and that Section 3(a) falls well within the protec­ cumstances where dishonoring the flag did would not have raised any constitutional is­ tive constitutional umbrella of Brandenburg not comprise the gist of the crime (R.A. V. v. sues. Critical to the Supreme Court's deci­ and Chaplinsky. It prohibits only expressive City of St. Paul, 112 S.Ct. 2538, 2544 (1992)). sion in his case, as well as to the Texas uses of the flag that constitute "fighting" Unlike the 1990 flag law that the Court ne­ courts that also held the conviction uncon­ words or are otherwise intended to provoke gated, S. 1335 is not aimed at suppressing stitutional, was the fact that "(n]o one was imminent violence and in circumstances non-violent political protest; in fact, it fully physically injured or threatened with in­ where the provocation is reasonably likely acknowledges that constitutionally pro­ jury." 491 U.S. at 399. The Texas Court of to occasion lawlessness. The section is also tected right. In contrast, the Flag Protec­ Criminal Appeals noted that "there was no sufficiently specific in defining "flag of the tion Act, the Court said, unconstitutionally breach of the peace nor does the record re­ United States" to avoid the vice of vague­ attempted to reserve the use of the flag as a flect that the situation was potentially ex­ ness. The phrase is defined to include any symbol for governmentally approved expres­ plosive." Id. at 401 (quoting 755 S.W.2d 92, 96 flag in any size and in a form commonly dis­ sive purposes. S. 1335 makes no similar at­ (1988)). Thus, the primary concern addressed played as a flag that would be perceived by tempt to prohibit the use of the flag to ex­ by S. 1335, incitement to violence, was not at a reasonable observer to be a flag of the press certain points of view. Instead, it both issue in the Johnson case. The Eichman Court United States. The definition is intended to advances a legitimate anti-violent purpose found the congressional statute to be indis­ prevent circumvention by destruction or while remaining solicitous of our tradition of tinguishable in its intent and purpose from damage to virtual flag representations that "uninhibited, robust, and wide-open" public the prosecution reviewed in Johnson and thus could be as provocative to an audience as debate (New York Times v. Sullivan, 376 U.S. also unconstitutional. mutilating the genuine article. Any poten­ 254, 270 (1964)). In reaching its conclusion about the issue tial chilling effect on free speech caused by Moreover, the statute is sensitive to, and of constitutionality, the Court, however, spe­ inherent definitional vagueness, moreover, is complies with several other constitutional cifically declared that "(W]e do not suggest nonexistent because the only type of expres­ considerations, namely: (1) it does not dis­ that the First Amendment forbids a State to sion punished by section 3(a) is that intended criminate between expression on the basis of prevent 'imminent lawless action.'" Id. at by the speaker to provoke imminent lawless­ its content or viewpoint, since it avoids the 410 (quoting Brandenburg v. Ohio, 395 U.S. ness, not a thoughtful response. The First kind of discrimination condemned by the 444, 447 (1969)). In Brandenburg, the Court said Amendment was not intended to protect ap­ Court in R.A. V.; (2) it does not provide oppo­ that government may not "forbid or pro­ peals to imminent criminality. nents of controversial political ideas with an scribe advocacy of the use of force or of law Section 3(a) also avoided content-based excuse to use their own propensity for vio­ violation except where such advocacy is di­ discrimination which is generally frowned on lence as a means of exercising a veto over rected to inciting or producing imminent by the First Amendment. It does not punish otherwise protected speech, since it requires lawless action and is likely to incite or based on a particular ideology or viewpoint that the defendant have a specific intent to produce such action." 395 U.S. at 447. It went of the speaker. Rather, it punishes based on instigate a violent response; and (3) it does on to state that "(a] statute which fails to calculated provocations of imminent vio­ not usurp authority vested in the states, draw this distinction impermissibly intrudes lence through the destruction or damage of since it does not intrude upon police powers upon the freedoms guaranteed by the First the flag of the United States that are reason­ traditionally exercised by the States. Each and Fourteenth Amendments. It sweeps ably likely to succeed irrespective of the within its condemnation speech which our of these points wm be discussed in greater Constitution has immunized from govern­ content of the speaker's expression. Such ex­ detail below. ment control." Id. at 448. pressive neutrality is not unconstitutional One additional point is worth noting. Pass­ S. 1335 merely takes up the Court's invita­ discrimination because the prohibition is in­ ing a statute is far preferable to enacting a tion to focus '.1 proper law on "imminent law­ tended to safeguard the social interest in constitutional amendment that would mark less action." It specifically punishes "[a]ny order, not to suppress a particular idea. See the first time in its more than two centuries person who destroys or damages a flag of the F.C.C. v. Pacifica Foundation, 438 U.S. 726, as a beacon of freedom that the United United States with the primary purpose and 744-746 (1978). States amended the Bill of Rights. Totali­ I would welcome the opportunity to am­ intent to incite or produce imminent vio­ tarian regimes fear freedom and enact broad lence or a breach of the peace, and in cir­ plify on the constitutionality of section 3(a) authorizations to pick and choose the free­ as your bill progresses through the legisla­ cumstances where the person knows it is rea­ doms they allow. The broadly worded pro­ sonably likely to produce imminent violence tive process. posed constitutional amendment follows Very truly yours, or a breach of the peace." S. 1335, at § 3(a). that blueprint by giving plenary authority The language precisely mirrors the Court's BRUCE FEIN, to the federal and state governments to pick Brandenburg criteria. It does not implicate Attorney at Law. and choose which exercises of freedom will the Constitution's free-speech protections, [Memorandum] be tolerated. On the contrary, American de­ because "(t]he First Amendment does not mocracy has never feared freedom, and no To: Interested parties. protect violence." NAACP v. Claiborne Hard­ From: Robert S. Peck, Esq.; Robert M. crisis exists that should cause us to recon­ ware Co., 458 U.S. 886, 916 (1982). O'Neil, professor, University of Virginia sider this path. Because the Court has never More recently, the Court put it this way: Law School; Erwin Chemerinsky, Legion said that Congress lacks the constitutional "a physical assault is not by any stretch of Lex Professor of Law, University of power to enact a statute to prevent the flag the imagination expressive conduct pro­ Southern California. from becoming a tool of violence, a statute­ tected by the First Amendment." Wisconsin Re S. 1335, the Flag Protection and Free rather than a constitutional amendment-is v. Mitchell, 113 S.Ct. 2194, 2199 (1993). Under Speech Act of 1995. an incomparably better choice. the Court's criteria, for example, a symbolic Date: November 7, 1995. I. S. 1335 PUNISHES VIOLENCE OR INCITEMENT TO protest that consists of hanging the Presi­ This memorandum will analyze the con­ VIOLENCE, NOT EXPRESSIVE CONDUCT dent in effigy is indeed protected symbolic stitutional implications of S. 1335, the Flag The fatal common flaw in the flag-desecra­ speech. Although hanging the actual Presi­ Protection and Free Speech Act of 1995. As tion prosecution of Gregory Lee Johnson, dent might convey the same message of pro­ its name implies and the legislation states as whose Supreme Court case started the con­ test, a physical assault on the Nation's chief its purpose, S. 1335 seeks "to provide the troversy that has led to the proposed con­ executive cannot be justified as constitu­ maximum protection against the use of the stitutional amendment, and the subsequent tionally protected expressive activity and flag of the United States to promote violence enactment by Congress of the Flag Protec­ could constitutionally be singled out for spe­ while respecting the liberties that it symbol­ tion Act of 1989 was the focus on punishing cific punishment. S. 1335 makes this nec­ izes." S. 1335, 104th Cong., 1st Sess. §2(b) contemptuous views concerning the Amer- essary distinction as well, protecting the use 35950 CONGRESSIONAL RECORD-SENATE December 8, 1995 of the flag to make a political statement, against threats of violence, even though it legislation, courts, or dominant political or whether pro- or anti-government, while im­ did not protect other citizens, is constitu­ community groups." Terminiello v. Chicago, posing sanctions for its use to incite a vio­ tional because such threats "have special 337 U.S. 1, 4 (1949). Thus, simply because lent response. force when applied to the person of the Presi­ some might be provoked and respond vio­ Courts and prosecutors are quite capable of dent." Id. at 2546. The rule against content lently to a march that expresses hatred of discerning the difference between protected discrimination, the Court explained, is not a the residents of a community, that is insuffi­ speech and actionable conduct. Federal law rule against underinclusiveness. For exam­ cient justification to overcome the First already makes a variety of threats of vio­ ple, "a State may choose to regulate price Amendment's protection of ideas, no matter lence a crime. Congress has, for example, advertising in one industry but not in others, how noxious they may be deemed. See, e.g., targeted for criminal sanction interference because the risk of fraud is in its view great­ Collin v. Smith, 578 F.2d 1197 (7th Cir.), Cert. with commerce by threats or violence, 18 er there." Id. (parenthetical and citation denied, 436 U.S. 953 (1978). U.S.C. §1951, (1994), incitement to riot, 18 omitted). The Supreme Court's flag-burning deci­ U.S.C. §2101, tampering with consumer prod­ The federal laws cited earlier that make sions applied this principle. In Johnson, the ucts, 18 U.S.C. § 1365, and interfering with certain types of threats of violence into state of Texas attempted to counter the ar­ certain federally protected activities. 18 crimes are not thought to pose content dis­ gument against its flag-desecration prosecu­ U.S.C. §245. S. 1335 fits well within the rubric crimination problems because they deal with tion by asserting an overriding govern­ that these laws have previously occupied. It only limited kinds of threats. To give an­ mental interest; it claimed that the burning cannot be reasonably asserted that S. 1335 other example, federal law also makes the of a flag "is necessarily likely to disturb the attempts to suppress protected expression. use of a gun in the course of a crime grounds peace and that the expression may be prohib­ II. S. 1335 DOES NOT UNCONSTITUTIONALLY DIS­ for special additional punishment. See 18 ited on this basis." 491 U.S. at 408 (footnote CRIMINATE ON THE BASIS OF CONTENT OR U.S.C. §924(c). In Brandenburg, the Court omitted). The Court rejected this argument VIEWPOINT found that a Ku Klux Klan rally at which on two grounds: (1) no evidence had been sub­ guns were brandished and overthrow of the mitted to indicate that there was an actual The Supreme Court has repeatedly recog­ breach of the peace, nor was evidence ad­ nized that "above all else, the First Amend­ government discussed remained protected free speech. Because guns were used for ex­ duced that a breach of the peace was one of ment means that government has no power Johnson's goals; Id. at 407, and (2) to hold to restrict expression because of its message, pressive purposes in Brandenburg and found to be beyond the law's reach there does not "that every flag burning necessarily pos­ its ideas, its subject matter, or its content." sesses [violent] potential would be to evis­ Police Department ·v. Mosley, 408 U.S. 92, 95 mean that the law enhancing punishment be­ cause a gun is used during the commission of cerate our holding in Brandenburg [that the (1972). On this basis, the Court recently in­ expression must be directed to and likely to validated a St. Paul, Minnesota ordinance a crime unlawfully infringes on any expres­ sive rights. incite or produce violence to be subject to that purported to punish symbolic expres­ criminalization]." Id. at 409. sion when it constituted fighting words di­ The gun law makes the necessary constitu­ tional distinctions that the Court requires., S. 1335 avoids the problems that Texas had rected toward people because of their race, by requiring that the defendant have "the color, creed, religion or gender. Fighting and so does S. 1335's concentration on crimes involving the American flag rather than pro­ primary purpose and intent to incite or words is a category of expression that the produce imminent violence or a breach of Court had previously held to be outside the tests involving the flag. S. 1335 properly identifies in its findings the reason for Con­ the peace, ... in circumstances where the First Amendment's protections. Chaplinsky person knows it is reasonably likely to v. New Hampshire, 315 U.S. 568, 571-72 (1942). gress to take special note of the flag: "it is a unique symbol of national unity." §2(a)(l). produce imminent violence or a breach of In R.A. V. v. City of St. Paul, 112 S.Ct. 2538, the peace." S. 1335, at § (a)(a). If Texas had 2543 (1992), the Court gave this statement It notes that "destruction of the flag of the United States can occur to incite a violent demonstrated that Johnson had intended to greater nuance by stating that categories of breach the peace and was likely to accom­ speech such as fighting words are not so en­ response rather than make a political state­ ment." §2(a)(4). As a result, Congress has de­ plish this goal, Johnson could have been con­ tirely without constitutional import "that victed of a crime for burning the U.S. flag. they may be made the vehicles for content veloped the necessary legislative facts to Texas, however, never attempted to prove discrimination unrelated to their distinc­ justify such a particularized law. this. tively proscribable content." Explaining this In its only post-R.A. V. decision on a hate­ Moreover, S. 1335 does not enable hecklers concept, the Court gave an example involv­ crimes statute, the Court upheld a statute to veto expression by reacting violently be­ ing libel: "the government may proscribe that enhanced the punishment of an individ­ cause it requires that the defendant have the libel; but it may not make the further con­ ual who "intentionally selects" his victim specific intent to provoke that response, on the basis of race, religion, color, disabil­ tent discrimination of proscribing only libel while at the same time taking away any ity, sexual orientation, national origin or critical of the government." Id. bias-motivated discretion from law enforc­ As a further example, the Court said a city ancestry. Wisconsin v. Mitchell, 113 S. Ct. 2194 ers. The existence of a scienter requirement council could not enact an ordinance prohib­ (1993). A fair reading of the Court's unani­ and a likelihood element is critical to distin­ iting only those legally obscene works that mous decision in that case supports the con­ guishing between a law that unconstitution­ contain criticism of the city government. Id. clusion that the Court would not strike down ally punishes a viewpoint because some peo­ As yet another example, the Court stated S. 1335 on R.A. V. grounds. In Mitchell, the ple hate it and one that legitimately pun­ that "burning a flag in violation of an ordi­ Court concluded that the statute did not ishes incitement to violence. impermissibly punish the defendant's "ab­ nance against outdoor fires could be punish­ IV. S. 1335 IS CONSISTENT WITH FEDERALISM stract beliefs," id. at 2200 (citing Dawson v. able, whereas burning a flag in violation of PRINCIPLES an ordinance against dishonoring the flag is Delaware, 112 S. Ct. 1093 (1992)), but instead spotlighted conduct that had the potential Earlier this year, the Supreme Court held not." Id. at 2544. The rationale behind this that the Gun-Free School Zones Act of 1990, limitation, the Court explained, was that to cause a physical harm that the State could properly proscribe. S. 1335 similarly es­ 18 U .S.C. § 922(q)(l)(a) unconstitutionally ex­ government could not be vested with the ceeded the power of Congress to regulate power to "drive certain ideas or viewpoints chews ideological or viewpoint discrimina­ tion to focus on the intentional provocation commerce. United States v. Lopez, 63 U.S.L.W. from the marketplace." Id. at 2545 (quoting 4343 (1995). In doing so, the Court reaffirmed Simon & Schuster, Inc. v. Members of the N. Y. of violence, a harm well within the govern­ ment's power to punish. the original principle that "the powers dele­ State Crime Victims Bd., 112 S.Ct. 501, 508 gated by the [] Constitution to the federal (1991)). III. S. 1335 DOES NOT ENCOURAGE A HECKLER'S government are few and defined. Those No such danger exists under S. 1335. Both VETO which are to remain in the State govern­ the patriotic group that makes use of the First Amendment doctrine does not permit ments are numerous and indefinite." Id. at flag to provoke a violent response from dis­ the government to use the excuse of a hostile 4344 (quoting The Federalist No. 45, pp. 292- senters and the protesters who use the flag audience to prevent the expression of politi­ 293 (C. Rossiter ed. 1961) (James Madison)). to provoke a violent response from loyalists cal ideas. Thus, the First Amendment will S. 1335 respects these principles by direct­ are subject to its provisions. A law that not allow the government to give a heckler ing its sanctions only at preventing the use would only punish one or the other perspec­ some sort of veto against the expression of of the national flag to incite violence, pre­ tive would have the kind of constitutio.nal ideas that he or she finds offensive. As a re­ venting someone from damaging an Amer­ flaw identified by the Court in R.A. V. More­ sult, the Court has observed, "in public de­ ican flag belonging to the United States, or over, the legislation recognizes, as the Su­ bate our own citizens must tolerate insult­ damaging, on federal land, an American flag preme Court itself did ("the flag occupies a ing, and even outrageous, speech in order to stolen from another person. Each of these "deservedly cherished place in our commu­ provide 'adequate breathing space' to the acts have a clear federal nexus and remain nity," 491 U.S. at 419) that the flag has a spe­ freedoms protected by the First Amend­ properly within the jurisdiction of the fed­ cial status that justifies its special atten­ ment." Boos v. Barry, 485 U.S. 312, 322 (1988). eral government. Moreover, the bill concedes tion. Similarly, the R.A. V. Court noted that Any other approach to free speech "would jurisdiction to the states wherever it may a law aimed at protecting the President lead to standardization of ideas either by properly be exercised. S. 1335, at § 3(a)(d). December 8, 1995 CONGRESSIONAL RECORD-SENATE 35951 V. CONCLUSION the categories being speech that inflicts in­ To narrow the Bill of Rights, even in S. 1335 is carefully crafted to avoid con­ jury or tends to incite immediate violence. the name of the flag and patriotism, stitutional difficulties by being solicitous of Id., 572. While the Court over the years has constricts freedom and would reverse federalism and freedom of speech by focusing modified the other categories listed in Chaplinsky, it has not departed from the the 200-year American experiment with on incitement to violence. By doing so, it freedom that has made our Nation the meets all constitutional requirements. holding that the "fighting words" exception continues to exist. It has, of course, laid envy of the world. CONGRESSIONAL RESEARCH SERVICE, down some governing principles, which are Let us not give flag-burners-the THE LIBRARY OF CONGRESS, reflected in the subsection's language. miscreants who hate America and the Washington, DC, October 23, 1995. Thus, the Court has applied to "fighting freedom we cherish-more attention To: Hon. Robert F. Bennett (Attention: Lisa words" the principle of Brandenburg v. Ohio, than they deserve. Do not let these few Norton). 395 U.S. 444 (1969), under which speech advo­ scoundrels with nothing better to do From: American Law Division. cating unlawful action may be punished only if it directed to inciting or producing immi­ than burn our flag chase freedom from Subject: Constitutionality of flag desecra­ the shores of America. tion bill. nent lawless action and is likely to incite or This memorandum is in response to your produce such action. Id., 447. This develop­ I urge adoption of my statutory al­ request for a constitutional evaluation of S. ment is spelled out in Cohen v. California, 403 ternative to punish those who dese­ 1335, 104th Congress, a bill to provide for the U.S. 15, 20, 22-23 (1971). See also NAACP v. crate the flag, rather than a constitu­ protection of the flag of the United States Claiborne Hardware Co., 458 U.S. 886, 928 tional amendment that strikes at the and free speech and for other purposes. (1982); Hess v. Indiana, 414 U.S. 105 (1973). heart of our most cherished freedoms. Briefly, the bill would criminalize the de­ A second principle, enunciated in an opin­ So, Mr. President, in all likelihood, struction or damage of a United States flag ion demonstrating the continuing vitality of the "fighting words" doctrine, is that it is we will be voting on this amendment under three circumstances. First, subsection sometime either Monday or Tuesday, (a) would penalize such conduct when the impermissible to punish only those "fighting person engaging in it does so with the pri­ words" of which government disapproves. depending on whether a unanimous­ mary purpose and intent to incite or produce Government may not distinguish between consent agreement is entered into. I imminent violence or a breach of the peace classes of "fighting words" on an ideological hope that the amendment will be given and in circumstances where the person basis. R.A. V. v. City of St. Paul, 112 S.Ct. 2538 serious consideration by the Senate as knows it is reasonably likely to produce im­ (1992). an alternative approach which clearly minent violence or a breach of the peace. Subsection (a) is drafted in a manner to re­ would meet constitutional standards to Second, subsection (b) would punish any flect both these principles. It requires not only that the conduct be reasonably likely amending the Constitution. person who steals or knowingly converts to Mr. Presid'ent, on another matter, I his or her use, or to the use of another, a to produce imminent violence or breach of United States flag belonging to the United the peace, but that the person intend to ask unanimous consent to proceed as States and who intentionally destroys or bring about imminent violence or breach of in morning business. damages that flag. Third, subsection (c) pun­ the peace. Further, nothing in the subsection The PRESIDING OFFICER (Mr. ishes any person who, within any lands re­ draws a distinction between approved or dis­ INHOFE). Without objection, it is so or­ served for the use of the United States or approved expression that is communicated dered. under the exclusive or concurrent jurisdic­ by the action committed with or on the flag. tion of the United States, steals or know­ In conclusion, the judicial precedents es­ ingly converts to his or her use, or to the use tablish that the bill, if enacted, would sur­ BURMA of another, a flag of the United States be­ vive constitutional attack. Subsections (b) and (c) are more securely grounded in con­ Mr. McCONNELL. Mr. President, last longing to another person and who inten­ week, in yet another remarkable act of tionally destroys or damages that flag. stitutional law, but subsection (a) is only a Of course, the bill is intended to protect little less anchored in decisional law. courage, Daw Aung San Suu Kyi an­ the flag of the United States in cir­ Because of time constraints, this memo­ nounced her party, the National cumstances under which statutory protec­ randum is necessarily brief. If, however, you League for Democracy, will not par­ tion may be afforded. The obstacle to a gen­ desire a more generous treatment, please do ticipate in the constitutional conven­ eral prohibition of destruction of or damage not hesitate to get in touch with us. tion called by the State Law and Order to the flag is the principle enunciated in JOHNNY H. KILLIAN, Senior Specialist, Restoration Council, SLORC. United States v. Eichman, 496 U.S. 310 (1990), American Constitutional Law. As many who have followed Burma in and Texas v. Johnson, 491 U.S. 397 (1989), that recent years know, remaining true to flag desecration, usually through burning, is Mr. McCONNELL. I know my col­ expressive conduct if committed to "send a leagues and their allies who support the people who elected her and the message," and that the Court would review the constitutional amendment are mo­ NLD in 1990, Suu Kyi declared, limits on this conduct with exacting scru­ tivated by the highest ideals and prin­ A country which is drawing up a constitu­ tiny; legislation that proposed to penalize ciples. tion that will decide the future of the state the conduct in order to silence the message I share their reverence for the flag should have the confidence of the people. or out of disagreement with the message vio­ and the values and history it rep­ a standard SLORC clearly does not and lates the First Amendment speech clause. cannot meet. Rather clearly, subsections (b) and (c) resents. But even a constitutional would present no constitutional difficulties, amendment won't succeed in coercing In fact, SLORC has already stacked based on judicial precedents, either facially proper respect for the flag. It will, how­ the constitutional deck against the or as applied. The Court has been plain that ever, do damage to the Constitution NLD and Suu Kyi. Convention partici­ one may not exercise expressive conduct or and the cause of freedom. pants have been forced to accept guide­ symbolic speech with or upon the property of After all, is that not what the flag lines that will preserve a leading role others or by trespass upon the property of signifies-freedom? That is what it sig­ for the military in Burma's political another. Eichman, supra, 496 U.S., 316 n., 5; nifies. life and would exclude anyone married Johnson, supra, 412 n. 8; Spence v. Washington, Who can forget the pictures of the to a f ore:fgner from assuming the office 418 U.S. 405, 408-409 (1974). See also, R.A. v. City of St. Paul, 112 S.Ct. 2538 (1992) (cross fall of the Berlin Wall, as nation after of president. As we all know, this burning on another's property). The sub­ nation of Eastern Europe threw off the would prevent Suu Kyi from assuming sections are directed precisely to the theft or shackles of communism for freedom? the position she was elected in 1990 to conversion of a flag belonging to someone The American flags flying over our em­ fulfill since she is married to a British else, the government or a private party, and bassies in the countries behind the Iron scholar. the destruction of or damage to that flag. Curtain held the hopes and dreams of Mr. President, at the end of my com­ Almost as evident from the Supreme those subjugated under communism. ments, I will insert two articles which Court's precedents, subsection (a) is quite Spreading freedom is uniquely our appeared on November 30 in the Wash­ likely to pass constitutional muster. The provision's language is drawn from the American creed. In our history, we ington Post and the New York Times " fighting words" doctrine of Chaplinsky v. have seen freedom triumph over our co­ regarding the current situation in New Hampshire, 315 U.S. 568 (1942). That case lonial forbearers, over the slave hold­ Burma-there is no question that the defined a variety of expression that was un­ ers, over the Fascists and over the dic­ decision to boycott has increased the protected by the First Amendment, among tators. level of tension in Rangoon. SLORC 35952 CONGRESSIONAL RECORD-SENATE December 8, 1995 has now charged Suu Kyi and her sup­ Dr. Yokota paints a grim portrait of When recently pressed by a rep­ porters as engaging in confrontational Burma today-a picture which stands resentative of the U.N. Secretary Gen­ politics, but, as Suu Kyi is quick to at odds with the one the international eral to engage in a dialog with Suu point out: business community would have us see. Kyi, SLORC officials dismissed the re­ What they have termed confrontational is A few months ago, in my office, I lis­ quest point out, Suu Kyi was now: that we have asked for dialogue, which we tened as the chairman of a large Amer­ An ordinary citizen, that in 1990 there were want in order to prevent confrontation. To ican oil company eager to do business as many as 230 political parties with which it silence the views of people whose opinions with SLORC denounced as rumors and would be impossible to establish dialogue are different by putting them in prison is far and it would thus not be even handed to sin­ more confrontational. gossip the idea that the SLORC was en­ gaged in any forced relocations related gle out any one of them. Let me assure my colleagues that to his project. I respectfully suggest Well, she is the one they elected. Suu Kyi's understanding of the deterio­ this month's U.N. report rises above Two hundred and thirty political par­ rating situation in Burma is not a the gossip standard. ties did not carry the elections-the lonely minority view. Last week the Mr. President, I share the concerns National League for Democracy and United Nations, once again, took up raised by the U .N. Rapporteur. Let me Suu Kyi did. She has earned the right the question of Burma's political and stress to my colleagues that he is not to negotiate a timetable for the res­ human rights record. Once again, the reporting on a situation that has toration of democracy for her people. It Special Rapporteur, Dr. Yokota, issued changed for the better since Suu Kyi's is her right and our obligation as the a report which few may actually read, beacon of democracy to support that release, but one which is growing pro­ effort. but it is a powerful voice for the thou­ gressively worse. sands and thousands of Burmese citi­ To make the argument that the Unit­ Mr. President, I have taken the time ed States should resign itself to dealing zens who continue to suffer at the to come to the floor to discuss these hands of SLORC. with SLORC to bring about change, events because I am deeply disturbed compromises the very core of beliefs Let me briefly tick off the observa­ by twin developments-a major cam­ tions made in the report. that define our history and guide this In describing the constitutional con­ paign by American companies to en­ Nation. vention, Dr. Yokota noted that in spite hance the political legitimacy of We do not yield to vicious dictators-­ of his efforts to meet privately with po­ SLORC even as SLORC attempts to we do not abandon those who strain litical leaders who still planned to par­ crush the fledgling democracy move­ against the barbed wire shackles of re­ ticipate in the process, SLORC would ment inside Burma. pression. only permit visits supervised by In recent weeks, many United States It absolutely sickens me that any re­ SLORC officials. He stated in un­ businesses have engaged in an aggres­ spectable academic organization-for equivocal terms, the National Conven­ sive campaign to persuade the public that matter any American company­ tion "is not heading toward restoration that SLORC is worth doing business would suggest that economic oppor­ of democracy." with because like Vietnam and China, tunity and political expediency should While the Special Rapporteur wel­ Burma can be improved through eco­ impel the United States to accept comed the release of Suu Kyi and three nomic engagement. SLORC as the representatives of the other senior officials, he criticized the I think it is important to draw a key Burmese people. continued imprisonment of several distinction. Unlike China and Vietnam, It is not just the campaign that is hundred political prisoners and the Burma held legitimate elections and being waged here at home to enhance complex array of security laws allow­ chose a leader, Aung San Suu Kyi. The SLORC's political credentials that has ing SLORC sweeping powers of arbi­ elections by all accounts were free, brought me to the floor of the Senate. trary arrest and detention-authority fair, and 7 million people made their I am also concerned about recent that they continue to use-I might views absolutely clear. events in Burma. argue abuse-weekly. I must confess, I was appalled by a Not only has SLORC repeatedly and Yokota also condemned the severity recent study produced by the National publicly rejected Suu Kyi's call for a of court sentences without regard to Bureau for Asian Research which sug­ dialog on national reconciliation, last fair trials, access to defense lawyers or gested these results were essentially ir­ week a senior official threatened to an­ any consideration of proportionality relevant. The report said, Suu Kyi was: nihilate anyone who attempted to en­ between offense and punishment. After Obviously sincere, but it remains to be danger the military's rule. This week, sentencing, he drew attention to the seen how successful she will be in her at­ the noose tightened a little more and fact that conditions in prisons are im­ tempts and whether her supporters are help­ Suu Kyi was directly threatened. The possible to monitor because SLORC ing her attain a position of leadership. official military newspaper called Suu continues to stonewall the Inter­ Insult was added to injury when the Kyi a traitor who should be annihi­ national Red Cross Committee and its report stated: lated. request for access to detention sites. Even assuming the time may come when Rhetoric has been matched by an in­ In his March 1995 report, Dr. Yokota she does have a say in how the country is creased willingness to restrict Suu confirmed that military officials have governed, it is an open question of how well Kyi's role. In October, the National De­ equipped she is for such responsibilities, and mocracy League voted to reinstate Suu carried out arbitrary killings, rape, to what extent she would be able to rely on torture, forced portage, forced labor, Kyi as General Secretary along with a experienced technocrats and administrators. slate of other officials. In yet another forced relocation, and confiscation of These assertions are outrageously of­ private property-each and every act a effort to work peacefully with SLORC, fensive. To imply she is incapable of the NLD submitted the leadership list violation of international law. In this leading her nation offends every citizen month's report he indicates that the to the junta for approval. who voted for her and more impor­ SLORC rejected the results as illegal pattern continues and as before, takes tantly stands in stark contrast to her place most frequently in border areas and refused to recognize Suu Kyi's po­ record. Suu Kyi has conducted herself sition. Is it any wonder her party has where the Army is engaged in military with dignity and courage uncommon in operations or where regional develop­ decided they cannot participate in the this century. constitutional convention process? ment projects are taking place. He The Burmese people voted-they, like Last week-like every week since her added: Suu Kyi, have earned our respect and release-thousands of people gathered Many of the victims of such atrocious acts belong to ethnic national populations, espe­ support. The fact that the results were outside Suu Kyi's home to listen to her cially women, peasants, daily wage earners rejected by a handful of ruthless, self speak. Each Saturday and Sunday and other peaceful civilians who do not have serving generals does not undermine spontaneous crowds have made the pil­ enough money to avoid mistreatment by the validity of the elections or the out- grimage to her compound and left in­ bribing officials. come. spired by her courage, her confidence, December 8, 1995 CONGRESSIONAL RECORD-SENATE 35953 and her commitment to their freedom our support for Suu Kyi and democracy ing and going against the national inter­ and future. It is a crowd described in in Burma are spelled out in the resolu­ ests," the military statement warned. the U.N. report and in news accounts as tion. The government also deployed uniformed However, for more than a year the soldiers to the homes of three senior party large and peaceful with a sense of pur­ members. The soldiers allowed residents of pose and discipline. administration has argued Burma and the houses to come and go, but foreign dip­ Unfortunately, 2 weeks ago, there SLORC has a choice-they must imme­ lomats reported widespread rumors that a was a sharp change in the SLORC's tol­ diately improve their human rights wing of Inseln Prison, the local penitentiary erance for these gatherings. In an ap­ record and move promptly to open the used to hold polltical prisoners, had been parent attempt to restrict access to political process or they will face fur­ cleared out in recent days to make space for Suu Kyi, police began to erect barri­ ther international isolation. I agree, many of Mrs. Suu Kyi's followers. cades around her home. I understand but my definition of prompt and imme­ The boycott by Mrs. Suu Kyi and her party three young student supporters were removes any veneer of legitimacy from the diate seems to differ with theirs. convention, which was organized by the m111- arrested when they tried to intervene. I think we have given SLORC ample tary two years ago to enshrine its political According to Dr. Yokota's report, cor­ time to make a decision. Given recent role in the Burmese government. roborated by newspaper stories, the events, it is clear they have no inten­ The junta, which calls itself the State Law three were charged and sentenced 2 tion to relax their ruthless grip on and Order Restoration Council, has refused days iater to 2 years imprisonment. power. to honor the results of elections in 1990 won These arrests were followed by an­ So in conjunction with the U.N. reso­ overwhelmingly by the National League for other ominous development. When the lution it is my intention to introduce Democracy. Mrs. Suu Kyi, the Oxford-edu­ NLD announced it would not partici­ bipartisan sanctions legislation. I en­ cated daughter of Burma's independence hero, Gen. Aung San, was under house arrest pate in the constitutional convention, courage my colleagues to support this at the time of the voting. the party'·s senior officials woke up to effort as I see no other way to support Since her release in July, Mrs. Suu Kyi has find their homes surrounded by armed Suu Kyi and the restoration of democ­ called repeatedly for negotiations with the soldiers. racy in Burma. junta, saying she is anxious to avoid any Democracy activists are not suffering There is no question that sanctions possibility of a repetition of the violence in Burma alone. Last week nine mem­ and further isolation of SLORC is an that occurred in 1988, when thousands of her bers of the New Era newspaper staff initiative she supports. Indeed, once supporters were gunned down in a military were detained in Thailand. The New again this week Suu Kyi denounced the crackdown that led to her house arrest the Era is an underground newspaper with next year. increase in foreign investment and "We do not want to call the people onto wide circulation inside Burma-appar­ urged companies to wait until democ­ the streets, and we have no intention of call­ ently being caught with a copy results racy has been restored before bringing ing the people into the streets," she said at in immediate arrest. Bowing to pres­ business to Burma. a news conference Wednesday in her lakeside sure from SLORC, in anticipation of an Mr. President, I ask unanimous con­ garden. "We have always said that we are upcoming visit by a senior junta offi­ sent that the article, which included prepared to have dialogue at any time." cial, Khin Nyunt, Thai officials appar­ her remarks, be printed in the RECORD But the generals have not responded to her ently have detained the New Era jour­ and that the Yokota report and Am­ pleas, pushing ahead Instead with a stage­ nalists-including a 71-year-old editor managed constitutional convention in which nesty International report on the cur­ delegates, mostly handpicked by the mili­ and his 65-year-old wife. rent situation be printed along with tary, are drafting a constitution that guar­ Reports from activists inside and that. antees the military a permanent role in Bur­ outside Burma suggest a broad crack There being no objection, the mate­ mese polltics. down on democratic activists is immi­ rial was ordered to be printed in the As a result of her boycott, the 86 seats al­ nent. I hope this is not true and urge RECORD, as follows: lotted to the National League for Democracy the administration to make clear Unit­ [From the New York Times, Nov. 30, 1995] were empty in the convention hall Wednes­ day, the second day of the current session. ed States opposition to any such ac­ BURMESE OPPOSITION TO BOYCOTT JUNTA'S tions. However, the evidence suggests "The authorities did not at any time show CONVENTION any willingness to talk to the National there is credible reason to be con­ (By Ph111p Shenon) League for Democracy as the winning party cerned. RANGOON, BURMA.-Defylng the m111tary of the 1990 elections," Mrs. Suu Kyi said. It is clear that the fledgling democ­ government, Aung San Suu Ky!, the Bur­ "They keep saying that the national conven­ racy movement in Burma is under mese opposition leader, announced Wednes­ tion is a substitute for dialogue. I do no siege. I find the words of Suu Kyi's fel­ day that her pol1t1cal party would boycott a think they can say that any longer." low democrat, NLD Vice Chairman U m111tary-run convention to draw up a new Plainclothes soldiers have been stationed Tin 0, chilling. On Wednesday night, constitution for Burma. outside Mrs. Suu Kyi's house since her re­ after the boycott announcement, six The move was Mrs. Suu Kyl's most direct lease-and at her request, which ls seen by soldiers surrounded his home and an­ challenge to the junta since she was freed In diplomats as a clever move since it allows July after spending nearly six years under Mrs. Suu Kyi to blame the military if a pub­ other soldier now follows him every­ house arrest. llc disturbance outside her home should get where. "The people of Burma are very united In out of hand. A political prisoner for years, the 68- thinking that the national convention ls not But there was no request by the party for year-old vice chairman said with a wan heading toward democracy," the Nobel Peace the uniformed soldiers who suddenly ap­ smile, "We have no worries at all. I Prize winner said In announcing the boycott. peared outside the homes of three of her sen­ have been in prison before. They can "I do not think there ls as yet any evidence ior party colleagues on Tuesday night, hours detain me, do whatever they want. that the people of Burma support this na­ after the National League for Democracy in­ This is not a democratic country. We tional convention." formed the government of its boycott. In a letter delivered Tuesday, the party in­ Western diplomats said they feared that have to face some costs for the legiti­ formed the government of Its decision to the junta might try to arrest some of the mate rights of a democracy." boycott the convention, which reopened this party's senior members on charges of Incit­ It is my hope he, Suu Kyi and the week after a seven-month recess, In protest ing publlc disorder because of the boycott. NLD will not bear the costs alone or over the junta's refusal to open negotiations The party's vice chairman and one of its for long. with the party over Burma's polltical future. founders, U Tin Oo, said in an interview that Mr. President, in the near future the In a response publlshed Wednesday In a six uniformed soldiers had appeared outside United Nations will take up a resolu­ government-run newspaper, the junta ac­ his home Tuesday night, and that he had tion regarding Burma. I have been ad­ cused the leaders of the party, the National been talled by another soldier as he traveled vised that the United Nations will, League for Democracy, of trying to disrupt through the city Wednesday. the national convention In hopes of replacing "But we have no worries at all," he in­ once again, condemn the human rights it "with a convention they would be able to sisted with a confident smlle. "I have been In and political situation in clear and dominate as they llke." prison before. They can detain me, do what­ compelling terms. I commend Ambas­ The party's decision to boycott the con­ ever they want. This is not a democratic sador Albright for her efforts to assure st1 tu tional convention was "totally forsak- country. We have to face some costs for the 35954 CONGRESSIONAL RECORD-SENATE December 8, 1995 restoration of the legitimate rights of a de­ Yet the move to boycott the constitutional summary of allegations reported to have oc­ mocracy." convention is likely to be viewed as a provo­ curred in Myanmar during this last year. cation by the regime, which observers said This include; summary executions, arbitrary [From the Washington Post, Nov. 30, 1995] could widen the gulf between government detention, torture and forced labour. On pur­ BURMESE OPPOSITION LEADER SNUBS JUNTA'S and opposition. The regime says Burma will pose, I did not draw any conclusions or rec­ CONSTITUTION TALKS become a multi-party democracy after the ommendations in my interim report. To do (By Doug Fine) new constitution is drafted, but it has not so, I found it necessary, in accordance with provided a timetable. Commission on Human Rights and General RANGOON, BURMA.-Using the backdrop of a Aung San Suu Kyi, however, said the boy­ government-sponsored constitutional con­ Assembly resolutions, to establish or con­ vention as a forum for stepping up opposi­ cott was necessary. "They won't even talk to tinue direct contact with the Government us," she said with a laugh. "How could the tion to the country's m111tary rules, Nobel and people of Myanmar in order to verify the Prize-winning opposition leader Aung San gulf be widened? It can only be narrowed." information received and to analyze its con­ As for the military's intentions in conven­ tent. To my regret, however, such direct con­ Suu Ky! said today that Burma is not headed ing the constitutional convention, one West­ on the path of democracy. tacts in the form of a visit to Myanmar and Four and half months after her release ern embassy official, reflecting a widely held Thailand were not possible before the dead­ from house arrest by the ruling State Law view, said, "The path which seems to be one line for the submission of the interim report. and Order Restoration Council. Aung San chosen would lead to the drafting of a con­ Mr. President, at the invitation of the Gov­ Suu Ky! addresses increasingly large crowds st1 tut1on which calls for transition that en­ ernment of Myanmar by a letter of the Min­ sures civilian rule on the front end, with each weekend afternoon from the gate of her ister for Foreign Affairs dated 28 September home near Rangoon University. continued real authority being held indefi­ 1995, I undertook a visit to the Union of But in a news conference and talk today at nitely by the m111tary." Myanmar from 8 to 17 October 1995. From 17 her fenced-in compound, she revealed that One of the guidelines for the proposed con­ to 20 October 1995, I visited and met with her National League for Democracy, which stitution guarantees a "leading role" for the some Myanmar ethnic minorities in Thai­ overwhelmingly won elections in 1990 that m111tary in politics, and another bans any­ land, along the Thai/Myanmar border, to as­ the military refused to recognize, has noti­ one married to a foreigner from assuming certain the situation of human rights within fied government officials that the party the office of president. Aung San Suu Ky! is Myanmar for these ethnic minorities name­ would not participate in the constitutional married to Michael Aris, a British academic. ly: Karenn1, Shan and Karen. She has continued to talk of compromise. While in Yangon, my office, accommoda­ deliberations. The military government "We have always said we want to talk over hopes the convention will legitimize its rule tion and local transport were provided by the by forging an "enduring state constitution." our differences to find an answer that's ac­ UNDP Office in Myanmar, to which I wish to Insisting that the m111tary first open a dia­ ceptable to everyone," she said. "We have express my deep gratitude. logue with her party, which it has refused to never closed any doors and are open to any Mr. President, I wish to note with special do, Aung San Suu Kyi said, "A country discussions which might result in what's gratitude that the Government of Myanmar which is drawing up a constitution that will best for Burma's people." fac111tated the visit, including the travel decide the future of a state should have the Aung San Suu Kyi insists that her party within Myanmar to Kachin State in confidence of the people. has no timetable for transition to democ­ Myitkyina and Eastern Shan State in Her party's boycott has resulted in a pal­ racy, and she avoids being locked into any Kyaingtone and to Myitkina and Insein pris­ pable increase in tension in Rangoon. Party one scenario by saying that the situation is ons, and extended me many courtesies. leaders discovered security forces stationed so prone to change. During this visit, I was received by a num­ outside their homes when they awoke today, But Burma is very much at a crossroads ber of high-level government officials includ­ a day after the convention opened. now. After years of sealed borders and inter­ ing Lieutenant General Khin Nyunt, Sec­ Despite the tense atmosphere and the cha­ national ostracism, the government is ac­ retary One of the State Law and Order Res­ otic presence at her house of dozens of con­ tively seeking investment, tourism and po­ toration Council (SLORC), the Deputy Min­ vention delegates barred from attending the litical legitimacy. ister of Foreign Affairs, the Chief Justice, convention, Aung San Suu Kyi took time to Aung San Suu Kyi, who has been out­ the Minister for Information, the Minister outline her views on democracy, the goal of spoken in urging foreign investors to "jolly for National Planning and Economic Devel­ her political movement, which has taken on well wait" before bringing business into the opment, the Minister for Home Affairs and new life since her release. country, said, "Luxury hotels do not mean a other high level authorities. "With 7 million votes for the party in developed Burma." During my stay in Yangon, I also had the 1990," she said, "the views of the people are Her photogenic presence, Oxford education, opportunity to meet twice with Dow Jung very clear. They want a constitution that revered lineage-her father was the hero of San Suu Kyi at her private home. Former will defend their basic rights." Burma's independence-and her absence NLD Chairmen U Ky! Maung and U Tin Oo, Despite considerable corruption and a from Burma during the 1970s and '80s, which the actual Chairman and other NLD rep­ thriving black market, Aung San Suu Kyi distanced her from factional infighting with­ resentatives were also present. insisted that Burma is adequately prepared in the democrats' diverse coalition, make During these meetings, I enjoyed a frank, for democracy and maintained that its ab­ her a magnet for Burma's discontented. open and lengthy exchange of views which sence is responsible for the corruption. Encounters in Burma's remote interior touched upon most issues of concern for res­ "This country was a democracy once from confirm her widespread support. A shop toration of democracy and respect of human independence in 1948 until a 1962 military owner in Yaunghwe, in Shan State, made rights in Myanmar. I was informed about the coup, and our situation then was very much sure the coast was clear and proudly showed new composition of the Executive Commit­ better than it is now," she said. "The Bur­ off a T-shirt picturing Aung San Suu Kyi tee of the National League for Democracy mese people are disciplined and receptive if with her quote, "Fear is a habit. I am not which is as follow: U Aung Shwe as Chair­ you explain what is wanted of them and afraid," on the back. A Buddhist monk in man; U Kyi Maung and U Tin Oo as Deputy why." Mandalay, flipping through an English Chairmen, Daw Aung San Suu Ky! as Gen­ Aung San Suu Ky! was placed under house guidebook, came across her photo and ex­ eral-Secretary and U Lwin as Secretary. arrest in 1989, a year after the military insti­ claimed, "Do you know who this is? Do you? According to NLD leaders only peace, pub­ tuted a crackdown on her supporters that re­ This is our national heroine." lic order and dialogue may lead to democra­ sulted in thousands of deaths. Many of her tization. Therefore, as a mature political associates are still in prison. She won the STATEMENT OF MR. Yozo YOKOTA, SPECIAL party, NLD does not want to return to the Nobel Peace Prize in 1991 for her democracy RAPPORTEUR OF THE COMMISSION ON HUMAN situation which was preva111ng in 1988 or to campaign. Since her release from confine­ RIGHTS ON THE SITUATION OF HUMAN RIGHTS act in vengeance. As a responsible political ment in July, she has repeatedly called for IN MYANMAR TO THE FIFTIETH SESSION OF party, NLD is able to control its supporters. reconciliation and dialogue among demo­ THE GENERAL ASSEMBLY Their only aim is to promote a genuine dia­ cratic forces, ethnic groups and her m111tary Mr. President, I am here before you for the logue with the Government of Myanmar. foes. fourth time since the creation of my man­ While in Myanmar, I also had the oppor­ Reponding to the military's charges that date by the Commission on Human Rights in tunity to see the representatives of the three her party's methods are confrontational, March 1992. And, for the fourth time, I have political parties participating in the Na­ Aung San Suu Ky! reacted angrily. "What the duty to bring to your attention any tional Convention, namely, the Union they have termed 'confrontational' is that progress made toward the restoration of de­ Kayene League, the National League for De­ we have asked for a dialogue, which we want mocracy and protection of human rights in mocracy and the National Unity Party. In in order to prevent confrontation. To silence Myanmar. spite of my strong and repeated requests to the views of people whose opinions are dif­ Mr. President, in the interim report which meet with them in private at my office in ferent by putting them in prison is far more is brought before your Assembly, I provided the UNDP compound in Yangon. I regret to confrontational. on the basis of the information received a say that, this year again, the meetings with December 8, 1995 CONGRESSIONAL RECORD-SENATE 35955 these political leaders were arranged to take The atmosphere was peaceful and the crowd Emergency Provisions Act, the 1975 State place at a Government guest house. The lo­ of supporters were disciplined. To my knowl­ Protection Law, the 1962 Printers and Pub­ cation and atmosphere were not conducive to edge none of these meetings had disorder. To lishers Registration Law, the 1923 Official a free and unencumbered exchange of views. my knowledge none of the supporters was Secrets Act and the 1908 Unlawful Associa­ With regard to the detention of political threatened or arrested for having attended tion Act. prisoners, I must express my disappointment such meetings. Various articles in these laws continue to that this year, despite a formal written re­ Yet, I have to state that last week, on Sat­ be used in combination to prosecute a num­ quest before going to Myanmar and despite urday 18 November among the crowd which ber of individuals who were exercising their my repeated requests while in Myanmar, I gathered that day to listen to Daw Aung San rights to freedom of expression and associa­ was not permitted to see any such prisoner Suu Kyi's speech, I have been informed by tion. The combination of charges under these neither in Isein prison nor in Myitkina Jail. reliable sources that three NLD members laws included ones such as writing and dis­ With regard to the National Convention. I were arrested for having intervened with the tributing what were described as "illegal was not able to observe its meetings because police who was erecting barricades in front leaflets, spreading false information injuri­ it was not in session when I visited Myanmar of her house. According to the information ous to the state" and "contact with illegal this time. However, information from reli­ received, the three persons were charged organisations". I understand that due to able sources indicates that it is not heading with assaulting a police officer and were re­ such laws and other SLORC orders, the ac­ towards restoration of democracy, I am par­ portedly sentenced two days later to two tivities of the political parties, particularly ticularly disappointed to learn that the Gov­ years imprisonment. Although I have no de­ the NLD, are severely restricted. ernment has not yet distributed the tails of the trial proceedings, it would appear b. Severe court sentences for some politi­ Myanmar language version of the Universal that the accused could not possibly mount cal leaders have been reported and con­ Declaration of Human Rights to all delegates an effective defense with regard to the legal firmed. Information from reliable sources in­ to the National Convention. and factual basis for the arrest and incarcer­ dicates that there are problems in the field At the completion of my visit to Myanmar, ation in such a short period of time. of the administration of justice with regard I proceeded from 17 to 20 October 1995, to c. Cooperation with the Office of the Unit­ to fair trials, free access to defense lawyers, Thailand, to visit displaced persons from ed Nations High Commissioner for Refugees proportionality between the acts committed Myanmar in the area of Mae Hong Son and (UNHCR) is continuing and more than 190,000 and the punishment applied and time for Mae Sariang, where, I established or contin­ careful examination of the case by courts. Myanmar refugees out of estimated total of c. The non-acceptance by Myanmar of ued contact with the people of Myanmar liv­ about 250,000 have so far been repatriated ing in camps. Let me also take this oppor­ ICRC's customary procedures for visits for from neighbouring Bangladesh. places of detention is a negative step to­ tunity to express my deep gra ti tu de to the d. The Government is expanding coopera­ wards amelioration of their conditions. Government of Thailand who fac111tated my tion with various other United Nations bod­ d. There are still cases of torture, arbi­ visit to the camps. ies and specialised agencies such as UNDP, trary killings, rapes, and confiscation of pri­ Mr. President, I now wish to summarize UNICEF and UNDCP. Year after year, the vate property according to testimony and my observations on the human rights situa­ work of the humanitarian non-governmental evidence acquired by me. They seem to be tion in Myanmar on the basis of the allega­ organizations is slowly expanding. Now, taking place most frequently in border areas tions received, my recent visit to that coun­ these organisations are allowed to imple­ by m111tary soldiers in the course of military try and Thailand and of the information re­ ment programmes outside Yangon and able operations, forced relocations and develop­ ceived from various sources, including the to reach out grass-root people who suffer ment projects. Many of the victims of such Government officials and people of from shortage or lack of food, safe water, atrocious acts belong to ethnic national pop­ Myanmar, staff members of the United Na­ medicine, medical care and proper education. ulations, especially women, peasants, daily tions and other specialised agencies, staff e. In cities like Yangon, Myitkyina and wage earners and other peaceful civilians members of active human rights and human­ Kyaningtone, I observed that there were visi­ who do not have enough money to avoid mis­ itarian non-governmental organizations, for­ ble signs of relaxation of tension in the life treatment by bribing. eign government officials, journalists, schol­ of the people. It seems that people generally e. I am gravely concerned at the continued ars and students. enjoy normal life. There were many reports of forced porterage, forced labour, Since there has been no time to study care­ consumer goods in market places where forced relocation which are still occurring in fully the information and documents col­ many shoppers crowded. Physical develop­ border areas where the Army is engaged in lected during my visits to Myanmar and ments in the construction or improvement of military operations or where "regional de­ Thailand, these observations will have to be roads, bridges, buildings and railways are velopment projects" are taking place. still preliminary in nature. The full account taking place throughout the country and in of my findings, observations and rec­ PRELIMINARY RECOMMENDATIONS some border areas. However, just as last a. As Special Rapporteur, I urge the Gov­ ommendations will be reflected in my final year, I was informed that only a small por­ report to the Commission on Human Rights, ernment of Myanmar to sign and ratify the tion of the population enjoy the improved Covenants on Civil and Political Rights and which I intend to submit at the beginning of life and the majority who were poor rather next year. Economic, Social and Cultural Rights, the suffered from higher prices of basic necessity Optional Protocol to the Covenant on Civil PRELIMINARY OBSERVATIONS goods such as rice and medicine. and Political Rights, as well as the Conven­ First of all, there are some developments f. On the particular question of forced tion Against Torture and Other Cruel, Inhu­ which may lead to improvements in human labour, I was informed during my recent mis­ man or Degrading Treatment or Punishment rights situation in that country. sion to Myanmar that the SLORC had issued and the Convention on the Elimination of a. The Government of Myanmar continued a "secret directive" to discourage the prac­ All Forms of Discrimination against Women. to release political prisoners in 1995 although tice of forced labour. I am hopeful that this b. The Government of Myanmar should the exact number could not be verified. I was directive would be implemented rigorously. comply with the obligations under the Inter­ particularly pleased to note that among g. As Special Rapporteur, I welcome the national Labour Organization (ILO) Conven­ these released detainees were two prominent signature of several cease-fire agreements tion No. 29 prohibiting the practice of forced political party leaders from the National between the Government of Myanmar and portering and other forced labour. League for Democracy, U Kyi Maung and U different ethnic minorities. This is without c. Myanmar law should be brought into Tin Oo, the latter of whom I met in Insein doubt a positive step towards peace. Needless line with accepted international standards Prison in 1993 and 1994. to say, such agreements should be faithfully regarding protection of the physical integ­ I have also welcomed with great satisfac­ respected by both parties. rity rights. Among these international tion the announcement, made on 10 July Mr. President, in spite of these develop­ standards are the right to life, prohibition of 1995, that restrictions on Daw Aung San Suu ments. I have the duty to state that there torture, providing humane conditions for all Kyi were lifted by the Government of are still many restrictions on fundamental persons under detention and insurance of the Myanmar and that she has been released. I freedoms and serious violations of human minimum standards of judicial guarantees. am particularly pleased to note that she was rights continuing in Myanmar. d. The Government of Myanmar should released without conditions and is now free a. As mentioned above, I welcome the re­ take steps to facilitate and guarantee enjoy­ to meet with people and free to travel within cent release of a number of political pris­ ment of the freedoms of opinions, expression the country. oners. However, I remain concerned about and association, in particular by decrimi­ b. Since the release of Daw Aung San Suu the fact that there are still more than sev­ nalizing the expression of oppositional views, Kyi, a crowd of two to three thousand people eral hundred persons imprisoned or detained relinquishing government control over the is gathering every weekend, Saturdays and for reasons of political activities. I am also media and literary and artistic community, Sundays, outside the gate of her residence to concerned about the prevalence of a complex and permitting the formation of independ­ hear what Daw Aung San Suu Kyi and other array of security laws which allow the Gov­ ently organized trade unions. leaders say. During my visit to Myanmar, I ernment sweeping powers of arbitrary arrest e. All persons including elected political witnessed personally one of these gatherings. and detention These laws include the 1950 representatives, students, workers, peasants, 35956 CONGRESSIONAL RECORD-SENATE December 8, 1995 monks and others arrested or detained under straightforward, simple proposal that I consider this constitutional amend­ martial law after the 1988 and 1990 dem­ believe is not necessary and would, in­ ment is that our flag is already pro­ onstrations or as a result of the National deed, create an environment that tected. You cannot burn. or desecrate Convention, should be tried by a properly wo.uld produce, potentially, the oppo­ If constituted and independent civilian court in our flag. it is a flag that I own per­ an open and internationally accessible judi­ site of that which we seek to produce, sonally, you cannot desecrate my flag. cial process. If found guilty in such judicial or at least, as I hear, proponents of this You certainly cannot desecrate a flag proceedings, they should be given a just sen­ amendment are seeking to produce­ that you and I own. That is our flag. A tence; alternatively, they should be imme­ and that is, that our people have at flag flying over Iwo Jima, the flag that diately released and the Government refrain least one symbol that they respect, flies at half-mast today around the from all acts of intimidation, threats or re­ that we have a unifying symbol, which Washington Memorial, flags at ceme­ prisals against them or their families. is our flag, and that the flag creates, as teries, flags that we own. That is our f. As Special Rapporteur. I recommend the a consequence of our reverence for it, a flag. You cannot desecrate that. It is a Government of Myanmar to repeal or amend sense of national purpose, at least in as appropriate the relevant provisions which violation of current law to desecrate in at present prevent the ICRC from carrying that one instance. any fashion, to approach in any fashion out its humanitarian activities as regards This proposal, Mr. President, I be­ that would be desecration of our flag the prison visits. In this regard, I encourage lieve, is well intended in that regard. If under current law. the Government of Myanmar, in a spirit of I were to identify the thing that trou­ What this legislation proposes to do humanitarian goodwill, to re-invite the pres­ bles me the most about our country is say not only are we going to protect ence in Myanmar of the International Com­ today, it is the question of whether or our flag, we are going to protect some­ mittee of the Red Cross in order to carry out not we are developing the kind of per­ one else's flag from us. their purely humanitarian tasks. sonal character that is needed for the If an individual in their home, for ex­ g. The Government of Myanmar should Nation to have the courage and the ample, has a flag in their home and a publicize the "secret directive" which dis­ strength to respond to whatever may courage the practice of forced labour. This law is passed, say, in the State of Ne­ will indicate and the will of the Government happen to us in the future. That kind braska, as I think it probably would be, of Myanmar to effectively prohibit and sup­ of individual character development re­ saying that desecration of a flag is a press forced labour. Moreover, wide dissemi­ quires a considerable amount of effort violation of the law, someone could nation of the existence of the directive would and attention not just on the part of call up and report and say, "Gee, I saw promote awareness that forced labour is nei­ young people who are working to ac­ my neighbor do something with the ther condoned nor tolerated. quire it, but adults who are working to flag in their home and I think it is a h. The Government of Myanmar should try to help them. I note, in particular, without delay resume its dialogue with Daw violation of law. I think what they that this proposal is a top priority of were doing with their flag in the home Aung San Suu Kyi. the American Legion and Veterans of 1. As Special Rapporteur. I call upon the is a violation of the law, and I think Government of Myanmar to resolve peace­ Foreign Wars and the several other you should investigate and make sure fully its difficulties with ethnic minorities service organizations. In both the VFW they are not desecrating their own flag and to take all appropriate measures to en­ and American Legion's cases, they inside of their home." sure respect for human rights and humani­ have as a top priority as well working Mr. President, I genuinely believe tarian obligations in the situation of armed with young people to help them acquire this is going to set off and create the conflicts between the Myanmar Army and the capacity to be good citizens, to re­ the armed ethnic groups. very sort of division and the very sort spect their country, to respect their of problem that we seek to avoid. j. The Government of Myanmar should dis­ flag, to respect their role in a free and tribute copies of the Universal Declaration I think it is, again, a well-intended of Human Rights in Myanmar language to independent nation and the require­ constitutional amendment, but I for all delegates to National Convention which ments that fall to us as individuals in one do not look forward to an oppor­ is to be reconvened tomorrow. 28 November a free and independent nation. tunity where the people of this country 1995. Such action would indicate to the inter­ The loss of respect for not just the are debating at the local level whether national community the willingness of the flag but for many other things in our or not it is a desecration of our flag to Government to bring the relevant provisions country today troubles not just mem­ have someone sewing the flag on their of the domestic laws, in particular the new bers of the Legion but troubles almost Constitution to be eventually enacted into pants. It may end up being if you are anybody who is an observer of Amer­ driving down the highway going from, conformity with international human rights ican life today. standards. I know a couple of days ago, Senator say, California to Florida, it may be Mr. President, I have analyzed these alle­ LIEBERMAN and Senator NUNN, along legal to have a pair of pants with a flag gations and have made some recommenda­ with former Secretary of Education on it in California; it may be illegal in tions strictly in terms of the international Texas or Mississippi or vice versa. human rights obligations which Myanmar Bill Bennett, made a public presen­ tation of proposals to try to deal with One may have to get from AAA infor­ has freely undertaken. I am particularly mation about what the various flag or­ thinking of the fact that Myanmar is a Mem­ the deterioration in the quality of pres­ ber of the United Nations and is therefore entations made on daytime broadcast dinances are from State to State. I bound to respect the human rights standards television. think that will, rather than causing us emanating from the United Nations Charter. I listened a couple weeks ago to Sen­ to deepen our respect for the flag and I believe the Government of Myanmar ator NUNN on the floor go through using it as a symbol to inspire us-not should, and has the ability, to fulfill in good some things being broadcast on day­ just us as adults but to help us inspire faith the obligations it has assumed. time television, and I had a feeling I our young people to consider the sac­ was on a different planet. Most of us in rifices that have been made under that this body probably do not watch much rather glorious symbol-rather than FLAG DESECRATION inspiring us, it is apt to cause us to de­ CONSTITUTIONAL AMENDMENT daytime television, and it was shock­ ing to hear the sorts of things that teriorate into an argument that, frank­ The Senate continued with the con­ were being not just discussed, but of­ ly, I view as something that will sideration of the joint resolution. fered as being OK, offered as being ac­ produce a negative, not a constructive, Mr. KERREY addressed the Chair. ceptable, offered as being sort of a le­ result. The PRESIDING OFFICER. The Sen­ gitimate kind of behavior. This constitutional amendment does ator from Nebraska. This deterioration in the quality of not protect our flag. Our flag is already Mr. KERREY. Mr. President, I come our character is a great concern. I see protected. What this does is say it will to the floor to speak on Senate Joint it as a principal motivator behind what extend the protection of our flag to the Resolution 31, the proposed resolution I consider, as I said, to be a well-in­ protection of somebody else's flag that that would present to the States the tended proposal. they have in their home in any way, opportunity to amend the U.S. Con­ Mr. President, one of the things I shape or form. It will set off a debate stitution for the 20th time. It is a very think citizens should understand as we about whether or not the Government December 8, 1995 CONGRESSIONAL RECORD-SENATE 35957 has the right to come in, and if it is not require somebody to respect it by Japanese at Pearl Harbor. We did not somebody else's property, take action passing a law saying, If you violate the require that of Americans, and say: to protect all of us or what they might law, we will punish you. We should Under penalty of the police coming be doing with their flag. bring them into our presence and say: into your home, if you desecrate our The next thing I say, Mr. President, Understand what character is all flag we are somehow going to take ac­ if the flag was not revered, as it clearly about. You do not have character if tion against you. We knew what it is, if it did not set off such a strong your behavior is willful. You have meant to be patriotic. We knew that emotional reaction, I think a majority character if your behavior is obedient­ this Nation's freedom was at risk and of Americans who have experienced in obedient to your parents, obedient to this world's freedom was at stake and some fashion people giving of them­ your church, to your synagogue, obedi­ responded as a consequence. selves-if not giving of their lives-as a ent to your country. That is what char­ I have talked to many members of consequence of being inspired by that acter requires us to do. the Legion, the VFW, the DAV, the flag, if it was not already revered, if If we simply pass a law and say you Vietnam veterans, American veterans, there really was a threat to our flag, have to respect the flag, in my judg­ and many other veterans and citizens you would see a substantial amount of ment, what we are going to do is turn of Nebraska who say: Just let us amend instances out there where people were, the flag into a political instrument. We our Constitution. Just let us pass a as a part of expressing their anger with are going to diminish its value. We law. Let us do this. That is all we are their country or as part of expressing should use it as an object lesson when asking, is for the opportunity to do it. their anger with something that their we are debating the budget, for exam­ I have to say I am not just sympa­ Congress is doing or that their Govern­ ple, when we are debating anything thetic with that view, I believe I under­ ment has done to them, they would be that requires us to put ourselves on the stand it. I understand what they are setting the flags on fire. They are not. line, to take risks, to take a chance for trying to do. They are concerned about The reason they are not is that they freedom, to take a chance for someone the loss of respect. They are concerned know there is a taboo that you are else, to say: Rather than just taking about the loss of respect, not just for breaking, that you are violating some­ care of myself, I am going to take care the flag-where, in fact, it may be one thing holy, and if you are trying to of somebody else. of the icons left in America where score a point, if you are trying to per­ The description of the young people­ there is automatic respect-but the suade somebody of your point of view, and they were all in their late teens loss of respect for parents, the loss of the last thing you want to do is to take and early twenties, several hundred respect for our leaders, the loss of re­ a flag that belongs to you and dese­ thousand men who landed on the spect for institutions, the loss of re­ crate it in any fashion, or let it traipse beaches of Normandy 51 years ago-if spect for one another; the unwilling­ along the ground, trample it in any you hear that story, and I had the ness to be considerate, the unwilling­ way, disrespect the flag at all. chance last year to hear it told in de­ ness to be obedient, the deterioration Mr. President, again, I know if the tail by men now in their seventies who in the value of serving someone else, of answer is no to this constitutional were on that landing, who went on that risking your life for someone else's amendment, that Members are going to voyage, there was no guarantee. In­ freedom. have to explain to citizens at home or deed, many arguments were given that I understand and believe it is a great to organizations at home, why are you this thing was going to be a failure. challenge for this country to try to not simply allowing us to express the People well infarmed, leaders with build character one person at a time, will of the people? Why do you not just great knowledge believed that it would to say that we are going to reach to fail, that it would not be successful. let the Constitution be amended? The sea conditions that day were our youth and inspire them with a nar­ The clearest answer I can give is that rough. They got sick on the voyage to rative of this country, the stories of I genuinely believe that this constitu­ France, and they were terrified of the this country. The sacrifice that led us tional amendment will produce less re­ prospect of being killed by German ar­ to where we are today should cause spect for the flag, not more respect for tillery and German weapons. They anyone who pays attention to the his­ the flag. It will make the flag an object knew that their lives could end the tory of the United States of America to of political controversy. We ought to minute they stepped off of that landing say that our flag deserves the rev­ use the flag to educate our young peo­ craft. They knew that was a possibil­ erence that this constitutional amend­ ple, rather than telling them that they ity. ment is attempting to give it with the have to respect the flag at birth with­ That is what we should do when it force of law. out explaining why, without talking to comes to the flag. When it comes time It should be the force of our knowl­ them and giving them the evidence for talking to our young people, teach edge, the force of our conscience, the that many of us as adults already have them why they should respect the flag. force of our willingness to give it back that causes us to tear up and feel emo­ The reason why is that these men who in kind that causes us to revere this tional around the flag, rather than tak­ serve and women who serve our coun­ flag, not the force of the police in our ing the time and saying: This is what try today are saying, We are going to local community, not the force that we the cold war was. This is what we did be obedient to this country. We are are afraid something bad is going to in World War I. There were 50 million going to follow orders because we be­ happen to us if we desecrate the U.S. people under arms in World War I, and lieve that there is a moral principle at flag. 8 million men died in World War I. This stake here, and that principle is giving I hope when it comes time to vote is what happened in World War II. This ourselves to someone else, sacrificing that at least 34 Members of this body is what men and women of this country for someone else, paying attention, will vote against this constitutional did in the Second World War. This is being considerate, being willing to do amendment, not because we believe what our fighting people did, as well, in things that are good for somebody else, that the flag should not be revered, not Korea, to stop the Communists from rather than simply trying to figure out because we are not concerned for the coming down from the North. This is how to stick it to them, how to make loss of respect for it and other institu­ what we did in Vietnam. them look bad, how to make them feel tions in this country, but for precisely Even as controversial and as difficult bad as well. the opposite reason. I hope this debate as it was, there was a movement, a de­ The flag will not be a symbol that in­ does not lead us down the road to con­ sire to give the people of Vietnam free­ spires us if we require respect, if we say verting the flag into a political object, dom. Did it come off the tracks? Was it to our young people: Now, we just which I deeply believe it will if we loused up? Yes. But people like myself amended our Constitution. Now we amend our Constitution. who volunteered, who served, did so be­ have a law on the books. I hope we take some stock of our­ cause we believed in freedom. That is There was no law on the books in 1941 selves, we read a recent assessment what the flag does stand for. We should when this Nation was attacked by the that was done about what our young 35958 CONGRESSIONAL RECORD-SENATE December 8, 1995 people and our adults know about the Mr. SHELBY. Mr. President, I solid and extraordinary fact-the self­ history of this country, where we came strongly support Senate Joint Resolu­ lessness of thousands of men and from, how it was we got to where we tion 31, which amends the Constitution women who have given their lives to are today. We see a daunting challenge to protect the flag of the United States preserve American freedom. ahead of us. Far too many Americans from those who would desecrate it. I believe for the vast majority of do not know how it is that we got to The American flag is a national sym­ Americans the flag intrinsically rep­ where we are today. Far too many bol of the values this country was resents this pride. Americans do not Americans still believe that freedom is founded on. Many Americans have blindly follow traditions. But we do somehow free, that it is our birthright, fought and died to defend these values care deeply about symbols-particu­ and that we need do nothing to remain and this country. It is an insult to larly that one symbol of ideas and val­ free. It is ours; we have a right to it; we these patriots, their relatives, and all ues for which men and women have can do whatever we want with it. We other citizens who hold this country sacrificed and died in every generation. can act and behave in a willful fashion. dear, to burn or desecrate the symbol To desecrate the flag, I believe, is to We do not have to regard at all the of our nation and our freedom. desecrate the memory and make light feelings or lives not only of other peo­ I certainly support the right of all of their sacrifice. ple in our presence, but our future as citizens to freedom of speech, but that Justice Stevens writing in dissent to well. right has never been absolute in our the 1989 Supreme Court decision said: I know the challenge that this con­ country. That's why there are laws So it is with the American flag. It is more stitutional amendment presents to col­ against libel, slander, perjury, and ob­ than a proud symbol of the courage, the de­ leagues is a rather substantial one. scenity. Similarly, our freedom of po­ termination, and the gifts of nature that You fear you are going to be accused of litical expression is also limited. No transformed 13 fledgling colonies into a not being in favor of protecting our one can legally deface the Supreme world power. It is a symbol of freedom, of flag if you vote against it. I hope, as I Court building or the Washington equal opportunity, of religious tolerance, said, 34 Members will at least stand on Monument, no matter how much he or and of good will for other peoples who share this floor sometime next week when it she might wish to protest a particular our aspirations. The symbol carries its mes­ sage to dissenters both at home and abroad comes up and say that because we re­ government policy or law. The Amer­ who may have no interest at all in our na­ spect this flag of ours, because we be­ ican flag, as the symbol of all the great tional unity or survival. lieve that it should be revered, because values this country stands for, deserves we believe that Americans should special protection under the Constitu­ There is a type of patriotism that is make the choice, the personal choice tion. It simply is not necessary to com­ held so deeply that if finds expression based upon a personal and active mit an act of violence against this flag in concrete things like a patriot's crip­ knowledge of what this flag represents, to register protest against the govern­ pled body-or in bits of colored cloth. that they will say we do not need a law ment. Passage of Senate Joint Resolu­ For men who have risked death in serv­ to cause us to behave in the fashion tion 31 will help ensure our national ice of a flag it is more than just a sym­ that we know is right. We do not need symbol receives the respect and protec­ bol, it is sacrifice you can hold in your to amend our Constitution to get us to tion it deserves. hand-or trample underfoot in con­ respect Old Glory. Again, Mr. President, I offer my tempt. UNANIMOUS-CONSENT AGREEMENT strong support for Senate Joint Reso­ Men and women who we ask to die Mr. MACK. Mr. President, I ask lution 31 and I urge my colleagues to for a flag have a right to expect that unanimous consent the following support it as well. flag to be respected by those who bene­ amendments be the only amendments Mr. COATS. Mr. President, today we fit from their sacrifice. It is part of the in order to Senate Joint Resolution 31, consider a constitutional amendment compact we make with those who will and they must be offered and debated which allows States to enact laws to serve. At the time of the Supreme during Monday's session of the Senate: protect the American flag. I am co­ Court decision, it was the law in 48 McConnell, relevant substitute; Hatch, sponsor of this amendment and I States. Since that time, 49 State legis­ two relevant amendments; Biden, rel­ strongly believe that it is necessary to latures have called for a constitutional evant; Feinstein, relevant; Hollings, render this protection to the most im­ amendment to prohibit physical dese­ two relevant amendments. portant symbol of our Nation. cration of the flag. No other amend­ I further ask that at 9 a.m. on Tues­ The debate about the flag began in ment in our history has had the same day, December 12, there be 1 hour 40 1989 when the Supreme Court curiously degree of support in State legislatures. minutes for closing debate, to be equal­ determined that it was perfectly legal Tolerance is an important thing in a ly divided in the usual form, and the to burn the American flag as a form of free and diverse society. Agreement votes occur on or in relation to the political speech. This ruling led to must never be a prerequisite for civil­ amendments beginning at 2:17 p.m., shock and outrage from all across the ity. But tolerance can never be rooted with the first vote limited to the United States. Congress immediately in the view that nothing is worth out­ standard 15 minutes and all remaining took action, passing a statute setting rage because nothing is worth our sac­ stacked votes limited to 10 minutes in penal ties for anyone who physically rifice. length, with 2 minutes for debate prior desecrates the flag. The Supreme Court In Chief Justice Rehnquist's stinging to the votes for explanation to be ruled again that the Federal statute dissent to the court decision, labeled equally divided in the usual form. was unconstitutional, violating the flag burning as "conduct that is re­ I further ask unanimous consent that first amendment. garded as evil and offensive to the ma­ following the disposition of the amend­ Unfortunately, the Senate failed to jority of people-in a category with­ ments, the joint resolution be read for pass a constitutional amendment to murder, embezzlement or pollution." a third time and a final vote occur im­ protect the flag. Today, however, we The Court's ruling, he noted, "found mediately without any intervening ac­ are very near this goal, with 56 cospon­ that the American flag is just another tion or debate. sors to the amendment. symbol, about which not only must The PRESIDING OFFICER. Without The amendment reads simply "The opinions pro and con be tolerated, but objection, it is so ordered. Congress and the States shall have for which the most minimal public re­ Mr. MACK. In light of this agree­ power to prohibit the physical desecra­ spect may not be enjoined. The Govern­ ment, there will be no rollcall votes tion of the flag of the United States." ment may conscript men into the during Monday's session of the Senate I feel an overwhelming mixture of re­ Armed Forces where they must fight and any votes ordered with respect to gret and thanks-which is the sub­ and die for the flag, but the Govern­ amendments and the final vote will stance of patriotism-when I consider ment may not prohibit the public burn­ occur beginning at 2:17 p.m. on Tues­ the sacrifice of so many for the sake of ing of the banner under which they day, December 12, 1995. America. This pride is rooted in one fight." December 8, 1995 CONGRESSIONAL RECORD-SENATE 35959 Yes, we must be tolerant but we must In response to that decision, the Sen­ leged to be a member of-and other never adopt and enervating and cow­ ate overwhelmingly passed the Flag service organizations. I want to salute ardly disdain that strips us of patriotic Protection Act, which was also de­ their contribution and support toward conviction and dulls our ability to be clared unconstitutional. The Supreme this legislation. offended by the desecration of vital Court's action made it clear that a con­ Today, as I move about the Halls of symbols. "In the world it is called tol­ stitutional amendment is necessary for the U.S. Senate, I have had the oppor­ erance," wrote author Dorothy Sayers, enactment of any binding protection of tunity to meet members of those serv­ "but in hell it is called despair * * * the flag. ice organizations who come here today the sin that believes in nothing, cares Up to this point, neither House of to speak to Members and otherwise en­ for nothing, enjoys nothing, finds pur­ Congress has been able to garner the courage the strongest support for this pose in nothing, lives for nothing, and two-thirds super majority necessary legislation. I salute them. remains alive because there is nothing for passage of a constitutional amend­ Those who have been privileged to for which it will die." ment. But because grassroots support wear the uniform of our country have a Mr. FORD. Mr. President, yesterday for this amendment continues to grow, constant-what I call-trustee rela­ we marked the bombing of Pearl Har­ I've joined with Members on both sides tionship to that flag, a very special bor. Many of us can still remember the of the aisle to again try passing this trustee relationship. gripping of our hearts 54 years ago amendment. I'm hopeful that this time I served briefly in World War II in the today, as the realization spread over us we'll get the necessary votes. U.S. Navy, and then for a second period that nothing would ever again be quite Clearly no legitimate act of political of active duty service in the U.S. Ma­ the same. Yet, I think it is fair to say protest should be suppressed. Nor rines during the Korean war with a that there is already a whole genera­ should we ever discourage debate and brief period of service in Korea. I have tion of Americans who have no grasp of discussion about the federal govern­ always looked upon those opportuni­ the meaning World War II has for so ment. The narrowly written amend­ ties as a privilege. I would not be a many of us. Young people who might ment gives Congress and the States the U.S. Senator today had it not been for never hear a parent or a grandparent "power to prohibit the physical dese­ the training that I received both in the tell of the time they felt their commit­ cration of the Flag of the United U.S. Navy and in the U.S. Marine men t to a way of life being tested, of a States," without jeopardizing those Corps. I have always felt that my duty time they could finally close their eyes rights of free speech. here as a U.S. Senator as one to pay and rest, knowing an important fight On July 14, 1861 a Union soldier wrote back-particularly those young men had been won on the world stage. his last letter to his wife. He said: and women now wearing the uniform of But when those same young people My courage does not halt or falter. I know our country-all that I have received turn their eyes toward this country's how American civilization now bears upon by way of not only education but the flag, I know they understand that in its the triumph of the government and how first lessons of what leadership means. fabric was woven the dramas of thou­ great a debt we owe to those who went before I served my country very humbly­ us through the blood and suffering of the sands of battles fought on the shores of Revolution, and I am willing, perfectly will­ never to be added to the columns of foreign lands and over the lunch ing, to lay down all my joys iri this life to those who served with great valor. But counters or Main Streets of our own help maintain this government and pay that I did volunteer twice to do my duty, as home towns. debt. others saw fit. There are many good reasons for pro­ Today, our task here in the Senate That is all a part of what we are in­ tecting the unique symbol of the Amer­ seems trivial in comparison. But if we corporating in the support of this reso­ ican flag, from the basic liberties it want the flag that hangs in school lution because those of us who served represents to the promise of a better rooms, over courthouses, in sports sta­ remember so well the many friends future it holds out. But some of the diums and off front porches all across that marched with us, or flew with us, greatest reasons for protecting the flag America, to continue symbolizing that or sailed with us-whatever the case lie in its ability to bind one generation same commitment to country, then it may be-who paid the ultimate price, to the next in their love and respect for is a challenge we cannot fail to meet. many others who came back with loss this country, so that even as the Mr. President, I urge my colleagues of limb and still bear the scars of war. memories of yesterday's battles begin to join me in voting in favor of this im­ So I wish to pay special recognition to fade, the importance of what they portant legislation. to all and to speak in a very humble secured continues to hold fast in our Mr. President, I yield the floor, and I manner on their behalf and thank them hearts. suggest the absence of a quorum. for their contribution in making pos­ A flag that flies proudly in this coun­ The PRESIDING OFFICER. The sible this legislation and what I hope try serves as a reminder of how war clerk will call the roll. will be the adoption by the Senate. can change the course of a life, of a na­ The legislative clerk proceeded to I yield the floor. tion, of a world, so that even individ­ call the roll. Mr.G~~.Mr.Pre~~~.~~~ uals who were never there, who might Mr. WARNER. Mr. President, I ask up the issue before us on a constitu­ never have heard the stories, recognize unanimous consent that the order for tional amendment regarding the flag is that those hours of destruction and the quorum call be rescinded. a very difficult thing to do. The dif­ suffering have altered the future irrev­ The PRESIDING OFFICER. Without ferent expressions on the floor are cer­ ocably, and that their own liberty was objection, it is so ordered. tainly ones to consider whether people a hard won prize. Mr. WARNER. Mr. President, I see are for the amendment or against the It follows then that a desecrated flag present the distinguished Senator from amendment. It is very difficult because mocks the millions who have reached Ohio on the floor, and I just wish to in­ the feelings run so deep in both direc­ out or fought for all that our flag sym­ form him that I will only be speaking tions. I do not know whether there is bolizes, from the basic liberties written for about 2 or 3 minutes. anyone who is still on the fence with into our Constitution to the dreams of Mr. President, I am a cosponsor of regard to their views on this matter. a better future for their families. the flag protection constitutional Until today, I have not said much That's why I believe so strongly that amendment, and I am privileged to join about this. I talked about it in the the physical integrity of the American my colleagues in cosponsoring this Chamber several years ago when we flag must be protected. Back in 1989, very important piece of legislation. had the issue before us. But I think the U.S. Supreme Court declared un­ It is of tremendous interest to the people who have very deep feelings on constitutional a Texas flag desecration constituents of the State of Virginia, this can have their feelings and we re­ statute, ruling that flag desecration and particularly those who are mem­ spect those feelings. I do not quarrel was free speech protected under the bers of the American Legion and the one iota with people on the other side first amendment. VFW-both organizations I am privi- of the aisle who have their feelings for 35960 CONGRESSIONAL RECORD-SENATE December 8, 1995 whatever reason. But I do think there low victory, indeed, if we preserved the spiration to oppressed peoples around is a danger here. I think the danger is symbol of our freedoms by chipping the world for well over 200 years. It is, that the flag does not need the protec­ away at those freedoms themselves. in short, what makes America Amer­ tion in this argument. What needs pro­ That is the important choice here. Are ica. tection is really the Bill of Rights, we to protect the symbol at the ex­ You may look back a little bit. You from those who would look at it rather pense of even taking a small chance at know, the Bill of Rights came into superficially from my view. chipping away at the freedoms that being because the States at that time So until today, I have tended to hold that symbol represents? were not going to approve the Con­ my tongue and have kept my peace On that score, let us be honest with stitution unless we had some of these about this issue before us because it is each other and with the American peo­ additional protections included. And so no fun being attacked or being labeled ple. The flag is this Nation's most pow­ those additional protections that were as unpatriotic or a friend of flag burn­ erful and emotional symbol, and it is. I to be included became known as the ers. And I can assure you that I am nei­ have been here with Senator KERREY Bill of Rights. They are the first series ther simply because I have doubts once in the Chamber when he said he of amendments to the Constitution. about the wisdom of a constitutional thought in Nebraska they did not need Those States were only prepared to ac­ flag burning amendment. I am not tak­ this because if somebody started to cept the Constitution with the under­ ing the floor to speak about this issue, burn a flag, they would take care of it standing that these additional protec­ as I say, because some of our feelings themselves right then and there and on tions for each individual and each indi­ about the flag are difficult to discuss. the spot. And I agree with that. Back vidual's rights were incorporated in Feelings run very deep and very strong. home in Ohio, we have almost 11 mil­ that Constitution. Let me make a few things very clear up lion people, and I think there are very That is how the Bill of Rights came front. few, who, if they saw a flag being to be. The very first item in that Bill We all, of course, love the flag, and I burned, would not be willing to take of Rights, the first amendment in it to would say nobody in this Chamber or action against that person or persons. our Constitution has never been this country loves our flag more than I It is a gut feeling. I feel that same way changed or altered even one single do. We all can make that same state­ myself, and I would join into that. time. In all of American history, over ment on the floor. I fought hard for But we have to think a little longer 7,000 attempts have been made to put this flag through two wars and rep­ score on this, it seems to me. So the amendments through. Just 27 have got­ resenting the country in the space pro­ flag is the Nation's most powerful and ten through, and there was not a single gram, and so on. I am both honored and emotional symbol, and it is our sacred time in all of American history when proud that few people in this Nation symbol. It is a revered symbol, but it is this was changed, not during our Civil have been able to take this flag where a symbol. It symbolizes the freedoms War even, not during the Civil War I took it, at least on the first space we have in this country, but it is not when passions ran so high and this Na­ flight. That is the first thing I selected the freedoms themselves. And that is tion was drenched in blood like few na­ when I had a personal preference pack, why this debate is not between those tions have been throughout their his­ as they called it, along on the trip. I who love . the flag on the one hand and tory. That Constitution was not took along little silk flags so I could those who do not on the other, no mat­ changed. It was not changed during give them to my children, and they re­ ter how often the demagogs try to tell any of our foreign wars. It was not main among my children's most cher­ us otherwise. Everyone on both sides of changed during recessions. It was not ished possessions to this day. the aisle politically within this Cham­ changed during depressions. It was not I also know, more importantly, from ber and everyone on both sides of this changed during scares or panics or my own personal experience that every debate loves and respects the flag. The whatever happened in this country. last fiber, every stitch, every thread in question is how best to honor it, to That Bill of Rights has not been that flag can be looked at as ·standing honor it and what it represents. changed even during times of great for someone who gave their life to de­ Those who made the ultimate sac­ emotion and anger like the Vietnam fend it. At my age, I can tell you that rifice for our flag did not give up their era, when flags were burned or dese­ I probably have more friends buried lives for just a piece of cloth, albeit crated far more than they are today. over in Arlington Cemetery bearing si­ red, white, and blue, and it had some Our first amendment was unchanged, lent witness to our flag as I do bearing stars on it. Not just for the flag. They unchallenged, as much as we might public witness to it in the world of the died because of their allegiance to this have disagreed with what was going on living. Maybe that is why I have so lit­ country, to the values and the rights at that time, as abhorrent as we found tle patience and even less sympathy for and principles represented by that flag the actions of a lot of people at that those pathetic and insensitive few who and to the Republic for which it stands. time in their protests against the Viet­ would demean and defile our Nation's Without a doubt, the most important nam war. But now we are told that un­ greatest symbol of sacrifice, the flag of of those values, the most important of less we alter the first amendment, un­ the United States of America. those values, rights and principles is less we place a constitutional limit on Those are some of the reasons I have individual liberty, the liberty to wor­ the right of speech and expression that kept silent until now. It is now clear ship and think, to express ourselves the fabric of our country will somehow that a legislative alternative to freely, openly and completely, no mat­ be weakened. Well, I just cannot bring amending our Constitution is probably ter how out of step those views may be myself to believe that that is the case. not going to be possible before we have with the opinions of the majority. And I think once the American people to vote on this. It is now equally clear that is what is so unique about this think this issue clear through, I do not that those of us who question the wis­ country of ours-unique among all the think they will buy it, either, whether dom of watering down our Bill of nations around this world-Britain, this passes or not. I do not think the Rights have no choice but to stand up France, you name them, any place American people will buy it. Once you to the political mud merchants in some where they have democracy, but ours is get past the first gut feeling, if you saw respects, from some of the comments especially unique in that regard. a flag burning, of doing something that have been made, and to speak out That commitment to freedom is en­ about it, as I would-so many of the against those who would deal in dema­ capsulated, it is encoded in our Bill of people who visited me in my office the goguery on this issue. Rights, perhaps the most envied and last couple of days would do the same It is now clear that those of us who imitated document anywhere in the thing-would take action themselves remember and care deeply about the world. The Bill of Rights is what against such activity. Much as that sacrifices made on behalf of freedom makes our country unique. It is what might be the case and satisfying have a special responsibility, and we has made us a shining beacon in a dark though that might be, I think we have do, to poi:q.t out that it would be a hol- world, a shining beacon of hope and in- to look at the long term on this, get by December 8, 1995 CONGRESSIONAL RECORD-SENATE 35961 the emotion of that moment and think misguided souls. At the same time we States decide this. I do not care for what it is we are dealing with. would be taking action against them, I that approach. What we are dealing with is the Bill truly would feel sorry for them. Have Let me tell you, we are one Nation, of Rights, dealing with that first they never known the feeling inside of one Nation under God, indivisible. It amendment to the Bill of Rights. We looking at that flag and being proud? does not say we are going to split are saying for the first time in our Have they never been able to appar­ things up and we will treat our flag dif­ country's 200-year history, we are ently work in any way for their coun­ ferently and the Constitution will only going to make, albeit maybe just a try or the military in war or peace, ei­ apply here, the Bill of Rights only ap­ tiny crack, but it will be a tiny open­ ther one, in which they were called to plies one way in one State and a dif­ ing that could possibly be followed by take action for a purpose bigger than ferent way in another State. I do not others. themselves? agree with that. That first amendment says, ''Con­ I say this morning that is one of the So I do not want to see us make some gress shall make no law respecting an most exhilarating things that can ever laws, even tiny laws, even the potential establishment of religion, or prohibit­ happen to a man or woman, to be able of a tiny little crack in that Bill of ing the free exercise thereof;'' or the to represent their country and be Rights that would restrict freedom of second item, "or abridging the freedom called to something, to a purpose big­ expression. I agree with, I believe the of speech, or of the press; or the right ger than themselves. I feel sorry for man's name is Warner. He is a lawyer of the people peaceably to assemble, people who have never had that experi­ here in town. He was in the Marine and to petition the Government for a ence. It is something you cannot really Corps and prisoner of war. One of his redress of grievances." explain. captors brought to him a picture of a The part we are dealing with today is We had a parade once I was involved flag burning in this country and said, freedom of speech-freedom of speech. in down on Pennsylvania Avenue and I "There, that shows what the people We are talking about freedom of ex­ addressed a joint meeting of Congress think; that shows that it is no good. pression. The Supreme Court has held down at the other end of the Capitol, See this.'' on two separate occasions that no mat­ and everybody was waving flags out He said, "That is what freedom is all ter how much the majority of us, 99.999 there. Everybody was waving flags. My about. That is what expression is all percent of the people of this country comment when I opened down there, I about," or words to that effect. I did disagree, that tiny, tiny, fractional, said it just meant so much to me to see not bring his exact words here. He said misguided minority, still under our all the flags waving coming down he was proud of it, and it completely Bill of Rights they have the right to Pennsylvania Avenue. It made a hard­ crushed his captor. The fellow did not their expression. Their expression is to-define feeling within that I could know how to react to that. looked at as coming under that free­ Yet, he was right. We can say that dom of speech. not really describe in words, but I hope You have to look at it from that that we never lose that hard-to-define this time this law might be about flag standpoint. Are we going to even make feeling as a nation, as individuals and a burning. The next form of political ex­ a tiny opening in changing that first nation. We would be a lesser country if pression that we might seek to prohibit amendment that could be followed on, we lost that exhilaration, that feeling would be in the religion area. There are if we have a tiny, tiny, tiny minority of pride when we see a flag and see it lots of religions today. Splinter groups that we do not agree with their reli­ displayed and see people's excitement. I do not agree with at all and, I would gious beliefs, if we have a tiny, tiny, But I feel sorry for those people who say, 99.99 percent of the people of the tiny minority that we do not agree have never known that feeling. I truly country would not agree with them at with what the press says? There is no do. There would not be any problem all. But do we make any restriction on body more critical in this whole coun­ with people burning the flag if every­ how they can practice their religion? try of the press than the people in this one had that individual experience. But No. very room, and me included along with it is by retreating from the principles I do not like a lot of things the press them. We do not like some of the that the flag stands for-"principles" writes today, but do we make any tiny things that happen in the press. underlined 16 times-principles that little restriction on the press to pull Do we want to open even a tiny, tiny, this flag stands for, that if we retreat back on what they can do? Or assemble tiny chance that they might restrict from those principles, that will do or petition the Government, the other our ability to assemble peaceably? And more damage to the fabric of our Na­ things that are covered in that first do we want to take a tiny chance that tion than 1,000 torched flags ever could amendment. we would not be able to petition our do. So we can say this time the laws Government for redress of grievances? The first amendment-I read it a mo­ would be about flag burning or flag Those are the things that are covered ment ago-says simply and clearly: desecration, to use the exact words. in that first amendment, known as the "Congress shall make no law * * * But what will the next form of political Bill of Rights, along with the other abridging the freedom of speech"-free­ expression be that we seek to prohibit, amendments that were incorporated dom of speech. For 200 years, in good if we start a crack that has not oc­ before the Constitution was signed, be­ times and bad, in times of harmony curred, not in the 200-plus year's his­ fore it even came into being. and times of strife, we have held those tory of this country? I think there is only one way to words to mean exactly what they say. I do not think there is necessarily a weaken the fabric of our country, our That "Congress shall make no law"­ slippery slope out there that if we unique country, our country that no law-that will in any way cut back make this little crack here that every­ stands as a beacon before other nations on that freedom of speech, meaning thing is going to go downhill from around this world. You know when you freedom of expression, as the Supreme there and away we go and we are going think about someone burning the flag, Court has said. to see freedom of speech restricted, ev­ I truly do feel sorry for them. I hon­ And now, ostensibly to prohibit erything else and we do not know estly do. My initial gut reaction would something that very rarely happens where that slide will end. I do not be to stomp them, go after them, get anyway, we are asked to alter those think that will happen, but do we want them, stop the burning, and so on. It first amendment words to mean that to take a chance that any misguided would be a natural reaction that so Congress may make some laws-little group of people in the future would many people would have as well. I ones-some laws restricting freedom of even think about going to that end? know all the ones that visited my of­ expression. And for what? For a threat that, at fice yesterday, I would not have to ask I know the other side says, "Well, least in current years, is practically them to do that same thing. what we're doing is putting this back nonexistent? But that would be one way of show­ to the States." They want us to just I had been told there was not a single ing our unhappiness with these few put it back to the States and let the flag burning this year. I was corrected 35962 CONGRESSIONAL RECORD-SENATE December 8, 1995 yesterday, and the people visiting me against the tyranny of the majority is march in protest, or use other farms of said they believe there were three they exactly the point of the first amend­ symbolic speech are expressing them­ had documented this year. That is one ment and why the Founders only selves. Indeed, if we diQ. not view flag per approximately 90 million people in agreed to approve the Constitution burners as something we find offensive this country. We are about 260 million, with the understanding that it was to and repugnant, we surely would not be close to 270 million. Even if those are be included. debating their right to do so. true, and I do not question it. The gen­ It has often been said it is possible to Let me say a word about something tleman who told me seemed to know detect how free a society is by the de­ that has gotten short shrift in this de­ what he was talking about, so I accept gree to which it is willing to tolerate bate, something we should consider his version of this. But we are talking and permit the expression of ideas that very carefully before voting on this about one incident out of 90 million are odious and reprehensible to the val­ amendment. I am talking about the people. So I find it a little difficult to ues of that society. You and I and a practical problems with this amend­ think that this is a very major problem majority of our fellow citizens find flag ment. Let us say we pass it, the States at the moment. burning and desecration to be vile and pass it, it becomes an amendment, and But some will ask, is not desecrating disgusting. But we also find Nazis we change the Constitution. Then what the flag obnoxious, abhorrent and of­ marching in Skokie, IL, or the Ku Klux a nightmare we would have enforcing fensive to most, and yet it is within Klan marching and burning crosses in it. our right? You bet. I find it just as ob­ Selma, AL, to be vile and disgusting. First off, we are going to have 50 dif­ noxious and abhorrent as any person But if the first amendment means any­ ferent interpretations. There is not possibly can, but I try to look beyond thing at all, it means that those cruel going to be just one Nation on the Con­ that. and poor misguided souls, many of stitution or on the Bill of Rights any­ I said before, if I was present when them I think demented, have a right to more. There are going to be 50 little in­ somebody started to burn a flag right express themselves in that manner, terpretations of what is in that Bill of there, I have no doubt whatsoever I however objectionable the rest of us Rights. I do not want to see that hap­ pen. would join the many others here, and may find their message. But if Congress and States are al­ the galleries, who would take whatever But what about the argument that lowed to prohibit the physical desecra­ action to stop it, physical or however the first amendment is not and has tion of the flag, how precisely are we we had to do it. never been absolute, that we already defining the flag? We do not have an of­ But then you have to think beyond have restrictions on freedoms of ex­ ficial flag, as such, with an exact size, this. Do we want to change the Con­ pression and that a prohibition on flag type, kind of ink, dyes, fabric, and the stitution of the United States and take burning would simply be one more? whole works. There is no official flag, even a chance of something that is 1- After all, it said freedom of speech does as such. So does this amendment refer in-a-90 million shot of our citizens not extend to slander, libel, revealing to only manufactured flags of cloth or doing something like this, if that is the military secrets or yelling "fire" in a nylon of a certain size or description, number from this year? crowded theater. That is true. To the such as the ones we fly over the Capitol Of course, desecrating the flag is of­ extent that flag burning would incite here and send out? I send out dozens of fensive. It is offensive to the vast ma­ others to violence in response does not those every year, and I am very proud jority of Americans. Almost everybody. constitute a clear and present danger, to do it. There is no official flag, so But that is precisely the reason we and that is what the Supreme Court what size are we talking about? Does it have a first amendment, to protect the has said in their language. That is refer to the small paper flags on a stick kinds of political expression that are their language. The difference here is we hand out to children at political offensive and out of step with majority whether it is a clear and present dan­ rallies or stick in a cupcake at a ban­ opinion in this Nation. ger that we have every right to try to quet? Those flags are often tossed on The majority opinion said that we avert. the floor or in a garbage can at conclu­ should not have civil rights in certain But this argument misses a key dis­ sion of an event. I really do not know. parts of this country. We went ahead tinction, and that distinction is that I am asking these questions here. with it. That was a much more perva­ all those restrictions on free speech I How about back in 1976 when we had sive problem than this is. But you do just mentioned threaten real and spe­ the bicentennial? At that time, they not need a first amendment to protect cific harm to other people, harm that were selling flag bikini swimsuits for the expression of political views with would come about because of what the women and boxer shorts for men. I re­ which everyone else agrees. That is not speaker said, not because of what the member seeing a rock concert one day, what we need the first amendment for. listeners did. and at that time it was an abhorrent You need the first amendment to pro­ To say that we should restrict speech thing to me. The guy is strumming tect minority points of view that the or expression that would outrage a ma­ away on his guitar, and all at once he vast majority of people disagree with. jority of listeners or move them to vio­ takes his pants off on the stage on that That is what the protection is all lence is to ·say that we will tolerate great occasion because he had flag about, and that is what sets this coun­ only those kinds of expression that the shorts on underneath. How about biki­ try of ours completely apart from any majority agrees with, or at least does nis? Should we permit flags to be worn other nation in the world. not disagree with too much. That as bikinis? We know they get soiled So I think we have to get beyond just would do nothing less than gut the first once in a while, too. Think of that. I do the visceral gut reaction of someone amendment. not want to use all these improper burning a flag and think beyond that What about the argument that flag words in the Senate Chamber, but do as to what the implications are if we desecration is an act and is not a form we want someone possibly urinating on take action against those poor, mis­ of speech or expression that is pro­ the flag of the United States, worn as guided souls that I truly do feel sorry tected by the first amendment? Well, I shorts or a bikini? I do not. I find that for, for reasons I spoke about a mo­ think that argument is a bit specious. abhorrent. But are we going to restrict ment ago. They deserve to be pro­ Anybody burning a flag in protest is that? I probably would like to restrict tected. I may not like it, but they de­ clearly saying something. They are that, I can tell you. serve to have their rights protected as making a statement by their body lan­ How are we going to define this as to much as I deserve to have my rights guage, and what they are doing makes what happens? How about the guy who protected. a statement that maybe speaks far, far jogs down the street with a flag T-shirt So the amendment is to protect mi­ louder than the words they may be on and becomes drenched with sweat? I nority points of view with which the willing to utter on such an occasion. do not like that, but is it desecration? vast majority of people disagree. Pro­ They are saying something, just the He is probably proud that he is wearing tecting the minority viewpoints same way as people who picket, or the flag. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35963 How about a guy that has an old flag would defile our flag-or whatever dis­ lie, Jewish, Moslem, Buddhist, Baptist, with grease all over it, and he wants to respect they pay to the flag, whether Presbyterian-as I am-or whatever destroy it. You are supposed to burn it they were stomping on it, or burning you are, we recognize there is a higher to destroy a flag. So he holds it up and it, or using it as clothing, or what­ power than all of us. If we just pray he is going to burn it and then he says ever-I think future generations will and listen a little bit-listen a little at the same time, "I am doing this be­ think that they defiled our flag, but we bit-maybe we will get enough guid­ cause I do not like the tax bill they do not want to let them hoodwink us ance about how to go about helping passed last year, and I am doing it in into also defiling our Constitution, no this country in the future. protest. I am burning the flag because matter how onerous their acts may be. It is under God; not just under get­ I do not like what they did in Washing­ It would be a hollow victory, it seems ting money, not just under the greed of ton." Are we going to lock him up? Re­ to me. We must not let those who re­ power, not just under a single standard member, the proper way to destroy a vile our freedoms and our way of life of enforced religious beliefs which are flag that is old or has become soiled is trick us into diminishing them, or even also covered in that very first amend­ to burn it. But what if he does it in take a chance of diminishing them. ment of the Constitution. Our religious protest? What was his intent? Ever~ Mr. President, I do not think we can beliefs are not to be imposed by those lawyer will tell you that the toughest. let the passions of the moment stam­ that think that they, and only they, thing to prove is intent. pede us into abandoning principles for know and hold the truth. We sure have We could go through example after all time. My gut reaction is that if enough of those around these days. example after example. We have a post­ there was a flag burning or desecration "Under God." Pray a little, listen a lit­ age stamp now that has a flag on it. I here, or somebody showed disrespect tle, and maybe we will get some guid­ was proud when they did that. I wrote for the flag, it would be the same for ance. a letter complimenting the Postmaster the Presiding Officer and everyone in Then we say "indivisible." Not rich General for that, putting that on every this Chamber and all those in the gal­ against poor, young against old, work­ piece of mail going out through the lery here-we would probably take our ers against owners, but indivisible. We country, to remind people that we have own physical action to stop it right stand before the rest of this world as a flag of the United States that stands here and now. But then we had better an indivisible nation. for something; it stands for principles. think about, before we take action, Then we say words which I have not What if you take a postage stamp flag what that Bill of Rights means and found anywhere else in the world, six and put a match under that thing and how precious it is. In all 200 years, we almost magic words-"with liberty and it burns up and you say, "There," and have never made a single change to it. justice for all." "For all"-underline you stomp on it? Can you be arrested This Nation was not founded until that in our discussion today-"for all." under the new legislation? that provision was included in the Con­ Liberty of what? Of course, liberty of I do not know what the courts would stitution. They would not sign it unless opportunity. Sure, we want to see ev­ do in a case like that. We can go on that first amendment was included. If eryone have an opportunity. We want with all kinds of examples here of how we are going to continue to be the land everyone to get a good education. We this would be very difficult to admin­ of the free and the home of the brave, want much to have a fair shot at a ister, and it would be subject to 50 dif­ I think we had better be very, very good job and all the other things that ferent interpretations. I might be able careful. We pledge allegiance to the we know about. to do something in Ohio, and I drive flag, and that is not an official Govern­ It is not just for a favored few. It is across the Ohio River to Kentucky, ment document. Something came up not just for the rich and the wealthy West Virginia, or Pennsylvania and the and it became adopted as sort of a and the land owners. It is for everyone same thing might be illegal. I could be pledge of allegiance. We say, "I pledge in this country. And the protections arrested for doing something across the allegiance to the flag of the United are for everyone in this country. It is river, if we are going to have 50 dif­ States of America, and to the Republic not just for those born to power and ferent State interpretations along this for which it stands," and we reel that privilege. line. off sometimes at a dinner, while we are That first amendment talks of this. So I come to the floor today to say looking at our steak and waiting for It says we will be free in our religion; that I think-and I regret having to the dinner to get started, and we think, we will be free in our speech, including feel that this amendment should and Well, OK, and we sort of reel those "expression" which we are talking must be defeated, but I really feel that words off and do not think about them. about today; we will be free in our as­ the dangers from it far outweigh the The rest of that pledge we should think sembly; and we will be free in redress threat that we have to the flag from about. I think it does tie in with this. of our Government. "With liberty and those 1 in 90 million, if the figures are Then we say those words "one na­ justice for all"-liberty of opportunity correct, Americans that have burned a tion." We pledge that we will be one and liberty of expression of those free­ flag in protest this year, as I was told nation. These are the principles our doms without any question for every yesterday. I had been told there were flag stands for-one nation. We are single person-for all. no examples this year, but it was cor­ going to stand before the rest of the Then we say "and justice for all." rected, and I was told there were three world not as North and South, East and That means equality. We are all equal, certified examples of flag burning. West, black and white, Republican or whether you are President of the Unit­ That means 1 for every 90 million Democrat. We will be one nation before ed States or you are outside digging a Americans. the rest of this world, and every single ditch, you have the same protections, Is this something we need to correct person is important, and we will be in the same rights as any other person in as a major problem for this country every part of this country, and we will this country. It does not say "except" with an amendment to the Constitu­ be one nation, a nation of might, a na­ in the case where there are 90 million tion of the United States of America, tion of resolve. One nation-not split and one goes astray we will penalize which guarantees the freedom of up with 50 interpretations of the Con­ that guy and lock him out. It does not speech and of expression in the Bill of stitution, 50 interpretations of the Bill say that. Rights? It was not going to be signed of Rights for different parts of the I think that is a dream for which by the States unless that was included. country. America still strives. We do not have a They felt that strongly about protect­ The next words are truly unique. I perfect society, not by a long shot. We ing the freedom of people to express have traveled all over the world and have a long way to go, whether we are themselves. looked at government documents all talking about civil rights or economic I think history and future genera­ over this world and never seen the next fairness in our country or the rights of tions alike will judge us harshly, as two words anywhere-"under God." We every kid to get a decent education. We they should, if we permit people who say, whether we are Protestant, Catho- have so far to go. 35964 CONGRESSIONAL RECORD-SENATE December 8, 1995 I am so proud of this country for ad­ deep concern about amending the U.S. triotic Americans I know, who have dressing these problems. We are willing Constitution and the Bill of Rights. been touched by the tragedy of war or to stand up and address them and do it I am not a lawyer, Mr. President, but sacrifice for this country, are shocked in an open forum. We do it every day as a private citizen and as a Senator I and angered by the view, the image of here on the Senate floor. Where else in have always been vigilant about re­ someone destroying the flag, burning the world are people so concerned strictions on the basic freedoms that the flag. They are showing their con­ about the rights of every single indi­ make America unique in the world. tempt for this incredible Nation in vidual in their nation-nowhere else in Perhaps because I am the son of immi­ which we live. this world. grant parents whose families fled tyr­ The flag is a unique national symbol. Take the pledge. "I pledge allegiance anny for the promise of freedom, the I have a special, personal affection for to the flag of the United States of Constitution and the Bill of Rights for it, as I said, along with all Americans. America, one nation"-we will keep it me are not abstractions. I was raised to It is the one great symbol that unites one nation, under God. You bet. That is respect them as a sacred promise of our Nation. The flag represents more something unique in this country. We freedom. Promises compelling enough than 200 years of our history and our say there is a higher power, whatever to convince my grandparents as they culture. our approach to that throne of grace carried my parents to travel halfway As a veteran, as a Senator, and as an may be. "Indivisible"-we will not do across the Earth to live under the pro­ American, son of immigrants, the flag things that tear our Nation apart and tections of the Bill of Rights and the represents noble things to me. And flag make us live under different rules. We Constitution. They are protections burning is an ugly, despicable, and will live under the same rules as much that have drawn millions to our shores. cowardly act. When I have seen it, as we can. "And with liberty and jus­ I remember my dear grandmother, though I have not seen it directly­ tice for all"-the liberty of oppor­ who was born in Russia-my mother when I have seen pictures of it, it sick­ tunity, the liberty of sameness, how we was about a year old when she was ens me and it saddens me. Those who are treated by our Government, and brought here-talking about what a burn the flag are ingrates. They lack the justice of equality. great country this is. With a thick ac­ the courage and the character to fight Thank God for our country. I yield cent she said, "In this house"-it is for change through a well-established the floor. funny, she drew her patr,iotic commit­ and fair and just process. Instead, their The PRESIDING OFFICER (Mr. ment along verbal lines+she said, with mission is different. They want to infu­ GRAMS). The Senator from New Jersey. the heaviest accent you can imagine, riate and enrage and offend, more than Mr. LAUTENBERG. Mr. President, "In this house we speak only English." they want to achieve their goals first let me commend our colleague It was quite remarkable. It left an im­ through their attacks on this precious from Ohio. Few have a better right to pression on me that has lasted all my symbol. They are misguided and they discuss issues affecting attitudes about life. deserve the contempt of all of us. our Nation than Senator JOHN GLENN. This country has been so good to me But I am not prepared to sacrifice His history has been one of service in and my family, beyond my wildest boy­ the principle of freedom of expression so many areas-as a pilot, as an astro­ hood dreams; even more important, be­ embodied in the first amendment to naut, as a Senator. Now I know JOHN yond my mother's most precious protect a symbol. I worry about com­ GLENN very well. One area he is not so dreams. It has been that way for mil­ promising the Bill of Rights. I am un­ good in, we have gone skiing together, lions of us, and for that reason I volun­ willing to risk, for the first time in our he is not very good there, but in mat­ teered to do my part in World War II. history, narrowing the freedoms ex­ ters of profession and decency and For that reason, although the private pressed in the first amendment. Dese­ honor few have the credentials that sector was a very comfortable arena for cration of our flag is outrageous and JOHN GLENN has. I am delighted to hear me, I sought public office as a U.S. my anger at such incidents wants me his comments. I share the views of my Senator. I wanted to do whatever I to seek vengeance, to strike back and friend and colleague. could to give something back to our to punish those who commit these acts. Mr. President, this is a tough issue. country, our country which continues However, when I think about how It is tough because people of good will to serve as a beacon of hope for mil­ this offensive dissent might be choked on both sides feel so differently about lions seeking freedom and a better life off, I conclude that in the process we the issue. The veterans organizations around the world. run the terrible risk of trampling on a that I belong to are very much support­ One of the reasons I left the private fundamental right of our democracy, ive of taking good care of the flag, of sector to come here was I wanted to the right to disagree, the right to not permitting the desecration, if that leave my children, and now my grand­ speak out freely, to exercise dissent no is possible. children, an inheritance that went far matter how disagreeable. I am a life member of the VFW. I beyond the value of money and other There is no right more fundamental served overseas, World War II, and yet assets, and that is a strong America, an to our democracy than the right of free we come up with the kind of disagree­ America where all people could enjoy speech, the right to assemble, the right ments on this matter that we have. I their freedom as long as they did not to express ourselves on the issues of regret it. encroach upon others. That is the way importance as citizens. That is why the I respect all the colleagues with I feel about our Nation. That is the first step of a despot is to squelch free whom there may be a difference in way I feel about the symbol of our flag. speech. Silence the people and you cut point of view-those who think we need For that reason, just as I revere the the throat of democracy. an amendment. I disagree with the de­ Constitution and the Bill of Rights, I Our first amendment protects every­ cision they made but I never ques­ love the flag, which we at my home fly one's right to speak out. It is the citi­ tioned their patriotism nor do I expect regularly, which embodies our ideals, zen's shield against tyranny. It is what them to question mine or Senator our liberties, our history and our sac­ makes America special. It is what GLENN or Senator KERREY or others rifices. In that, I know I stand vir­ makes America a model for those as­ who have served in uniform. Others tually with all Americans. piring to freedom around the world. need. not have served in uniform to In my mind, I contrast those patri­ The right of the individual American have a point of view that has to be lis­ otic Americans with the image of the to be free is the right to do what one tened to and perhaps respected. flag burner, whether on our shores or wishes short of violating the rights of I want to express my strong support, anyplace else; pictures on the front others, and that includes the right to Mr. President, to the flag of the United pages of the paper, having our flag do or say what is popular, certainly­ States and my outrage at those who burned by some in Bosnia. It angers but it also includes the right to do or would desecrate the flag in any way. At me. We are not there to hurt. We are say the unpopular. For it is then, when the same time, I rise to express my there to help. But the thousands of pa- actions give offense, that our freedom December 8, 1995 CONGRESSIONAL RECORD-SENATE 35965 is put to the test. It is then, precisely of zeal, well meaning, but without un­ ment, because people do not realize then, that we learn whether or not we derstanding.'' that there is a lot of speech not pro­ are free. By no means do I intend to suggest tected by the first amendment. Society To defend the right to freedom of that those who feel differently on this has chosen not to protect these types speech, freedom of expression, is quite amendment are without understanding. of expression. The Supreme Court different from defending the speech But I think this expression, this sense, chooses not to do so. that flows from the exercise of that embraces the concerns that we have to Let me cite " fighting words." In right. It is perfectly consistent to con­ have, that our greatest danger to lib­ Chaplinsky versus New Hampshire, a demn flag burning, as most Americans erty often lies within our society. 1942 case, the Court said that fighting do, while defending the right, as un­ I would add, Mr. President, that if words can be banned. pleasant as it is, for someone to abuse freedom is lost, it is most likely to be Second, in the 1969 case of it. The flag is a symbol of our freedom. lost not in some cataclysmic war. Brandenberg versus Ohio, a very impor­ Desecrating it is offensive because it Americans are too patriotic, too will­ tant case, as was Chaplinsky, the Court desecrates every one of us. But what ing, too dedicated a country for that to said that speech that incites imminent would be even more offensive than the happen. It is most likely to be lost a violence was not protected by the first desecration of the symbol would be the word at a time, a phrase at a time, a amendment. desecration of the principle that it sentence at a time, an amendment at a Third, libel is not protected by the symbolizes. In the end, symbols are time. We saw that happen in one of the first amendment, see New York Times only symbols. If we desecrate the real great-formerly great-nations of the versus Sullivan, 1964. thing, the principles our founders world before World War II in Germany. Fourth, defamation Beauharnais ver­ fought so hard to secure and that so One of the first things they did was sus Illinois, a 1952 case. many since have sacrificed their lives start to ban speech, ban expression, Fifth, obscenity is not protected by to preserve, we will lose something far and the rest is one of man's darkest the first amendment. See Miller versus more valuable, far more difficult to re­ hours, or periods, in history. California, a 1973 case. store. Mr. President, I think it is dangerous Sixth, speech that constitutes fraud, I have heard it argued that flag burn­ to tinker with the Bill of Rights, and conspiracy, or aiding and abetting is ing is not speech but rather conduct, especially with the first amendment. not protected by the first amendment. and thus is not protected by the first I hope my colleagues will stand by The first amendment is not absolute. amendment. But that argument re­ the first amendment and support our There is a lot of speech that is not pro­ flects a misunderstanding of the first laws for the flag by working to make tected by the first amendment. amendment. All speech, in a sense, is our democracy even stronger. Seventh, commercial speech in cer­ conduct. When one vocalizes, or uses a Thank you. I yield the floor. tain situations is not protected, see printing press, or types into a com­ Mr. HATCH addressed the Chair. Central Hudson Gas & Electric versus puter, that is conduct. But it is gen­ The PRESIDING OFFICER. The Sen­ Public Service Commission, a 1980 case. erally protected conduct if it expresses ator from Utah. Eighth, political contributions are a political idea. Flag burning is des­ Mr. HATCH. Mr. President, I have not protected by the first amendment picable precisely because it expresses a listened to the various speeches pre­ under certain circumstances, see Buck­ despicable political idea. sented today about the flag amend­ ley versus Valeo. Flag burning insults the United ment. There are people on both sides Ninth, child pornography is not pro­ States of America. It insults the great­ who speak on this issue with sincerity. tected by the first amendment. That is est Nation on the face of the Earth. For the life of me, I have a rough time the case of New York versus Ferber. And that is a disgusting idea. Just understanding some of these argu­ Tenth, political speech of Govern­ about every American is outraged by ments. People come to the floor and ment employees in certain situations is that idea. But the whole point of the say that they want to protect the flag, not protected by the first amendment-­ first ·amendment is to protect the ex­ that they love the flag, and that they Pickering versus Board of Education, a pression of ideas, no matter how des­ are patriotic. I do not question that. 1968 case. picable. All that this amendment says is that How about speech interfering with Throughout the history of our Na­ Congress has the power to prohibit flag elections? That is No. 11. See Burson tion, we have never banned the expres­ desecration. Everybody knows Con­ versus Freeman, 1992 case. sion of an idea solely because others gress is going to want to pass a statute These are all cases where we have have found it offensive; never. We have once the amendment passes. It will be content-based restrictions on the first never sanctioned speech that hurts done reasonably. amendment. others, like yelling "fire" in a crowded With regard to the first amendment, So people come out here and claim: theater. But we have never banned let me point out that this is not an "My goodness. We cannot amend the speech just because it made others un­ amendment to the first amendment. first amendment." comfortable. And I feel that this The flag amendment is the correction All of these cases have limited the amendment would do just that for the of a faulty Supreme Court decision. reach of the first amendment, and first time. This is a very, very dan­ Chief Justice Warren, Justice Black­ rightly so. gerous precedent, as we heard from first amendment absolutists-Justice Who wants to allow fighting words? Senator GLENN a few minutes ago. A Fortas, Justice Stevens, just to men­ Who wants to allow words that incite little opening often transfers into a tion four liberal Justices, have said people to violence? Who wants to ap­ giant hole. that prohibiting flag desecration does prove or uphold libel that destroys peo­ Once we ban one idea because it of­ not violate the first amendment. ple's reputations? Who wants to ap­ fends some people, other ideas will be Let me just respond to those people prove defamation? Who wants to allow threatened as well. Where do you draw who think that free speech is an abso­ obscenity in this society, true obscen­ the line? It is a dangerous and slippery lute, that you can never violate it, that ity, that is so foul that the community slope, and ultimately can lead to tyr­ you can never do anything at all to standards decry it? Who wants to up­ anny. regulate it. First of all, the protection hold speech that constitutes fraud, No doubt, those who are proposing for free speech does not apply to flag conspiracy or aiding and abetting? Who this constitutional amendment are en­ burning. Flag burning is conduct. How wants to use commercial speech that is tirely well meaning, but I am reminded can anybody say it is speech when in improper? How about political con­ of something that the great Supreme fact it is an act? But let us assume for tributions? How about child pornog­ Court Justice Louis Brandeis said. He the sake of argument that it is speech. raphy? said, "The greatest dangers to liberty Let me just list 20 types of speech that Under current law, the government lurk in insidious encroachment by men are not protected by the first amend- may regulate these types of speech 35966 CONGRESSIONAL RECORD-SENATE December 8, 1995 without violating the first amendment. ment, to urinate on it, to tramp on it, ator GRASSLEY, and I, told the Senate Naturally, all of these are areas where to burn it. What do we stand for around that the Supreme Court would strike it the Court, or the law, has said that the here? Have we gotten so bad in this down. The statute passed by a vote of first amendment does not provide an country that no values count? something like 91 to 9. Sure enough, absolute protection. I know people are going to vote for the Supreme Court took 30 days after Let me provide my colleagues with this amendment because they are tired oral argument and less than eight some reasonable time, place, and man­ of the lack of values in our country. dismissive pages to throw it out in ner restrictions on expression. They are tired of people just making United States versus Eichman. I say Twelfth, this is the 12th illustra­ excuses for all kinds of offensive con­ with all respect, the Senator from Ken­ tion-is restrictions on when Govern­ duct in this country. Have we no stand­ tucky now invites the Senate down the ment property, such as national parks, ards at all? Do we have to tolerate same barren path. can be used. That is Clark versus Com­ every rotten, despicable action that The Supreme Court, in its Johnson munity for Creative Nonviolence, a 1984 people take just because we are free and Eichman decisions, has made its case. people? The answer to that is no, no, position crystal clear: Special legal Thirteenth, picketing in front of a no. protections for the American flag of­ home-that is Frisby versus Shultz, a I am willing to admit my colleagues fends the Court's concept of free 1988 case. are sincere. Bless them for it. But they speech. Fourteenth, posters on street posts­ are sincerely wrong to treat the flag In Johnson, the Court made clear Members of the City Council of Los An­ like this while they say they uphold it that for a State to forbid flag burning geles versus Taxpayers for Vincent, a and honor and love it, and yet they will whenever such a prohibition protects 1984 case. not vote for a simple amendment that the flag's symbolic role, but allow such Fifteenth, restrictions on speech in gives Congress the power to say what burning when it promotes that role, as prison-the court has held in Turner desecration of the flag really is. by ceremoniously burning a dirty flag, versus Safley, a 1987 case that restric­ That is all it does. Congress does not is totally unacceptable. The Court says tions can be imposed on speech in pris­ even have to act if this amendment is this allows the flag to be used as a ons. passed. But we all know it will. Con­ symbol in only one direction. Sixteenth, regulation of speech in gress will act. Similarly, if flag desecration is sin­ schools-that is the Hazelwood School Let me just talk a little bit about the gled out for greater punishment than District versus Kuhlmeier, a 1988 case. McConnell amendment. other breaches of the peace or Seventeenth, the use of soundtrucks Mr. President, make no mistake incitements to violence, such special and loudspeakers-that is speech. But about it, Senator MCCONNELL and I are treatment promotes the flag's symbolic it can be regulated under the Supreme the best of friends, but this McConnell role. This, sadly, the Court will not tol­ Court's decision in Kovaks versus Coo­ amendment absolutely would kill this erate-they have told us this twice, per, a 1949 case. flag protection amendment. The now. Eighteenth, zoning of adult movie In Eichman, the Court clearly de­ McConnell amendment is a killer clared that no statute which protects theaters-that is a matter of speech, amendment, and I think everybody the flag as a symbol would survive con­ but see Young versus American Mini knows that. stitutional muster. The Flag Protec­ Theaters, a 1976 case. It replaces the flag protection tion Act was held invalid, like the Certain speech in airports has been amendment with a statute which can­ Texas statute in Johnson, because of banned. not withstand Supreme Court review the "same fundamental flaw: [they Restrictions on door-to-door solicita­ after Johnson and Eichman, and is far both] suppress expression out of con­ tion-that is Schneider versus State, a too narrow to offer real protection for cern for [its] likely communicative im­ 1939 case. the flag in any event. pact." [496 U.S. at 317). Even though And, finally, the 21st illustration I The American Legion and the Citi­ Congress had attempted to write a will give-and then I will stop-admin­ zens Flag Alliance are strongly opposed broader statute to avoid the problems istrative fees and permits for parades. to the McConnell proposal. of the Texas law, by making all phys­ That is Cox versus New Hampshire, a Any Senator who has cosponsored ical impairments illegal except forcer­ 1941 case. Senate Joint Resolution 31, the flag emonial disposal of a worn flag, the These are all limitations on speech protection amendment, or stated his or Court found the act unconstitutional under the first amendment. So I find it her intention to vote for it, must vote anyway because "its restriction on ex­ hard to understand the other side's ar­ against the McConnell amendment. pression cannot be justified without guments that we are going to interfere You cannot be for the flag amendment reference to the content of the regu­ with the first amendment's rights and and the McConnell statute as proposed, lated speech." [Id. at 318). As Prof. privileges and that we will be amend­ which will completely replace the flag Richard Parker of Harvard University ing the first amendment. All 21 of these amendment. Law School has put it, the Supreme examples are certainly exceptions to Mr. President, I appreciate the desire Court found the act invalid because it free speech, and I am sure that the Su­ of the Senator from Kentucky to do "involves taking sides in favor of what preme Court has recognized others. something to protect the American is 'uniquely' symbolized by the flag­ So this is not something that is flag. I know he feels strongly about the our 'aspiration to national unity.'" unique or new. We are talking about flag. I think that is true about every­ Indeed, my friend from Kentucky, the flag of the United States, the na­ body in this body. Rightly or wrongly, has made very clear in his remarks tional symbol. Some people claim: they feel strongly. And I hope that, in upon introducing the bill what this bill "Oh, my goodness. The rights of free the end, my friend from Kentucky, will is all about-it is not about breaches of speech supersede everything." Well, see his way clear to supporting our the peace or theft. It is about protect­ they do not. And especially where constitutional amendment should his ing the flag as a symbol. He said on Oc­ speech is not involved. But why can we amendment fail. tober 19, 1995: not ban in the interest of patriotism But I say to my friend from Ken­ Flag burning is a despicable act. And we and honor and values in this country, tucky, with great respect, we have should have zero tolerance for those who de­ despicable, rotten, dirty, conduct been down the statutory road before on face our flag . . . I am disgusted by those against our national symbol? this issue. It is a dead end, plain and who desecrate our symbol of freedom .... It amazes me that these folks come simple. Mr. President, those words reinforce in here and say how they support the I well recall my friend from Dela­ the bill's fundamental conflict with flag, how wonderful it is, and how ter­ ware, Senator BIDEN lining up a variety Johnson and Eichman. So does the rible it is for people to do these awful of constitutional scholars to support finding in the proposed statue which things-to smear the flag with excre- his statute in 1989. Senator DOLE, Sen- describes our flag as: December 8, 1995 CONGRESSIONAL RECORD-SENATE 35967 a unique symbol of national unity and rep­ with the policies of the Federal Gov­ flag desecration by statute, as we made clear resents the values of liberty, justice, and ernment as a direct personal insult or in the Eichman case, when an assertedly equality that make this Nation an example an invitation to exchange fisticuffs." content-neutral federal statute was struck of freedom unmatched throughout the world. Thus, section (a) of the proposed stat­ down. As you may remember, when Judge Bork But many who burn the flag disagree ute does not cover Johnson. Nor does with every word of that finding. Some and I testified before the Senate Judiciary section (b) cover Johnson, because the Subcommittee holding hearings on the stat­ of them believe the flag represents op­ flag he burned did not belong to the ute, we predicted the statute would be held pression, exploitation, and racism. United States. It was taken from a unconstitutional, and we were proven right They are wrong, but the Supreme bank building. Finally, section (c) is by Eichman. Subsection (a ) of this statute Court has made clear that Congress inapplicable-Johnson burned the flag would also be seen by the courts for what it and the States cannot protect the flag in front of city hall, not, apparently, is, an attempt to do by statute what can in order to preserve its symbolic value on Federal land. only be done by constitutional amendment. in one direction. I believe the Supreme If Gregory Johnson could not be held Given the decisions in Johnson and Eichman, Court is no more correct than it was in and given the current composition of the criminally liable under the Senator's court, the court would undoubtedly adhere Dred Scott and Plessy versus Ferguson, proposed statute, who could? to its view that such a statute is an attempt but we cannot overrule such errors by I ask unanimous consent to enter to prohibit what the court regards as pro­ statute. into the RECORD letters from Prof. tected speech. It should be remembered that While it is true that flag desecration Richard Parker of Harvard Law School, the statute struck down in Johnson itself can be penalized pursuant to a general Prof. Steven Pressler of Northwestern was grounded in similar notions about the breach of the peace statute, in the Law School, concerning the McConnell need to prevent violence and prevent same way other breaches of the peace statute. breaches of the peace, and the court simply are punished, offering special protec­ There being no objection, the letters decided that a statute calculated to prevent tion for the flag is intended to enhance the expressive act of flag burning could not were ordered to be printed in the be regarded as· devoted to a constitutional the flag's symbolic role. The Court will RECORD, as follows: purpose. not buy it. NORTHWESTERN UNIVERSITY, I have heard it argued that the Supreme Further, even if this statute was SCHOOL OF LAW, Court's recent decision in Wisconsin v. upheld, it is, with great respect, very Chicago, IL, December 4, 1995 Mitchell, 113 S.Ct. 2194 (1993), which upheld inadequate. Not every flag desecration Hon. ORRIN G. HATCH, an enhanced sentence for aggravated battery will cause or likely cause a breach of Chairman, U.S. Senate Judiciary Committee, because the defendant chose his victim on the peace or violence. That will depend Washington , DC. the basis of his race, somehow suggests that on circumstances. Frankly, I do not DEAR SENATOR HATCH: You have asked for the current court would be more lenient in want the protection of the flag to be my thoughts regarding the constitutionality upholding statutes that implicate what has of S. 1335, the Flag Protection and Free been regarded as conduct protected by the limited to those narrow circumstances. Speech Act of 1995. I understand that the First Amendment. There is no merit to this And these are very narrow cir­ sponsors of the legislation, based on an anal­ argument. In Mitchell the court made clear cumstances. A flag desecrated in the ysis performed by the Congressional Re­ that the Wisconsin statute passed constitu­ midst of a crowd of those sympathetic search Service, and apparently also advised tional muster because the conduct at which to the desecrator will not elicit a pen­ by some legal scholars (whose names, as far it was addressed (the infliction of serious alty. Those who see it on television or as I know, have not been made public) have bodily harm) was " unprotected by the First in a news photo or from a distant side­ asserted that the act would be able to pass Amendment." The conduct at which the Flag walk may not like it, but it will not muster in any court review of the act. In my Protection and Free Speech Act of 1996 is di­ violate a breach of the peace statute. view that is simply incorrect. At least as far rected-burning or otherwise destroying the as the key section of the proposed act, sub­ American Flag in order to incite others-is Moreover, of course, not every flag section (a), is concerned, I simply do not see the destroying the American Flag in order to which is physically desecrated is stolen any way in which the statute could meet the incite others-is the very conduct which the from the Federal Government, or sto­ tests for constitutionality laid down in Unit­ Supreme Court declared in Johnson and len and desecrated on Federal land. ed States v. Lopes, 115 S. Ct. 1624 (1995), Eichman is protected by the First Amend­ Indeed, this statute in no way Texas v. Johnson, 491 U.S. 397 (1989), and U.S. ment. Mitchell simply has no application. changes the result in the Texas versus v. Eichman, 496 U.S. 310 (1990). The two subsections of the Flag Protection Johnson case, which creates the prob­ Subsection (a) of the proposed Act would and Free Speech Act of 1995, (b) and (o), lem bringing us to the floor of the Sen­ penalize the conduct of flag-burning when which have to do with the stealing or conver­ the flag burner does so with the primary pur­ sion of a flag belonging to the United States, ate in the first place. pose and intent to produce a branch of the and the stealing or conversion of a flag on In Johnson, the State of Texas de­ peace or imminent violence, and in cir­ federally-controlled land could conceivably fended its flag burning statute on the cumstances where the offender knows it is survive scrutiny under Lopez (since it is the ground that it prevented speech that reasonably likely to produce imminent vio­ task of the federal government to patrol fed­ caused violence or breaches of the lence or a breach of the peace. There is no erally-controlled property), and it might be peace. The Court brushed aside Texas' general federal power given to Congress to regarded as the task of the federal govern­ evidence that witnesses of Gregory prevent breaches of the peace or safeguard ment to punish theft and destruction of fed­ Johnson's flag burning were seriously against imminent violence. For Congress to eral or private property on federal lands. assert this power, presumably under the Even if this were so, however, and it is by no offended and might have caused dis­ commerce clause, would result in the statute means free from doubt, this would do noth­ order. Instead, the Court simply noted being struck down under United States v. ing to overcome the result in the Johnson that- Lopez, 115 S. Ct. 1624. If Congress cannot pass case, and others like it, where the flag de­ No disturbance of the peace actually oc­ the Gun Free School Zones Act (which pre­ struction is prohibited by state govern­ curred or threatened to occur because of sumably had a similar purpose) I can't imag­ ments, or takes place on non-federally con­ Johnson's burning of the flag . ... The ine that subsection (a) of the Flag Protec­ trolled property. state's position ... amounts to a claim that tion and Free Speech Act would survive ei­ The whole purpose of the efforts under­ an audience that takes serious offense at ther. taken by the Citizens Flag Alliance and particular expression is necessarily likely to The alternative ground for the Act, countless numbers of Americans working at disturb the peace and that expression may be Congress's power to protect the national the grass roots level (which have so far re­ prohibited on this basis. Our precedents do symbol, has been clearly ruled out by John­ sulted in the resolutions passed by forty-nine not countenance such a presumption. " son and Eichman, where the court has indi­ state legislatures asking Congress to send [491 U.S. at 408). cated as clearly as can be that flag desecra­ the Flag Protection Amendment to the The Court also determined that tion, because the court believes it to be a States for ratification, and the passage of Johnson did not run afoul of the fight­ protected form of speech, is a symbolic act the Amendment by much more than the req­ which in no way harms the symbolic value of uisite two-thirds vote in the House of Rep­ ing words doctrine. The Court con­ the flag. Indeed, in the Court's view, the resentatives) was to reverse the result in cluded that " no reasonable onlooker desecration of the flag simply reinforces the Texas v. Johnson, and give back to the Amer­ would have regarded Johnson's gener­ symbolic value of the flag. Congress is thus ican people their right to protect their cher­ alized expression of dissatisfaction without power to prohibit flag burning or ished national symbol in the manner they 99-059 0-97Vol.141 (Pt. 25) 17 35968 CONGRESSIONAL RECORD-SENATE December 8, 1995 had enjoyed prior to 1989. This included pro­ Then, on November 8, a strange thing hap­ a "distinction between approved or dis­ tection by either state or federal govern­ pened. Mr. John R. Luckey (a Legislative At­ approved expression that is communicated" ments, as provided for by the Amendment. torney In the American Law Division of the by destruction of the flag. It thereby makes As I Indicated in my testimony before your Congressional Research Service at the Li­ the same mistake it made before. The memo subcommittee six years ago, five years ago, brary of Congress) wrote a two-and-a-half fails to grasp the Court's fundamental idea: and most recently last summer, a Constitu­ page memo stating-flatly and blandly-that that singling out the flag for protection in tional Amendment ls a traditional manner In the proposed statute "should survive con­ and of itself makes a "distinction between which the American people have corrected stitutional attack". It is that very odd approved and disapproved expression" and, erroneous decisions by the Supreme Court, memo that I want now to answer. so, violates the Constitution as it now and In which they have asserted the sov­ Though the memo demonstrates a trun­ stands. ereign prerogative, which belongs to them cated understanding of constitutional law Thus we come back, again and again, to alone. and the Supreme Court, It does get some­ Senator McConnell's statement of the pur­ As you have Indicated many times, the thing right. It notes that the proposed stat­ pose of his proposed statutory detour around Flag Protection Amendment ls a worthy ute would not reverse the decisions to which a constitutional amendment. (In adjudicat­ measure, expressing noble Ideals of decency, It is a response. It would not protect the flag ing the constitutional validity of statutes, c1v111ty, and respons1b111ty very much In against "physical desecration" in most in­ the Court looks to the statements of their keeping with American traditions. It should stances-or even the instances involved in sponsors.) His purpose is to single out the not be sidetracked by a Quixotic quest for a the Johnson and Eichman cases. to show Its flag for protection. Plainly-according to the statutory solution. I urge you to do all you "zero tolerance" for those who "deface the majority of the Justices-this purpose is un­ can to persuade the Senators who think a flag," it would reach but a few quirky situa­ constitutional. According to the Justices, statute wlll work that they are misinformed, tions; where there is a "primary" purpose the only way to realize this purpose is to and that the proposed statute, 1f passed, and intent and a probab111ty to "incite or amend the Constitution, as was provided for would be declared unconstitutional with re­ produce imminent violence or a breach of in Article V by the framers of that docu­ gard to subsection (a), and that the remain­ the peace" or where the flag was stolen from ment. ing subsections would do littl.,e to correct the the federal government, on or off federal Is there no way around it? Those reluctant unjust result of Texas v. Johnson. lands. It would make a little mole hill our of to take up the responsib111ty assigned by Ar­ I appreciate the opportunity to share my a big mountain. ticle V seem to be grasping at any straw. Re­ views with you, and I would be happy to help On everything but this point, Mr. Luckey's cently, for example, I've heard that some are in any further manner I can. memo is off base. Its reading of constitu­ citing Wisconsin v. Mitchell. There, the Yours Sincerely, tional law ls, at best, utterly wooden. It ls an Court upheld a statute under which a "sen­ STEPHEN B. PRESSER, invitation-whether wide-eyed or wlnklng­ tence for aggravated battery was enhanced" Raoul Berger Professor of to another slap down of the Congress by the because the batterer "intentionally selected Legal History. Supreme Court, reminiscent of the 1990 fi­ his victim on account of the victim's race." asco. A prohibition of the battery of a person, the HARVARD LAW SCHOOL, The subsections dealing with destruction Court said, is not "directed at expression" Cambridge, MA, December 4, 1995. of a flag stolen from the federal government and so does not implicate free speech. Con­ Senator ORRIN HATCH, "present no constitutional difficulties," ac­ sideration of the motive for a battery-in U.S. Senate, cording to the memo. It offers two bases for this case racial discrimination, a motive Washington, DC. this misleading advice. First, it cites a few condemned under several civil rights stat­ DEAR SENATOR HATCH: Over the last sev­ passages and footnotes in Court opinions utes-doesn't offend the First Amendment. eral months, I've found, In countless con­ which ieave undecided the constitutional va­ This was an easy case. It has no relevance versations with all sorts of people about the lidity of prohibiting destruction of a flag whatsoever to Senator McConnell's proposed proposed constitutional amendment to allow owned by the government. It reads those pas­ statute. For his statute, which singles out our representatives to prohibit "physical sages and footnotes as deciding that such the flag for protection, is directed at expres­ desecration" of the flag, that everybody prohibition is valid. It thus makes the mis­ sion. Its purpose, stated by the Senator, ls to agrees. We all agree that the flag ls the take that law students soon learn not to enforce "zero tolerance for those who deface unique expression of our aspiration, as make. A question left open is not a question the flag.''. Americans, to national unity. We agree that, decided. How it will be decided depends on What If-to avoid a constitutional amend­ nowadays, this aspiration is under assault by the general principles-and tendencies-that ment-Senator McConnell were to take back a looming tide of disrespect for the very idea are moving the Court. his statements in favor of the flag? What 1f of shared national values, to say nothing of As the other basis for its advice, the memo he said he never meant it? The Congressional patriotic values. We agree that this tide notes three present statutory provisions Record could not now be erased. The Court must be stemmed, that when these values which prohibit the theft and destruction of would see It. And, in any event, it would are threatened, they must be defended. Root­ government property of all sorts in general. look at the terms of his proposed statute. ed In our hearts, they are expressed in sym­ By citing these provisions, it demonstrates Those terms make plain Its purpose, a laud­ bols-especially, the symbol of the flag-and again that its author simply does not grasp able purpose, to single out the flag for pro­ so, we agree, it is those symbols that we the general principle that the majority of tection. Yet that purpose is exactly what of­ must protect. the Court has been invoking since 1989. fends the majority of the Justices. On October 19, Senator McConnell gave The general principle at work ls this: The To make good on Senator McConnell's pur­ voice to this basic agreement on the floor of majority of the Court believes that flag dese­ pose, there is one and only one means under the Senate. He is, he said, "disgusted by cration implicates the First Amendment be­ the Constitution: a constitutional amend­ those who desecrate our symbol of freedom." cause the flag Itself is "speech." Since the ment. "[W]e should have zero tolerance for those flag communicates a message-as it, undeni­ Sincerely, who deface the flag," he insisted. ably, does-any effort by government to sin­ RICHARD D. PARKER, Yet he said that not to support the flag gle out the flag for protection must involve Professor of Law. amendment-but to oppose it. He proposed, regulation of expression on the basis of the Mr. HATCH. These letters make it instead, statute to stem the tide. It would, content of its message. The statutory provi­ very clear that the analysis by CRS is he said, serve his purpose; showing "zero tol­ sions cited by the memo do not "single out flawed. erance for those who deface the flag" by pun­ the flag" for protection. Hence, they would My friend from Kentucky wrote an ishing those "who desecrate our symbol of satisfy the Court. But Senator McConnell's freedom." He, no doubt, means his statute to proposed statute, by its terms, does "single article in the December 5, 1995, Wash­ be interpreted in light of his stated purpose. out the flag for protection." Hence, it would ington Post conceding that the Su­ But-for that very reason-his statute would be struck down by the Court, as in 1990. preme Court had erred in its two deci­ be an empty gesture, a nullity, another de­ The proposed subsection dealing with in­ sions, Johnson and Eichman. As he pressing instance of Washington's alienation citement of violence is, the memo advises, said: "Much to my disappointment, the from reality. "quite likely" to pass constitutional muster. Supreme Court has found that laws The reason is that his proposed statute The only virtue of this advice is in its quali­ protecting the flag run afoul of the would, predictably, be struck down by the fication. Even at that, it is wholly mislead­ first amendment. It is hard to believe Supreme Court-just as, in 1990, another ing. For-as the memo notes-the Court has statute, sold as a detour around a constitu­ recently refused to allow government "to that burning a flag can be considered tional amendment, was struck down. Law­ punish only those 'fighting words' of which 'speech.' But a majority of the court yers sensitive to the the spirit and tendency [it] disapproves." The memo imagines that has found this despicable behavior to of the Court's recent decisions know this, the subsection would not run afoul of this be 'political expression' protected by even 1f we wish it were otherwise. principle because it supposedly doesn't make the First Amendment." December 8, 1995 CONGRESSIONAL RECORD-SENATE 35969 It is clear that Senator McCONNELL of speech codes is, frankly, totally ir­ Let me just reiterate what I said this disagrees with the Supreme Court's de­ relevant. It is a straw argument. morning. On Monday we will offer an cision. Although, as he says, "it is hard Finally, my friend from· Kentucky amendment which deletes the States to believe," the Court did hold that says "it is hard to draw the line" in de­ from the amendment. The amendment flag burning was speech. As the Court termining what to protect. He cites will read as follows: ''The Congress said in Johnson, "The expressive, vulgar or offensive renditions of our shall have power"-the Congress shall overtly political nature of this conduct national anthem and asks, "How can have power-"to prohibit the physical was both intentional and overwhelm­ we single out the flag for special pro­ desecration of the flag of the United ingly apparent." In these cir­ tection but not our country's song?" States." That is all it says. It is a very cumstances, said the Court, "Johnson's Two hundred-plus years of history give narrow amendment that says, "The burning of the flag was conduct suffi­ us the answer. There is no other sym­ Congress shall have power to prohibit ciently imbued with elements of com­ bol like our flag. Moreover, while the the physical desecration of the flag of munication, to implicate the first national anthem is a great song, it is the United States," not the States. So amendment." [491] U.S. at 406] not a tangible symbol of the country. Senators concerned about the mul­ My friend makes a critical mistake Ironically, the Senator's question an­ tiplicity of State laws protecting the in acquiescing to the Supreme Court's swers itself: our national anthem, the flag need not worry about that any­ erroneous decision. Simply because "Star Spangled Banner," is about our more. five Justices of the Supreme Court say Nation's unique symbol. There would be one definition of that flag burning is protected speech These arguments get repeated over "physical desecration" and one defini­ does not mean that the Court has cor­ and over, but the flag protection tion of "flag of the United States." rectly interpreted what the Constitu­ amendment is no precedent for any And those definitions will be decided tion means. It is, no doubt, the prov­ other legislative action because of the by the Congress of the United States, ince of the judiciary to ''say what the uniqueness of our flag. Even the Clin­ as it should be. And it will apply every­ law is," in Chief Justice John Mar­ ton Justice Department acknowledged where. And it will be a narrow defini­ shall's immortal words in Marbury ver­ that the flag stands apart, sui generis, tion. I have no doubt about it. It will sus Madison. But it is not the exclusive as a symbol of our country. be one that will work and one that will responsibility of the courts to interpret Right here behind me is a picture of lend credibility to our values in our so­ the Constitution. what some of my colleagues call free­ ciety, our values of patriotism, honor, In fact, the Framers of the Consti tu­ dom of speech-it is pathetic. Senator McCONNELL said here today that pro­ dignity, country, family. That is what tion believed that Congress would have this is all about. an independent duty to interpret the hibiting the burning of the flag This is a chance to have that debate Constitution and to correct errors of "strikes at the heart of our cherished on values, honor, dignity, family, coun­ constitutional dimension. That is one freedom"-as overblown and exagger­ ated a statement as we will hear in this try, yes, patriotism. I think that this of the purposes of article V of the Con­ debate. amendment is worth it alone. I really stitution, which permits the amend­ Even one of the lawyers the Senator do. ment of the Constitution after two­ from Kentucky relies upon for his prop­ And those definitions that would be thirds vote of Congress and three­ osition on the issue, Bruce Fein, has set by Congress would need the Presi­ fourths approval by the States. It is written that Senate Joint Resolution dent's signature as well because it clear that the Framers intended article 31, the flag protection amendment, would be a statute. And either the V to be used to correct errors in con­ ". . . is a submicroscopic encroach­ President will sign it, or veto it if he stitutional interpretation made by the ment on free expression . . . " did not like it. So you have all these Supreme Court. Indeed, the 11th My friend from Nebraska says we checks and balances. Let us trust the amendment, the first amendment rati­ should not compel patriotism. He says people on this matter. fied after passage of the Bill of Rights, that respect for the flag would mean The American Legion and the Citi­ was approved by Congress and the something less if we were compelled to zen's Flag Alliance reluctantly support States specifically to overrule a par­ offer such respect. this compromise. We have gone more ticular Supreme Court decision, Mr. President, this straw argument is than halfway, and I ask the opponents Chisolm versus Georgia. offered over and over again. The flag of the amendment to accept this com­ It is our responsibility to correct the protection amendment does not au­ promise. Let us at least protect the Supreme Court when it is wrong. And thorize any law which compels anyone flag at the Federal level. We can do it surely it was wrong in calling this of­ to respect the flag, honor it, pledge al­ narrowly and do it fairly and do it in fensive, terrible conduct protected legiance to it, salute it, or even say the right manner. speech. nice things about it. It does not require I am just going to say one or two Since my friend finds it "hard to be­ anything like that. So that is a straw more words about the amendment. It lieve burning a flag can be considered argument. amazes me that people come on this speech," as I do, he ought to agree with There is an obvious difference be­ floor and say, "It's terrible what me that the flag protection amendment tween prohibiting someone from phys­ they're doing to our flag. We should does not amend the first amendment. ically desecrating our flag and compel­ not allow people to smear excrement It overturns two erroneous Supreme ling someone to respect it and salute on it and put epithets and obscenities Court decisions. it. on it, and we shouldn't allow them to To obediently accept the Supreme Moreover, I am astonished that any­ burn it and trample on it, and it is so Court's decisions in Johnson and one can claim that respect for our flag terrible," but they are unwilling to do Eichman, as my friend from Kentucky would mean something else if we enact anything about stopping it. would, when we know the Court is legislative protection of the flag. I am Some had the temerity to say that wrong, is to read article V out of the surprised anybody would argue that. "Well, we don't have that many flag Constitution, and is to abdicate the Until 1989, 48 States and the Federal burnings and that many flag desecra­ Senate's responsibility to the people Government prohibited flag desecra­ tions." Well, I submit we do, because and to the Constitution. tion. Did any of my colleagues believe every flag desecration that occur&-and My friend is also dead wrong to sug­ their respect for the flag meant some­ we have had them every year-every gest that this amendment authorizes thing less in 1989 than it did after the one that occurs is covered by the press legislation to compel anyone to respect misguided Johnson decision? ·and goes out to millions of people in the flag. It does not. No one can be This issue boils down to this: Is it not this country, every last one. And, forced to salute, honor, respect, or ridiculous that the American people frankly, it affects everybody in this pledge allegiance to the flag under this have no legal power to protect their be­ country every time we see this kind of amendment. So my friend's invocation loved national symbol? heinous conduct. 35970 CONGRESSIONAL RECORD-SENATE December 8, 1995 It is time for us to quit using these ment of progressive government as we Budget projects 0.1 to 0.2 percentage point phony arguments and stand up and have come to know and benefit from more growth and 0.1 percentage point less in­ vote to honor our national symbol by for half a century. Federal spending on flation, and those differences would so affect merely giving Congress the power to revenues and outlays as to reduce accumu­ health care for the elderly, the poor, lated deficits by almost $500 billion in seven honor it, if it so chooses, with the right and the disabled is being drastically re­ years, and more than double that amount in of the President to veto whatever they duced. Cutbacks are contemplated in 10 years. By 2005 , these flight differences in do, if he or she so chooses. our investment in education, the envi­ projections would amount to half of the Mr. President, I think we debated ronment, the arts and sciences, and CBO-projected deficit. That suggests that this enough today. foreign relations. These cuts typify the raising the OMB projected growth less than great differences in priorities and val­ 0.2 percentage point and lowering the pro­ jected inflation rate 0.1 percentage point MORNING BUSINESS ues which distinguish the opponents from the proponents of progressive gov­ more would project a balanced budget by 2005 Mr. HATCH. I now ask unanimous without any cuts in government programs. ernment. And all of this occurs while Newt Gingrich insists that the budget pro­ consent that there now be a period for we focus on that red herring, the bal­ the transaction of routine morning jections must be based on "honest scoring," anced budget. implying somehow that Bill Clinton's OMB business with Senators permitted to Professor Eisner accepts the premise is dishonest. But who is to say which projec­ speak for up to 10 minutes each. that government should provide activi­ tions are correct? Many private forecasters The PRESIDING OFFICER. Without ties and services that the private econ­ are more optimistic, and an increasing num­ objection, it is so ordered. omy would not provide or would not ber of economists-and this newspaper's edi­ provide adequately. And he recognizes tor-even suggest that considerably higher growth is feasible. Even a modest 0.5 per­ THE ROLE OF GOVERNMENT that many of us believe that the pro­ centage point more. to 3% a year, would wipe Mr. PELL. Mr. President, I once grams developed over the last 50 years out the deficit well within seven years. more express reservations about the are ''indispensable both to stable eco­ But Sen. Phil Gramm gave away the game premise upon which we are proceeding nomic growth and the social compact when he argued on "Face the Nation" re­ in attempting to balance the budget in on which our economic system and our cently that a balanced budget that would 7 years. I am mindful that both my society depend." permit more government spending was unac­ Mr. President, I ask unanimous con­ ceptable. No deficit projections, accurate or party and the President have agreed to inaccurate, should be used as an excuse to undertake this herculean task of reach­ sent that the text of Professor Eisner's article be reprinted in the RECORD. avoid essential cuts in projected government ing an accord where the difference be­ outlays. tween what the President has proposed There being no objection, the article And that is the real issue-not deficits and and what the congressional majority was ordered to be printed in the debt but the role of government. Conserv­ seeks is pegged at some $730 billion in RECORD, as follows: ative economists arguing for a balanced entitlement savings, discretionary THE DEFICIT IS BUDGET BATTLE'S RED budget have long made clear that it is not spending levels, and tax cuts. While I HERRING deficits in themselves that concern them but (By Robert Eisner) the fact that, given public aversion to taxes, fully support their determination to preventing deficits would hold down govern­ curb deficit spending, I remain skep­ The agreement reached between President Clinton and congressional Republicans to try ment spending. Voters would not permit in­ tical of the specific objective they have to " balance the budget" by uncertain meas­ creased spending if it had to be financed by set. ures in seven years is a brief armistice in a taxes rather than painless borrowing. With due respect for the Democratic much larger war. The war has very little to Of course, these conservative economists leadership, I must express my continu­ do with budget deficits. What really concerns are right in recognizing that deficits and an ing discomfort with the view that it is combatants on all sides-and should concern essentially domestically held public debt imperative that the Federal budget be the American people-is the role of govern­ such as ours are not a concern. As Abraham balanced by a date certain. I have al­ ment in our economy and in our lives. Lincoln said in his 1864 Annual Message to ways believed, and continue to believe, The "balanced budget" slogan is thought Congress: "The great advantage of citizens that the Federal budget is not supposed to ring very well with voters, so well that being creditors as well as debtors with rela­ virtually all politicians find it obligatory to tion to the public debt, is obvious. Men can to be in perpetual balance, but that as say that they, too, are committed to it. In readily perceive that they cannot be much John Maynard Keynes wisely noted, it fact, it is not clear that the ring is very loud; oppressed by a debt which they owe them­ should remain a flexible instrument of it is quickly drowned out by the suggestions selves." national economic policy, registering a that achieving balance might entail cutting One thing a balanced budget would do is surplus in good times and engaging in health care and education or, generally, eliminate efforts by the government to stimulative spending in bad times. To eliminating programs from which our citi­ maintain private purchasing power. Such ef­ insist on a balanced budget means re­ zenry think they benefit. Even less popular forts would entail cutting tax rates, or at quiring tax rates to be increased during is an obvious solution for deficits-raising least leaving them unchanged, and raising a recession and outlays for such pro­ taxes. Last year's deficit, already down to government benefits, or at least allowing $164 billion from the $290 billion of three them to grow in the face of business grams as help for the unemployed to be years earlier, would have been wiped out downturns. Insisting on a balanced budget decreased. This is not a palatable solu­ completely with 12% more in federal re­ means requiring tax rates to be increased tion, and it is one with which most ceipts. The transparency of Washington's al­ during a recession and outlays of unemploy­ economists would find fault. leged concern for budget balancing is re­ ment benefits and food stamps, for example, My views, I realize, are not widely vealed by the various proposals for tax cuts to be decreased. Aside from the misery that held. Hence, I was most heartened to that in themselves only increase deficits. some of these actions might entail, they read the words of Robert Eisner, pro­ The current argument is not about bal­ would appear to most economists as exactly fessor emeritus at Northwestern Uni­ ancing the budget now or even in seven the wrong thing to do. years. It's about what to do to be able to Government should provide activities and versity and a past president of the make a forecast that the budget will be "bal­ services that the private economy would not American Economic Association in the anced" in 2002. In January 1993, as the Bush provide or would not provide adequately. Wall Street Journal of November 28. In administration was coming to a close, its Of­ Much of social insurance is in this cat­ an article entitled "The Deficit Is fice of Management and Budget forecast for egory-retirement benefits and medical care Budget Battle's Red Herring," Profes­ that fiscal year-already three months for the aged, unemployment benefits for the sor Eisner states, and I most strongly along-a deficit of $327 billion. That estimate jobless and "welfare" payments for those un­ concur, that balancing the budget is a turned out to be $72 billion in excess of the able to work and their children. It is perhaps "brief armistice in a much larger war." actual deficit of $255 billion. So who can hon­ not widely acknowledged, for reasons for estly predict now what tax revenues and out­ electoral politics, that the privatization that What we are really engaged in is a fun­ lays wlll be in seven years? conservatives generally favor would extend damental disagreement about the role The Congressional Budget Office projects to Social Security. of Government in our lives. 2.4% annual growth in real gross domestic A further role for government is to be The real objective of the so-called product and 3.2% inflation. The Clinton ad­ found in the funding, if not always the provi­ revolution is the effective dismantle- ministration's Office of Management and sion, of education. This would include such December 8, 1995 CONGRESSIONAL RECORD-SENATE 35971 federal programs as Head Start for pre­ The Senate Judiciary Committee in excess of $11 billion shy of $5 tril­ schoolers; school lunches in primary schools; hearing had a panel of physicians tes­ lion. apprentice and school-to-work programs in tify who could not agree about this As of the close of business Thursday, high schools; and direct loans, scholarships procedure. If doctors are uncertain, I December 7, the Federal debt-down to and social service programs to facilitate en­ rollment in colleges and other post-second­ do not believe it is a good idea for Con­ the penny-stood at exactly ary institutions. Government would appear gress to ban this procedure in all in­ $4,989,071,101,377.59 or $18,938.60 on a per needed to support the basic research on stances. Although an exception for the capita basis for every man, woman, and which progress in new technology and health life of the mother was adopted during child. maintenance ultimately depend. And efforts this debate, the health of the mother is such as the earned-income tax credit and job not taken into account. It is my under­ training to get more people to work and off standing that this procedure, in some MESSAGES FROM THE PRESIDENT pure government handouts are also viewed circumstances, may be the least risky by many, including President Clinton, as Messages from the President of the very much in order. option for a woman and may be nec­ United States were communicated to Republicans would generally reduce or essary to preserve the heal th and the the Senate by Mr. Kalbaugh, one of his eliminate these programs and cut taxes, future fertility of the woman. secretaries. most heavily for those with high incomes. Also testifying before the Senate Ju­ They claim that this would help the econ­ diciary Committee were women who omy and hence ultimately make better off had this procedure. I admire these EXECUTIVE MESSAGES REFERRED the poor and less fortunate who have only women for coming forth to relate their As in executive session the Presiding been trapped in their worsening positions by the government programs designed to help painful and personal experiences so Officer laid before the Senate messages them. that the Senate could better under­ from the President of the United The current Republican revolutionaries stand the impact of this legislation. States submitting a withdrawal and a would reduce or eliminate government pro­ These women were faced with the ne­ nomination which was referred to the grams that have been developing since the cessity of terminating their very much Committee on the Judiciary. New Deal of the 1930s. To the new revolution­ wanted pregnancies because their un­ (The nominations received today are aries these programs injure the workings of born babies suffered severe abnormali­ printed at the end of the Senate pro­ a free-market economy that has contributed ties. Their physicians decided that in so much to our well-being. But to many oth­ ceedings.) ers they are indispensable both to stable eco­ their tragic circumstances, this proce­ nomic growth and the social compact on dure was the safest option. which our economic system and our society No woman should have to face this EXECUTIVE AND OTHER depend. situation. But unfortunately and trag­ COMMUNICATIONS What we've been witnessing in these heat­ ically pregnancies do not always do as The following communications were ed political battles is not just posturing or planned. Severe fetal abnormalities or laid before the Senate, together with boys fighting in the schoolyard. There are the threat to a woman's life or health accompanying papers, reports, and doc­ fateful issues involved. But it is not the defi­ that may be exacerbated by pregnancy cit, stupid. uments, which were referred as indi­ sometimes lead to the need for women cated: and their families to make difficult de­ EC-1669. A communication from the Chief PARTIAL-BIRTH ABORTION BAN cisions. These are tragic decisions of Legislative Affairs, Department of the ACT women and their doctors should make Navy, transmitting, pursuant to law, notice Mr. BYRD. Mr. President, the Senate without the interference of the Con­ relative to renewing a lease; to the Commit­ voted on November 8 to commit H.R. gress. I sympathize greatly with the tee on Armed Services. 1833, the partial-birth abortion ban bill, women and families who unfortunately have had to face these decisions. If we to the Senate Judiciary Committee for enact this legislation, aren't we mak­ REPORTS OF COMMITTEES a hearing and, within 19 days, to report ing the plight of women who may face The following reports of committees the bill back to the full Senate. The this agonizing situation in the future were submitted: Judiciary Committee held a hearing on that much more difficult by removing this measure on November 17. H.R. 1833 By Mr. MURKOWSKI, from the Committee what may be the safest option as deter­ on Energy and Natural Resources, with an came before the Senate again yester­ mined by the woman and her doctor? amendment in the nature of a substitute and day, December 7, and I voted against In addition, the Supreme Court has an amendment to the title: this measure. ruled that States can ban, restrict, or S. 907. A bill to amend the National Forest This is an extremely difficult issue, prohibit post-viability abortions except Ski Area Permit Act of 1986 to clarify the one which I have wrestled with a great in cases where the woman's life or authorities and duties of the Secretary of deal. However, after carefully listening Agriculture in issuing ski area permits on health is a jeopardy. In fact, 41 States National Forest System lands and to with- · to the debate and following the Judici­ have chosen to restrict abortions after ary Committee hearing, I have con­ draw lands within ski area permit bound­ viability. I believe this issue is best aries from the operation of the mining and cluded that this is a matter in which left to States to regulate. mineral leasing laws (Rept. No. 104-183). Congress should not impose its judg­ Given the uncertainty in the medical ment over that of the medical commu­ community surrounding this procedure nity. and the unprecedented step this bill INTRODUCTION OF BILLS AND H.R. 1833, the Partial-Birth Abortion takes in criminalizing a medical proce­ JOINT RESOLUTIONS Ban Act, would criminalize a medical dure, I voted against H.R. 1833. I do not The following bills and joint resolu­ procedure, the partial-birth abortion. believe that the Federal Government tions were introduced, read the first Physicians have expressed concern that should be usurping the powers of the and second time by unanimous con­ the bill does not use recognized medi­ States in such matters. Nor do I be­ sent, and referred as indicated: cal terms in defining partial-birth lieve that politicians should be in­ abortion, thus, creating uncertainty as By Mr. McCAIN: volved in private decisions between pa­ S. 1461. A bill to amend title 49, United to what procedures would be banned. It tients and their doctors regarding the States Code, relating to required employ­ is my understanding that the American appropriate medical treatment of seri­ ment investigations of pilots; to the Com­ College of Obstetricians and Gyne­ ous heart-rending and critical health mittee on Commerce, Science, and Transpor­ cologists oppose this bill. Beyond the matters. tation. concern about the terminology used to define the procedure, the college also expressed concern that Congress is at­ THE BAD DEBT BOXSCORE STATEMENTS ON INTRODUCED tempting to impose its judgment over Mr. HELMS. Mr. President, the sky­ BILLS AND JOINT RESOLUTIONS that of physicians in medical matters. rocketing Federal debt is now slightly By Mr. McCAIN: 35972 CONGRESSIONAL RECORD-SENATE December 8, 1995 S. 1461. A bill to amend title 49, Unit­ majority of airline pilots, will be train­ who receives a request under paragraph (1) ed States Code, relating to required ing fewer of them. This will happen at may establish a reasonable charge for the employment investigations of pilots; to the same time that the demand for pi­ cost of processing the request and furnishing copies of the requested records. the Committee on Commerce, Science, lots at U.S. major and regional carriers " (5) STANDARD FORMS.-The Administrator and Transportation. increases. Since many future pilots shall promulgate- THE AIR TRANSPORTATION SAFETY will not have experienced rigorous and " (A) standard forms which may be used by IMPROVEMENT ACT OF 1995 reliable military aviation training, the an air carrier or foreign air carrier to re­ • Mr. McCAIN. Mr. President, I intro­ ability of prospective employers to quest records under paragraph (1) of this sub­ duce the Air Transportation Safety Im­ have access to records from previous section; and provement Act of 1995, which will go a employers will be even more critical to " (B) standard forms which may be used by any employer receiving a request under para­ along way to ensure the continued airline and passenger safety. graph (1) for records to inform the individual safety of those who use the nation's air Safety in our Nation's air transpor­ to whom the records relate of the request transportation system. Clearly, this tation system is paramount. I believe and of the individual's right to receive copies legislation complements current more this bill will not only encourage em­ of any records provided in response to the re­ comprehensive efforts to improve the ployers to make more thorough back­ quest. Federal Aviation Administration and ground checks of the pilots they hire, " (6) REGULATIONS.-The Administrator to enhance the safety and efficiency of but will also enhance safety. may prescribe such regulations as may be necessary- the air traffic management system. In Mr. President, I ask unanimous con­ "(A) to protect the personal privacy of any specific, this bill will permit the trans­ sent that this legislation and certain individual whose records are requested under fer of relevant employment and train­ newspaper articles dealing with this paragraph (1) of this subsection and to pro­ ing records to prospective employers matter be printed in the RECORD. tect the confidentiality of those records; when an individual has applied for a There being no objection, the mate­ "(B) to limit the further dissemination of position as a pilot. rial was ordered to be printed in the records received under paragraph (1) of this The bill necessarily focuses on en­ RECORD, as follows: subsection by the person who requested couraging and facilitating the flow of s. 1461 them; and information between employers so that "(C) to ensure prompt compliance with any Be it enacted by the Senate and House of Rep­ request under paragraph (1) of this sub­ safety is not compromised. In addition, resentatives of the United States of America in section. to ensure that the burden of this legis­ Congress assembled, That section 44936 of title "(g) LIMITATION ON LIABILITY; PREEMPTION lation does not fall on employers and 49, United States Code, is amended by adding OF STATE LAW.- the legal system, when a transfer is re­ at the end thereof the following: "(l) LIMITATION ON LIABILITY.-No action or quested and complied with, both the "(f) RECORDS OF EMPLOYMENT.- proceeding may be brought by or on behalf of " (l) IN GENERAL.-An air carrier or foreign an individual who has applied for a position employer who turns over the requested air carrier receiving an application for em­ records and the prospective employer described in subsection (a)(l) of this section ployment from an individual seeking a posi­ against- who receives them will be immune tion as a pilot may request and receive "(A) an air carrier or foreign air carrier from lawsuits related to the trans­ records described in paragraph (2) relating to with which the individual has filed such an ferred information. Complete immu­ that individual's employment from any per­ application for requesting the individual's nity is critical-without it, the legisla­ son who has employed that individual at any records under subsection (f)(l); tive cannot achieve its objective of time during the 5 years preceding the appli­ "(B) a person who has complied with such making it a common practice of pro­ cation. a request; or spective employers to research the ex­ "(2) RECORDS TO WHICH SUBSECTION AP­ "(C) an agent or employee of a person de­ PLIES.-The records refer.red to in paragraph scribed in subparagraph (A) or (B) of this perience of pilots and to learn signifi­ (1) are- paragraph cant information that could affect air "(A) the personnel file of the individual; in the nature of an action for defamation, in­ carrier hiring decisions and, ulti­ "(B) any records maintained under the reg­ vasion of privacy, negligence, interference mately, airline safety. ulations set forth in- with contract, or otherwise, or under any After reviewing information about "(i) section 121.683 of title 14, Code of Fed­ State or Federal law with respect to the fur­ certain investigations and rec­ eral Regulations; nishing or use of such records in accordance ommendations of the National Trans­ "(11) paragraph (A) of section VI, appendix with subsection (f) of this section. portation Safety Board, I have become I, part 121 of title 14, Code of Federal Regula­ "(2) PREEMPTION.-No State or political tions; subdivision thereof may enact, prescribe, very concerned about deficiencies in "(111) section 125.401 of title 14, Code of Fed­ the pre-employment screening of pi­ issue, continue in effect, or enforce any law. eral Regulations; regulation, standard, or other provision hav­ lots. Right now, the FAA requires air­ "(iv) section 127.301 of title 14, Code of Fed­ ing the force and effect of law that prohibits, lines only to determine whether a pilot eral Regulations; and penalizes, or imposes liability for furnishing applicant has a pilot license, to check "(v) section 135.63(a)(4) of title 14, Code of or using records in accordance with sub­ the applicant's driving record for alco­ Federal Regulations; and "(C) any other section (f) of this section.". hol or drug suspensions, and to verify records concerning- "(!) the training, qualifications, pro­ [FROM THE NEW YORK TIMES, Nov. 10, 1995] that person's employment for the five ficiency. or professional competence of the previous years. Yet, the FAA does not individual; SAFETY BOARD URGES GOVERNMENT TO require airlines to confirm flight expe­ "(11) any disciplinary action taken by the MONITOR PILOTS' JOB RECORDS rience or how a pilot applicant per­ employer with respect to the individual; and (By Matthew L. Wald) formed at previous airlines. The NTSB, "(111) the release from employment, res­ WASHINGTON, November 9.-The National however, after studying certain airline ignation, termination, or disqualification of Transportation Safety Board recommended accidents that were determined to be the individual. today that the Government keep employ­ "(3) RIGHT TO RECEIVE NOTICE AND COPY OF ment records on pilots to keep bad ones from caused by pilot error, has rec­ ANY RECORD FURNISHED.-An individual jumping from job to job. ommended three times since 1988 that whose employment records have been re­ The recommendation came after the board airlines should be required to check in­ quested under paragraph (1) of this sub­ blamed the crash of an American Eagle tur­ formation about a pilot applicant's section- boprop last November on pilot error; the prior flight experience and perform­ "(A) shall receive written notice from each pilot had been hired a few days before he was ance with other carriers. person providing a record in response to a re­ to be dismissed by his previous employer, Compounding my concern about the quest under paragraph (1) of the individual's but American did not know that. insufficient sharing of pilot perform­ right to receive such copies; and Currently, airlines do not share such data "(B) is entitled to receive copies of any out of concern that a pilot denied employ­ ance records among employers is that records provided by the individual's em­ ment because of unfavorable information in the near future, there may be a ployer or a former employer to any air car­ provided by a former employer can sue. shortage of well-qualified U.S. airline rier or foreign air carrier. "We can't permit liability to drive safety pilots because the military, which in "(4) REASONABLE CHARGES FOR PROCESSING issues," James E. Hall, chairman of the safe­ the past has regularly trained the vast REQUESTS AND FURNISHING COPIES.-A person ty board, said in a telephone interview December 8, 1995 CONGRESSIONAL RECORD-SENATE 35973 today. "Somebody has got to take a step for­ of prospective pilots, including test scores, he crashed a plane, killing himself and 14 ward to do what's in the public interest." training results, performance evaluations others. Should airlines share records of pilot But the board said privacy questions must and disciplinary actions. training and performance? be worked out. Moreover, the Federal Avia­ The F AA's response: No. Its rationale: Ben­ Pena: That was a very upsetting (crash). tion Administration, which the safety board efits from such regulatory change would not We are working with Congress to get legisla­ wants to compile the data, was reluctant to justify enforcement costs. tion passed to allow airlines to share (pilot act without Congressional authorization. Eight years and six pilot-error airline performance) information, and we will sup­ The organizations representing the com­ crashes later, airlines still were not required port such legislation. muter airlines and the major carriers both to verify applicants' flight experience. Q: What do you say to people who are expressed support yesterday, although a pi­ That set the stage for crash 7, an American shocked that a pilot who failed at one airline lots' union said it objected to such a move. Eagle accident last December in North Caro­ could get hired at another? Last month the safety board concluded lina explored in detail by the USA TODAY Broderick: I am incensed, too, every time that American Eagle flight 3372, a twin-en­ reporters. They found that the pilot, Michael an accident happens. We work 24 hours a day gine turboprop on the way to Raleigh-Dur­ Hillis, was widely known for indecisiveness. trying to make this system a zero-accident ham International Airport from Greensboro, Documents showed he'd failed FAA check­ system. I think we've got it to where it is N.C., crashed after the pilot, Michael P. Hil­ rides, and his judgment in critical situations the best in the world. It is still not good lis, became confused about whether the left had been found unsatisfactory by previous enough, and every time the system fails, it is engine had stopped and failed to focus on fly­ employers. But the airline didn't know all extremely frustrating to all of us. We want ing the airplane. Mr. Hillis. who was killed that until after Hillis ran his plane into to do whatever it takes to make sure that in the crash, along the co-pilot and 13 of the trees at 200 mph, killing 15, including him­ failure never happens again. 18 passengers, had been on the verge of dis­ self. Q: Did the system fail in the American missal from Comair, a smaller carrier, when Another pilot-safety flaw emerged from Eagle crash? he was hired by American. the reporters' research, as well. Broderick: The system failed because a American said it never asked Comair about Had the FAA required more crew-coordina­ plane crashed and people lost their lives. Mr. Hillis's record because it was unlikely tion training, Hillis' co-pilot, who'd never Q: Does that mean the sys'... em doesn't al­ that the airline would divulge anything be­ met his captain before the flight, might have ways identify weak pilots? yond the dates of employment and the kind been able to override his errors. The NTSB Broderick: No. It points out where they're of equipment that the pilot flew. has warned the FAA since 1979 of the critical weak so we can train them in areas where The safety board recommended that the need for improved crew-coordination train­ airlines and the F.A.A. develop a standard­ they need it. Success isn't in getting rid of ing. But the FAA failed to act until this people. Success is having qualified people on ized report on "pilot performance in activi­ year. ties that assess skills, ab111ties, knowledge, the flight deck. If the system is such that All this points to a problem larger than you fail (and) you're out, it couldn't work. and judgment." The data would be stored by pilot error. Again and again, the NTSB has the F.A.A., and with a pilot's permission, Q: In the past 12 years, there have been 16 told the FAA what's broken in aviation and fatal accidents in 15- to 19-seat planes. In could be given to potential employers. how to fix it. Yet critical improvements have Walter S. Coleman, president of the Re­ five of those, the FAA was cited for inad­ stalled-and not just because of incom­ equate supervision of the airline. Is that ac­ gional Airline Association, which represents petence or bureaucratic sluggishness. commuter carriers said in a statement that ceptable? The FAA is hamstrung by a conflicting Pena: No. Absolutely not. We're going to his group "supports the intent" of the Safety mandate. It is charged with both protecting Board's recommendations. continue to press to improve the level of At the Air Transport Association, which safety and promoting air travel. safety for smaller planes. represents the major carriers, Tim Neale, a So while it can mandate safety measures, Q: But what are you doing to hold the FAA spokesman, said, "I don't think this is going it must first weigh the cost-benefit wisdom to a higher standard? to cause problem for the airlines." of its changes. The result: too little, too late Pena: We have a new management team in The Air Line Pilot's Association said that in safety improvements. place that is very focused on this issue. And any deficiencies in Mr. Hillis's performance There are recent signs of progress with new I am very focused on this issue. We've should have been obvious because he had FAA rules for enhanced pilot training and changed our attitude. We've sent a strong been with the airline for four years by the renewed interest in background checks. But message to everybody to think of safety dif­ time of the crash. The union also said test even these are half-measures, requiring only ferently than the way it was viewed in the results should not be shared among airlines some airlines to comply and making some past, which was "accidents will happen." No because the tests were not standardized. It rules voluntary. And this comes as a pilot one would say that, but that was the called for more training of pilots. shortage is approaching. unstated assumption. Our attitude now is If ever a lesson is to be learned from avia­ "no more accidents." Our thinking now is [From USA Today. Sept. 29, 1995) tion accidents, it is that timidity has no perfection. PUBLIC DESERVES MORE FROM FAA place in safety. The NTSB knows that. It's Q: What have you done to make that re­ time the FAA did as well. ality? WATCHDOG Regional airlines caught in a bind. Busi­ How long does it take to learn from your Pena: We've added more inspectors. We've ness is booming for small airlines, but their reached an agreement, which was a big mistakes? At the Federal Aviation Adminis­ supply of military-trained pilots is down. tration, guardian of public air safety, the an­ breakthrough, with the airlines. We can now And there's little incentive for prospective review all their flight data recorders (the swer is a disastrously long time. pilots to spend four years and $70,000 for a In a three-part series concluded Thursday, "black boxes" on planes that record pilot commercial pilot's license to get a job that conversations). In some cases, they show USA TODAY reporters Julie Schmit and starts at $14,000 per year. Meanwhile, start­ John Ritter reveal that the system for assur­ mistakes made by pilots. We can take that ing jobs at the major airlines pay twice that information and share it with all pilots to ing pilot competence is dangerously flawed. and can reach more than $100,000 after 10 In fact, it has contributed to 111 deaths, all show (that) that was the wrong thing to do, years. here is what should have been done. We've but one on small airlines, which have less-ex­ Military trains fewer pilots: 1992, 3,742; perienced pilots. also pushed for a higher level of safety on re­ 1996, 2,678(1). gional airlines. (Next year, all regionals will At the heart of the problem is the FAA. Regional airline business soaring. Pas­ The record shows the FAA was warned re­ have to meet many of the same safety stand­ sengers (in millions): 1984, 26; 1995, 60(1). ards already in use at large regional and peatedly about flaws in pilot testing and hir­ Ranking salaries. Average second-year pay ing, that it recognized the flaws and that it major airlines.) for a regional airline co-pilot compared to Q: Safety investigators have cited inad­ was flagrantly ineffective in fixing them. other professions: One telling example: equate pilot training as a factor in two fatal On Nov. 15, 1987, 28 passengers and crew Secretary, $19,100. crashes since 1985. In one, the FAA had al­ Phone operator, $19,100. died when Continental Flight 1713 crashed on Data entry, $17,750. lowed an airline to reduce training below the takeoff from Denver. National Transpor­ Co-pilot, $15,600. FAA's minimum standard. Why do you set tation Safety Board investigators blamed Receptionist, $15,400. minimum standards and then allow airlines the crash on bad flying by co-pilot Lee Bank teller, $14,600. to go below them? Bruecher. Unbeknown to Continental, Hinson: Any exemption we grant is only Bruecher had been fired from one airline. [From USA Today, Sept. 28, 1995) done when it is an equivalent level of safety. He'd also flunked pilot tests and had been In regulatory law, you write a regulation cited nine times for motor vehicle viola­ PILOT PERFORMANCE: TOP OFFICIALS RESPOND that focuses on what you're trying to accom­ tions, a red flag for risky pilots. Q: American Eagle Capt. Michael Hillis plish but realizes there is more than one The NTSB's conclusion: Airlines should be washed out at his first airline, Comair. Eagle path. It takes five years to build an airplane. required to check previous employer records hired him without knowing that. Last year, It takes three years to redesign an airline's 35974 CONGRESSIONAL RECORD-SENATE December 8, 1995 training program. We cannot change our reg­ from St. Louis while a Cessna was on its run­ show up in FAA records. Today, the records ulations every six months. One of the pur­ way. The jet sheared the top off the smaller aren't shared because airlines. fear lnvasion­ poses of having exemptions is to allow air plane, killing two pilots. The M~O pas­ of-privacy lawsuits from former employees. carriers to take advantage of new technology sengers escaped. Who must act: Congress, FAA. 7. Set mini­ within the existing framework so we don't Investigators found that the FAA modi­ mum qualifications for new airline pilots. have to say to them, 'I'm sorry, the rule fications had delayed St. Louis' radar. The Currently, each airline sets its own stand­ doesn't allow this.' NTSB then asked for a schedule for remain­ ards, which go up and down based on the sup­ Q: The FAA is supposed to regulate and ing airports and held a hearing to pressure ply of applicants. When supplies are tight, promote aviation. Aren't those conflicting the FAA. Even now, " We don't expect them airlines often hire pilots who would not be responsibilities? to have the system fully installed until considered when applicants are plentiful. Q: Hinson: No. We are to provide a safe 1999," says Barry Sweedler, director of the Who must act: FAA. aviation environment. In that context, pro­ NTSB's safety recommendations office. Problem: Training 8. Tighten monitoring motion means we should have laws giving us In 1979 the NTSB began urging a new kind of exemptions and waivers to the FAA's min­ authority to set standards, impose penalties of training to make cockpit crews work to­ imum training standards. Most major air­ and provide enforcement. The most aggres­ gether better. And although the majors and lines now exceed the F AA's minimums be­ sive form of promotion is to have the con­ some regionals now teach Crew Resource cause the airlines deem them too low. Even fidence of people who use the system. Management (CRM), it's not uniform or re­ so, the FAA allows some regional airlines to Q: Before the FAA passes a new regulation, quired. shorten training programs if it ls convinced it must weight the cost of it to the airlines. But most crashes involving pilot error can their alternatives won't compromise safety. Q: Hinson: That's true. We could provide a be traced to CRM deficiencies-faulty com­ Waivers are given by regional FAA inspec­ regulatory environment that was so strict munication or poor coordination between pi­ tors. There ls no national database, which and so punitive that people would ask, 'Why lots. makes monitoring difficult. Who must act: go into that business?' We could say (planes) New FAA rules this fall will require CRM FAA. 9. Speed up implementation of new must have six engines, four pilots instead of lndustrywlde for all pilots flying planes with techniques such as the Advanced Qualifica­ two. We don't do that. We have 17 cost-bene­ 10 or more seats. But it won't be pass-fall tion Program. AQP requires airlines to train fit laws that we have to answer to. The Na­ training-pilots whose CRM skllls are weak pilots as crews-rather than indlvidually­ tional Transportation Safety Board and the won't necessarily be pulled from the cockpit. which improves crew coordination, a key fac­ other oversight groups can have opinions tor in many accidents. AQP also identifies without regard for cost. We can't. [From USA Today, Sept. 28, 1995) marginal pilots sooner because pilots are Q: One criticism is that it takes repeated PILOT ERROR: SOLUTIONS, BEITER tested more often throughout the training accidents before the FAA acts. What's being REGULATIONS, SAFER SKIES process instead of just once at the end. Who done? must act: FAA, airlines. Q: Hinson: To some degree that is a fair Problem: Pilot Supply 1. Provide public Problem: Testing 10. Require airlines to criticism. It results from a propensity of our funding for pilot training to ensure high better monitor pilots who barely pass flight people to be extremely cautious and it comes quality. The Air Force spends $533,000, on av­ tests. Now pilots pass or fail. If they pass, back to the requirement of cost-benefit anal­ erage, to train one pilot. It exposes pilots to they don't get more training. If they fail, ysis. We are beginning to see a reduction in the latest aircraft and computer tech­ they do. The system does not recognize that the processing time of regulations. One of nologies. U.S. flight schools, which rely al­ some pilots pass with ease while others my charges is to create more sense of ur­ most completely on tuition, can't afford struggle. Who must act: FAA, airlines. gency in that arena. such training. Most student pilots train in Problem: Oversight 11. Encourage pilots to single-engine planes quite unlike those flown report unsafe pilots by requiring airlines and [From USA Today, Sept. 28, 1995) by regional and major airlines. Who must unions to establish and monitor reporting EXPENSE SOMETIMES STOPS FAA FROM act: Congress, FAA. 2. Provide pilot can­ systems. Most airlines have union commit­ ORDERING SAFETY IMPROVEMENTS didates with more financial assistance, in­ tees for this, but it's not an FAA require­ (By John Ritter and Julie Schmit) cluding guaranteed student loans and schol­ ment. Who must act: FAA, airlines. 12. Re­ arships. That would ensure that the industry quire the FAA to improve the quality of its The FAA rejects dozens of changes it gets the best applicants, not just those who own databases, which often are incomplete deems to costly or burdensome to airlines, can afford the training. The cost of a com­ and inaccurate. The FAA has more than 25 even if other experts think they're impor­ mercial pilot license and four-year degree is databases collecting information on such tant to safe airliner operation. about $70,000. Most new pilots find that it Sometimes the FAA repeatedly turns down things as failed pilot tests and pilot viola­ takes five years, or more, to get a job that tions. The databases are supposed to help the a National Transportation Safety Board rec­ pays more than $30,000 a year. Who must act: ommendation-under industry pressure, crit­ FAA target inspections at high-risk airlines, Congress, FAA. 3. Require airline pilots to but inspectors cannot rely on poor data. Who ics say-only to accept it later after more have four-year degrees. Many major airlines crashes. must act: FAA. December's American Eagle crash near Ra­ used to require a four-year degree. Now, leigh, N.C., ls an example. Records show the most list it as a preferred qualification. The [From USA today, Sept. 28, 1995) pilot had been forced to resign at one airline. military still requires it of pilot applicants. HOUSE SEEKS PILOT HEARINGS: AIRLINE But Eagle hired him unaware of his poor Requiring bachelor's degrees would help en­ RECORD-SHARING "PART OF SAFETY EQUA­ sure that pilots have the ability to under­ record. TION" Three times since 1988, the NTSB had stand today's sophisticated planes. Who (By Julie Schmit and John Ritter) urged tougher pilot background checks, in­ must act: FAA, airlines. 4. Have examiners The chairman of the House subcommittee cluding verifying flight, training and dis­ chosen at random. Make it impossible for pi­ on aviation Wednesday called for hearings on ciplinary records and FAA violations. But lots and student pilots to choose their own requiring airlines to share pilot performance the FAA says enforcing a new regulation examiners for licensing and aircraft certifi­ records. would be too costly and leaves such checks cation tests. The current system ls open to Record-sharing would prevent marginal pi­ up to the airlines. abuse by examiners who give easy or short lots from moving from airline to airline There are other examples: tests. The more tests they give, the more without the new employer learning about The NTSB urged ground-proximity warn­ money they make. Who must act: FAA. past performance. ing devices on planes in 1986. An FAA rule Problem: Pilot Hiring 5. Require tougher Rep. John Duncan, R-Tenn., responding to requiring them took effect last year, but background checks of pilot applicants. Air­ a USA Today investigative report, said if air­ loopholes will delay full compliance until lines are required to verify an applicant's lines won't start sharing records voluntarily, 1996. pilot license and work history for the pre­ "we will go for a legislative solution." After a 1993 Express II accident near vious five years. They also must check driv­ Sen. John McCain, R-Ariz., Senate avia­ Hibbing, Minn., the NTSB said the device ing records for alcohol or drug convictions. tion subcommittee chairman, said airlines would have given pilots 33 seconds' notice The FAA should require airlines to verify ap­ may have to be exempted from civil privacy they were too close to the ground-plus an plicants' flight experience, check FAA suits. " Safety is paramount, and we have to urgent "pull up" warning 21 seconds before­ records for accidents or violations and check take whatever steps are necessary." time enough to avoid the crash, which killed any criminal records. The National Trans­ " Lives will be saved," said Jim Hall, Na­ 18. portation Safety Board has suggested tough­ tional Transportation Safety Board chair­ Fatal runway crashes in Los Angeles, De­ er background checks three times since man. " The flying public has the right to troit and Atlanta within a year led the NTSB 1988-each time after a fatal accident. Who know airlines are doing all they can to en­ in 1991 to urge the FAA to speed up install­ must act: Congress, FAA. 6. Require airlines sure safety." ing ground radar. to share training records. These may reveal Airlines are reluctant to share records be­ The FAA moved quickly but delays per­ recurring weaknesses on such things as judg­ cause they say it opens them to privacy sisted. In November, a TWA MD~O took off ment and decision-making, which wouldn't suits. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35975 But government reports show that since thing other than what we saw when he got in In April 1990, Comair Capt. Mitchell Serber 1987, 111 have died in seven crashes blamed the cockpit, those emergency decisions must rated Hillis in the lowest fifth of pilots on on pilots' performance. have been very difficult for Mike." flight skills, but above average on willing­ In some cases, those pilots had poor his­ William Gruber, a 20-year pilot at Embry­ ness to learn. Serber also found him impa­ tories at other airlines, information their Riddle Aeronautical University, concludes tient, a "very high-strung person ... who new employer did not have. after reviewing Hillis' career: "I can't say I'd gets upset with his performance to the point "We welcome the interest" in Congress, allow him to take command of an aircraft." it distracts him." said FAA administrator David Hinson. "A pi­ Hillis survived in a system that should He had "functional knowledge of his du­ lot's record ... is an important part of the have weeded him out-a system of hiring, ties" but not a good understanding of the safety equation." training and testing pilots that has no fail­ plane. After a month in the cockpit with Hil­ The Air Line Pilots Association, the USA's safe mechanism to keep track of marginal lis, Serber rated "his overall performance as largest pilot union, wants airlines, the Fed­ performers, no way even to ensure that their weak." He certainly wasn't ready to be a eral Aviation Administration and unions to records follow them from one job to the next. captain, Serber felt. He should stay a first develop national standards to screen appli­ Flight 3379 underscores the randomness of officer at least a year. cants. air travel: Pilots fly whole careers and never On evaluation forms that asked if they Many of the several dozen pilots who called have an engine fail. would be comfortable flying as a passenger USA TODAY about this week's three-part se­ It underscores the contracts: The brief ca­ with Hillis, Serber and two other captains ries said too many marginal pilots continue reer of Hillis' co-pilot, Matthew Sailor, was checked "no." flying. an exceptional and full of promise as Hillis' But by December, one of those captains was bumpy and unremarkable. found him "moody and unpredictable" and [From USA Today, Sept. 27, 1995] And it underscores the irony: On the eve of urged dismissal. Serber, after talks with the fatal flight, Hillis was ready to quit Comair chief pilot Roger Scott, agreed. He THE PILOT WHO CRASHED FLIGHT 3379 American Eagle. He had even asked a friend had never recommended firing a pilot. FIRST TIME AS A TEAM, PILOTS MADE MISTAKES about working at a Wal-Mart. Senior pilots warned about Hillis' flight (By John Ritter and Julie Schmit) Most of all, Hillis' story underscores the weaknesses. A stall warning horn blared again. "Lower imperfections of the airline pilot system. Serber was worried, he told safety inves­ Eagle managers say Hillis was competent the nose, lower the nose, lower the nose," co­ tigators after the crash, that Hillis would pilot Matthew Sailor told Hillis. By now, the because he passed every test he had to pass. get tunnel vision in an emergency. His tim­ "We don't know any way we could have ing was off: "Mike was frequently behind the plane was rotating left. "It's the wrong foot, caught this guy," says Robert Baker, vice wrong foot, wrong engine," Sailor said. Hil­ airplane." He often lost situational aware­ lis, one of several pilots with troubling flight president of AMR, parent of American Eagle ness. He would "make large abrupt correc­ and American Airlines. tions, mostly on instrument approaches." records, tried in the dark cockpit to control But a USA Today investigation reveals a the plane. He pressed the wrong rudder These deficiencies would all come into play less reassuring picture of Hillis' hiring and in the crash. pedal. The rotation worsened. Six seconds advancement. Eagle never learned the real But even senior pilots' warnings weren't later, the plane slammed into trees four reason he wanted to leave his first airline for enough to get Hillis fired. He was allowed to miles from the runway at 200 mph. a lower-paying job at a second one. resign, on Jan. 3, 1991, after less than a year December 13, 1994, an American Eagle Jet­ Hillis was brought on board quickly by at the airline. Comair won't discuss details, stream descends in darkness, rain and fog to­ Eagle, an expanding carrier eagerly hiring but vice president K. Michael Stuart says, ward Raleigh-Durham Airport. pilots. He didn't move up Eagle's applicant "Our system at a very early point deter­ A light blinks on, warning of possible en­ pool gradually as Sailor, hired three years mined that there was a problem and we took gine failure. later, did. care of it." Two pilots, flying together for the first And, the preliminary crash report shows, Took care of it to a point. Unknown to time, scramble to sort out what has gone when Hillis failed an FAA check-ride-a key Comair, in October Hillis had applied for a wrong. Fifty seconds later, the twin-engine benchmark-Eagle ignored its own rules and job at Nashville Eagle, a regional carrier fly­ turboprop slams into woods west of Raleigh let the same examiner retest him. ing under American Eagle's logo. In an appli­ at 200 mph. Both pilots and 13 passengers die. In his Eagle file, Hillis had no evaluations cation letter he said he wanted to return to American Eagle officials believe the crew by senior captains he flew with his first Tennessee. of Flight 3379 bungled a situation it was year-a tool many airlines, but not Eagle, On paper, he was a dream candidate: 2,100 trained to handle. In November, the National use to identify poor performers. flight hours, above the 1,500 Eagle requires. Transportation Safety Board is expected to He kept advancing, as he had since his first And as a working airline pilot, he had had report-as it does in 7 out of 10 airplane acci­ solo flight not long after high school in more training than most. "We naturally as­ dents-that the pilots made mistakes. Al­ 1984-from small single-engine planes to twin sume they know what they're doing," says most certainly the NTSB will urge-for the engines, to planes that carried a few pas­ American's Baker. fourth time in seven years-tougher back­ sengers to planes that carried more. Eagle officials had no idea Hillis was on ground checks of the nation's airline pilots. But once he hit the airlines, troubles thin ice at Comair. They sent Comair a ques­ What is clear from the third fatal crash in cropped up. When he couldn't cut it in his tionnaire they send all previous employers. a year involving a regional carrier-and the first job, as a first officer at Comair, a Cin­ Hillis even authorized Comair in writing to 18th in four years-is that the flight captain, cinnati-based regional airline, Comair got furnish information. One of the questions Michael Patrick Hillis, was a marginal pilot rid of him. That alone would have ended was, "To what degree was this person's job who had managed to slip through the airline many careers, but not this one. performance satisfactory?" industry's elaborate safety net. Moreover, Hillis' problems started in the first check­ Comair didn't send the form back, Eagle the crash puts under fresh scrutiny a dec­ ride. executives say. Rarely will an airline release ades-old, traditional-bound system of hiring Hillis joined Comair as a co-pilot trainee information about a pilot. Comair says it and training airline pilots. in January 1990, after flying four years for a provides only dates of employment. Eagle The young Eagle captain had no violations small Memphis freight operation. Weeks has the same policy. So do many companies on his record. Hillis had never been in an ac­ after arriving at Comair, he had his first outside the aviation industry. They won't cident. But he had failed tests and shown FAA check-ride and bombed. risk invasion of privacy and defamation suits poor judgment at two airlines. He had strug­ In a check-ride, an examiner tests a pilot's from ex-employees. gled with landings easier than the one that skill on takeoffs, approaches and landings. "Sure, we'll ask for more," says former confronted him out-side Raleigh. He was not, Hillis flunked three of four landings, three of Eagle president Bob Martens, "but we don't his fellow pilots made clear, a man they nine instrument procedures and one of five get it for the same reason we don't give it wanted to fly with in an emergency. takeoffs. Worse, he got what pilots liken to out: We're subject to lawsuits from individ­ Shy, studious and unassuming, a quiet a scarlet letter: "unsatisfactory" on judg­ uals.'' loner who found relationships difficult, Hil­ ment. But privacy lawyers say there's no liabil­ lis, 29, did not fit the take-charge image of "It means the examiner believes the guy ity if the information is true. "It's a phobia an airline pilot. An instructor who had him shouldn't be flying," says Robert Iverson, a companies have," says Robert Ellis Smith, a in a small ground-school class weeks before longtime Eastern Airlines pilot and former Providence, R.I., privacy lawyer. "I call it a the accident couldn't remember him. KIWI Airlines top executive. "It is a subtle conspiracy of silence." And throughout a five-year airline career, way to pass that along ... to say, 'Hey man­ But not by all. Some airlines won't hire doubts had persisted about his flying abili­ agement, you better wake up.'" without information from previous employ­ ties. Instead, Hillis got more training and ers. They want to know: Would you hire this "He was very indecisive and very hesi­ passed his retest two days later. But in his person again? "If we don't get a response to tant," says his pastor, the Rev. Robert D. early flights, captains flying with him com­ that, we don't hire," says William Traub, Spradley. "Unless he changed into some- mented that his landings were still weak. United Airlines vice president. 35976 CONGRESSIONAL RECORD-SENATE December 8, 1995 Hiring without knowing how well a pilot But in January 1992 he faced a crucial deci­ Hillis was so upset about the rumors that performed elsewhere worries safety experts. sion. Eagle's "up or out" policy meant he he called Saboski at home on a Saturday. Three times since 1988, the NTSB has urged had to upgrade to captain when he rose high They met on Monday, and Hillis told his boss the FAA to require airlines to do detailed enough on the pilot seniority list or leave his reputation was being smeared. Saboski background checks before they hire and to the company. "We do not want people to asked Hillis twice if he thought he needed provide the records of their former pilots make careers of being co-pilots," Baker says. more training. "He pooh-poohed it," Saboski when another airline requests them. The Most airlines agree. says. The meeting ended. FAA has said enforcing such regulations This was seven months after Command Saboski, who was supervising nearly 300 pi­ would be too costly. Airlines and Nashvllle Eagle had merged to lots, was torn. "Rumors fly like crazy," he But since December's crash, FAA officials form Flagship, one of the four American says. "The pilots are a fraternity. But are considering ways to require carriers to Eagle carriers. the new carrier was expand­ there's always a question in my mind as to share information. ing rapidly. whether there's truth in what's being said." American officials, in hindsight, acknowl­ It needed captains, and many first officers Former Eagle president Martens agrees edge the value of sharing previous employ­ were upgrading. It's not clear how eager Hil­ Saboski did not have enough information to ment records. They want the FAA or Con­ lis was, but he had no choice. In 1993, the pol­ act on. gress to mandate it. "We're already doing it icy changed, and Eagle began allowing first Everyone's morale was low; layoffs were with drug and alcohol testing," Baker says. officers to defer upgrades up to a year. expected: "We're required by law to pass that informa­ Hillis began captain training in a Shorts Three weeks later, on Dec. 10, American tion on." The information goes into an FAS 360, a 36-seat turboprop. Almost imme­ Eagle announced it was pulling out of Ra­ database, which airlines can access. diately, he had problems. leigh-Durham. Low morale plunged lower. But when Hillis applied, Eagle relied-as it Watching him in a simulator, instructor Pilots were angry because they'd have to re­ still does today-on its own screening and Ray Schaub rated him unsatisfactory on two locate or be furloughed. They'd been grum­ training to spot unworthy pilots. maneuvers. One was handling an engine fail­ bling all year about their contract. They felt In that process, senior captains grill appli­ ure. The other was for not executing a go­ overworked and underpaid. Hillis shared the cants on cockpit situations. A security agen­ around of the airport after an engine failed anger, and the announcement, along with cy investigates gaps in work history. Driving on approach-the very situation he would the flap over rumors, apparently galvanized records are examined. There's a flight test in confront before the crash. After 15 sessions a decision to quit. He called in sick on the an aircraft simulator and a medical exam, Hillis passed his captain's check-ride and 10th, 11th and 12th. which, like those at most airlines, exceeds began flying out of Raleigh-Durham. "I tried to contact him. I knew something FAA requirements. Less than four months later, he was back was going on," says Jody Quinn, a friend Hillis went through his screening on Oct. in a Jetstream when the number of Shorts since Hillis had come to Raleigh two years 24, 1990, and passed. But there should have captains was reduced. Now he had to recer­ before. He was, she says, not a hard person to been concern. He lacked two qualifications tify in the plane he'd flown before as co­ figure out: "Just a good ol' down-to-earth Eagle prefers in its pilots: a college degree pilot. everyday person. But incredibly conscien­ and an airline transport pilot certiflcate, the Records show once more he struggled, tious. On top of everything. Very together highest class of license. blowing an approach and flunking an FAA and organized." In a Cessna simulator, Hillis flew ade­ check-ride for the second time in his career. To Quinn and North Carolina State Univer­ quately, and evaluator Sam White saw "very He got his second unsatisfactory on judg­ sity students Brent Perry and Mike Parsons, good captain potential." But White also no­ ment. who shared a house with him, Hillis was a ticed that Hillis leveled off too low after de­ At most airlines, including Eagle, two dedicated churchgoer, a man who liked na­ scending form cruise altitude, and was slow failed check-rides and two unsatisfactories ture and photography. He studied a lot-es­ to correct the mistake. on judgment would get a pilot kicked out. pecially airplane manuals and economics. When asked if he had ever been fired or But Eagle knew nothing of the record at He'd accumulated 42 hours at Memphis State asked to resign from a job, Hillis could hon­ Comair. Hillis' FAA examiner, Kevin Cline, told in­ University and was now taking courses at estly answer no. It wasn't until two months vestigators he failed about 1 in 5 pilots, but N.C. State. later that Comair would force him out. only 2 percent or 3 percent got an unsatisfac­ "He'd bounced around from here to there There's no record that Eagle asked him dur­ tory in judgment. to everywhere," Quinn says, "and he just ing the screening about his work there. Hillis got 1.8 more hours of simulator liked North Carolina and decided to Jennings Furlough, an Eagle flight stand­ training. Then Cline retested him, even stay.... He wanted to finally finish some­ ards manager who interviewed Hillis, pro­ though Eagle's policy is for another exam­ thing, finish his degree. He wanted some nounced him a "very good candidate." On iner to retest. Cline passed him the second roots." Jan. 7, 1991, four days after leaving Comair, time. Hillis' mother, Theresa Myers of he began first officer training in a 19-pas­ Assigned to Raleigh-Durham, Hillis flew Wauchula, Fla., says her son loved flying but senger Jetstream turboprop. uneventfully for the next two years. Eagle was uncertain about his future. "I never Co-pilot Sailor came from a different flight records show he passed eight checks from wanted him to fly," she says. "I wanted him background: September 1993 to July 1994. to get a college degree, and in the end I As Hillis started a new job, the co-pilot Rumors spread and one pilot balked at fly­ think that's what he wanted, too." who died with him in the crash, Matthew ing with Hillis: Spradley, his pastor, thought Hillis battled Sailor, was beginning his final semester in If Hillis struggled during those tests, a depression. "He lacked self-confidence and aeronautical studies at the University of record wouldn't have been kept at Eagle's personal strength, not just in his spiritual North Dakota in Grand Forks, one of the top training academy. That is Eagle's policy, ap­ life but his social life as well. He didn't make collegiate aviation programs. proved by the FAA, so that instructors make friends easily and while he wanted them des­ Over the next two years, Sailor, 22, would no assumptions about how a pilot will per­ perately, he didn't seem to know how to build a solid resume flying as an instructor form. manage friendships.'' pilot to gain hours. "He was very proficient, But while Hillis was bearing up in the A job at Wal-Mart began to look appealing: one of the best we've had," says Joe Sheble, Eagle training academy's predictable envi­ On Monday the 12th, Hillls studied for a owner of Sheble Aviation in Bullhead City, ronment, pilots he was flying with at Ra­ final in his economics class. He and Parsons Ariz., where Sailor earned advanced pilot leigh-Durham were talking about his indeci­ watched the Monday Night Football game, and instructor ratings and spend hundreds of siveness and poor judgment. but Hillis was brooding about his future. He hours teaching students how to handle en­ On Nov. 18, 1994, Sandra O'Steen was sched­ asked Perry how he like working at Wal­ gine failure. "He was probably as com­ uled to be Hillis' co-pilot from Raleigh to Mart and whether it had good benefits. "He fortable flying with one engine as two," Knoxville, Tenn. She'd heard the rumors and didn't like the idea of being unemployed," Sheble says. told Raleigh base manager Art Saboski she Perry says. Eagle hired Sailor in December 1993, two didn't want to fly with Hillis-the only time The two talked about the Raleigh-Durham years after he applied. He had both the col­ she'd ever done that. hub closing, and Hillis said he was thinking lege degree and top pilot certiflcate Hillis Saboski confronted O'Steen: Did she want of quitting that week. "We prayed about it, had lacked. In contrast to Hillis, two cap­ to be judged on rumor? She said no and prayed about what he hoped to do," Persons tains rated Sailor outstanding his first year, agreed to fly. During the flight, Hillis asked says. one of the airline's best first officers. her about the rumors. Ignore them, O'Steen Hillis' scheduled co-pilot the next day, By the time Sailor was hired, Hillis had said. Sailor, spent that night in a hotel near the been with Eagle almost three years. His first Later, she e-mailed Saboski that the flight airport. Based in Miami, Sailor was assigned year was unremarkable. A month into his "went by the book," signing off "sorry for temporarily to Raleigh-Durham. He had been initial training as a first officer, he passed the fuss." She told investigators that Hillis' an Eagle pilot just a year, but told friends he an FAA check-ride in a Jetstream. flying skills were OK, but he wasn't decisive. wasn't worried about being laid off. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35977 He and Hillis-who had never met-were ignition light coming on meant only one Flight 5719, a Northwest Airlines com­ scheduled for a two-day trip Tuesday and thing: flameout. muter, crashed short of the runway. All 18 on Wednesday. They flew the initial 38-minute Eagle instructors followed the operating board died. Investigators blamed Falitz. leg to Greensboro on Tuesday afternoon un­ manual of the Jetstream's manufacturer, They also blamed the airline for ignoring re­ eventfully. British Aerospace. Less than a month after peated warnings about his performance. As they took a break before flying the sec­ the crash, the company issued a "Notice to Other airlines have ignored warnings about ond leg, back to Raleigh, Hillis told airport Operators" that clarified what it means bad pilots, too, and passengers have died be­ service rep Sara Brickhouse, "The company when the light comes on. And Eagle has cause of them. doesn't care about me." He was somber and since changed its training manual. Since November 1987, pilots with docu­ The decision not to land turned out to be mented histories of bad judgment, reckless unhappy, she told investigators. behavior or poor performance have caused Less than two hours later, as the Jet­ fatal. In post-crash tests, investigators found six other fatal crashes-all but one on small stream descended toward final approach into airlines. Death toll: 111, including crew­ Raleigh, a small amber ignition light, the that sometimes, with engines at idle, the light came on when propeller speed levers members. left one, flashed on. Hillis, flying the plane, A USA Today investigation-including re­ said: "Why's that ignition light on? We just were advanced quickly. Hillis had done that views of the government's own safety re­ had a flameout (engine failure)?" five seconds before he saw the light. ports-has found that despite the nation's Sailor answered: "I'm not sure what's One thing is clear: Most pilots, trained to elaborate air safety system, marginal pilots going on with it." Then Hillis declared: "We land planes on one engine, would have shut get and keep jobs. This is particularly true had a flameout." down the bad engine and landed-not tried a at commuter, or regional, airlines, which The timing was bad. The plane, carrying a go-around at 1,800 feet. It was the decision to often run on small budgets and hire the maximum weight load and its engines on circle that led to the sequence of events that least-experienced pilots. idle, was quickly slowing down. It was at a caused the crash. At regionals, hiring standards vary widely point when Hillis should have been applying Sailor must have sensed what was happen­ and are sometimes dangerously low. Train­ power to maintain minimum approach speed. ing. As an instructor in Arizona, he'd logged ing and testing procedures don't catch all For 30 seconds, he and Sailor considered hundreds of hours teaching people to handle marginal pilots. A system of independent what to do as the plane stayed stable on its engine failure in flight. American's Baker is contractors who test and license pilots is glide slope. They'd already lowered the land­ convinced, reading the voice transcript, that ripe for abuse. ing gear and set the flaps for landing. Hillis he "had a much better sense of what was And airlines are sometimes reluctant to decided to continue the approach and asked going on." fire bad pilots. Sailor to back him up. Twice the cockpit re­ Pilots who have read transcripts of the These problems are about to get worse: A corder caught the sound of propellers out of final seconds give this interpretation: shortage of well-qualified pilots is expected sync. Sailor's comments seem intended to keep through the next 15 years because the mili­ Then Hillis made a fateful decision: He Hillis on track. "'K, you got it?" he asks tary, which used to train 90% of U.S. airline would abandon the approach, fly around the Hillis seconds after the light came on. pilots, is training fewer and keeping them airport and try another landing. It would (Translation: Are you going to keep flying longer. At the same time, demand for pilots give them time to work the problem. Sailor the plane?) is exploding, especially at regionals-the Then, "We lost an engine?" (You want the fastest-growing segment of U.S. aviation. said, "All right." "The surplus of quality pilot applicants is The plane by then had slowed dangerously. engine-out procedure?) Later, "Watta you want me to do; you about to end," says Robert Besco, pilot-per­ A stall warning horn blared, and Hillis called formance expert and retired American Air­ for maximum power in the good engine to gonna continue" the approach? And Hillis says: "OK, yeah. I'm gonna continue. Just lines pilot. "It is a big problem. But it is a gain speed. But he apparently failed to make tomorrow problem so the government and two critical adjustments. Powering up the back me up." Fifteen seconds before impact, the plane airlines have their heads in the sand." right engine would cause the plane to rotate The military has been a dependable sup­ left. To counter that, he should have raised slipping out of control, Sailor says, "You got it?" (You want me to take it?) plier of pilots since the passenger airline in­ the left wing and set full right rudder. dustry began growing after World War II. It A stall warning horn blared again. "Lower Finally, six seconds to impact, the re­ corder catches one last word, from Sailor: trains and tests pilots rigorously to weed out · the nose, lower the nose, lower the nose," poor performers. Sailor told Hillis, to gain speed and lift. "Here." (Here, give it to me.) As the supply of military pilots shrinks, Three seconds later, both stall horns went But if Sailor thought the captain was in regional airlines will have to dip deeper into off. Again, Sailor said, "Lower the nose." By trouble, shouldn't he have suggested shut­ the pool of those trained at civilian flight now, the plane was rotating steeply left. ting down the engine? And if he did finally schools. Then, "it's the wrong foot, wrong foot, grab the plane from Hillis, why did he wait Regionals fly smaller planes between cities until it was too late? that major airlines don't serve. Since 1988, wrong engine," Sailor said. Hillis trying in "It's a very difficult move," Baker says, the dark cockpit to counter the rotation and major airlines have turned over 65% of the "But if I saw the treetops coming up, you'd routes less than 500 miles to commuters, control the plane, had pressed the wrong rud­ have to fight me for that airplane." der pedal with his foot. The rotation, or yaw, says airline analyst Sam Buttrick. In the culture of airline cockpits, co-pilots New regional pilots are paid $13,000 to only worsened. assume that seasoned captains know what Six seconds later, at 6:34 p.m. ET, the $19,000 a year, one-third of what major air­ they're doing. Sailor had been flying as a lines pay new pilots. But experience at that plane slammed into trees four miles from the first officer less than a year. On loan from runway at 200 mph. Fifteen of the 20 on board level can lead to lucrative jobs at the ma­ Miami, he probably hadn't heard the rumors jors. died. about Hillis. Otherwise, he might have been Last year, new pilots hired by regionals From wreckage, investigators determined more assertive. that fly turboprops had slightly more than that at impact both engines were function­ The NTSB likely will criticize Eagle for half the experience of pilots hired by major ing fully. Experts familiar with the flight not giving pilots enough training in cockpit airlines. Yet regional pilots can fly 20% more data say Hillis misdiagnosed the ignition teamwork. But questions remain: hours than major airline pilots. light and overreacted-escalating a minor Was the crew-Hillis and Sailor-dysfunc­ Their planes are less automated, and they anomaly into a catastrophe. tional? Did Hillis, the pilot in command with fly at lower altitudes where the weather is Familiar flaws had shown up again, this the questionable record, fail when it more severe. And because their flights are time for real: suspect landing skills; the mattered most? shorter, regional pilots make more daily tendency to make major, abrupt corrections; Or were Hillis and Flight 3379's passengers takeoffs and landings, which is when most poor judgment. Preoccupied by the engine the victims of a system that failed? accidents occur. problem-the tunnel vision others had wor­ According to government reports, for the ried about-Hillis ignored the first rule in an [From USA Today, Sept. 26, 1995) past decade the accident rate for regional emergency: keep flying the plane. airlines has been significantly higher than He decided unequivocally that he had a MARGINAL PILOTS PUT PASSENGERS' LIVES AT RISK the rate for major airlines. Still, accidents dead engine but then didn't conform it by ad­ are rare. People are nearly three times more vancing the throttle or checking the rpm (By Julie Schmit and John Ritter) likely to die in a car than in a 15- to 19-seat gauge. Marvin Falitz, a pilot at Express II Air­ plane, says aviation consultant Morten The ·left engine could have lost power then lines, failed three flight tests in six years, Beyer. regained it. One thing the light is designed hit a co-pilot and was suspended once for The Federal Aviation Administration, to indicate is that an internal system is try­ sleeping in the cockpit during a flight. which regulates airlines, asserts regional air­ ing automatically to reignite the engine. On Dec. 1, 1993, on a short trip from Min­ lines are safe-and getting safer. Says Trans­ But in training, according to crash inves­ neapolis to Hibbing, Minn., Falitz tried a portation Secretary Federico Pena: "If tigation records, Eagle pilots were taught an risky, steep approach. they're not, we shut them down." 35978 CONGRESSIONAL RECORD-SENATE December 8, 1995 An analysis of official crash reports, how­ hours. That June, the two flew together for lots and seven passengers died. Investigators ever, shows that some airlines are not al­ the first time. They crashed near Anniston, faulted the pilots. ways as safety conscious as they should be­ Ala., while attempting to land. Three people The captain, Stephen Silver, 36, had used or as they say they are. The problems occur died. cocaine the night before the flight. His pre­ at every stage in a pilot's career: licensing, Investigators said the pilots lost awareness employment record included a non-fatal hiring, training and testing. of the plane's position and blamed pilot inex­ crash landing on the wrong runway, a sus­ LICENSING: PILOTS CAN SHOP FOR EASY perience, among other things. pended driver's license and five moving vehi­ EXAMINERS The flight was Capt. Schuety's first unsu­ cle violations in three years. pervised flight as an airline pilot. GP-Ex­ Co-pilot Ralph Harvey, 42, had been fired To get a license to fly passenger planes, press, a Continental Express carrier, had from another regional airline for poor per­ most pilots are required by the FAA to have made him a captain right away, without the formance. his pre-employment record also at least 191 hours of flying time. Then they usual co-pilot experience. included two alcohol-related driving convic­ must pass FAA tests, usually given by FAA­ GP-Express president George Poullos says tions and one non-driving alcohol conviction. approved examiners for fees from $100 to $300. the pilots met all of the FAA's requirements At the time, the FAA did not require air­ Pilots or their instructors can choose the ex­ and that the airline only hires pilots who lines to check for alcohol- or drug-related aminers. Just as lawyers can shop for sympa­ meet or exceed the FAA's minimums. driving convictions. Trans-Colorado execu­ thetic judges, pilots can seek easy testers. HIRING: LITTLE BACKGROUND CHECKING IS tives told investigators they were unaware of "If you're a real hard-nosed examiner, you Harvey's alcohol history, and Silver's driv­ run the risk that (they) aren't going to call REQUIRED On April 22, 1992, Tomy International ing history and previous crash. you," says John Perdue, an aviation consult­ In another example, Aloha IslandAir hired Flight 22, doing business as air-taxi Scenic ant and a retired Delta pilot. Bruce Pollard. In 1989, Pollard crashed into a Some flight schools, concerned about Air Tours, hit a mountain on the island of Maui, Hawaii. mountain, killing himself and 19 others. In­ abuse, will let students take tests only from vestigators cited Pollard's recklessness and examiners they endorse. "I want to know The pilot, Brett Jones, 26, and eight pas­ sengers died. Investigators said Jones failed faulted the airline's hiring procedures. that (students) are tested by someone who's IslandAir didn't check with Pollard's pre­ not giving away that ticket," says Steve to use navigational aids to stay clear of the mountain. He flew into clouds that hid it. vious employers, the accident investigation Van Kirk, 49, at Northwest Airlines pilot and showed. owner of Control Aero Corp. in Frederick, Investigators faulted the air taxi for not checking Jones' background properly and Two previous employers said he was care­ Md. less and one of them was about to fire him But not all flight schools are that strict. faulted the FAA for not requiring sub­ stantive background checks for all pilots. before he resigned to join IslandAir. And the system ls vulnerable to other IslandAir learned. After the crash, it added abuses, such as examiners who rush through Jones, investigators' records show, had been fired by five employers, including a major tough screening procedures that weeded out tests so they can do more in a day. the pilot who later was involved in Tomy In 1987, Continental Airlines hired 26-year­ airline, for poor performance. He also lied International's 1992 Maui crash. old Lee Bruecher as a co-pilot. He was flying about his flight experience. No airline checks what could be the most a DC-9 when it crashed shortly after takeoff Tomy International didn't uncover those important records of all: an applicant's in Denver. The captain, Bruecher and 26 oth­ facts because it didn't have a policy of veri­ training records at previous airlines. To do ers were killed. Bruecher had been fired in fying an applicant's background. The FAA so could run afoul of privacy laws, they say, 1985 by Able Aviation in Houston because he started requiring a five-year employment and subject the airline that shared them to had a chronic problem of becoming dis­ check in 1992. Jones was hired in 1991. The pre-employment check into Jones' suits. oriented-a fact Continental failed to dis­ Nonetheless. many airlines refuse to hire a cover. aeronautical background consisted of one pilot unless they get a good reference from a Safety investigator cited Continental for phone call to a charter and cargo airline, previous airline-employer. Threat of -lawsuit poor pre-employment screening. Continental where Jones had worked one year. That oper­ or not. has since tightened its screening procedures. ator said Jones departed in good standing. But actual training records aren't shared. But Bruecher's career might have been cut Jones also received a recommendation Those reveal how pilots make decisions, han­ short long before he got to Continental. In from the previous owner of Tomy Inter­ national, who had once employed him as a dle stress and work with others-insights 1983, he passed a test that allowed him to fly that don't show up in FAA data and insights multi-engine planes. Two months later, his van driver. Tomy International did not return re­ airlines are hesitant to share. examiner was fired by the FAA for giving If training records had been shared, 15 peo­ short, easy tests-including one to Bruecher. peated phone calls. ple might not have died on Dec. 13, 1994, The FAA requires airlines to do very little FAA records say the examiner had been when an American Eagle plane crashed near under investigation for nine months. when checking an applicant's background. They must verify that the applicant has a Raleigh-Durham, N.C. A preliminary govern­ Poor examiners remain a problem for the ment report points to pilot error. Capt. Mi­ pilot license; check motor vehicle records for FAA. In May, it revoked or suspended the li­ chael Hillis, 29, was distracted by an engine censes of 12 designated pilot examiners for alcohol or drug suspensions; and verify the applicant's employment for the previous five failure warning light. While figuring out giving each other phony certificates, allow­ what to do, he and his co-pilot let the plane ing them to fly numerous types of planes. years. The FAA does not require airlines to verify lose too much speed. It crashed four miles The FAA canceled the certificates. It said from the runway. none of the pilots had used them to fly pas­ flight experience, nor to check FAA records for accidents, violations, warnings or fines­ Hillis had been forced to resign from his sengers. It appears the certificates were first regional, Comair, because his superiors being collected almost as a game. or if an applicant has a criminal history. "They are strongly encouraged to check worried about his skills and decision-making HIRING: FEWER PILOTS, LESS COCKPIT all those things and we make it easy for abilities-facts documented in training EXPERIENCE them to do that," says Jeff Thal, FAA records that Eagle never saw. The American Eagle crash has the FAA re­ After pilots are licensed to fly passengers, spokesman. most spend years instructing others or flying Most important, an airline is not required considering its stance, and Peiia says he cargo. Their goal: build flight hours to land to find out how an applicant performed at would support legislation to mandate shar­ jobs with airlines. Most major airlines re­ any previous airline. ing of information between airlines. quire at least 2,500 flight hours; most Airlines do give applicants flight and oral "We need to have that. I don't want un­ regionals, at least 1,500. Most pilots, when tests. And most check FAA records and driv­ qualified pilots flying those planes," he says. hired, exceed the minimums. ing histories for more than just alcohol or TRAINING: FAA DOESN'T KEEP TRACK OF ALL But when faced with a shortage of pilots, drug convictions. Two speeding tickets over THE WAIVERS GIVEN airlines lower their standards. a year can get an applicant rejected at Once hired, pilots have to go through their In 1985, 22% of new regional pilots had Southwest Airlines, for example. airline's training program. The FAA ap­ fewer than 2,000 hours, says FAPA, an At­ "They're not law-abiding," says Paul proves each program. The airlines set re­ lanta-based aviation information service. In Sterbenz, Southwest's vice president of quirements based on FAA minimums that 1990, when regionals faced tight pilot sup­ flight operations. are so low most major airlines exceed them, plies, 44% of new pilots had fewer than 2,000 But an analysis of government crash re­ sometimes by 50%. flight hours. ports shows that poor pre-employment "They are the floor and should be viewed Even in years when pilots are plentiful, screening has contributed to passenger that way," says William Traub, vice presi­ regionals hire less experienced pilots. deaths. dent of flight standards for United Airlines. In 1992, GP-Express hired pilot Vernon Consider the Jan. 19, 1988, crash of a Trans­ Regionals are much less likely to exceed Schuety, 29, who had 850 flight hours, and Colorado plane, a now-defunct Continental the minimums. Some even fall short. Of 16 pilot James Meadows, 24, who had 1,100 Express carrier, near Bayfield, Colo. Both pi- larger regionals surveyed at random by USA December 8, 1995 CONGRESSIONAL RECORD-SENATE 35979 TODAY, seven-including four American United is an exception. If pilots struggle That was no surprise. During his 10-year Eagle carriers-said they were allowed to re­ through check-rides but pass, they are re­ career, Robbins flunked three FAA tests. He duce training below FAA minimums. The tested within two months instead of the had two drunken-driving convictions. Eight airlines say they were able to prove their usual six or 12 months, Traub says. co-pilots avoided flying with him, and sev­ programs were superior or sufficient, even If Express II had a policy of following eral complained to supervisors. Nothing was with fewer training hours. struggling pilots more closely, pilot Marvin done. In fact, in Robbins' last evaluation, his The FAA keeps track of training exemp­ Falitz, who crashed near Hibbing, Minn., supervisor gave him a positive review and tions, which are granted by Washington after might have been weeded out. He failed three complimented him on his ability to "get a formal review. But it doesn't keep track of check-rides-in 1988, 1992 and 1993. In 1987, he along well with his fellow workers." waivers, which are granted at the regional failed an oral exam. Each time, Falitz was The path pilots take to the cockpit: 1. level. The FAA doesn't even keep a central retrained and retested the same day. Not Enter milltary or civilian flight school. 2. record of how many waivers have been given. surprisingly, he passed, and continued flying. Pass test to get private license; can't work The FAA even grants training waivers to On two tests, he failed working with other for hire. 3. Pass test to get commercial li­ its own inspectors. In 1992, the Department pilots-what investigators faulted him for in cense; can work for hire. 4. Many milltary pi­ of Transportation inspector general criti­ the crash. lots get jobs at airlines after leaving mili­ cized the FAA for allowing 18% of inspectors Since the crash, Express has intensified tary. Flight school pilots fly cargo or work to skip ongoing training designed to keep pilot training. "Hibbing was an isolated inci­ as instructors to build experience. 5. Get job them sharp. dent and an unfortunate incident," says Phil as co-pilot at regional airline. 6. Pass air­ The FAA says safety is not compromised. Reed, vice president of marketing. "We run a line's training program. 7. Pass test to fly "The word exemption does not mean we're safe airline." certain type of plane. Testing required each giving anybody anything," says FAA Admin­ After the crash, Northwest Airlines in­ time a pilot switches to new type of plane. 8. istrator David Hinson. He says exemptions sisted that all of its commuter partners, in­ Spend first year on probation; get reviews; allow airlines to use new techniques without cluding Express, train to the highest FAA pass first-year test. 9. Pass test to get air waiting for new FAA rules. standards. transport license; required to become cap­ But the agency has rescinded waivers and FIRING: PILOTS ARE ALLOWED TO QUIT RATHER tain. 10. As captain, must pass medical and exemptions after crashes. For eight years, THAN BE FIRED two flight tests every year. the FAA allowed Henson Airlines, now Pied­ Even when an airline decides a pilot is Regional airlines scramble for pilots. mont Airlines, to cut pilot flight training unfit to fly, the pilot isn't always fired. Growth in commuter or "regional" air trav­ hours by about 40%. That was rescinded in Comair, a Delta Connection carrier, didn't el, coupled with a decrease in the number of 1985 after 14 people died when a plane crashed fire Michael Hillis. It let him resign. Hillis military-trained pilots, has forced airlines to near Grottoes, Va. did and started at American Eagle four days hire more pilots trained in civilian flight Investigators blamed inadequate pilot later. schools. training, among other things. Currently, Many U.S. airlines will let marginal pilots Military training fewer pilots 1992 3,742 Piedmont has no training exemptions and resign rather than fire them. The reasons: 1996 2,678(1). exceeds the FAA's minimum training re­ Airlines fear being sued, and problem pilots Regional airline business soaring Pas­ quirements. go away quicker if given an easy way out. sengers (in millions) 1984 26 1995 60(1). The F AA's willingness to grant waivers or "They're gone with fewer repercussions," Ranking salaries Average second-year pay exemptions spotlights a flaw in its structure, says Southwest's Sterbenz. for a regional airline co-pilot, compared with safety experts say. The agency has two mis­ Letting pilots resign often puts them back the median pay for other jobs: Secretary, sions: to promote aviation and to regulate it. in the cockpit-of another airline. Still, air­ Sl9,100; Phone operator, Sl9,100; Data entry Critics say they are in conflict. lines defend the practice. "The airlines are clerk, $17,150; Co-pilot, $15,600; Receptionist, When an inspector decides on a waiver that pretty diligent in looking out for those peo­ Sl5,400; and Bank teller, $14,600. might help a carrier financially, is safety ple" who have resigned, says Tom Bagley, Comparing accident rates Accident rates compromised? The FAA says no. Others won­ vice president of flight operations for Scenic for regional airlines that fly planes with 30 der. Airlines. or fewer seats are higher than rates for " The FAA is understaffed and politically Not always. American Eagle knew Hillis regionals with bigger planes and major air­ invaded," says aviation consultant Michael had resigned from Comair. Hillis told Eagle lines. Rates per 100,000 flights: Boyd, president of Aviation Systems Re­ he wanted to live in a different city. But search Corp. "The system is corrupt." Eagle didn't know Hillis had been forced to 1984 1994 TESTING: IN PASS/FAIL, NO ONE KNOWS WHO resign. Comair didn't provide that informa­ Small regionals ...... 82 .32 BARELY PASSED tion, Eagle says, and the FAA doesn't re­ Major airlines , large regionals ...... 23 .24 quire airlines to pass on that information. Few professionals undergo as much train­ The reluctance to fire pilots goes beyond For this three-day series, USA TODAY re­ ing and testing as pilots. Each year, most fear of lawsuits, however. It is tied to the porters John Ritter, and Julie Schmit set captains must have at least two flight tests status and deference that pilots enjoy and to out to learn how a marginal pilot slipped called "check-rides." Co-pilots have one. the high cost of training new pilots. through the safety net of a U.S. airline and These flights with an examiner test a pilot's "Airlines carry weak pilots for long peri­ crashed near Raleigh-Durham last Decem­ skill on such things as takeoffs, approaches ods," says Diane Damas, a University of ber. They discovered more than one poor and landings. Southern California aviation psychologist. pilot had kept flying and that, 1f nothing "Check-rides are a series of practiced ma­ "It's just part of the culture." changes, more are likely to. neuvers," says Robert Iverson, former East­ Says aviation lawyer Arthur Wolk: "It's Ritter and Schmit analyzed accident re­ ern Airlines pilot and former CEO of KIWI aviation's good old boy network. Nobody ports since 1985 and obtained FAA docu­ International Airlines. "Practiced enough, wants to trash a pilot." ments on current aviation practices through even marginal pilots can pass." Co-pilot Kathleen Digan, 28, was given the the Freedom of Information Act. In addition, pilots are graded pass/fail. If benefit of the doubt and later crashed a Other sources included the National Trans­ they fail, they are pulled from the cockpit to plane, killing herself and 11 others. Digan portation Safety Board, which investigates get more training. Within days, they are re­ was hired in 1987 by AV Air Inc., doing busi­ accidents, the General Accounting Office, tested. If pilots pass check-rides, as more ness as American Eagle. She was flying a the Federal Aviation Administration, airline than 90% do, they keep flying. plane that crashed on Feb. 19, 1988, in Ra­ executives, union officials, pilots and safety The pass/fail system does not recognize leigh-Durham, N.C. experts.• that some pilots pass with ease while others During a check-ride her first year, the ex­ struggle. aminer said Digan needed more work on A small percentage, 1 % to 2%, barely pass, landings. Another called her job "unsatisfac­ ADDITIONAL COSPONSORS flight instructors say. Others put the per­ tory" and recommended she be fired. A cap­ centage higher. tain who flew with her said she "overcon­ s. 309 "Maybe 5% are getting by, but probably trolled" the plane. At the request of Mr. BUMPERS, the shouldn't be," says Van Kirk, the Northwest But Digan wasn't let go. AVAir's director name of the Senator from Connecticut pilot. Even 1f 1 % are just getting by, that of operations defended the decision to keep [Mr. DODD] was added as a cosponsor of would be more than 500 U.S. airline pilots. her, telling investigators: "She had invested S. 309, a bill to reform the concession In a 1994 review of major airline accidents, a lot in our company and our company had policies of the National Park Service, the NTSB called check-rides "subjective" invested a lot in her." and for other purposes. and noted differences among airlines in how Even the FAA has protected poor pilots. they graded pass/fail. On Oct. 26, 1993, three FAA employees died in s. 334 And most airlines do not keep closer tabs a crash near Front Royal, Va. Safety offi­ At the request of Mr. HELMS, his on pilots who barely pass. cials blamed Capt. Donald Robbins, 55. name was added as a cosponsor of S. 35980 CONGRESSIONAL RECORD-SENATE December 8, 1995 334, a bill to amend title I of the Omni­ jurisdictions, judicial orders entered contains a number of very important bus Crime Control and Safe Streets Act under Federal law are having an enor­ limitations on prisoner lawsuits. of 1968 to encourage States to enact a mously destructive effect on public These provisions are based on legisla­ Law Enforcement Officers' Bill of safety and the administration of pris­ tion that I have worked on assiduously Rights, to provide standards and pro­ ons. They are also raising the costs of along with the distinguished chairman tection for the conduct of internal po­ running prisons far beyond what is nec­ of the Judiciary Committee, Senator lice investigations, and for other pur­ essary. And they are undermining the HATCH, the majority leader, and Sen­ poses. legitimacy and punitive and deterrent ators HUTCHISON and KYL. They have s. 607 effect of prison sentences. the strong support of the National As­ At the request of Mr. WARNER, the These orders are complemented by a sociation of Attorneys General and the name of the Senator from Tennessee torrent of prisoner lawsuits. Although National District Attorneys Associa­ [Mr. FRIST] was added as a cosponsor of these suits are found nonmeritorious 95 tion. They will make an important S. 607, a bill to amend the Comprehen­ percent of the time, they occupy an contribution to public safety and the sive Environmental Response, Com­ enormous amount of State and local orderly running of prisons by the State pensation, and Liability Act of 1980 to time and resources; time and resources officials charged with running them clarify the liability of certain recy­ that would be better spent incarcerat­ without unnecessary Federal inter­ cling transactions, and for other pur­ ing more dangerous offenders. ference. And they will help limit the poses. In my own State of Michigan, the waste of taxpayer money now spent de­ Federal courts are now monitoring our s. 881 fending frivolous lawsuits and feeding State prisons to determine: prisoners' sense that as a result of At the request of Mr. GRASSLEY, the First, how warm the food is. name of the Senator from Utah [Mr. committing a crime, they have a griev­ Second, how bright the lights are.· ance with the world, rather than the BENNETT] was added as a cosponsor of Third, whether there are electrical S. 881, a bill to amend the Internal other way around. outlets in each cell. I thank the appropriators in both Revenue Code of 1986 to clarify provi­ Fourth, whether windows are in­ sions relating to church pension bene­ Houses, as well as the efforts of the spected and up to code. majority leader and the chairman of fit plans, to modify certain provisions Fifth, whether prisoners' hair is cut relating to participants in such plans, only by licensed barbers. the Judiciary Committee, for seeing to to reduce the complexity of and to Sixth, whether air and water tem­ it that these provisions were included bring workable consistency to the ap­ peratures are comfortable. in this legislation. plicable rules, to promote retirement Meanwhile, in Philadelphia, Amer­ The second reason I support this bill savings and benefits, and for other pur­ ican citizens are put at risk every day is that it makes significant improve­ poses. by court decrees that curb prison ments in the law governing the funding s. 1136 crowding by declaring that we must of prison grants to the States. Al­ At the request of Mr. HATCH, the free dangerous criminals before they though styled truth-in-sentencing name of the Senator from Wisconsin have served their time, or not incarcer­ grants, the language in present law is [Mr. KOHL] was added as a cosponsor of ating other criminals at all. As a re­ so full ofloopholes that it does little to S. 1136, a bill to control and prevent sult, thousands of defendants who were advance the cause of incarcerating the commercial counterfeiting, and for out on the streets because of these de­ most violent offenders or assuring that other purposes. crees have been rearrested for new they would actually serve the time they were sentenced to serve. The new s. 1228 crimes, including 79 murders, 959 rob­ At the request of Mr. D'AMATO, the beries, 2,215 drug dealing charges, 701 version does a much better job of name of the Senator from Maine [Mr. burglaries, 2, 748 thefts, 90 rapes, and targeting this money in a manner that COHEN] was added as a cosponsor of S. 1,113 assaults in just 1 year. Obviously, creates the proper incentives. 1228, a bill to impose sanctions on for­ these judicial decrees pose an enor­ Now let me outline the areas of this eign persons exporting petroleum prod­ mous threat to public safety. bill with which I have serious reserva­ ucts, natural gas, or related technology Finally, in addition to massive judi­ tions. First, I believe the bill goes too to Iran. cial interventions in State prison sys­ far in diffusing money that the version tems, we also have frivolous inmate of this legislation that passed the Sen­ litigation brought under Federal law. ate had dedicated to the hiring of po­ ADDITIONAL STATEMENTS Thirty-three States have estimated lice officers in the COPS Program. I that this litigation cost them at least sympathize with the desire of my col­ $54.5 million annually. The National leagues in the House to give the States THE COMMERCE, STATE, JUSTICE Association of Attorneys General have more flexibility in spending this APPROPRIATIONS BILL concluded that this means that nation­ money, but this could mean that our •Mr. ABRAHAM. Mr. President, I re­ wide the costs are at least $81.3 mil­ goal to put more police on the street luctantly voted for the conference re­ lion. Since, according to their informa­ may not be achieved. I would much port for the Commerce, State, Justice tion, more than 95 percent of these prefer to see a system where the States appropriations bill, knowing that it suits are dismissed without the inmate do have additional flexibility, but are will be vetoed, because it does contain receiving anything, the vast majority given some real incentives to spend the many provisions that will do signifi­ of this money is being entirely wasted. money hiring additional law enforce­ cant good for the country and because Title VIII of this conference report ment officers. much of the funding it provides is very contains important measures that will Second, Mr. President, I believe the important to our efforts to fight vio­ help stop the destructive effect on pub­ provisions related to the Commerce lent crime. I look forward to working lic safety, the unnecessary micro­ Department fall short of what we with the managers of the bill to resolve management, and the waste of re­ should be doing-namely eliminating the problem areas of this bill when it sources that this litigation is causing. the Commerce Department altogether. comes up for consideration again. It limits intervention into the affairs I am the lead Senate sponsor of legisla­ Let me begin by outlining what is of State prisons by any court, State or tion to abolish the Department of Com­ good in this bill. First, the prison liti­ Federal, undertaken under Federal law, merce, S. 929. I think the record is gation reform title of the bill makes to narrowly tailored orders necessary clear-the Department of Commerce is important and needed changes to the to protect the inmates' constitutional the least essential of all 14 Cabinet­ Federal laws governing lawsuits rights. It also makes it very difficult level agencies. Any effort to reorganize brought against prison administrators for any court to enter an order direct­ and reform Government should begin across the country. Right now, in many ing the release of prisoners. Finally, it there. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35981 Although this bill does not eliminate THE COMMERCE, STATE, JUSTICE the National Troopers' Coalition sup­ the umbrella organization of the Com­ APPROPRIATIONS CONFERENCE port the COPS Program. merce Department, it does reduce and REPORT To quote Mr. Cahill again, "Police eliminate some of the Department's • Mr. BINGAMAN. Mr. President, I rise are the answer for today and preven­ more indefensible programs and agen­ in strong opposition to the Commerce­ tion is the answer for tomorrow.'' If the Senate agrees to fund the Vio­ cies. It terminates corporate welfare Justice-State appropriations con­ lence Against Women Act at the figure programs like the Advanced Tech­ ference report. When this bill was adopted by the contained in the conference report, the nology Program and the U.S. Travel Senate is stating that this program is and Tourism Administration, and it es­ Senate on September 29, it maintained not as strong a priority as it was on tablishes procedures by which the Ad­ the Community Oriented Policing September 29. ministration can act. Services Program [COPS] by eliminat­ If given the resources, this act has ing the State and Local Law Enforce­ the potential to demonstrate that the On the other hand, the conference re­ ment Assistance Block Grant Program, port fails to take a strong position to­ Federal Government can make a real reinstated the Legal Services Corpora­ difference when dealing with violence ward indefensible programs like the tion, and fully funded the Violence Economic Development Administra­ against women. Through prosecution, Against Women Act. Now this appro­ outreach, and education, the Federal tion. Whereas the Senate had funded priations bill returns to the Senate re­ this program at only $89 billion, the re­ Government has assumed the respon­ flecting the wishes of the House at the sibility of a full partner in this cause. port before us would provide the EDA expense of the Senate. The COPS Pro­ In summary, our communities will with over $300 billion for next year. gram has been eliminated by the re­ suffer the direct affects of these mis­ Given the EDA's record of waste and instatement of the State and Local aligned priorities. abuse, I believe this funding is exces­ Law Enforcement Assistance Block Mr. President, I would like to take a sive and I look forward to an oppor­ Grant Program. The Legal Services few additional minutes to discuss some tunity to debate the merits of the Corporation will receive approximately other areas of the conference report EDA, and other programs like it, when $60 million less than the Senate had that have led me to oppose the bill. my bill to terminate the Commerce De­ agreed upon, and the Violence Against I want to preface my comments with partment is debated on the Senate Women Act will also receive approxi­ a reminder to those who are earnestly floor. In addition, this report deletes mately $40 million less than what the committed to the future economic the fund to cover the costs of terminat­ Senate agreed upon. well-being of our Nation and our citi­ ing the Department and transferring As we all know, the COPS Program zens. Balancing the budget is certainly necessary functions to other areas of has proven to be successful. In one a goal I support; this cause does make the Government. Various concerns year, since the program's inception, sense, but that goal alone is not have been raised regarding the cost of New Mexico has received over 180 offi­ enough to secure a robust and healthy terminating the Department of Com­ cers from the COPS Program. All parts economic future for our country. How merce, and this provision would have of New Mexico have been awarded offi­ we cut, what we cut matters a great helped address those concerns. cer positions. From the Aztec Police deal. As many of you know, I have Department in the north and Sunland watched rather incredulously as aid to I think some of the money being Park in the south, to Quay County in dependent children, student loans, spent on these unnecessary programs the east and Laguna Pueblo in the Medicare and Medicaid, the earned in­ in the Commerce Department would west, all have felt the impact of this come tax credit have been slashed and have been better spent funding Federal program. attacked in this Chamber as we pro­ law enforcement at the levels the Sen­ The COPS Program is different from ceed, without missing a beat, to pro­ ate proposed in the pre-conference ver­ the block grant contained in the con­ vide nearly $800 million on 129 military sion of this legislation. ference report because it emphasizes construction projects above the Penta­ Finally, this conference report ac­ the concept of community policing. It gon's request, above what the Presi­ cepted the House funding level for legal gets officers out into the community dent of the United States proposed was necessary to maintain the national se­ services for the poor and maintains the preventing crimes rather than reacting to crimes once they have been commit­ curity interests of the country. We are existing structure for the provision of making tough decisions that affect these services, The Legal Services Cor­ ted. Mr. President, I understand that the people's lives and impact the ability of poration, albeit with provisions seek­ language in this appropriations bill so many who are hard-working, low in­ ing to ensure that some of the worst would allow a community to use the come Americans to keep their families misallocations of funds that the Cor­ block grant money to hire secretaries, together, keep food on the table, and poration has permitted do not recur. buy a radar gun or buy a floodlight for have a chance at getting their children As I explained when the issue came be­ a local jail. The law enforcement com­ into colleges. fore the Senate originally in connec­ munity is against this broad approach. What we cut matters, and I am op­ tion with this bill, I believe the ap­ The sentiment is best summed up by posed to the decimation of our Nation's proach the Senate subcommittee took Donald L. Cahill, the chairman of the technology programs. Our firms are at to this issue originally, which would national legislative committee for the a distinct disadvantage to firms in Ger­ have eliminated the Federal Corpora­ Fraternal Order of Police, who testified many, France, Israel, Japan, South tion and block-granted to the States before the Senate Judiciary Committee Korea, and in nearly all industrialized Federal funds for the provision of legal in February on the block grant type nations when it comes to making the services to the poor, was far superior. proposal. He stated: investments required to match what The Corporation itself provides no This broader category opens the door to foreign government-industry partner­ legal services to the poor, but rather using these funds for numerous purposes ships provide for pre-competitive tech­ grants Federal money to local organi­ other than hiring police officers-such as nology support. We have achieved laud­ zations that give legal assistance to hiring prosecutors or judges, buying equip­ able and significant results from the the poor. This is a function the States ment, lighting streets, or whatever. These Technology Reinvestment Program, are all worthwhile-but they won't arrest a the Advanced Technology Program, can perform at least as effectively as single criminal. and the Manufacturing Extension Pro­ the Corporation has. The bottom line is to place more offi­ gram. While we cut programs, even While I voted for this conference re­ cers on the street and the COPS pro­ eliminate some-the Office of Tech­ port, I will reserve judgment on the gram has proven to be successful. That nology Assessment, for example, no next Commerce, State, Justice appro­ is why the Fraternal Order of Police, longer exists--the Japanese Govern­ priations bill. the National Sheriffs' Association, and ment, despite its budget and economic 35982 CONGRESSIONAL RECORD-SENATE December 8, 1995 problems, is going to double its re­ For these reasons, Mr. President, I the act "proposes a nuclear weapons search and development expenditures must strongly oppose this bill and urge manufacturing complex sized to meet a by the year 2000. Our technology pro­ the President to veto it.• need of a hedge stockpile far above the grams are not corporate welfare; these active START II stockpile of 3500 weap­ have been programs that have helped ons." The total cost of producing our trigger the competitive rebound of our SPEEDY SEN ATE RATIFICATION nuclear weapons to date is about $4 Nation's firms and that have helped OF START II IS NECESSARY trillion. Compare that with our $5 tril­ small and medium-sized firms benefit • Mr. HARKIN. Mr. President, Wednes­ lion national debt. In 1995 alone, $12.4 from national technology programs day Senator BINGAMAN gave an impor­ billion was spent to build, operate and and projects, that would have other­ tant statement about the necessity to maintain strategic nuclear weapons. If wise been the exclusive privilege of ratify START II quickly, and I would we ratify START II we can give tax­ larger firms with the contacts, re­ like to add my voice in support of his payers the double peace dividend of sources, and infrastructure to cooper­ position. higher security at lower cost. ate with national laboratories. START II will cut the number of the Even if START II were fully imple­ This Commerce-Justice-State appro­ world's nuclear weapons in half, get­ mented, we would have more than 3,000 priations bill is a disturbing ideologi­ ting rid of nearly 4,000 deployed H­ deployed strategic missiles-500 war­ cal exercise that threatens the health bombs in Russia and about the same heads on missiles in silos, 1,680 war­ of our future economy. The technology number here. An overwhelming number heads on submarine-launched missiles, programs of the Department of Com­ of our citizens favor implementing this and 1,320 on airplanes. Furthermore, an merce help to expand our economy, treaty, and a large number of elected additional 4,000 nuclear weapons would help Americans compete in the global officials on both sides of the aisle have remain in our stockpile. Surely, this marketplace, and help to generate expressed their support for it. Names will be more than enough atomic fire high-quality, high-wage jobs that our and statements of support by Repub­ power to counter any conceivable lican leaders were read by my friend threat to the United States. workers need. Many say that the rea­ Mr. President, Russia and other son that the Advanced Technology Pro- from New Mexico, and I will not take time to add to this list now. former Soviet Republics are more open ' - gram is being eliminated is that the than ever before. We have all seen the projects did not earn any political own­ Apparently START II is being held hostage in a dispute over the consolida­ unprecedented pictures on television of ership. This is a sad commentary on tion of our foreign affairs agencies. I Russian missiles and airplanes being our judgment of what is important and hope this is not the case. destroyed. This new openness will not important as we make decisions in Even worse, some groups are now make START II even more verifiable our budget-cutting efforts. As Leslie calling to add certain conditions for then START I. With Russian elections Helm of the Los Angeles Times wrote ratifying START II. These conditions this month and our own presidential on November 26, 1995: have all been discussed in bills that election season just starting, we must The Advanced Technology Program . . . have now passed the Senate, and act now to keep the this olive branch works because projects are proposed by in­ should not be attached to the ratifica­ from withering. dustry and companies are required to match tion of a treaty. The Senate can not In conclusion, Mr. President, we need government money on their own. change START II, either we ratify it or to ratify START II quickly. It is not in This is an example of how we should not. Attaching political conditions on the national interest to play politics be leveraging the taxpayer's dollar, a treaty is a dangerous practice and over the ratification of any treaty. getting more from government invest­ should be avoided on procedural consid­ Russian President Yeltsin is ill and ments than we otherwise would erations. needs quick American ratification of achieve. The ATP was created during Mr. President, START II should be START II to help get the Russian Par­ the Bush administration and had ratified for many reasons. First, liament to ratify it. We need the secu­ strong bipartisan support, support that START II destroys weapons. This re­ rity of fewer Russian warheads now. such a promising, successful program duces the risk of an accidental launch. We need to stop spending so much should have today. Second, every Russian weapon de­ money making our nuclear weapons I also cannot support this bill be­ stroyed is a weapon we don't need tu now. We can use the warheads we have cause of the sharp reduction for the defend against. The following table now to defend America. We need to rat­ National Information Infrastructure shows the numbers and kinds of ICBMs ify START II now.• Grants Program. The NII Program as­ that can be eliminated under START sists hospitals, schools, libraries, and II. THE PASSING OF THOMAS L. local governments in procuring ad­ I ask that it be printed in the WASHINGTON vanced communications equipment to RECORD. The table follows: • Mr. ABRAHAM. Mr. President, it is provide better health care, education, with great, personal sadness that I and local government services. The note the passing this Tuesday, Decem­ conference report eliminates funding INTERNATIONAL BALLISTIC MISSILES-ELIMINATED UNDER START II ber 5 of Thomas L. Washington. Tom for the GLOBE Program, which pro­ was a personal friend, a valued sup­ motes knowledge of science and the en­ Delivery system Launchers Warheads porter, a concerned husband and fa­ vironment in our schools. And al­ SS-18 ...... 188 1.880 ther, and a dedicated leader in his com­ though it remains anemically funded, I SS-19 ...... 1170 1.020 munity. think that the reductions in this bill SS-24 ...... 46 460 SLBM's ...... , .. 2600 Tom was an avid and renowned for the Manufacturing Extension Pro­ sportsman. He exemplified all that is gram are wrong-headed and continue Totals ...... 404 3,960 good about the sportsman: he was the trend of undermining our Nation's 1 Some SS-19's may be converted to carry only a single warhead in order hardy and self-reliant; he also was fru­ best efforts in decades at partnering to offset the cost of developing a new launcher. 2Based on limit of 1,750 submarine launched ballistic missiles. The cur­ gal with and respectful of our great with industry to maintain our national rent Russian arsenal of SLBM's is estimated at 2,350. outdoors. Tom loved Michig~n's wet­ technological competitiveness both in Source: "Bulletin of Atomic Scientists," Nuclear Notebook, September/Oc­ lands and forests. He spent time in the commercial and national defense tober 1995. them, enjoying them and working to sectors. Mr. HARKIN. Additionally, destroy­ preserve them. We need to bias our spending toward ing weapons saves taxpayers' money. Because he loved the outdoors, Tom those projects that produce real growth Just look at the current Senate De­ founded and led the Michigan United in our economy. Growth generates fense authorization bill. As my friend Conservation Clubs. Indeed, he built jobs, better incomes, and a higher from New Mexico pointed out in the re­ that organization into the largest sin­ standard of living for our citizens. port to the Defense Authorization Act, gle State conservancy in the Nation. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35983 Tom was a strong, committed advo­ nation of all chemical weapons within jority of nations observed the Geneva cate for preserving Michigan's out­ 10 years. Protocol, which banned the first-use of doors, and also the great outdoors of This landmark treaty is perhaps the chemical weapons in war. However, the America and beyond, for all to enjoy. most comprehensive arms control use of chemical weapons by Saddam He served on the board of directors of agreement ever signed. To begin with, Hussein against Iran and the Iraqi Safari Club International and the Na­ the Chemical Weapons Convention re­ Kurdish population forced the world tional Wildlife Federation. True sports­ quires all signatories to begin destruc­ community to realize the danger of man that he was, he was as concerned tion of their chemical weapons stock­ these weapons. The production of to preserve the environment for future piles within 1 year of ratification, and chemical weapons by nations facili­ generations as to enjoy it for himself. to complete this destruction within 10 tates the proliferation of these weap­ Thus he helped draft legislation cre­ years. In addition, the CWC prohibits ons to state sponsored terrorist groups. ating the Michigan Natural Resources the production, use and distribution of The United States must place a high Trust Fund. This fund purchases prime this class of weapons, and provides an priority on the elimination of this recreational lands for public use with intrusive international monitoring or­ deadly class of weapons. If the United royalties from oil, gas, and mineral ganization in order to prevent the de­ States wishes to retain its position as production on State lands. In 1976 Tom velopment of these weapons. a world leader, the Senate must pro­ was appointed a charter member of the This verification allows not only for vide its advice and consent to the rati­ board that administers the fund. He the inspection of "declared" sites, but fication of the Chemical Weapons Con­ served on the board until his death, in­ also permits international inspectors vention with urgency, and persuade cluding several terms as chairman. access to any suspected undeclared fa­ other nations to follow our lead. He served on a number of Michigan cilities. Signatories do not have the Mr. President, to call attention to State committees, including the com­ right of refusal to deter inspection. the proliferation of weapons of mass mittee that wrote administrative rules Should a member nation requests a destruction, I would recommend a for the Michigan Farmland and Open "challenge inspection" of a suspected highly informative article by Robert Space Preservation Act, which is chemical facility, the nation called Wright entitled "Be Very Afraid", central to the State's land-use pro­ into question must permit the inspec­ which appeared in the May 1, 1995 edi­ gram. tors to enter the country within 12 tion of The New Republic. To Quote Tom also served on the Governor's hours. Within another 12 hours, the in­ Mr. Wright: Interim Committee on Environmental spectors must have been allowed entry All told, the world's current policy on weapons of mass destruction can be summa­ Education, the Michigan Department into the suspected warehouse. It is rized as follows: The more terrible and of Natural Resources Endangered Spe­ very unlikely that every trace of the threatening t.he weapon, the less we do about cies Committee, and the Governor's In­ banned chemicals could be eliminated it. There has never been a more opportune terim Committee on Environmental within 24 hours. time to rethink these priorities. * * *A good Education. And he served as vice ·chair­ In addition to providing broader pow­ model for reform exists in the Chemical man of the Governor's Michigan Land ers to an international inspection re­ Weapons Convention, which now awaits rati­ Inventory Committee. gime, the ewe includes strong punish­ fication after more than a decade of negotia­ He was a recipient of the American ment to those nations who choose to tion involving three administrations. The CWC has both kinds of teeth that the NP!' Motors Conservation Award, Safari violate this agreement. The violating lacks: A tough inspection regime and real Club International's Chairman's nation, as well as nonmember nations, punishment for violation. Award, and the Miles D. Pirnie Award could no longer purchase an entire I ask that the text of the article be for his leadership in preserving wet­ group of chemicals from member na­ printed in the RECORD. lands and wetlands wildlife. tions. The chemicals which would be There being no objection, the article Part of the reason for Tom's care for banned are necessary for factories to was ordered to be printed in the the environment no doubt stemmed produce products such as pesticides, RECORD, as follows: from the fact that he was a family plastics, and pharmaceuticals. So this [From the New Republic, May 1, 1995] man. He cared about his wife and chil­ measure is not only a "carrot" to in­ NUKES, NERVE GAS AND ANTHRAX SPORES-BE dren and wanted to pass on to them the duce nations to join, but a "stick" to VERY AFRAID same rights and the same opportunities ensure their compliance. (By Robert Wright) that he enjoyed. Obviously, Mr. President, no treaty Once you've assimilated the idea that an A hunter concerned to protect all our is 100 percent watertight, but the apocalyptic new-age cult with offices on rights, he also fought for the second strength of the international monitor­ three continents had stockpiled tons of amendment. ing regime, the Organization for the nerve-gas ingredients and was trying to cul­ Tom was elected president of NRA's Prohibition of Chemical Weapons, tivate the bacterial toxin that causes botu­ board of directors in 1994 and reelected makes the manufacture of chemical lism, the rest of the story ls pretty good weapons difficult to conceal, and the news. The cult, Aum Supreme Truth, em­ in 1995. First elected to the board of di­ ployed its nerve gas on only one of the con­ rectors in 1985, Tom served as second punishment provides a strong deterrent tinents, rather than aim for synchronized and then first vice president prior to to developing this class of weapons. gassings of the Tokyo, New York and Mos­ being elected president. Among all weapons of mass destruc­ cow subways. Only a small fraction of its Tom worked for responsible use of tion-biological, chemical, and nu­ chemical stock was used, and that was pre­ our rights, working with training and clear-chemical weapons are the most pared shoddily; the gas seems to have been a informational programs along with plausible and potent threat available degraded version of sarin, and the "delivery second amendment defense. to terrorists. These chemical weapons systems" the emitted it were barely worthy are relatively easy to make, and a dos­ of that name. Rather than thousands dead on He was a fine man, whom I person­ three continents we got eleven dead on one. ally shall miss. I extend my condo­ age that can kill thousands is very A happy ending. lences to the Washington family.• easy to conceal. Recent events in On the other hand, a worldwide display of Tokyo and Oklahoma City have pro­ well-run chemical and biological terrorism vided the wake-up call to the inter­ would have had its virtues. From mid-April RATIFY THE CHEMICAL WEAPONS national community, showing that the through mid-May, on the eve of the Nuclear CONVENTION world can no longer slumber in a blan­ Non-proliferation Treaty's expiration at age • Mr. HARKIN. Mr. President, the ket of false security. 25, representatives of more than 170 nations Chemical Weapons Convention [CWCJ From a historical perspective, agree­ are meeting in New York to vote on renew­ ing the treaty. Conceivably, this gala event is a watershed agreement that will ments to curtail chemical weapons use conld inspire a broader and much-needed dia­ eliminate an entire class of weapons of have been largely successful. The best logue on the state of the world's efforts to mass destruction. Upon ratification, example is the 1925 Geneva Protocol. control weapons of mass destruction, includ­ the ewe calls for the complete elimi- Even during World War II, the vast ma- ing chemical and biological arms. Then 35984 CONGRESSIONAL RECORD-SENATE December 8, 1995 again, conceivably it couldn't. So far at­ pices, went into Iraq, documented the nu­ the arms-control field, says Berry Kellman, a tempts to take a truly fresh look at this clear weapons program and dismantled it. law professor at DePaul University, it is a issue have tended to encounter a certain dull It's true that the existence of this program "wholly unprecedented document of inter­ inertia within policy-making circles. This is didn't come as a bolt from the blue. There national law." Were it already in effect, Aum the sort of condition for which 10,000 globally had long been grave suspicions, but Presi­ Supreme Truth's attempt to make chemical televised deaths on three continents might dent Bush's aversion to regional Iranian he­ weapons would have been a lot harder. have been just the cure. gemony had given him a certain tolerance Under the chemical convention, the Orga­ One salient feature of the world's approach for Iraqi excesses. Still, few suspected the nization for the Prohibition of Chemical to weapons of mass destruction is perverse­ scope of Saddam Hussein's nuclear program, Weapons (or OPCW, the CWC's version of the ness. The Nuclear Non-proliferation Treaty­ or the subtlety of its concealment. Hussein IAEA), would be routinely informed about the NPT-is a much weaker document than proved that the IAEA's inspection regime­ the commercial transfer of substances used the recently negotiated Chemical Weapons confined to declared nuclear sites-is inad­ to make chemical weapons-and substances convention, which now awaits American equate. used to make substances that are in turn ratification; yet nuclear weapons are much The first application of this lesson was in used to make chemical weapons. That covers more devastating than chemical ones. Mean­ North Korea. After inspection of a declared dozens and dozens of substances. It also cov­ while, biological weapons are essentially de­ site revealed nuclear materials to be miss­ ers a lot of sellers and buyers, because those void of international control, yet they're the ing, the IAEA, for the first time ever, asked substances tend to have legitimate uses as scariest of the three. They may not be the to look at an undeclared site. The North Ko­ well. Thiodiglycol is used to make both mus­ most potent-not for now, at least-but they rean refusal confirmed everyone's worst sus­ tard gas and ballpoint pen ink. Dimethyl­ have the greatest combination of potency picions, and thus revealed a second NPT defi­ amine makes for good nerve gas and deter­ and plausibility. If someone asks you to ciency: once the world knows something gent. In an impressive balancing act, CWC guess which technology will be the first to fishy is going on, there are no provisions for negotiators managed to craft a system that kill 100,000 Americans in a terrorist incident, assured and effective punishment. In theory (a) monitors the sale and transport of these you shouldn't hesitate; bet on biotechnology. the IAEA could appeal to the U .N. Security chemicals and entails periodic inspections; And not futuristic, genetically engineered, Council for economic sanctions-or, indeed, and (b) has the unambiguous support of the genocidal viruses, though these may be along for the authorization of air strikes against Chemical Manufacturers Association. eventually. Plain old first-generation bio­ the suspect facility. But often this channel Unlike the NPT, the CWC goes well beyond logical weapons-the same vintage as the will be blocked by a Big Five veto-possibly this inspection of " declared" sites-factories ones Aum Supreme Truth was trying to China's in the case of North Korea, perhaps that avowedly employ the suspect chemi­ make-are the great unheralded threat to Russia's in some future case involving Iran. cals-and provides explicitly for the inspec­ national security in the late 1990s. Of course, the IAEA can stop all further tion of undeclared sites. And here things can All told, the planet's current policy on shipment of nuclear materials to outlaw na­ happen pretty fast. If the United States re­ weapons of mass destruction can be summa­ tions. But it may be too late for that tack to quest, a " challenge inspection" of, say, a rized as follows: the more terrible and keep the bomb out of their hands, and any suspicious-looking warehouse in Iran (a sig­ threatening the weapon, the less we do about adverse effect on their energy supply natory), Iran must let inspectors into its it. There has never been a more opportune wouldn't be felt for a while. country within twelve hours of being noti­ Notwithstanding these flaws, the NPT has fied. After another twelve hours, it must time to rethink these priorities. have escorted the inspectors to the perim­ I been pretty effective. Nobody called John Kennedy an hysteric when in 1963 he pre­ eter of the warehouse. (Eliminating every To its credit, the Clinton administration dicted that within a dozen years fifteen to trace of chemical weapons manufacture has lately worked doggedly on behalf of NPT twenty nations would have the bomb. Yet within twenty-four hours is considered quite renewal. Officials have traveled the globe, now, thirty-two years later, the best guess is unlikely.) At this point there can be up to reminding world leaders that they're more that eight nations have a functioning ninety-six hours of negotiations about which secure with the treaty than without it, and bomb-the Big Five within the NPT and, parts of the warehouse are subject to inspec­ promising the more ambivalent ones God­ outside of it, Israel, Pakistan and India. (In tion. But any vehicles leaving the area in the knows-what in exchange for their support. meanwhile can be searched. addition, Ukraine, Belarus and Kazakhstan A country could conceivably keep this The treaty now seems assured of extension were born with the bomb, and say they'll before the New York conference adjourns. standoff going longer by arguing that a Extension is certainly better than non-ex­ give it up.) A primary reason for this glacial search warrant at the national level is re­ tension. Still, since its inception back in the pace is that the NPT eased fears, in large quired. Indeed, it might even be telling the 1960s, the treaty's structural weakness has chunks of the world, about the imminent nuclearization of neighbors. truth (though for chemical factories, already gotten sufficiently glaring that one wishes Still, the Middle East and south Asia have subject to government regulation, this ex­ those weren't the only two options. cuse wouldn't wash). And, what's more, such The idea behind the treaty was that the gotten arms-race fever since 1963, and North Korea may yet start a race in the Pacific. So a warrant might wind up being truly nuclear haves-Britain, China, France, Rus­ unobtainable-if, for example, the requested sia, the United States-would buy off the it would be nice to make the NPT more se­ ductive and effective: to raise both the bene­ search were of your indoor tennis court and have-nots. The have-nots would pledge not to fits of signing and the costs of reneging. And, the OPCW could provide no evidence of ille­ acquire nuclear weapons, and the haves gal activity there. Still, if such appeals to would help them get and maintain nuclear though no one is talking about using the present conference to amend the NPT (this national sovereignty had an overpoweringly energy for peaceful use. That was the carrot. phony air, the country could be deemed in Once the have-nots had signed on, they would supposedly open up various cans of worms) there is talk of reaching that goal in noncompliance with the treaty by a vote of would be subjected (along with the rest of us) OPCW member-states. to the stick: international inspection of nu­ other ways. For example, the IAEA can in­ Nations so deemed would truly be put in clear reactors, with the understanding that terpret its sometimes ambiguous mandate the dog-house. There is a whole slew of sub­ misuse of the technology would lead to its broadly-as it did in claiming the right to in­ stances relevant to chemical warfare that cutoff. Administering both carrot and stick spect undeclared sites in North Korea-and treaty violators could no longer buy from is the International Atomic Energy Agency, hope everyone goes along, thus setting a OPCW members, a group that would include or!AEA. precedent. Or the agency can approach mem­ roughly the whole industrialized world. And One oddity of this arrangement is that the ber nations collectively about a generic re­ the cutoff of these substances could harm IAEA's job is to relentlessly complicate its write of their individual "safeguard agree­ factories that make things ranging from pes­ own life. As it helps spread "peaceful" nu­ ments," the documents, technically separate ticides to plastics to ceramics to pharma­ clear materials around the globe, opportuni­ from the NPT, which grant the IAEA's power ceuticals. ties for illicit use multiply, and so does the to inspect. In any event, if NPT extension Here the CWC breaks momentously new need for stringent policing. Thus, the world happens early enough in New York, there ground, though less by design than by tech­ must get better and better at two things: de­ will be time for the conference at least to nological happenstance. Because of the flexi­ tecting cheaters, and punishing them with open a dialogue about the grave flaws of the bility of chemical technology, the treaty's sufficient force to deter others. Recent current regime. punishment by denial of "military" chemi­ events show the world to have failed in both II cals amounts to broad and immediately pain­ regards. A good rough model for reform exists in ful sanctions against the civilian economy. At the outset of the Persian Gulf war, Iraq the Chemical Weapons Convention, which And these sanctions are a good reason not was an NPT member in technically good now awaits Senate ratification after more just to stay in compliance, but to sign the standing. After the war, the world discovered than a decade of negotiation involving three treaty in the first place. If you don't join the what a meaningless fact that can be. Indeed, administrations. The CWC has both kinds of OPCW, its members-just about everybody­ as if to drive home the IAEA's impotence, a teeth that the NPT lacks: a tough inspection won't sell you these chemicals in the first separate agency, under United Nations aus- regime and real punishment for violation. In place. That's a carrot; and that's a stick. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35985 Obviously, no weapons control regime can most people still don't understand is that in that no nation has used biological weapons be foolproof. (That's why, notwithstanding important respects nuclear weapons aren't since World War II ls no reflection of the the NPT's high-minded call for the eventual as pernicious as biological weapons. likelihood of their future use. Only recently elimination of all the Earth's nuclear weap­ Ill has the technology become so widely avail­ ons, this won't happen anytime soon. A few In one sense, biological weapons are com­ able that a well-organized terrorist group powerful but reasonably responsible nations monly overestimated. People tend to assume can harness 1t. must preserve a nuclear arsenal, lest the they work by starting epidemics, when in Of all the things that might attract terror­ next, slightly w111er version of Saddam Hus­ fact most biological weapons kill by direct ists to biological warfare-the relative sein be empowered to hold the world hostage exposure, just like chemical weapons. To be cheapness, the inconspicuous productlon­ with half a dozen warheads, or other weapons sure, contagious weapons exist. American perhaps the most important ls the anonym­ of mass destruction.) Still, the CWC, given settlers purposefully gave Native Americans ity. A small, private airplane with 220 the complexity it confronts, would have a blankets infested with smallpox; more re­ pounds of anthrax spores could fly over good chance of success. It would make the cently, both American and Soviet m111tary Washington on a north-south route, engage manufacture of chemical weapons an endeav­ researchers have experimented with some in no notably odd behavior and-by OTA or with a significant risk of unmasking, and readily transmittable viruses. Stlll, in gen­ reckoning-trail an invisible mist that would unmasking would bring painful penalties­ eral, contagious weapons have a way of com­ kill a mllllon people on a day with moderate penalties that no Security Council member ing back to haunt the aggressor. So biologi­ wind. A plane spewing ten times that much would have the chance to veto. If the NPT cal weaponry this century has involved sarin would klll only around 600 people-or, had the CWC's built-in vigilance, Hussein mainly things like anthrax spores, which on a windier day, 6,000. More to the point: would have found it much harder to reach enter your lungs and hatch bacteria that the sarln attack, with its immediate effects, the point he reached and stlll retain NPT multiply within your body and finally kill would have authorities hunting for a culprit membership. And if the NPT had the CWC's you, but don't infest anyone else in the before the plane landed. Anthrax, in con­ membership benefits, it would be much hard­ meanwhile. trast, takes days to kick in; the pilot could er for any nation-Iraq, Israel, India, Paki­ Genetic engineering may eventually make be vacationing in the Caribbean before any­ stan-to bear the prospect of nonmember­ contagious weapons more likely. In prin­ one noticed that something was amiss. shlp. ciple, for example, one could design a virus Or consider this charming scenario, cour­ The irony in this disparity between the that would disproportionately afflict mem­ tesy of Kyle Olson of the Chemical and Bio­ NPT and the CWC is that nuclear weapons bers of a particular ethnic group, thus giving logical Arms Control Institute. Get a New are much more devastating than chemical some measure of safety to attackers of other York taxicab, put a tank of anthrax in the weapons. Japanese newspapers estimated ethnic persuasions. And-more realistically trunk and, by slightly adapting commer­ that Aum Supreme Truth's many tons of in the near term-genetic engineering makes cially available equipment, arrange for it to chemicals could theoretically cause 4 million it easier to match a klller virus with an ef­ release an imperceptible stream of aerosol. deaths, but the key word here is "theoreti­ fective vaccine, so that the aggressor could (You would be wise to build a special filter cally." This calculation assumes that the be immunized. Still, the main effect of mod­ for the air entering the cab, though getting poison gas ls spread with perfect efficiency, ern biotechnology to date-and it has been an anthrax vaccination might be enough pro­ so that every bit gets breathed by someone dramatic-is to make traditional weapons, tection.) Then drive around Manhattan for a and no one breathes more than his or her such as anthrax, much cheaper and easier to day or two. You'll kill tens of thousands, share (a lot to ask of a dying subway rider). produce. A basement-sized fac111ty, filled maybe hundreds of thousands, of people. More reasonable figures would be in the hun­ with the sort of equipment found at garden­ And, again, nob:)dy will know. With nerve dreds of thousands. variety medical labs and biotechnology com­ gas, in contrast, the long line of gagging, And even those numbers are inflated. If panies, wlll do the job; the recipes are avail­ writhing people leading to your taxicab you discovered a cache of 800,000 bullets, you able at college libraries; and the ingredi­ would arouse the suspicion of local authori­ might say this was enough to klll 500,000 peo­ ents-small cultures of pathogens that can ties-even if your gas mask had somehow es­ ple, even allowing for inefficient application. be rapidly multiplied in fermenting tanks-­ caped their attention. But inefficiency is only half the problem; are routinely bought from commercial ven­ Note that these scenarios make biological fairly early in the application process you'd dors or passed from professor to graduate weapons potentially genocidal even in an attract official resistance. So, too, wl th students. ethnically heterogeneous city. A taxi-cab chemical weapons. Whereas converting a sin­ The weapons that can result are phenome­ can be driven all over Harlem, block by gle nuclear bomb into 500,000 deaths is a sim­ nally destructive. An (excellent) Office of block-or, instead, through Chinatown or ple matter of parking a van and setting a Technology Assessment (OTA) report on through the Upper East Side. Terrorists, who timer, converting a single chemical weapon weapons of mass destruction estimates that have been known to harbor ethnic prejudice, into 500,000 deaths isn't even remotely pos­ a single warhead of anthrax spores landing in needn't wait for an ethnically biased de­ sible. A thousand deaths is more like it. Washington, D.C., on a day of moderate wind signer virus. Racking up large numbers means mounting a could kill 30,000 to 100,000 people-a bit more Though biological weapons are the most well-orchestrated campaign. damage than a Hiroshima-sized atomic bomb horrifying terrorist tool today, they are also This doesn't mean chemical weapons don't would do, though nothing like the devasta­ the furthest from being on the radar screen warrant the tight treatment they get in the tion from a modern nuclear warhead. (And a of any politician who matters. The Biologi­ ewe. For one thing, some of them, such as day of fever, coughing, vomiting and internal cal Weapons Convention of 1975, which com­ skin-melting and often nonlethal mustard bleeding is an appreciably less desirable way mits the United States, Russia and other sig­ gas, have uniquely horrifying effects. Sec­ to die than incineration.) In addition, an­ natories to forgo any biological weapons pro­ ond, although a single chemical weapon pos­ thrax spores buried in the soil, beyond the gram, is so toothless as to make the NPT sesses a tiny fraction of a nuclear bomb's reach of sunlight, live on. Grulnard Island, seem like a steel trap. (When in 1979 the So­ lethality, chemical weapons are much easier where Britain detonated an experimental an­ viet Union suffered a mysterious outbreak of to get. The recipe for making them is public, thrax bomb during World War II, is still un­ anthrax in the vicinity of a military re­ a first-rate chemistry major can follow it (if inhabitable. search facility, Pentagon officials weren't at some health risk), and the ingredients But a warhead is not the most likely form stunned; but the United States was powerless grow more widely available each decade. in which biological weapons will first reach to pursue its suspicions.) And no remedial Besides, chemical weapons, though the an American city. A ballistic missile, after proposal from the Clinton administration ls least massively destructive weapon of mass all, has a return address: so long as the Unit­ imminent. Meanwhile, the most visible re­ destruction, are much more potent than con­ ed States has a nuclear deterrent, Americans sult of a series of meetings among BWC sig­ ventional explosives. A conventional war­ can feel pretty secure against missile at­ natories about revising the BWC ls a series head might k111 ten people in a suburban tacks in general. And there's another prob­ of agreements to keep meeting. There is very neighborhood where a chemical warhead lem with missile-delivered biological weap­ little talk anywhere about giving the Bio­ could kill 100. The Iraqi chemical arsenal ons. The technological challenge of making logical Weapons Convention a rigor reminis­ discovered after the Persian Gulf war- an explosive device yield a widespread mist cent of the chemical convention. 100,000 artlllery shells, warheads and ls considerable. Iraq, we've learned since the When you ask people to explain this anom­ bombs-was theoretically enough to wipe out war, has done research on anthrax and aly, they cite the practical problems that the entire Israeli population many, many botulin weapons, but not with evident suc­ make detecting biological weapons harder times over. It is with good reason that chem­ cess. Stlll, if you're not attacking from a dis­ than detecting chemical weapons. There are ical weapons are put in a special class of tance and can deliver the spores in person, so many small, theoretically suspect rooms, global abhorrence and regulation, along with the obstacles to biological attack diminish. at so many medical and blotech facilities. nuclear and biological weapons. "Figuring out how to do it in a terrorist And upon inspection it's so hard to say for Still, chemical weapons aren't nearly as kind of way ls trivial," says one analyst in sure whether anything illicit is going on. pernicious as nuclear weapons. And what the defense establishment. Thus the fact The perfectly legitimate endeavor of making 35986 CONGRESSIONAL RECORD-SENATE December 8, 1995 anthrax vaccine, for example, is an excuse altles for noncompliance, the two sets of If President Clinton ever did decide to for having anthrax around-one of several penalties could be fused. If a country not exert leadership on the issue of weapons of potential "masks" for weapons production. complying with either treaty were cut off mass destruction, there is little chance that What's more, a small, inconspicuous supply from some trade in both chemicals and bio­ posterity would deem him alarmist. Not only to pathogens can, via fermentation, be technology equipment, noncompliance would are the threats he'd be addressing growing; turned into a weapon-scale supply a mere be extremely unattractive. their growth has deep and enduring roots: in­ two weeks after a satisfied international in­ For that matter, in theory-and in the creasing ingenuity in the manufacture of de­ spector cheerfully waves goodbye. long run-the NPT could be thrown in with structive force; increasing access, via infor­ It's true that these things dramatically this mix, so that the illegal development of mation technology, to the data required for complicate enforcement of the treaty. It's any weapon of mass destruction complicated this manufacture; wider availability, in an also true that they dramatically underscore one's access to state-of-the-art chemical, bi­ ever-more industrialized world, of the req­ the need for enforcement. Knowing that in ological and nuclear technology. This would uisite materials; and the increasing ease of thousands and thousands of buildings on this give the NPT much of the force it now lacks, their shipment. The underlying force is truly planet some graduate student or midlevel and would create a world in which the re­ inexorable; the accumulation of scientific manager could be breeding enough anthrax sponsible use of technology is a prerequisite knowledge and its application, via tech­ spores to decimate the city where I live­ for untrammeled access to it. Needles to say, nology, to human affairs. well, somehow I don't find that conducive to anyone who suggested such a thing in Wash­ Every once in a while the inevitable re­ a laissez-faire attitude. Using the plausibil­ ington policy-making circles would be ex­ sults of these trends become apparent-in ity of biological warfare as reason not to re­ pelled on grounds of hopeless romanticism. the discovery that Iraq had an extensive nu­ duce that plausibility is a bit too rich in IV clear bomb project and enough chemical irony. There are political reasons why biological weapons to murder a small nation; in the A few wild-eyed radicals have gone so far weapons have been given little of the atten­ fact that the World Trade Center bombers as to suggest new approaches to the problem. tion they deserve. For one thing, ratification succeeded in a mission that, given slightly One idea is to "internationalize" the produc­ of the Chemical Weapons Convention is seen more deft personnel and better financing, tion of vaccines; or, at least, to compress as a prerequisite for a new biological weap­ could well have involved biological weapons each country's vaccine production into fewer ons initiative. The CWC took more than a rather than explosives; in the news that a facilities, for easier (and assiduous) inter­ decade of arduous negotiating. If it flops, no nutty Japanese cult with an international national monitoring. That would strip all one is going to volunteer to lead the world presence was busily amassing a chemical and other facilities of one of the masks for weap­ on another visionary arms-control campaign. biological arsenal. So far none of these ob­ ons production-so that, say, anthrax spores Unfortunately, the CWC has been languish­ ject lessons has been driven home at the cost found during a challenge inspection would be ing in the Senate for nine months. It has the of tens of thousands, or hundreds of thou­ hard to explain away. nominal support of some important people, sands, of lives. But as time goes by, the cost This reform, of course, assumes that there such as President Clinton and Senator Rich­ of lessons will assuredly rise.• is such a thing as a challenge inspection for ard Lugar of the Foreign Relations Commit­ biological weapons, which there isn't. Adding tee. (Fortunately, Committee Chairman such inspections to the BWC is about the Jesse Helms-who at last check was getting most ambitious idea now floating around in India mixed up with Pakistan-is said to ORDERS FOR MONDAY, DECEMBER the Clinton administration (and it's not have ceded control of the ewe issue to 11, 1995 floatingrat the highest levels). The idea hear Lugar.) But neither Clinton, Lugar nor any­ Mr. HATCH. Mr. President, I ask wouldn't be to make the BWC as comprehen­ one else of stature has chosen to adopt the unanimous consent that when the Sen­ sive as the CWC. The degree of routinized in­ CWC as his mission in life. Eleven deaths on spections envisioned in the ewe ls probably a Japanese subway didn't push the issue ate completes its business today, it impractical for biological weapons, given the across the cause-du-jour threshold. stand in adjournment until the hour of sheer number of places that would be can­ Just as progress on chemical arms would 12 noon on Monday, December 11; that didates for inspection. Rather, a revised BWC pave the way for progress on biological arms, following the prayer, the Journal of might simply have signatories provide data extension of the NPT by an overwhelming proceedings be deemed approved to about all such sites and be subjected to an majority is considered a prerequisite for dis­ date, no resolutions come over-under occasional challenge inspection-at these cussing major reforms in the NPT verifica­ the rule, the call of the calendar be dis­ sites, or at undeclared sites. This would tion regime. Indeed, NPT extension would pensed with, the morning hour be make the production of biological weapons provide a quite bright spotlight in which an endeavor of at least incrementally in­ President Clinton could inaugurate this very deemed to have expired, the time for creased risk. And with weapons of mass de­ discussion-or for the matter a broader dis­ the two leaders be reserved for their struction, every increment counts. cussion on weapons of mass destruction. This use later in the day and there then be To that end, various other measures-for spotlight would also provide a domestic po­ a period for the transaction of morning "transparency," international intelligence litical opportunity for a president often dis­ business until 1 p.m., with Senators pooling and so on-are also bandied about. missed as insufficiently presidential. permitted to speak for up to 10 minutes The collective result of such measures is Of course, this is boilerplate thinkpiece­ each, and that at 1 p.m., the Senate re­ called a "web of deterrence" by Graham ending advice for presidents: give a speech; Pearson of Britain's Ministry of Defense. have a vision. It's easy to say if you don't sume consideration of Senate Joint Pearson reflects the view of the British gov­ have to spell out your fuzzy idealism in de­ Resolution 31. ernment that the BWC is in principle "verifi­ tail, much less reconcile it with gritty re­ The PRESIDING OFFICER (Mr. able." The Clinton administration, in con­ ality. But Brad Roberts of the Center for COATS). Without objection, it is so or­ trast, has yet to amend the official U.S. ver­ Strategic and· International Studies-not ex­ dered. dict to the contrary, which it inherited from actly a hotbed of woolly-minded one­ the Reagan-Bush era of cold-war-think, with worldism-laid out a pretty concrete version its inordinate fear of intrusive inspections of a lofty Clintonesque vision in a recent by communist masterminds. (The Reagan ad­ issue of The Washington Quarterly. Roberts PROGRAM ministration more or less stumbled into a extensively invoked internationalist acro­ Mr. HATCH. Mr. President, for the highly intrusive CWC; Assistant Secretary of nyms-not just CWC, BWC and NPT, but information of all Senators, by a pre­ Defense Richard Perle raised the issue of GATT and NAFTA. Making some nonobvious "challenge inspections," confident that the connections between trade regimes and non­ vious consent agreement, at 1 p.m., Soviets would say no, as a means of embar­ proliferation regimes, he argued that both amendments will be in order to the rassment. Then Mikhail Gorbachev assumed must be carefully crafted to attract and en­ constitutional amendment regarding power and called his bluff. The rest is his­ mesh a "new tier" of states recently en­ flag desecration. However, no votes tory.) dowed by technological evolution with the will occur and all votes ordered with One idea that has surfaced at the BWC's capacity to manufacture potent weapons. respect to amendments and the final periodic meetings on self-improvement is to With all these acronyms now in a critical vote will occur at 2:17 p.m. on Tuesday, piggyback a new, tougher BWC onto the phase in one sense or another, 1995 could December 12, 1995. CWC. The CWC's governing body at the "prove a genuine turning point"; "basic Hague could expand to encompass both international institutions will end the year Also, Senators should be aware that chemical and biological weapons, metamor­ either much strengthened or much weak­ it will be the majority leader's inten­ phosing from OPCW to OPCBW. Assuming ened"-and if the latter, the prospects for a tion, following the flag amendment that a new biological convention emulated stable post-cold-war world will sharply di­ vote, to begin the debate on Bosnia, the chemical convention in providing pen- minish. hopefully, under a time agreement. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35987 ORDER FOR ADJOURNMENT joyed the first period of unprecedented done in Derry to bring the two tradi­ Mr. HATCH. Mr. President, if there is peace in more than a generation. tions together, the nationalist and no further business to come before the Still, the issues which are at the root unionist traditions, to try and achieve Senate, I now ask unanimous consent cause of that violence remain to be ad­ economic opportunity for people. John that the Senate stand in adjournment dressed and resolved, Mr. President. Hume and others have worked tire­ under the previous order, following the Our former colleague, Senator George lessly to attract business and promote remarks of Senators DORGAN and DODD. Mitchell of Maine, has been asked by job growth in that community. It was The PRESIDING OFFICER. Without the Governments of Great Britain and truly a heartwarming sight to see the objection, it is so ordered. Ireland and the political parties in American President received by John Mr. HATCH. I yield the floor. Northern Ireland to chair a commis­ Hume in the square of Derry, while Mr. DODD. I suggest the absence of a sion, an international commission, to more than 50,000 people looked on. quorum. try and see if the issue of decommis­ Some of these people had lined the The PRESIDING OFFICER. The sioning of arms and related matters street since 9 a.m. in the morning, and clerk will call the roll. can be resolved as we proceed on a twin the President arrived late in the after­ The legislative clerk proceeded to track, of commencing all-party talks noon. call the roll. by the end of February. It is through In the Guild Hall the President got a Mr. DODD. Mr. President, I ask unan­ these twin tracks that the people of the tremendous reception; when the imous consent that the order for the Northern Ireland can live in permanent song "The Town I Love So Well" was quorum call be rescinded. peace, free from violence and discrimi­ sung, the audience was literally moved The PRESIDING OFFICER. Without nation. to tears. That song describes the trou­ objection, it is so ordered. The remarkable change in the North bles in Derry over the past two and one is very apparent to all who go there. half decades. President Clinton's efforts have made In Belfast, at the Christmas tree TRIP TO IRELAND that possible. I would say to my col­ lighting ceremony, 100,000 people gath­ Mr. DODD. Mr. President, a week or leagues that there is a deep apprecia­ ered in the great square in Belfast­ so ago, I had the distinct pleasure of tion on the island of Ireland for that ef­ Protestants and Catholics alike-wel­ traveling with our colleague from the fort. There was a risk involved in it. As coming our President to their city. State of Florida, CONNIE MACK, along my colleague, the Presiding Officer, This is the same city, where a few with a bipartisan delegation of 16 Mem­ will recall or remember, that the Presi­ months ago, you would not have bers of the House of Representatives, dent received a lot of advice and coun­ thought of sending an American Presi­ to Northern Ireland and the Republic sel about the wisdom of extending that dent because of the violence there, and of Ireland on the occasion of President first visa to Mr. Adams, given the his­ where people were fearful of that when Clinton's visit there. It was a historic tory of Sinn Fein and the IRA. Some they walked into a department store or visit, the first time that a sitting questioned whether or not there was a pub that place would be the subject of American President visited Northern sincere commitment to seek a peaceful attack and violence. Ireland. resolution of this conflict. Even after What was particularly historic was Allow me to say, first of all, that re­ the IRA announced its cease-fire last to see this crowd-again, presenting gardless of one's party, ideology or po­ year some continued to question the great traditions of Northern Ire­ litical persuasion, I think every Amer­ whether it would hold. I know the land-come together to express their ican, those who were there, those who President heard a lot of advice, the appreciation to an American President, witnessed on CNN the President's his­ bulk of it, in fact, recommended the American people, and to the United toric visit to Ireland, were moved by against extending that visa. States Congress; it certainly was one of the reception that our President re­ Our colleagues, Senator MOYNIHAN of the great sights I have witnessed in my ceived. New York, Senator KENNEDY, and oth­ tenure here in the United States Sen­ On three different occasions, at ers, urged the President to take the ate. speeches in Derry, in Belfast, and in chance, to extend that visa and to test And then, Mr. President, the Presi­ Dublin, the estimates of the crowds whether there was a true commitment dent was warmly received by the Par­ greeting the President were approxi­ to adopting the political track to re­ liament in the Republic of Ireland. The mately 250,000 people. That does not in­ solve differences and whether a cease­ people of Dublin also came out en clude the thousands of people who lined fire might work. As a result of that, we masse to express their appreciation. the various roadways to welcome the have seen, as I described briefly, the With over 100,000 people there as wit­ President to the North of Ireland and events that unfolded over the past year nesses, President Clinton was awarded to the Republic. or so. the "Freedom of the City" credentials His reception was directly related to Again, Mr. President, Ambassador that have only been awarded to a hand­ his efforts over the past 23 months to Jean Kennedy Smith and her staff, the ful of people in Dublin. This was truly try and bring an end to the Government of Prime Minister Bruton, a high honor to receive. The President generational conflict in Northern Ire­ Deputy Prime Minister Dick Spring, made very compelling remarks during land. The last 15 of those months have and other Irish officials, did a remark­ his stay in Dublin. been the first time in more than 25 able job, along with Sir Patrick Certainly, the sight of those children years that there has been the absence Mayhew and the people of Northern that the President constantly referred of violence and the threat of violence Ireland. to when he talked about the opportuni­ that has stemmed from what the peo­ I mentioned earlier Gerry Adams. ties and the hopes for peace in North­ ple in Ireland refer to as the Troubles. This is a man who has played a very ern Ireland-particularly the two chil­ The President deserves enormous courageous part in the quest for peace dren at the Mackie Metal Plant in Bel­ credit for setting the stage for that for his country men and women. fast-who joined hands, one Catholic, cessation of hostilities. His decision to There was a tremendous effort over one Protestant-representing by the extend a visa to Gerry Adams, the many months that went into making clasping of hands their hopes for com­ president of the Sinn Fein Party, early this trip the tremendous success that ing together and resolving differences in 1994 was the bold move that ulti­ it turned out to be. so people can live in peace on the is­ mately resulted in the decision by the John Hume, of Derry, whom all of us land of Ireland. IRA to announce a unilateral cease-fire have met at one time or another in the As a person of Irish descent, for me it in the fall of 1994. past 20 years, is the individual who was more than just a foreign visit, but For more than 15 months, the peoples really initiated the peace effort in a visit by someone whose family, on of Northern Ireland and Ireland, as well Northern Ireland and in Derry. What a both sides, has come from Ireland, as people in Great Britain, have en- remarkable job he and others have going back well into the early part of 35988 CONGRESSIONAL RECORD-SENATE December 8, 1995 the last century. I was deeply proud good part of his education here, I know appointment and a brief biography be that an American President had taken firsthand that he has a deep apprecia­ printed in the RECORD at the conclu­ the actions he has over the last couple tion for our Nation, a great love for sion of my remarks. of years and that this has made a dif­ America and for Americans. The PRESIDING OFFICER. Without ference in people's lives. The breadth of Mr. Solana's govern­ objection, it is so ordered. (See exhibit We have seen this administration ment experience is also broad and var­ 1.) take steps in Haiti, now in Bosnia, ied. He has served in one capacity or Mr. DODD. Mr. President, I am con­ there in Ireland, and in other places­ another in every Spanish Government fident that Dr. Solana is going to make steps that are certainly full of risks, since 1982, in addition to maintaining a a very fine Secretary General of NATO, but nonetheless I think risks worth strong involvement in his chosen pro­ at a time when we ought to be reaching taking, in the sense that we have been fession of physics. We are talking out to new members, as Spain has been able to make a difference in people's about someone of deep, long experi­ a relatively new member of NATO. lives. ence. He first served as the Culture I think this is a wise move, particu­ So it was a deeply moving time for Minister and simultaneously held the larly with someone who has enjoyed those of us who were part of this trip to portfolio of Government spokesman in broad-based support, and is a great have been present at a historic visit by the early 1980s. In 1988, he became the friend of the United States, a person an American President to a foreign Government's Minister of Education who knows our country very well. land. For all who witnessed the recep­ and served in that capacity until he I had the privilege of being with him tion he received, I think it makes ev­ was named Foreign Minister in 1992. in Spain a week ago, and I had a eryone-regardless of party, ideology, Mr. President, I am deeply disturbed chance to speak with him at some or political persuasion-very proud to that some of Mr. Solana's critics go length. This is an individual, I think, be an American. back 15 or more years to talk about most of our colleagues when they have Mr. Solana's initial opposition to an opportunity to meet him, will be NATO, without bothering to discuss deeply impressed and pleased with this JAVIER SOLANA-THE NEXT choice. SECRETARY GENERAL OF NATO the historical context of Spain's par­ So, Mr. President, I commend the Mr. DODD. Mr. President, I had the ticipation in NATO. NATO members for choosing him at At that time, Spain was emerging this critical hour, and I commend Sec­ privilege several days ago of meeting from a military dictatorship that they with the Foreign Minister of Spain, retary Christopher for his statement, Javier Solana, who has recently been had been under for many years. Mr. along with President Clinton's state­ appointed the new Secretary General of Solana felt participation in NATO at ment in support of his nomination. NATO. that particular moment was probably not the wisest course to follow. What is ExHIBIT 1 I happen to believe, Mr. President, STATEMENT BY SECRETARY OF STATE WARREN that this is a very fine choice, a superb important is what happens after that. CHRISTOPHER ON THE SELECTION OF JAVIER choice, one that I think should The critics fail to disclose-as appro­ SOLANA AS NATO SECRETARY GENERAL strengthen NATO and the political priate as it is to point out Mr. Solana's I am very pleased that the North Atlantic leadership of NATO in the months to initial opposition-that it was also Council has unanimously selected Javier come, particularly at a critical time through his efforts several years there­ Solana of Spain as the next Secretary Gen­ when the issue of Bosnia and NATO's after, that a convincing case was pre­ eral of NATO. role there is going to be so very, very sented to the Spanish people, on the Minister Solana has demonstrated time wisdom of Spain's participating in and again his commitment to strengthening important. NATO as the core institution of our trans­ I know that most Americans are NATO. atlantic alliance. Spain's membership in probably not familiar with Mr. Solana If Mr. Solana is going to be criticized NATO is due in no small part to his efforts-­ as a foreign minister of Spain. There for his opposition to Spain joining efforts that were not at all popular at the has been some criticism raised about NATO in the first instance, I think it is time. I feel confident that he has the this choice over Mr. Solana's opposi­ also appropriate that his involvement strength vision and leadership to guide tion some 15 years ago to Spain's par­ in convincing the Spanish people about NATO during this crucial period as we seek ticipation in NATO. As a result of his the wisdom of NATO membership be to bring peace to Bosnia and to pursue a mentioned as well. Certainly, he played measured path on NATO enlargement. statements then, there have been those Under Minister Solana's leadership, Spain who have criticized his choice to head a pivotal role in that. has played a key role in securing the peace that organization. He has been described by his col­ in Bosnia. Through the darkest days of that I thought it might be worthwhile to leagues in the foreign affairs field as an tragedy, Spanish soldiers served in the UN share something of Mr. Solana's back­ "expert" and a "pragmatic nego­ force with distinction. Spanish airmen flew ground and involvement when Spain tiator," who has always adopted a very with our pilots. Now Minister Solana will was making the decision about NATO commonsense approach to diplomacy. lead the effort to help bring peace to that membership. I also think it would be Dr. Solana has remained untouched by troubled region. More broadly, Minister Solana has been a informative for people to know about recent allegations that have been leader in promoting deeper ties between Eu­ the critical role he has played in the lodged against certain Government of­ rope and the United States. Indeed, he and Spanish Government over many years. ficials, both with respect to corruption Prime Minister Gonzalez have made the Finally, I believe my colleagues will and to the so-called dirty war, alleged strengthening of our transatlantic relation­ be surprised to know of the deep sense to have been conducted against the ship a priority of Spain's EU Presidency. of affection that Mr. Solana holds for Basque rebels. Their efforts were instrumental in laying the our country, knowing it as well as he I believe, Mr. President, we should be foundation for greater cooperation between does. I say that because Mr. Solana is extending our appreciation for Dr. the United States and the European Union a physicist, by academic training. He, Solana's willingness to accept the chal­ that we hope to build upon at the upcoming U.S.-EU Summit in Madrid. of course, received his undergraduate lenge of assuming the position of the Minister Solana has also worked to bring degree from the University of Madrid, Secretary General of NATO at this Spain into the community of European na­ and his Ph.D. from the University of very critical juncture in that organiza­ tions. It is fitting that he will complete his Virginia, while a Fulbright scholar. He tion's history. I, for one, think he is term as Spanish Foreign Minister as Presi­ taught physics at the University of the right man for the job. I applaud dent of both the European Union and the Chicago in this country before begin­ NATO members for the decision to ap­ Western European Union-two institutions ning any kind of a political career. He point him. which continue a process of European inte­ gration dating to the Marshall Plan. has published more than 30 books on Mr. President, at this point, I ask Minister Solana has strong ties to the the subject of physics. unanimous consent that a statement United States. He was a Fulbright scholar Having spent such a great deal of given by Secretary of State Warren from 1966 to 1968 at the University of Vir­ time in our country and receiving a Christopher in support of Dr. Solana's ginia, where he earned his Ph.D. in physics. December 8, 1995 CONGRESSIONAL RECORD-SENATE 35989 He returned to this country later as an in­ In the early 1970s he became a professor at ADJOURNMENT UNTIL MONDAY, structor in physics at the University of Chi­ the University of Madrid. DECEMBER 11, 1995 cago. He has kept up close ties to this coun­ Solana speaks excellent English. His wife, try, personal and official, through the inter­ the former Concha Gimenez Diaz-Oyuelos, Mr. DODD. Mr. President, I ask unan­ vening years. directs public relations for a state-owned de­ imous consent that the Senate stand in I have known Minister Solana personally partment store. The couple has two children. adjournment under the previous order. for many years and have worked closely with Solana's brother, Luis heads the Spanish na­ There being no objection, the Senate, him on a broad range of issues. I have great tional television network. at 2:40 p.m., adjourned until Monday, confidence in his leadership and his vision, December 11, 1995, at 12 noon. which will serve the Alliance well in coming Mr. DODD. Mr. President, I suggest years. I congratulate Minister Solana on his the absence of a quorum. appointment, and I look forward to working with him as we fulfill NATO's task of guard­ The PRESIDING OFFICER. The NOMINATIONS ing peace and stability throughout Europe. clerk will call the roll. The legislative clerk proceeded to Executive nominations received by JAVIER SOLANA MADARIAGA call the roll. the Senate December 8, 1995: Minister of Education and Science (since Mr. DODD. Mr. President, I ask unan­ THE JUDICIARY July 1988). imous consent that the order for the C. LYNWOOD SMITH, OF ALABAMA, TO BE UNITED A US-trained physicist, Javier Solana has quorum call be rescinded. STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT been a member of the executive committee OF ALABAMA. VICE E .B. HALTOM, JR .. RETIBED. of the Spanish Socialist Workers Party The PRESIDING OFFICER. Without (PSOE) since 1976 and a Madrid deputy in the objection, it is so ordered. Cortes (parliament) since 1977. Before assum­ WITHDRAWAL ing his current post, he served concurrently as Minister of Culture and as Government Executive message transmitted by Spokesman. the President to the Senate on Decem­ Solana was born on 14 July 1943. He joined ORDER FOR RECORD TO REMAIN ber 8, 1995, withdrawing from further the youth organization of the PSOE in the OPEN UNTIL 3:15 Senate consideration the following mid-1960s. During his student years he was Mr. DODD. Mr. President, I ask unan­ nomination: detained several times by the police and imous consent that the CONGRESSIONAL CORPORATION FOR NATIONAL AND COMMUNITY fined for unauthorized political activity. After receiving a degree in physics from the RECORD remain open until 3:15 p.m. SERVICE University of Madrid, Solana attended the today. C. RICHARD ALLEN. OF MARYLAND, TO BE A MANAGING DIBECTOR OF THE CORPORATION FOR NATIONAL AND University of Virginia studied and taught in The PRESIDING OFFICER. Without COMMUNITY SERVICE (NEW POSITION), WHICH WAS SENT Chicago, Illinois, and in La Jolla, California. objection, it is so ordered. TO THE SENATE ON JUNE 6, 1995.