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Authorization of the United States Armed Forces Against Iraq

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   The ACTING PRESIDENT pro tempore. Under the previous order, the Senate will now resume consideration of S.J. Res. 45, which the clerk will report.

   The legislative clerk read as follows:

   A joint resolution (S.J. Res. 45) to authorize the use of United States Armed Forces against Iraq.

   Pending:

   Lieberman/Warner modified amendment No. 4856, in the nature of a substitute;

   Byrd amendment No. 4868 (to amendment No. 4856, as modified), to provide statutory construction that constitutional authorities remain unaffected and that no additional grant of authority is made to the President not directly related to the existing threat posed by Iraq;

   Levin amendment No. 4862 (to amendment No. 4856), in the nature of a substitute.

   Mr. McCAIN. Mr. President, what is the parliamentary situation?

   AMENDMENT NO. 4869, AS MODIFIED

   The ACTING PRESIDENT pro tempore. Under the previous order, the clerk will report the amendment of the Senator from West Virginia.

   The legislative clerk read as follows:

   The Senator from West Virginia [Mr. BYRD] proposes an amendment numbered 4869, as modified.

   The amendment, as modified, is as follows:

    At the appropriate place, insert the following:

   SEC. 5. TERMINATION OF THE AUTHORIZATION FOR THE USE OF THE UNITED STATES ARMED FORCES.

    (a) IN GENERAL.--The authorization in section 4(a) shall terminate 12 months after the date of enactment of this joint resolution, except that the President may extend, for a period or periods of 12 months each, such authorization if--

    (1) the President determines and certifies to Congress for each such period, not later that 60 days before the date of termination of the authorization, that the extension is necessary for ongoing or impending military operations against Iraq under section 4(a); and

    (2) the Congress does not enact into law, before the extension of the authorization, a joint resolution disapproving the extension of the authorization for the additional 12-month period.

    (b) CONGRESSIONAL REVIEW PROCEDURES.--

    (1) IN GENERAL.--For purposes of subsection (a)(2), a joint resolution described in paragraph (2) shall be considered in the Senate and the House of Representatives in accordance with the procedures applicable to joint resolutions under paragraphs (3) through (8) of section 8066(c) of the Department of Defense Appropriations Act, 1985 (as contained in Public Law 98-473; 98 Stat. 1936-1937), except that--

    (A) references in those provisions to the Committee on Appropriations of the House of Representatives shall be deemed to be references to the Committee on International Relations of the House of Representatives; and

    (B) references in those provisions to the Committee on Appropriations of the Senate shall be deemed to be references to the Committee on Foreign Relations of the Senate.

    (2) JOINT RESOLUTION DEFINED.--For purposes of paragraph (1), the term ``joint resolution'' means only a joint resolution introduced after the date on which the certification of the President under subsection (a)(1) is received by Congress, the matter after the resolving clause of which is as follows: ``That, pursuant to section 5 of the Authorization for the Use of Military Force Against Iraq, the Congress disapproves the extension of the authorization under section 4(a) of that joint resolution for the additional 12-month period specified in the certification of the President to the Congress dated __.'', with the blank filled in with the appropriate date.

   Mr. McCAIN. And the time is running; is that correct?

   The ACTING PRESIDENT pro tempore. There are 20 minutes overall--15 minutes to the sponsor of the amendment and 5 minutes in opposition. If nobody yields time, time will be deducted proportionately.

   The Senator from West Virginia.

   Mr. BYRD. Mr. President, does the distinguished Senator from Arizona wish to use any time at this point?

   Mr. McCAIN. No.

   Mr. BYRD. Mr. President, how much time do I have?

   The ACTING PRESIDENT pro tempore. Fifteen minutes.

   Mr. BYRD. Mr. President, how much time does the distinguished Senator from Massachusetts wish?

   Mr. KENNEDY. Four and a half minutes.

   Mr. BYRD. I yield 5 minutes to the Senator from Massachusetts.

   The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.

   Mr. KENNEDY. Mr. President, for the past few days we have debated the details of a resolution but not the implication of war with Iraq. We were into the debate on the resolutions for 2 days, and then a cloture motion was filed. I am reminded of the excellent statements made by my friend from West Virginia that this subject about war and peace deserves a longer period of time for discussion.

   Earlier in the session, we debated for 21 days the Elementary and Secondary Education Act; 23 days on the energy bill; 19 days on trade promotion; 18 days on the farm bill--all extremely important, but this issue is far more so.

   In facing the global challenges of these times, we defend American values and interests best when war is our last resort, not our first impulse. I commend President Bush for deciding in the end to take America's case to the United Nations. Make no mistake about it, this resolution lets the President go it alone. Iraq should have no doubt of the unity of the American purpose and the seriousness of our intent. Having suffered the tragedy of September 11, we will leave no stone unturned in the defense of innocent Americans.

   The question is not whether we will disarm Saddam Hussein of his weapons of mass destruction but how. And it is wrong for Congress to declare war against Iraq now before we have exhausted the alternatives. It is wrong for the President to demand a declaration of war from Congress when he says he has not decided whether to go to war. It is wrong to avert our attention now from the greater and far more immediate threat of Osama bin Laden and al-Qaida terrorism.

   Pick up the paper and see the different headlines: ``Attacks Put Troops on Alert''; ``They fear contact with al-Qaida''; ``Tape, Assaults Stir Worry About Resurgent

   Al Qaeda''; and the list goes on about the al-Qaida activities all over the world.

   We cannot go it alone on Iraq and expect our allies to support us.

   We cannot go it alone and expect the world to stand with us in the urgent and ongoing war against terrorism and al-Qaida.

   We cannot go it alone in attacking Iraq and expect Saddam to keep his weapons of mass destruction at bay against us or our ally Israel.

   We cannot go it alone while urging unprincipled regimes to resist invasions of their adversaries.

   The better course for our Nation and for our goal of disarming Saddam Hussein is a two-step policy. We should approve a strong resolution today calling on the United Nations to require Iraq to submit to unfettered U.N. weapons inspections or face U.N.-backed international force. If such option fails, and Saddam refuses to cooperate, the President could then come to the Congress and request Congress to provide him with authorization to wage war against Iraq.

   By pursuing this course, we maximize the chance that the world can disarm Saddam without our going to war or, if war was necessary, we would be joined by allied troops in the cause. In the end, having tried these options and failed, our allies are far more likely to support our intervention should we elect to attack alone.

   The world looks to America not just because of our superior might or economic weight; they admire us and emulate us because we are a friend and ally that defends freedom and promotes our values around the globe. Those same traits that are the envy of the world should guide us today as we conclude this important debate.

   I thank the Senator from West Virginia, and I yield back to him the remainder of my time.

   Mr. BYRD. Mr. President, I thank the Senator. How much time do I have?

   The ACTING PRESIDENT pro tempore. The Senator has 11 minutes.

   Mr. BYRD. I reserve the remainder of my time.

   The ACTING PRESIDENT pro tempore. The Senator from Arizona.

   Mr. McCAIN. Mr. President, I understand we have 5 minutes. I yield that 5 minutes to the Senator from Connecticut however he chooses to use it.

   The ACTING PRESIDENT pro tempore. The Senator from Connecticut.

   Mr. LIEBERMAN. I thank the Chair. Mr. President, I thank my colleague from Arizona.

   The amendment of the Senator from West Virginia which is before us would terminate, 12 months after the date of enactment of the underlying joint resolution, the authorization given in that resolution. In other words, it would put a time limit of a year subject to extension, but, nonetheless, a time limit for a year on the authorization provided in the underlying resolution.

   I say to my colleagues respectfully, this amendment is unprecedented and unwise. It is unprecedented in the sense that in brief research overnight, I have not been able to find an occasion in which Congress has exercised authority with regard to military action under article I of the Constitution when Congress has attached a time limit to it.

   There was one occasion when time limits were discussed with regard to the deployment of American forces in Bosnia, the Balkans, during the nineties, but I think we saw there why congressional imposition of time limits on authorization of military action is unwise.

   Why is it unwise? It is unwise because it gives notice to our enemies that there is a limit to the authority we are giving the President as Commander in Chief of our military forces.

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   In Bosnia, when that deadline was articulated by the administration, it created expectations which were quite naturally frustrated and therein created a credibility gap.

   There is a deadline in the underlying resolution, and the deadline is what it ought to be and always has been for military actions in which the Armed Forces of the United States have been involved. The authorization ends when the mission is accomplished, and in this case the authorization would end when the two missions stated were accomplished: When the President as Commander in Chief concluded that America was adequately protected, our national security was adequately protected from threats from Iraq, and that the relevant United Nations resolutions were adequately being enforced. That is the deadline.

   If the mood of Congress should change, if the attitude of the public should change, Congress always reserves, as it has shown in the past, the power of the purse and the power to change its opinion. But this amendment at this time, as we try to gather our strength and unity of purpose to convince the international community to join with us, as they surely will, is to finally get Saddam Hussein to keep his promise to disarm at the end of the gulf war.

   We need no limitations on authority. We need to speak with a clear voice. As it says in the Bible, if the sound of the trumpet be uncertain, who shall follow? And if we put a 12-month time limit on the authority of the underlying resolution, I fear that fewer will follow and the result will be much less than we want it to be.

   I reserve the remainder of my time.

   Mr. McCAIN. Mr. President, I oppose the amendment offered by the Senator from West Virginia, which would sunset the authority Congress would grant to the President in this resolution to defend American security against the threat posed by Iraq.

   As the Senator has pointed out, the 12-month limit on congressional authorization for the use of force his amendment would set could be extended by presidential or congressional action. However, these requirements are onerous and infringe upon the authority of the Commander in Chief to meet his obligations to protect American security.

   The concept of imposing a deadline after which the President loses his authority to achieve the goals set out in the Iraq resolution strikes me as losing sight of the objective of a congressional authorization of the use of force: ending the threat to the United States and the world posed by Saddam Hussein's regime, so long as it possesses weapons of mass destruction and defies its obligations to the world.

   So long as that threat persists, and with Congress and the President having agreed that Saddam Hussein's regime endangers America, congressional authority for the President to use force must remain in force until he has met our common objective of disarming Saddam Hussein.

   To place a limit on the amount of time the President possesses this authority, once Congress has granted it to him, would only encourage Saddam Hussein to stall and temporize on his commitments, knowing that the clock is working in his favor. Such an incentive would make us less secure, not more secure.

   If the vast majority of Members of Congress and the American people agree upon the threat posed by Saddam Hussein's Iraq, and if we accept that the President will confront this danger within the parameters we have laid out in this congressional resolution, what about that threat would change in 12 months, assuming we have not acted against it by that time, that would somehow negate the President's need for the authority to meet it?

   If anything, the threat posed by Saddam Hussein's regime will only grow with time. Private and public estimates are that Saddam Hussein could possess nuclear weapons within six months to a year were he to acquire weapons-grade plutonium on the international market.

   That's why the President has requested the authority to act now. Saddam Hussein represents a grave and gathering danger. I hope he is no longer in power 1 year from now. But there is certainly a chance he could be.

   Congress cannot foresee the entire course of this conflict. Acting now to deprive the President 12 months from now of the authority we would grant him in this resolution would be an infringement on the authority of the Commander in Chief and a strange way to respond to the grave threat to American national security posed by Saddam Hussein's regime.

   The ACTING PRESIDENT pro tempore. Who yields time?

   Mr. BYRD. I yield 2 minutes to the distinguished Senator from Delaware.

   Mr. BIDEN. Mr. President, the Senator from Connecticut is right that article 1 of the Constitution does not provide for this, but article 1 of the Constitution also does not provide for a declaration of war before the President is asked to go to war. So this is a very different circumstance. The President has not asked us to go to war. He has said he wants the power to be able to go to war. It seems completely consistent with that request that we say: Yes, Mr. President, you have that power to go to war; you can do that within 1 year. If, in fact, you go to war in 1 year, you can extend that 1 year.

   Let me put it this way. If we are 2 years down the road still fooling around with Iraq, then my friends from Connecticut and other places have been so dead wrong about what we are supposed to do that it would be amazing.

   I point out that this is nothing like Bosnia and nothing like the Balkans. In that case, we were in the Balkans. There were forces there, and there were people on the floor who were attempting to put a time on how long they could stay after we had gone in, after we had already prevailed, after we were in place.

   The third point I make in the 2 minutes I have is, we learned from Vietnam the power of the purse is useless. The power of the purse is useless because it presents us with a Hobson's choice. We have our fighting men and women in place and we are told, by the way, the President will not take them home so let's cut off the support for them so they have no guns, no bullets, no ability to fight a war. And no one is willing to do that. This is a prudent way to do this, totally consistent with what the President is asking. I think it makes absolute eminent sense. I congratulate the Senator. Even though I disagree with him on his underlying notion, I do think he is right on this point and I support him.

   Mr. BYRD. How much time do I have remaining?

   The ACTING PRESIDENT pro tempore. The Senator has 9 minutes 20 seconds.

   Mr. BYRD. I ask to be notified when I have 2 minutes left.

   Mr. President, 38 years ago I, ROBERT C. BYRD, voted on the Tonkin Gulf Resolution--the resolution that authorized the President to use military force to ``repel armed attacks'' and ``to prevent further Communist aggression'' in Southeast Asia.

   It was this resolution that provided the basis for American involvement in the war in Vietnam.

   It was the resolution that lead to the longest war in American history.

   It led to the deaths of 58,000 Americans, and 150,000 Americans being wounded in action.

   It led to massive protests, a deeply divided country, and the deaths of more Americans at Kent State.

   It was a war that destroyed the Presidency of Lyndon Johnson and wrecked the administration of Richard Nixon.

   After all that carnage, we began to learn that, in voting for the Tonkin Gulf Resolution, we were basing our votes on bad information. We learned that the claims the administration made on the need for the Tonkin Gulf Resolution were simply not true, and history is repeating itself.

   We tragically and belatedly learned that we had not taken enough time to consider the resolution. We had not asked the right questions, nor enough questions. We learned that we should have been demanding more hard evidence from the administration rather than accepting the administration at its word.

   But it was too late.

   For all those spouting jingoes about going to war with Iraq, about the urgent need for regime change no matter what the cost, about the need to take out the evil dictator--and make no mistakes, I know and understand that

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   If we are fortunate, a war with Iraq will be a short one with few American deaths, as in the Persian Gulf war, and we can go around again waving flags and singing patriotic songs.

   Or, maybe we will find ourselves building another wall on the mall.

   I will always remember the words of Senator Wayne Morse, one of the two Senators who opposed the Tonkin Gulf Resolution. During the debate on the Tonkin Gulf Resolution, he stated: ``The resolution will pass, and Senators who vote for it will live to regret it.''

   Many Senators did live to regret it.

   The Tonkin Gulf Resolution contained a sunset provision to end military action. S.J. Res. 46 will allow the President to continue war for as long as he wants, against anyone he wants as long he feels it will help eliminate the threat posed by Iraq.

   With the Tonkin Gulf Resolution, Congress could ``terminate'' military action. With S.J. Res. 46 , only the President can terminate military action.

   I should point out that the Tonkin Gulf Resolution and S.J. Res. 46 do have several things in common. Congress is again being asked to vote on the use of force without hard evidence that the country poses an immediate threat to the national security of the United States. We are being asked to vote on a resolution authorizing the use of force in a hyped up, politically charged atmosphere in an election year. Congress is again being rushed into a judgment.

   This is why I stand here today, before this Chamber, and before this Nation, urging, pleading for some sanity, for more time to consider this resolution, for more hard evidence on the need for this resolution.

   Before we put this great Nation on the track to war, I want to see more evidence, hard evidence, not more Presidential rhetoric. In support of this resolution, several people have pointed out that President Kennedy acted unilaterally in the Cuban missile crisis. That is true. I remember that. I was here. I also remember President Kennedy going on national television and showing proof of the threat we faced. I remember him sending our UN ambassador, Adlai Stevenson, to the United Nations,

   to provide proof to the world that there was a threat to the national security of the United States.

   All we get from this administration is rhetoric. In fact, in an address to our NATO colleagues, Defense Secretary Donald Rumsfeld, according to the Chicago Tribune, urged our allies to resist the idea for the need of absolute proof about terrorists intent before they took action.

   Before we unleash what Thomas Jefferson called the ``dogs of war,'' I want to know, have we exhausted every avenue of peace? My favorite book does not say, blessed are the war makers. It says: ``Blessed are the peacemakers.'' Have we truly pursued peace?

   If the need for taking military action against Iraq is so obvious and so needed and so urgent, then why are nearly every one of our allies opposed to it? Why is the President on the phone nearly every day trying to convince our allies to join us?

   So many people, so many nations in the Arab world already hate and fear us. Why do we want them to hate and fear us even more?

   People are correct to point out that September 11 changed everything. We need to be more careful. We need to build up our intelligence efforts and our homeland security. But do we go around pounding everybody, anybody, who might pose a threat to our security? If we clobber Iraq today, do we clobber Iran tomorrow?

   When do we attack China? When do we attack North Korea? When do we attack Syria?

   Unless I can be shown proof that these distant nations do pose an immediate, serious threat to the national interests and security of the United States, I think we should finish our war on terrorism. I think we should destroy those who destroyed the Trade Towers and attacked the Pentagon. I think we should get thug No. 1 before we worry about thug No. 2.

   Yes, September 11 changed many aspects of our lives, but people still bleed. America's mothers will still weep for their sons and their daughters who will not come home.

   September 11 should have made us more aware of the pain that comes from being attacked. We, more than ever, are aware of the damage, the deaths, and the suffering that comes from violent attacks.

   The ACTING PRESIDENT pro tempore. The Senator has 2 minutes remaining.

   Mr. BYRD. I thank the Chair.

   This is what we are about to do to other countries. We are about to inflict this horrible suffering upon other people.

   Of course, we do not talk about this. We talk about taking out Saddam Hussein. We are talking about taking out Iraq, about ``regime change.''

   I do not want history to remember my country as being on the side of evil.

   During the Civil War, a minister expressed his hope to President Lincoln that the Lord was on the side of the North. The Great Emancipator reportedly rebuked the minister stating:

   It is my constant anxiety and prayer that I and this nation are on the Lord's side.

   Before I vote for this resolution for war, a war in which thousands, perhaps tens of thousands or hundred of thousands of people may die, I want to make sure that I and this Nation are on God's side.

   I want more time. I want more evidence. I want to know that I am right, that our Nation is right, and not just powerful.

   And I want the language that is in this amendment so that Congress can oversee this power grab and act to terminate it at some point in time--giving the President the opportunity to extend the time but let's keep Congress in the act.

   Senators, vote for this amendment. I plead with you.

   The ACTING PRESIDENT pro tempore. Who yields time?

   The Senator from Virginia.

   Mr. WARNER. Mr. President, I am opposed to the Byrd amendment, for this is a resolution to deter war.

   The amendment proposed by Senator Byrd would insert into the joint resolution, language which would state that nothing in that joint resolution: is intended to alter the constitutional authorities of the Congress to declare war, grant letters of marque and reprisal, or other authorities invested in Congress by Article I, Section 8, of the Constitution; or shall be construed as granting any authority to the President to use the U.S. Armed Forces for any purpose not directly related to a clear threat of imminent, sudden, and direct attack upon the U.S. or its armed forces unless the Congress otherwise authorizes.

   The amendment of the Senator from West Virginia attempts to do something that the Framers of the Constitution did not attempt--to define, with particularity, the extent of the President's powers as Commander in Chief of the Armed Forces. Specifically, it would limit the authority of the President to use Armed Forces to a narrowly defined set of circumstance--``a clear threat of imminent, sudden and direct attack upon the United States or its Armed Forces.'' Even when the United States enjoyed genuine geographic and political isolation from the Old World, such a limitation could not be maintained. Within a decade of the ratification of the Constitution, the United States engaged in an undeclared naval war with France. Shortly thereafter, we engaged in undeclared war with the Barbary States of North Africa, who had engaged in piratical depredations against American shipping.

   In 1861, President Lincoln, faced with an unprecedented situation, imposed a blockade--an act of war normally employed against a foreign enemy--upon the Southern Confederacy. He did this without congressional authorization. The Supreme Court later upheld this action in the famous Prize Cases, stating that the President had a constitutional duty to meet the insurrection as he found it; the determination that a state of war existed was for him to make.

   This is not a Republican or Democratic issue. Since 1945, Presidents of both parties have repeatedly committed American troops abroad without formal congressional approval. Whether in Korea, Grenada, Panama,

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   On September 11th of last year the American people

   awoke to the realization that they were in imminent danger, had been for some time, and this danger gives no warning. It is a different type of danger, but no less real and no less threatening to the Nation than more traditional ones. As the President reminded us in his speech to the Nation on Monday evening:

   Iraq could decide on any given day to provide a biological or chemical weapon to a terrorist group or individual terrorists. Alliance with terrorists could allow the Iraqi regime to attack America without leaving any fingerprints ..... confronting the threat posed by Iraq is crucial to winning the war on terror.

   On the Today Show this week, Richard Butler, former head of UNSCOM, was asked how easy it would be for the Iraqis to arm a terrorist group or an individual terrorist with weapons of mass destruction. His response was ``Extremely easy. If they decided to do it, piece of cake!''

   They may already have done it. The danger is clear, present, and imminent. We must grant the President the authority to use armed force to protect the Nation, and the flexibility to employ that force as seems best to him. Our enemies are cunning and flexible; we cannot defeat them with anything less.

   The Byrd amendment regarding preservation of Congress's constitutional authorities is unnecessary. The portion of the amendment that would limit the authority of the President to wage war is, arguably unconstitutional. The Congress can declare war, but it cannot dictate to the President how to wage war. No law passed by Congress could alter the constitutional separation of powers.

   I urge my colleagues to defeat this amendment.

   The ACTING PRESIDENT pro tempore. The Senator from Connecticut.

   Mr. LIEBERMAN. Mr. President, I yield the remaining time on our side to my friend from Arizona.

   The ACTING PRESIDENT pro tempore. The Senator from Arizona.

   Mr. McCAIN. Mr. President, I thank the Senator from Connecticut for his thoughtful statement. I want to say in the few remaining seconds that to view the cause of the tragedy of the Vietnam war as being the Tonkin Gulf resolution is a somewhat, in my view, simplistic view.

   There were a lot of factors that entered into the beginning and the continuation of the Vietnam war. The Tonkin Gulf resolution was simply window dressing. At any time the Congress of the United States could have reversed that resolution and chose not to.

   The ACTING PRESIDENT pro tempore. The time in opposition has expired.

   The sponsor has 37 seconds.

   Mr. BYRD. Mr. President, this is a Tonkin Gulf resolution all over again. Let us stop, look, and listen. Let us not give this President, or any President, unchecked power. Remember the Constitution. Remember the Constitution.

   Mr. President, I yield back my time.

   The ACTING PRESIDENT pro tempore. The Senator from Connecticut.

   Mr. LIEBERMAN. Mr. President, have the yeas and nays been ordered?

   The ACTING PRESIDENT pro tempore. They have not.

   Mr. LIEBERMAN. I ask for the yeas and nays.

   The ACTING PRESIDENT pro tempore. Is there a sufficient second?

   There appears to be a sufficient second.

   The question is on agreeing to Byrd amendment No. 4869, as modified.

   The clerk will call the roll.

   The legislative clerk called the roll.

   Mr. REID. I announce that the Senator from Arkansas (Mrs. LINCOLN) and the Senator from Maryland (Ms. MIKULSKI), are necessarily absent.

   Mr. NICKLES. I announce that the Senator from North Carolina (Mr. HELMS) is necessarily absent.

   The PRESIDING OFFICER (Mr. MILLER). Are there any other Senators in the Chamber desiring to vote?

   The result was announced--yeas 31, nays 66, as follows:

   Akaka

   Biden

   Bingaman

   Boxer

   Byrd

   Cantwell

   Chafee

   Clinton

   Conrad

   Corzine

   Dayton

   Dodd

   Dorgan

   Durbin

   Feingold

   Harkin

   Hollings

   Inouye

   Jeffords

   Kennedy

   Kerry

   Kohl

   Leahy

   Levin

   Rockefeller

   Sarbanes

   Schumer

   Stabenow

   Torricelli

   Wellstone

   Wyden

   Allard

   Allen

   Baucus

   Bayh

   Bennett

   Bond

   Breaux

   Brownback

   Bunning

   Burns

   Campbell

   Carnahan

   Carper

   Cleland

   Cochran

   Collins

   Craig

   Crapo

   Daschle

   DeWine

   Domenici

   Edwards

   Ensign

   Enzi

   Feinstein

   Fitzgerald

   Frist

   Graham

   Gramm

   Grassley

   Gregg

   Hagel

   Hatch

   Hutchinson

   Hutchison

   Inhofe

   Johnson

   Kyl

   Landrieu

   Lieberman

   Lott

   Lugar

   McCain

   McConnell

   Miller

   Murkowski

   Murray

   Nelson (FL)

   Nelson (NE)

   Nickles

   Reed

   Reid

   Roberts

   Santorum

   Sessions

   Shelby

   Smith (NH)

   Smith (OR)

   Snowe

   Specter

   Stevens

   Thomas

   Thompson

   Thurmond

   Voinovich

   Warner

   Helms

   Lincoln

   Mikulski

   The amendment (No. 4869), as modified, was rejected.

   The PRESIDING OFFICER. Under the previous order, there will now be 45 minutes prior to the cloture vote on amendment No. 4856, as modified. Under the previous order, the first 15 minutes shall be under the control of the Senator from West Virginia, Mr. Byrd, the second 15 minutes shall be under the control of the Republican leader, and the third 15 minutes shall be under the control of the majority leader.

   Mr. BYRD. Mr. President, I yield 5 minutes of my 15 minutes to the distinguish Senator from Pennsylvania, Mr. Specter.

   The PRESIDING OFFICER. The Senator from Pennsylvania.

   Mr. SPECTER. I thank the distinguished President pro tempore and the Chair.

   Mr. President, I have sought this time to register my very strong objection to cloture on this resolution authorizing the use of force, which is the equivalent of a declaration of war. In my 22 years in the Senate, the only issue which has been of equal importance was the authorization for the use of force in 1991. The motion to invoke cloture, which is to cut off debate, is supposed to be done when there is a filibuster. However, there is no filibuster present on this issue.

   I came to the floor yesterday in an effort to participate in a colloquy with Senator Lieberman, the lead proponent of the bill, and found that all the time was allotted and all the time was taken. When no one appeared, we had about 3 minutes to discuss an issue which really required 30 minutes or an hour. I then sought time later in the afternoon, and all the time was taken. I then sought time this morning and find that the only time which is available is some time after 5 p.m. this afternoon.

   It is customary in the Senate to see two lights on for a quorum call, but there have been very few quorum calls on this resolution--really none--except when Senators are on their way to the floor or when there are discussions. So there has certainly not been any effort to filibuster. Those who sought time to come over and discuss important issues have found that there is no time to do so.

   We now have a series of amendments lined up with time allocations which are very brief. To discuss the cloture resolution itself in 45 minutes is very limited. To discuss the amendments which are pending is very difficult.

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   test for the President to use force to carry out U.N. resolutions, whereas in the current resolution, it is subjective as the President sees fit. That is a matter of great moment which has not been debated in the Senate.

   The resolution has numerous whereas clauses so that one can read the resolution to justify the use of force if the Iraqi Government continues to abuse its citizens. I would not want to say the Iraqi Government has not abused its citizens, but I do not believe anyone is seriously contending that is the basis for the President to take the United States to war. To stop Saddam Hussein from having weapons of mass destruction which pose a threat to the United States, is a reason.

   Then there is the issue of regime change, which is in the whereas clause. The resolution contains a provision for U.S. national security interests. I posed questions to the Senator from Connecticut yesterday as to whether regime change was comprehended in our national security interest. That has yet to be answered.

   The point I am making is that this is a matter which requires discussion and analysis. I do not believe it helps the President of the United States to have the Senate rush to judgment. It is not quite a blank check. It is not quite a knee-jerk reaction, but it is not the kind of deliberation that ought to characterize the work of this body. It would be unfortunate if the Senate votes for a resolution authorizing the use of force notwithstanding the questions which I have raised, although I said on the floor before that I may well support the President. However, if we do so in a context of deliberation and thoughtfulness when people like Senator Lieberman, Senator McCain, Senator Warner, Senator Biden, Senator Jeffords, and other Members, put our imprimatur on it, it has some significance in the international arena, providing it is debated, and providing there is some lucid discussion on all of the issues we are confronting.

   I noted in the ``Philadelphia Inquirer'' this week the comment of a House member: The President has handcuffed us. I am voting yes on this resolution because I think ultimately the box the President has put us in has forced us to vote in the interests of national security.

   I do not think we ought to vote for this resolution because we are being handcuffed. I do not think anyone anywhere ought to vote for a resolution for being handcuffed or for being put in a box.

   These are matters which require a lot of analysis and a lot of debate. The cloture motion will cut off nongermane amendments. That is a very tight restriction. Other amendments ought to be offered which are very important to the discussion on this critical matter. I thank the Senator from West Virginia, and I yield the floor.

   The PRESIDING OFFICER. The Senator from West Virginia.

   Mr. BYRD. Mr. President, I thank the distinguished Senator for a very courageous statement.

   The Polycraticus of John of Salisbury, completed in 1159, says that Nero, the sixth in line from Julius, having heard the Senate had condemned him to death, begged that someone would give him courage to die by dying with him as an example. When he perceived the horseman drawing near, he upbraided his own cowardice by saying: ``I die shamefully.'' So saying, he drove the steel into his own throat and thus, says John of Salisbury, came to an end the whole House of the Caesars.

   Mr. President, here in this pernicious resolution on which the Senate will vote soon, we find the dagger that is being held at the throat of the Senate of the United States. I say to my friends, we ought to pause and wonder if Captain John Parker and his minutemen fought on the green of Lexington for this piece of rag, this so-called resolution. When Parker lost 8 or 10 of his men with that first shot, is this what they died for, this resolution? Is that what they died for?

   How about John Paul Jones, when he was fighting the Serapis. He was the captain of the Bon Homme Richard when he said, I have not yet begun to fight. What he was fighting for? Was he fighting for this piece of cowardice here in this resolution that gives to the President--lock, stock and barrel--the authority to use the military forces of this country however he will, whenever he will, and wherever he will, and for as long as he will?

   We are handing this over to the President of the United States. When we do that, we can put a sign on the top of this Capitol, and we can say: ``Gone home.'' ``Gone fishing.'' ``Out of business.''

   I don't believe our forebears died for that kind of a piece of paper. How about Nathan Hale? He, too, was from Connecticut, may I say to the chief sponsor of this resolution. Nathan Hale volunteered to go into the British lines when he was called upon to do so by George Washington. He volunteered. He went behind the British lines to draw the gun emplacements, the breastwork of the British. And on the night of September 21, 1776, he was prepared to return to his own lines. He had on his person the pictures that he had drawn, the notes he had made, and he was discovered as a spy on the night of September 21, 1776. Nathan Hale.

   The next morning he was hauled up before a wooden coffin in which he knew that his body would soon lie and grow cold. And the captain of the British, Captain Cunningham, said to Nathan Hale: Do you have anything that you would like to say? He had already been refused a Bible. He was asked, did he have anything further.

   He said: I only regret that I have but one life to lose for my country.

   Nathan Hale gave his own life, one life. It was all he had. Can we give one vote for our country today? Each of us took an oath under this Constitution. You took it in the chair, Mr. President. Mr. Senator from Virginia, you took it. This is the Constitution that James Madison from the State of Virginia helped to write; that George Washington helped to write. We take an oath to support and defend that Constitution. Are we defending it here today? Are we defending the role of the Senate as set forth in this Constitution which says Congress shall declare war?

   Here we are about to hand off that role, that responsibility, to a President of the United States without limitation. He can go on and on. We are out of it. Once we

   pass this resolution and it is signed by the President, Senators are out of it. You can complain, but it won't help.

   I say that we are denying the American people their right to be heard. Here we are being shut off on a cloture vote. I know the rules of the Senate. I have used the cloture vote myself. But in a situation such as this, I have pleaded for time, more time. I have been turned down.

   The American people out there are going to render a judgment. They are going to render a judgment on every Senator in this body before it is over. I pray to God that if we go to war with Iraq, we will be lucky. I pray to God we will be lucky.

   Nobody will support this country in war any more strongly than will I. But here today we are being tested. I didn't swear to support and defend the President of the United States when I came here. I pledged on the Bible up there on the desk to support and defend the Constitution of the United States, so help me God. That was no light prayer. That was no light oath.

   I think we ought to look inside of ourselves. Look at our children and grandchildren. Look in the mirror and see if you can say: Old buddy, I voted for what I thought was right. I voted with the Constitution.

   They say: Well, support our Commander in Chief. He is Commander in Chief of the Army and Navy and the militia when called into service. He is not Commander in Chief of industry. He is not Commander in Chief of the Senate of the United States. So where are the Nathan Hales today who would give their life, their own life for their country? Give one vote for this Constitution. After all, if it were not for this Constitution, I wouldn't be here. You would not be here. You would not be here. You would not be here. None of us would be here. But because of this Constitution, we are here today.

   The people want us to ask questions. They want us to take a stand. They want us to take a stand against this stampede. Where are Senators today? Where are the backbones that stand up for the people? How many mothers, how many fathers will see their sons and their daughters die possibly in a war in a foreign land?

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   I say, my friends, I am sorry to see this day. This is my 50th year in Congress. I never would have thought I would find a Senate which would lack the backbone to stand up against the stampede, this rush to war, this rush to give to the President of the United States, whatever President he is, whatever party, this rush to give a President, to put it in his hands alone, to let him determine alone when he will send the sons and daughters of the American people into war, let him have control of the military forces. He will not only make war, but he will declare war.

   That flies in the face of this Constitution. This Constitution does not give to a President of the United States the right to determine when, where, how, and for how long he will use the military forces of the United States.

   I plead to Senators in the name of this Constitution: We need people who will stand up for the American people. We need Senators who will take a stand. I hope Senators will take what I am saying in the best of spirit. I think we are making one horrible mistake.

   Remember: I only regret that I have but one life to lose for my country. Nathan Hale.

   The PRESIDING OFFICER. Under the previous order, the next 15 minutes will be controlled by the Republican Party.

   The Republican leader is recognized.

   Mr. LOTT. Mr. President, I believe under the agreement, I have 15 minutes of this time.

   The PRESIDING OFFICER. The Senator is correct.

   Mr. LOTT. I will use approximately 5 minutes of the time and yield the remainder of my time to Senator Warner.

   I would like to begin by saying how much I appreciate the work that has been done here in handling this legislation, having a full debate. Senator Warner has been here joining in the discussion, Senator Reid, Senator McCain. There has been a serious effort to make sure we had an orderly process where Senators could make their feelings known. There has been thoughtful discussion on both sides of the issue, and there might have been one or two quorum calls the whole time because Senators have known, when you come to the floor, this will be your opportunity to speak on this issue.

   And there will be more time today. As I look at the schedule that was lined up through the diligent efforts of Senator Warner, Senator McCain, and Senator Reid, we are going to have votes on amendments--even amendments that would not be germaine postcloture. There has been a real effort to make sure Senator Byrd and Senators LEVIN, DURBIN, BOXER, and others have an opportunity to offer amendments and make their case. We will have five votes between now and approximately 4 o'clock this afternoon.

   Mr. President, I remember the discussion back in 1991 on the Persian Gulf resolution. I think we had about 2 days of debate previously, and 2 1/2 days when we actually took up the debate--when it passed. It was a very important debate. I thought it was an occasion when the Senate proved it is the world's greatest deliberative body. It was very serious. Every Senator spoke, we had the vote, and it passed. I thought it was one of the high-water marks since I have served in the Senate. It was only 2 1/2 days and every Senator got a chance to speak.

   In 1998, at the request of President Clinton, I moved aggressively, in a bipartisan way, to pass the Iraqi Liberation Act. As I recall, at that time, Senator Kyl worked with me on that issue, Senator Warner was involved, as were Senators KERRY and LIEBERMAN, and we passed that resolution, which also called for a regime change unanimously, with very short debate--as I recall, maybe even a half day, or a day at the most. But it was important debate and an important vote.

   So when we have been called on by Presidents of both parties to address this very serious issue in this very serious area of the world, we have handled it in the right way. I think that is the case here. Senators were told in my conference, and I know Senator Daschle told his side's conference, you will be able to speak on Friday and, again, on Monday. We will stay as long as you need. We had all day yesterday. A great effort was made to make sure Senators had a chance to speak. Now Senators have a chance to offer amendments and speak on them. After the vote between 3 and 4 o'clock, there will be more time because Senators do feel strongly about this and want an opportunity to be heard. They are going to have that opportunity.

   I believe this issue has been aired fully. It is not new. We have been worrying about this, talking about this, and debating the seriousness of the threat from Saddam Hussein and his weapons of mass destruction for years--really, for 11 years. There is new information that is available. We have had our classified briefings. I have made sure Senators on our side--and I know the administration has made sure Senators on both sides of the aisle--have had a chance to get briefings at multiple opportunities. So Senators know what the issue is. We have seen, yesterday, Senators from both parties moving toward giving the President the authority to do this job.

   I hope we can get inspectors in there, that they can find the weapons of mass destruction, and they are destroyed. But I don't trust Saddam Hussein. His record is clear. I think, once again, he will resist, he will agree, he will dissemble. In the end, he will try to block this. You can always hope and pray we will find a solution here.

   The President of the United States has listened to the American people, to the Congress, to the U.N, and our allies. The President came to the Congress and said, yes, I want your input. He sent up some suggested language on this resolution, and it was changed once and then twice; significant changes were made at the recommendation of Senators on both sides of the

   aisle. So he has worked with us in this effort. He encouraged our involvement and our debate. He has gone to the U.N. and called on them to stand up to their commitment and do their job, and quit passing resolutions that are not backed or demanded to be complied with, with force if necessary. He did the job. He and his administration, including the Secretary of State, Colin Powell, have worked with allies at the U.N. and with our allies around the world. This President has made it clear he is not going to act precipitously, but he is prepared to act.

   This President has led with commitment and has shown leadership. He is prepared to try to find a peaceful solution here. But unless we make it clear he is committed, we are committed, and the U.N. is committed, this problem will not go away. It is serious and it is imminent. It takes but one person with a small container to bring very dangerous weapons of mass destruction into this country.

   Some people say, why now? Well, because the threat is not going to lessen. It has been 4 years since we passed the Iraqi Liberation Act in 1998. I suspect matters have gotten much worse. Besides that, the U.N. is going to be leaving soon for the year and won't be back until next August. We want to see action from the U.N. We need to act to show our commitment, and we need to show our determination to get them to act in a way that has real force.

   I think we have had a full debate and we will have more debate. To try to delay it another day, another week, is not going to be helpful. We need to stand up now, show we mean what we say, and we are going to get the results and, by doing that, perhaps something can be worked out without the use of force. But this President has asked for this. This Senate is committed to this. I believe the vote will be overwhelming.

   I urge my colleagues to vote for cloture. There will be times for postcloture debate. We have bent over backward to make sure everybody had an opportunity and will still have an opportunity to speak and even offer amendments.

   With that, I yield the remainder of my time to the Senator from Virginia, who has done a magnificent job in fairly managing this legislation.

   Mr. WARNER. I thank the leader. I appreciate very much the calm tone with which he addresses this issue of a rush to judgment. Regrettably, our colleague from Pennsylvania used those terms. I was reminded of being here last Friday afternoon for 5 1/2 hours. What a memorable opportunity it was with my distinguished colleague from West Virginia. Senator Kennedy and Senator Dodd joined in. I think we went about a very constructive debate

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   Mr. President, this is not a rush to judgment. This is the Senate working diligently. Most of us were here close to 11 o'clock last night. In parallel, as the distinguished leader said--I remember it so well--the period of January 10 through 12, when a resolution, again drawn up by my colleague from Connecticut, the principal sponsor this time, at that time I was the principal sponsor. It was carefully debated. The Senate is doing its job and doing it well. We have had a very good debate and we will complete that debate here today, tomorrow, or whatever the case may be.

   I wish to draw the attention of the Senate to the last vote--a very strong vote, not against our colleague from West Virginia. But I thought, as he mentioned the Gulf of Tonkin, how appropriate it was that in the leader's chair, Senator McCain, my partner who is working diligently with me on this side, spoke very softly of his experience. I don't know of anyone in this Chamber more qualified than he to speak to that period, and the relevance of that resolution. I was Secretary of the Navy for 5 years, and Under Secretary during that period of time, and we remember well that period.

   I wish to talk about the President of the United States. As I look upon this situation and listen to the debate, I think we are of a mind, all 100 of us, of the seriousness of these weapons of mass destruction. We may have a difference of conscience as to the level of threat posed perhaps today, tomorrow, in the future, but it is there. This is no question.

   I stop to think that the United Nations has done nothing for 4 years. They have not sought to enforce the resolutions, 16 in number. It has been this President, President George Bush, who has taken the initiative to go not only to the American people, but to the whole world, and very carefully and methodically tell the world we should be on alert; we cannot do nothing. We should join as a community of nations to address it. He said that at the United Nations very brilliantly. I think everyone in this body respects him.

   As we are debating today, another debate is taking place in the U.N. To the extent this resolution remains strong as it is now is the extent to which we can expect an equal and perhaps even stronger statement of resolve by the United Nations to fulfill its mandate, to fulfill its charter.

   The League of Nations failed to act at a critical time in the history of this Nation, and it went into the dustbin of history. The United Nations will not go into the dustbin of history. I am confident that this time they will stand up, that they will devise a 17th resolution.

   I look upon the action by the Senate today in voting a strong bipartisan vote for this resolution as not an act of war. It is an act to deter war, to put in place the tools for our President and our Secretary of State to get the strongest possible resolution in the United Nations. It is an act seen to force, I repeat, the last option as our President has said ever so clearly time and again. It is an act to deter war to make the last option the use of force.

   I yield the floor.

   Mr. DASCHLE. Mr. President, I yield 5 minutes of my time to the Senator from Connecticut.

   Mr. LIEBERMAN. Mr. President, I thank the majority leader for his gracious yielding of time. I thank him for more than that. I thank him for his leadership in this matter of how the Senate should proceed with regard to Iraq, and I thank him specifically for the work that he and his staff did in negotiations with the White House and with Members of the House to get this resolution to where it is where I am confident it can and will enjoy broad bipartisan support.

   There will be time for debate later in the day about the relevance of this resolution, about the extent to which I am confident it is clearly within our constitutional authority under article I. I have comparisons to other declarations of war and authorizations of military action, that is, if anything, more specific than most.

   I am inspired by Senator Byrd's reference to Nathan Hale. Nathan Hale was not only a son of Connecticut, but a Yale man. For my entire freshman year, I walked by an inspiring statue of Nathan Hale. I read about him. I studied him. I cannot say I knew him personally, but I feel as if I knew Nathan Hale, who was remembered for saying: ``I regret I have only one life to give for my country.''

   Nathan Hale was a patriot, and he was prepared to give his life for the security and freedom of his country. I am absolutely confident that if Nathan Hale were in the Senate of the United States today, he would not only be cosponsoring this resolution, he would be impatient to have the talking stop and the action begin.

   Is it time? Are we ready? Time is what it is about.

   It is 12 years since Iraq invaded Kuwait and threatened to invade Saudi Arabia and thereby showed that all that Saddam Hussein had been saying about wanting to make Baghdad the capital of the Arab world and dominate the Arab world was not just talk; he was prepared to act on it.

   It is 12 years since U.N. Resolution 678 authorizing the use of force against Iraq.

   It is 11 years since the congressional authorization for Desert Storm and the triumphant brilliant effort of our military in Desert Storm.

   It is 11 years since Saddam asked for a cease-fire and accepted the inspection regime as part of that cease-fire on which he has never followed through and complied.

   It is 11 years since the no-fly zones were first adopted and began to be enforced by American military personnel.

   It is 9 years since the U.N. found Saddam in ``material breach of his international obligations.''

   It is 9 years since Iraq under Saddam Hussein attempted to assassinate former President Bush.

   It is 6 years since Saddam crushed Kurdish and Shi'a resistance to his regime.

   It is 4 years since Saddam ejected inspectors and President Clinton ordered Operation Desert Fox, an air campaign against Iraq in response to this act.

   It is 4 years since this Senate called for the indictment of Saddam as a war criminal.

   It is 4 years since the Senate found Iraq in breach of international obligations and authorized the President to take ``appropriate action in accordance with the Constitution and relevant laws of the United States to bring Iraq into compliance with its international obligation.''

   It is 4 years since Congress passed and President Clinton

   signed the Iraq Liberation Act.

   It is more than 1 year since we were attacked by terrorists on September 11, 2001, showing us the risks of inaction against those who would arm and threaten us.

   It is 1 month since the President of the United States challenged the United Nations to act against this international lawbreaker.

   It is 8 days since we started the debate on this resolution in the Senate; excluding the Sabbath, 6 days. The Lord made Heaven and Earth in 6 days. It is time now for us to come to a conclusion.

   Is it time? Are we ready to act? I think the record shows we are ready to act.

   I thank the Chair, and I yield the floor.

   The PRESIDING OFFICER. The majority leader is recognized.

   Mr. DASCHLE. Mr. President, if I need additional time, I will take it from my Senate leader allocation for the day.

   The Senate is now engaged in one of the most consequential debates addressed in this Chamber for many years. We are confronting the grave issues of war and peace. We are considering how the United States should respond to a murderous dictator who has shown he will be bound neither by conscience nor by the laws or principles of civilized nations. And we are contemplating whether and under what conditions the Congress should authorize the preemptive use of American military power to remove the threat that he poses.

   These questions go directly to who we are as a nation. How we answer them will have a profound consequence for our Nation, for our allies, for the war on terror, and perhaps most importantly, for the men and women in our Armed Forces who could be called to

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   There is no question that Saddam Hussein is a dangerous man who has done barbaric things. He has invaded neighbors, supported terrorists, repressed and murdered his own people.

   Over the last several months, as the world has sought to calm the violence between Israelis and Palestinians, Iraq has tried to inflame the situation by speaking against the very existence of Israel and encouraging suicide bombers in Gaza and the West Bank.

   Saddam Hussein has stockpiled, weaponized and used chemical and biological weapons, and he has made no secret of his desire to acquire nuclear weapons. He has ignored international agreements and frustrated the efforts of international inspectors, and his ambitions today are as unrelenting as they have ever been.

   As a condition of the truce that ended the gulf war, Saddam Hussein agreed to eliminate Iraq's nuclear, biological, and chemical weapons and to abandon all efforts to develop or deliver such weapons. That agreement is spelled out in U.N. Security Council Resolution 687. Iraq has never complied with the resolution.

   For the first 7 years after the gulf war, it tried to deceive U.N. weapons inspectors, block their access to key sites, and make it impossible for them to do their jobs.

   Finally, in October of 1998, the U.N. was left with no choice but to withdraw its inspectors from Iraq. As a result, we do not know exactly what is now in Iraq's arsenal. We do know Iraq has weaponized thousands of gallons of anthrax and other deadly biological agents. We know Iraq maintains stockpiles of some of the world's deadliest chemical weapons, including VX, sarin, and mustard gas. We know Iraq is developing deadlier ways to deliver these horrible weapons, including unmanned drones and long-range ballistic missiles. And we know Saddam Hussein is committed to one day possessing nuclear weapons.

   If that should happen, instead of simply bullying the gulf region, he could dominate it. Instead of threatening only his neighbors, he could become a grave threat to U.S. security and to global security.

   The threat posed by Saddam Hussein may not be imminent, but it is real, it is growing, and it cannot be ignored. Despite that, like many Americans, I was concerned by the way the administration first proposed to deal with that threat. The President's desire to wage war alone, without the support of our allies and without authorization from Congress, was wrong. Many of us, Democrats and Republicans, made it clear that such unilateralism was not in our Nation's best interest. I now commend the administration for changing its approach and acknowledging the importance of working with our allies. I also commend it for recognizing that under our Constitution, it is Congress that authorizes the use of force, and for requesting a resolution providing such authority.

   I applaud my colleagues, Democrats and Republicans in the House and in the Senate, for the improvements they have made to the administration's original resolution. Four changes were especially critical.

   First, instead of giving the President broad and unfocused authorization to take action in the region, as the administration originally sought, this resolution focuses specifically on the threat posed by Iraq. It no longer authorizes, nor should it be used to justify, the use of force against other nations, organizations, or individuals that the President may believe threaten peace and stability in the Persian Gulf region. It is a strong and focused response to a specific threat. It is not a template or model for any other situation.

   Second, the resolution expresses the deep conviction of this Congress and of the American people that President Bush should continue to work through the United Nations Security Council in order to secure Iraqi compliance with U.N. resolutions. Unfettered inspections may or may not lead to

   Iraqi disarmament, but whether they succeed or fail, the effort we expend in seeking inspections will make it easier for the President to assemble a global coalition against Saddam should military action eventually be needed.

   Third, this resolution makes it clear that before the President can use force in Iraq, he must certify to the Congress that diplomacy has failed, that further diplomatic efforts alone cannot protect America's national security interests, nor can they lead to enforcement of the U.N. Security Council resolutions.

   Fourth, this resolution protects the balance of power by requiring the President to comply with the War Powers Act and to report to Congress at least every 60 days on matters relevant to this resolution.

   This resolution gives the President the authority he needs to confront the threat posed by Iraq. It is fundamentally different and a better resolution than the one the President sent to us. It is neither a Democratic resolution nor a Republican resolution. It is now a statement of American resolve and values. It is more respectful of our Constitution, more reflective of our understanding that we need to work with our allies in this effort, and more in keeping with our strong belief that force must be a last resort, not a first response.

   Because this resolution is improved, because I believe Saddam Hussein represents a real threat, and because I believe it is important for America to speak with one voice at this critical moment, I will vote to give the President the authority he needs, but I respect those who reach different conclusions. For me, the deciding factor is my belief that a united Congress will help the President unite the world, and by uniting the world we can increase the world's chances of succeeding in this effort and reduce both the risks and the costs America may have to bear. With this resolution, we are giving the President extraordinary authority. How he exercises that authority will determine how successful any action in Iraq might be.

   In 1991, by the time the President's father sought congressional support to use force against Iraq, he had secured pledges of military cooperation from nearly 40 nations and statements of support from scores of others. He had already secured the backing of the United Nations, and he had already developed a clear plan of action. In assembling that coalition, the legitimacy of our cause was affirmed, regional stability was maintained, the risks to our soldiers were lessened, America's burden was reduced, and perhaps most importantly, Iraq was isolated.

   At this point, we have done none of those things. That is why, unlike in 1991, our vote on this resolution should be seen as the beginning of a process, not the end. For our efforts in Iraq to succeed, the President must continue to consult with Congress and work hard to build a global coalition. That is not capitulation, it is leadership. And it is essential.

   In my view, there are five other crucial steps the administration must take before any final decision on the use of force in Iraq is made. First and foremost, the President needs to be honest with the American people, not only about the benefits of action against Iraq but also about the risks and the costs of such action. We are no longer talking about driving Saddam Hussein back to within his borders, we are talking about driving him from power. That is a much more difficult and complicated goal.

   There was a story in this past Sunday's Philadelphia Inquirer that top officials in the administration ``have exaggerated the degree of allied support for a war in Iraq.'' The story goes on to say that others in the administration ``are rankled by what they charge is a tendency'' by some in the administration ``to gloss over the unpleasant realities'' of a potential war with Iraq.

   A report in yesterday's Washington Post suggests ``an increasing number of intelligence officials, including former and current intelligence agency employees, are concerned the agency is tailoring its public stance to fit the administration's views.''

   I do not know whether these reports are accurate. We do know from our own national experience, however, that public support for military action can evaporate quickly if the American people come to believe they have not been given all of the facts. If that should happen, no resolution Congress might pass will be able to unify our Nation. The American people expect, and success demands, that they be told both the benefits and the risks involved in any action against Iraq.

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   Second, we need to make clear to the world that the reason we would use force in Iraq is to remove Saddam Hussein's weapons of mass destruction. I would have preferred if this goal had been made explicit in this resolution. However, it is clear from this debate that Saddam's weapons of mass destruction are the principal threat to the United States and the only threat that would justify the use of the United States military force against Iraq. It is the threat that the President cited repeatedly in his speech to the American people on Monday night. It may also be the only threat that can rally the world to support our efforts. Therefore, we expect, and success demands, that the administration not lose sight of this essential mission.

   Third, we need to prepare for what might happen in Iraq after Saddam Hussein. Regime change is an easy expression for a difficult job. One thing we have learned from our action in Afghanistan is that it is easier to topple illegitimate regimes than it is to build legitimate democracies. We will need to do much better in post-Saddam Iraq than the administration has done so far in post-Taliban Afghanistan. Iraq is driven by religious and ethnic differences and demoralized by a repressive government and crushing poverty. It has no experience with democracy. History tells us it is not enough merely to hope that well-intentioned leaders will rise to fill the void that the departure of Saddam Hussein would leave. We must help create the conditions under which such a leader can arise and govern. Unless we want to risk seeing Iraq go from bad to worse, we must help the Iraqi people build their political and economic institutions after Saddam. That could take many years and many billions of dollars, which is another reason we must build a global coalition. The American people expect, and success demands, that we plan for stability and for economic and political progress in Iraq after Saddam.

   Fourth, we need to minimize the chances that any action we may take in Iraq will destabilize the region. Throughout the Persian Gulf, there are extremists who would like nothing more than to transform a confrontation with Iraq into a wider war between the Arab world and Israel or the Arab world and the West. What happens if, by acting in Iraq, we undermine the government in Jordan, a critical ally and a strategic buffer between Iraq and Israel? What happens if we destabilize Pakistan and empower Islamic fundamentalists? Unlike Iraq, Pakistan already has nuclear weapons and the means to deliver. What happens if that arsenal falls into the hands of al-Qaida or other extremists?

   We can tell the Arab world this is not a fight between their nations and ours. But a far better way to maintain stability in the gulf is to demonstrate that by building a global coalition to confront Saddam Hussein. That is why the

   administration must make every reasonable effort to secure a U.N. resolution just as we did in 1991. With U.N. support, we can count a number of Arab countries as full allies. Without U.N. support, we cannot even count on their airspace. We expect, and success demands, that any action we take in Iraq will make the region more stable, not less.

   Fifth, and finally, we cannot allow a war in Iraq to jeopardize the war on terrorism. We are fighting terrorist organizations with global networks, and we need partners around the globe. Some, including the chairman of the President's own Foreign Intelligence Advisory Board, doubt we can count on this continued cooperation in the war on terror if we go to war against Iraq. I do not know if that is true. I do know, however, that the military intelligence and political cooperation we receive from nations throughout the world are critical to the war on terrorism.

   Saddam Hussein may yet target America. Al-Qaida already has. The American people expect, and our national security demands, that the administration make plans to ensure that any action we take in Iraq does not distract or detract from the war on terror. If they fail to do so, any victory we win in Iraq will come at a terrible cost.

   On Monday night in his speech to the Nation, the President said: The situation could hardly get worse for world security and the people of Iraq.

   Yes, it can. If the administration attempts to use the authority in this resolution without doing the work that is required before and after military action in Iraq, the situation there and elsewhere can indeed get worse. We could see more turmoil in the Persian Gulf, not less. We could see more bloodshed in the Middle East, not less. Americans could find themselves more vulnerable to terrorist attacks, not less.

   So I stress again, this resolution represents a beginning, not an end. If we are going to make America and the world safer, much more work needs to be done before the force authorized in this document is used.

   Some people think it is wrong to ask questions or raise concerns when the President says our national security is at risk. They believe it is an act of disloyalty. I disagree. In America, asking questions is an act of patriotism. For those of us who have been entrusted by our fellow citizens to serve in this Senate, asking questions is more than a privilege, it is a constitutional responsibility.

   The American people have serious questions about the course of action on which this resolution could set us. Given the gravity of the issues involved and the far-reaching consequences of this course, it is essential that their questions are answered. I support this resolution. And for the sake of the American people, especially those who will be called to defend our Nation, we must continue to ask questions.

   On one point, however, I have no question. I believe deeply and absolutely in the courage, the skill, and the devotion of our men and women in uniform. I know that if it becomes necessary for them to stand in harm's way to protect America, they will do so with pride and without hesitation and they will succeed. They are the finest fighting force the world has ever known. For their sake, for the sake of all Americans, for the world's sake, we must confront Saddam Hussein. But we must do so in a way that avoids making a dangerous situation even worse.

   I yield the floor.

   The PRESIDING OFFICER (Mr. JOHNSON). The Senator from Virginia.

   Mr. WARNER. Mr. President, I congratulate the distinguished majority leader for a very powerful and very clear statement. I, too, join you in saying that it is our responsibility to ask questions. Questions have been asked throughout this debate. As best we can, we answered them.

   But I think the distinguished leader has provided very helpful guidance in the uncertain days, months, and perhaps years to come. I commend you. As one of the cosponsors, I welcome your strong support.

   Mr. DASCHLE. I thank the Senator from Virginia for his kind words.

   Mr. BYRD. Will the Senator yield to me?

   Mr. DASCHLE. I am happy to yield.

   Mr. BYRD. Mr. President, I congratulate our leader. I congratulate him not only for his statement today, but I congratulate him on refusing to stand with other leaders of my party on the White House lawn. He has shown leadership. He has kept himself apart, kept himself in a position to make decisions. He hasn't rushed, pell-mell, to shake this piece of rag. He has done what leaders should do. He has stood aside and waited, helped to advise us and counsel with us. He is the one leader on this Hill in my party who didn't rush to judgment on this blank check that we are giving the President of the United States. I thank him. I congratulate him. I shall always praise him for that.

   Mr. DASCHLE. Mr. President, I thank the distinguished Senator from West Virginia for his kind words and for his understanding and appreciation for the difficulties we face in this body as we make these momentous decisions.

   Mr. WARNER. Mr. President, regular order.

   Mr. LEAHY addressed the Chair.

   CLOTURE MOTION

   The PRESIDING OFFICER. The regular order has been called for.

   Under the previous order, pursuant to rule XXII, the Chair lays before the Senate the pending cloture motion, which the clerk will report.

   The legislative clerk read as follows:

   Cloture Motion

   We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, hereby move

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   Thomas Daschle, Bill Nelson, Joseph Lieberman, Evan Bayh, Harry Reid, Pete Domenici, Joseph Biden, Patty Murray, Jay Rockefeller, Larry E. Craig, Trent Lott, John Warner, John McCain, Jesse Helms, Craig Thomas, Don Nickles, Frank H. Murkowski.

   The PRESIDING OFFICER. By unanimous consent, the mandatory quorum call under the rule is waived.

   The question is, Is it the sense of the Senate that debate on amendment No. 4856, as modified, to S.J. Res. 45, a joint resolution to authorize the use of United States Armed Forces against Iraq, shall be brought to a close?

   The yeas and nays are required under the rule.

   The clerk will call the roll.

   The senior assistant bill clerk called the roll.

   The yeas and nays resulted--yeas 75, nays, 25, as follows:

   Allard

   Allen

   Baucus

   Bayh

   Bennett

   Biden

   Bond

   Breaux

   Brownback

   Bunning

   Burns

   Campbell

   Cantwell

   Carnahan

   Cleland

   Clinton

   Cochran

   Collins

   Craig

   Crapo

   Daschle

   DeWine

   Domenici

   Dorgan

   Edwards

   Ensign

   Enzi

   Feinstein

   Fitzgerald

   Frist

   Graham

   Gramm

   Grassley

   Gregg

   Hagel

   Harkin

   Hatch

   Helms

   Hutchinson

   Hutchison

   Inhofe

   Johnson

   Kerry

   Kyl

   Landrieu

   Lieberman

   Lincoln

   Lott

   Lugar

   McCain

   McConnell

   Mikulski

   Miller

   Murkowski

   Nelson (FL)

   Nelson (NE)

   Nickles

   Reed

   Reid

   Roberts

   Rockefeller

   Santorum

   Schumer

   Sessions

   Shelby

   Smith (NH)

   Smith (OR)

   Snowe

   Stevens

   Thomas

   Thompson

   Thurmond

   Torricelli

   Voinovich

   Warner

   Akaka

   Bingaman

   Boxer

   Byrd

   Carper

   Chafee

   Conrad

   Corzine

   Dayton

   Dodd

   Durbin

   Feingold

   Hollings

   Inouye

   Jeffords

   Kennedy

   Kohl

   Leahy

   Levin

   Murray

   Sarbanes

   Specter

   Stabenow

   Wellstone

   Wyden

   The PRESIDING OFFICER. On this vote, the yeas are 75, the nays are 25. Three-fifths of the Senators duly chosen and sworn having voted in the affirmative, the motion is agreed to.

   AMENDMENT NO. 4868

   Under the previous order, there will now be 60 minutes of debate on the Byrd amendment No. 4868.

   Who yields time?

   Mr. REID. Mr. President, I suggest the absence of a quorum and ask unanimous consent that the time run equally during the quorum call.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   The clerk will call the roll.

   The legislative clerk proceeded to call the roll.

   Mr. REID. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. REID. Mr. President, I did not see the Senator from Minnesota in the Chamber. It is my understanding he now wants to proceed with his 15 minutes.

   The PRESIDING OFFICER. The Senator from Minnesota.

   Mr. DAYTON. Mr. President, I ask unanimous consent that I be added as an original cosponsor of Senator Byrd's amendment.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. DAYTON. Mr. President, I rise to support this amendment by the great senior Senator from West Virginia. It closely parallels an amendment which I filed and which, unfortunately, now that the Senate has made its determination to limit the amount of time and debate on this historic decision, I will not be bringing to the Senate for a vote.

   A decision to rush to judgment on this matter has now been made by the Senate. I won't belabor the point except to say that in January of 1998, after Saddam Hussein had bounced U.N. inspectors out of Iraq, the Senate took 5 months to consider and finally approve a resolution which did not even authorize President Clinton to use force. In October, 1998, the Senate passes another resolution which again did not authorize the President of the United States to use force.

   In 1990, the Senate took 5 months after Saddam Hussein invaded Kuwait, and that resolution was passed just days before President Bush committed this Nation to its first military engagement in the Persian Gulf war.

   We have had a number of very valuable hearings in the Senate Armed Services Committee in the last weeks. I asked one panel of recently retired generals, three of whom were directly involved in the Persian Gulf war, whether the absence of a Congressional resolution or declaration of war had in any way prevented or impeded that military buildup preparatory to the engagement in January of 1991. They said, no, it did not. So I don't understand why, from any consideration--military, diplomatic, or constitutional--we should be voting and rushing to this judgment this weekend, but we will.

   We will be voting on what? What is it, S.J. Res. 46, that we are actually voting upon? It is a preapproval of whatever the President of the United States decides to do whenever. It

   is a vote for euphemisms such as ``to use force'' or ``as he determines to be necessary.'' Why? Why are we rushing to this judgment at this time? So we can adjourn in the next few days and go home until next January, or until we decide whether the outcome of the November election will aid or impair our own political agendas?

   Some of those concerns might seem justified, particularly as they relate to our own domestic concerns. But for decisions of war or peace, decisions about what is right for our national security, decisions about the life or death of Americans fighting on our behalf, decisions about the survival of the existing world order and even possibly the survival of our world as we know it, there are no justifications for political calculation or personal convenience. There should be only one consideration, and that is to do what is right for the country, as God gives each of us to see that right.

   Yet S.J. Res. 46 preapproves any decision by the President of the United States to commit this Nation to war at some time in the future, with U.N. support or without it--unilaterally, bilaterally, multilaterally, preventatively, preemptively. Even other amendments that I will support, which have the best of intentions, fall into this trap: What do you do when you are preapproving a war? Put a limit on this but not for that; if this; if that. However, it is very hard to forecast events of this magnitude.

   There is no need for us to try to do so. There are no good reasons for us to do so, except the need to preapprove something and then go home.

   If we don't vote for the final resolution, we will be accused of not supporting the President, of not speaking with one voice to Saddam Hussein, to the United Nations, and to the world. Those are very serious accusations, that you don't support the President of the United States. I do support the President. He is my President. He is our President. I pray he will make the right decisions and get the credit. I pray he won't make the wrong decisions and get the blame.

   But when I am asked to support this President, or any President, I need to understand what it is exactly that he wants us to do, what he intends for us to support. This President, as I understood his speech last Monday, is certainly not asking the Congress to declare war on Iraq today. He is wisely reserving that judgment. Why wouldn't we exercise the same wisdom?

   The situation, as we have seen in the last weeks, is inherently fluid. New facts become known; old facts even change. I support the President's reserving judgment until after the United Nations decision, until it attempts to force Saddam Hussein's compliance, until we can determine the outcome of those efforts. During those critical days or weeks ahead, I will be around. I will be available at any time, day or night, whenever, to participate back here on the Senate floor in this momentous decision. All of us in this Chamber and in the House could be here within hours, should be, and would be if we were called upon to do so, whenever the President or this Congress believed that a decision to commit this Nation to war must be made.

   As the President said Monday night, the time before that decision is limited. But the time for that decision is not now.

   Another reason to follow this protocol, the reason for my amendment,

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   what the Constitution of the United States requires Congress to do--either declare war or not. It says right in that book--I don't carry it with me quite as faithfully as the great Senator from West Virginia, but I do happen to have my copy today--Congress shall declare war. That is about as clear and unambiguous a statement as could be made.

   There are important reasons that Congress was given, and only Congress was given, that authority and that responsibility. Because it was considered by our Founders to be essential to the system of checks and balances upon which this Republic depends.

   James Madison wrote a letter to Thomas Jefferson in 1798, less than a decade after the Constitution's ratification, in which he said:

   The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has, accordingly, with studied care, vested the question of war in the Legislature. But the Doctrines lately advanced strike at the root of all these provisions, and will deposit the peace of the Country in that Department which the Constitution distrusts as most ready without cause to renounce it. For if the opinion of the President, not the facts & proofs themselves, are to sway the judgment of Congress in declaring war, and if the President in the recess of Congress create a foreign mission, appoint the minister, & negociate [sic] a War Treaty, without the possibility of a check even from the Senate, ..... it is evident that the people are cheated out of the best ingredients of their Government, the safeguards of peace which is the greatest of their blessings.

   The subsequent 204 years have demonstrated many times the wisdom and foresight of our Constitution. Its principles should give special pause to this body when being admonished by the President, by any President, not to ``tie my hands.'' Those words indicate a regrettable lack of regard for Congress and for our constitutional standing as a coequal branch of Government. Our Nation's Founders darn well wanted to tie a President's hands.

   Thomas Jefferson wrote:

   In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

   Those words are meant to apply to this President, to any President. Except in matters of war and peace? Especially in matters of war and peace. I would say this, the Constitution's wisdom has a very valuable perspective on the pressures and perils we face in this body today. Not only the perils in confronting a dangerous dictator, as we must, but also the perils in how we decide to do so.

   Some might prefer to avoid the momentous decision the Constitution assigns us whether or not to declare war. Whether or not to send Americans into battle halfway around the world, where they would likely encounter the chemical or biological weapons we rightfully seek to spare this country. Some of those Americans will die too young, and others will suffer horrible wounds lasting for lifetimes.

   Iraqi children and their families will be destroyed in their own homes, schools, and mosques. The rest of the world will judge that decision and its consequences, which they could not escape.

   We will read about it in the newspapers. We will watch its manifestations on television. We will probably attempt to share the credit if it turns out well, and avoid the blame if, God forbid, it doesn't. We will talk about that decision. We might even hold hearings on it, but we won't assemble in this Chamber where previous Senates once voted declarations of war, but not since World War II.

   Mr. President, these decisions are ones we will live with for our lifetimes. They should not be made in these circumstances. We should follow the guidance we have seen evident from the changes in the administration's views over the last weeks. I support and applaud those changing perspectives. I respect a leader who can listen and learn, then adjust his views and decisions accordingly. I believe the wise counsel from Members of this body--Republicans, Democrats, and Independents--has been an important part of that process. I believe the American people, the collective wisdom of our fellow citizens, who overwhelmingly support the President, who overwhelmingly believe the President should consult with this body, who overwhelmingly believe the U.S. should act in concert with the U.N. and other nations of the world, and not alone, unilaterally, preemptively. I believe those public judgments, as we all manage to view them, probably daily in polling documents, have had enormous influence on the decisions that are going to be made.

   We owe it to our responsibilities to what is best for this country; we owe it to the brave men and women who will have to carry out those decisions, to make them when they must be made, on the basis of the best, most current, and most complete information possible--knowing, even then, that we will still not have the certainty, clarity, foresight we would wish to have.

   That is the wisdom of the Constitution. That is the wisdom of Senator Byrd's amendment. That is, I believe, the wisdom of the amendment I would have brought forth, which says simply the Congress shall go back to following the Constitution of the United States. The reasons for that document's decisions are as valid today as they were 213 years ago, and maybe some day--it will not be this week but soon, this body will review the decision not to follow its dictates and return to it. I look forward to that and, hopefully, Senator Byrd will be on the floor that day, as he deserves to be when that decision is made.

   I yield the floor.

   The PRESIDING OFFICER. Who yields time?

   Mr. NICKLES. Mr. President, I yield myself 5 minutes. Mr. President, I wish to respond to a couple of the statements made by the junior Senator from Minnesota. I don't think they are actually correct in categorizing what happened in 1998. I believe I heard him say then we were very deliberative and the resolution we passed did not authorize the use of force. Well, I will show you what we did in 1998.

   In 1998, Saddam Hussein had continued his defiance of the U.N. He had not complied with any of the 16 resolutions. So the U.S. passed a resolution saying he should comply, Public Law 105-235, on August 14th. But the deliberative portion was introduced before the Senate on July 31, 1998--placed on the calendar July 27, measure laid before the Senate on July 31--and it passed the Senate with an amendment by unanimous consent. So it passed in one day. I don't remember the number of hours spent in debate, but it wasn't a lot. To say we spent months

   deliberating it is not accurate. The fact is we passed it in one day. And then to say it had no authorization for force, I don't believe is actually correct either. If you look at the resolved section--I put the 1998 resolution in the calendar because I think it is important. It goes through several items of noncompliance by Iraq. Basically, we are saying we should force or compel Iraq to comply. The resolved section says:

   ..... the United States of America and Congress assembled, find the government of Iraq in a material and unacceptable breach of its international obligations, and therefore the President is urged to take appropriate action in accordance with the Constitution and relevant laws of the United States to bring Iraq into compliance with international obligations.

   I believe in the appropriate action Congress was saying with a united voice: Take military action, if necessary, to get Saddam Hussein to comply with the U.N. resolution. That is what this resolution stated. We passed it unanimously. We also passed, in 1998, the Iraqi Liberation Act. This act did not authorize any additional military force. That is correct with this act, but not with Public Law 105-235.

   When someone says we didn't authorize force in 1998--yes, we did. The Iraqi Liberation Act didn't have an authorization of force, but it did include a change of regime. It said Saddam Hussein should go. Again, we spoke with a united voice. We passed that by a voice vote. I might mention this to my colleagues. In the House, it passed by 360-38. In the Senate, we received it from the House on October 6 and passed it in the Senate on October 7. We passed it by unanimous consent. We passed it without objection.

   This resolution says it should be the policy of the U.S. to have a regime change. That became the law of the land. It passed unanimously in the Senate with an overwhelming vote in the House. Then, the earlier resolution that passed on August 14 said the President is urged to take appropriate action to compel compliance with existing U.N. resolutions. That was a

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   So for people who are saying we haven't been deliberative enough, and what is the consequence of this--what has changed? This Congress, Democrats and Republicans, this Senate unanimously told President Clinton to compel compliance. Also, we stated it was the public policy of Congress to have a regime change in Iraq. I want to clarify the RECORD and make sure we are factually accurate.

   Congress spoke in a united fashion in 1998. It was proud to be part of that then, and I am proud to be part of the sponsorship of this resolution, which I believe will also pass with a very strong voice--after much more extensive debate than we had in 1998. I thank my friend for yielding me the time.

   Mr. DAYTON. Will the Senator yield for a question?

   Mr. McCAIN. Not on our time. If the Senator from West Virginia would like to yield the Senator time, I would be more than happy.

   The PRESIDING OFFICER. The Chair advises the Senator from Minnesota that he has 1 1/2 minutes remaining.

   Mr. DAYTON. I will use that 1 1/2 minutes to respond. I was not here when those events occurred. I rely on the authorities and information available to me. I will note Senator Lott was quoted in several publications. On February 12, the then-majority leader said:

   I had hoped that we could get to the point where we can pass a resolution this week on Iraq. But we really developed some physical problems, if nothing else. ..... So we have decided that the most important thing is not to move so quickly, but to make sure that we have had all the right questions asked and answered and that we have available to us the latest information about what is ..... happening with our allies in the world.

   He went on to say:

   The Senate is known for its deliberative actions. And the longer I stay in the Senate, the more I have learned to appreciate it. It does help to give us time to think about the potential problems and the risks and ramifications and to, frankly, press the administration.

   The majority leader made that statement on the Senate floor on February 12. The resolution was passed and signed by President Clinton August 14, 1998, 6 months later.

   Also, I am not a legal scholar, but in making my comments I cited the opinion of counsel at the Library of Congress and its Congressional Research Services. They opined--I realize lawyers and others can disagree----

   The PRESIDING OFFICER. The Senator's time has expired.

   Mr. DAYTON. I ask for unanimous consent that I have 30 seconds more to finish my remarks.

   Mr. McCAIN. I object.

   The PRESIDING OFFICER. Objection is heard.

   Mr. BYRD. I yield the Senator 2 minutes or whatever he needs.

   Mr. President, I ask unanimous consent that Senator Dayton's name be added as a cosponsor of my amendment.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. DAYTON. I thank the Senator from West Virginia.

   Mr. President, the opinion stated its judgment that since the document in 1998 urged the President to follow the actions which the Senator from Oklahoma has accurately described, it did not constitute an authorization under the War Powers Act. Furthermore, in the absence of any reference to authorization under the War Powers Act, which the resolution before us today contains, it did not provide that authority. I thank the Chair. I yield back time.

   The PRESIDING OFFICER. Who yields time?

   Mr. BYRD. Mr. President, how much time do I have?

   The PRESIDING OFFICER. The Senator has 29 minutes 20 seconds.

   Mr. BYRD. How many minutes?

   The PRESIDING OFFICER. Twenty-nine.

   Mr. BYRD. I thank the Chair. Mr. President, I ask unanimous consent that my time on this amendment not count against my hour under cloture.

   The PRESIDING OFFICER. Is there objection?

   Mr. McCAIN. I object.

   The PRESIDING OFFICER. Objection is heard.

   Mr. BYRD. This shows the patience of a Senator. This clearly demonstrates that the train is coming down on us like a Mack truck, and we are not even going to consider a few extra minutes for this Senator.

   Mr. BYRD. Mr. President, I yield 5 minutes to my friend from Pennsylvania.

   Mr. McCAIN. Mr. President, in deference----

   Mr. BYRD. On the Senator's time.

   Mr. McCAIN. On my time. In deference to the Senator from West Virginia, on this one occasion, given all the circumstances, I will not object to it not counting against the Senator's hour.

   Mr. BYRD. Mr. President, I thank my friend.

   The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.

   Mr. BYRD. Mr. President, I yield 5 minutes to the distinguished Senator from Pennsylvania, Mr. Specter.

   Mr. SPECTER. Mr. President, I thank the distinguished President pro tempore for yielding me 5 minutes.

   I do support his amendment which has two provisions. First:

   Nothing ..... is intended to alter the constitutional authorities of the Congress to declare war, grant letters of Marque and Reprisal, or other authorities invested in Congress by Section 8, Article I of the Constitution.

   I think this provision is necessary, although customarily you would not think that you would need a statute to say the Constitution governs. However, I have expressed on the floor of the Senate my concern of the constitutionality of the delegation of authority to the President here.

   Congress has the authority to declare war. The authorization for the use of force is a practical equivalent. What we are doing is saying the President may decide when to use that force and, in effect, decide when the war will start, or really to make a determination as to when war is declared. So I think that it is important to have this sort of provision, although its importance is hard to evaluate historically.

   The second part of the pending amendment of the Senator from West Virginia is:

   ..... shall be construed as granting any authority to the President to use the United States Armed Forces for any purpose not directly related to a clear threat of imminent, sudden, and direct attack upon the United States, its possessions, or territories, or the Armed Forces of the United States, unless the Congress of the United States otherwise authorizes.

   The language of ``clear threat of imminent, sudden, and direct attack'' has been inserted in place of the language ``the existing threat posed by Iraq.'' This does call for a more precise determination of the need for preemptive action, and I think is sound. Ultimately, it is not going to detract from the authority of the President because the resolution allows the President to ``use all means that he deems to be appropriate,'' which is very broad authority.

   The language of the pending Byrd amendment is consistent with one of the earliest articulations of the concept of self-defense. Secretary of State Daniel Webster in 1842, referring to self-defense in an anticipatory sense, stated that its use be ``confined to cases in which the necessity of that self-defense is instant, overwhelming, and leaving no choice of means and no moment of deliberation.''

   Hugo Grotius, considered the father of international law, said in his 1925 treatise that a nation may use self-defense in anticipation of attack when there is ``present danger,'' which is a broader definition. Grotius further said:

   It is lawful to kill him who is preparing to kill.

   Elihu Root, a distinguished scholar on international law, said in 1914 that international law did not require a nation to wait to use force in self-defense ``until it is too late to

   protect itself.''

   I think the language of the pending amendment offered by the Senator from West Virginia is helpful in providing assurance that preemptive force is really necessary. We know President Bush said he does not intend to use this military force unless absolutely necessary and has already made a determination that he thinks there is an imminent threat from Iraq. Some of the information which has been presented,

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   I thank the Chair and yield the floor.

   The PRESIDING OFFICER (Mrs. CLINTON). The Senator from Arizona.

   Mr. McCAIN. Madam President, I wish to say very briefly that I understand people have a desire to speak. We have a number of Senators who have not spoken on this issue. It is already looking as if we may be here well into this evening. From now on, I will be adhering strictly to the rules according to postcloture. I hope my colleagues will be understanding because we have to resolve this issue.

   I yield the floor.

   The PRESIDING OFFICER. Who yields time?

   The Senator from West Virginia.

   Mr. BYRD. Madam President, I believe the distinguished Democratic whip was able to get unanimous consent last night for my amendment No. 4868 to be modified to remove paragraph 2. It so states in the Congressional Record on page S10217; am I correct?

   The PRESIDING OFFICER. The Chair believes the RECORD is in error and that only amendment No. 4869 was modified.

   Mr. BYRD. On what basis--Madam President, I hope this time is not being charged. We are trying to clarify something.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. BYRD. On what basis does the Chair maintain that the RECORD is in error in that portion of the RECORD from which I read on page S10217? What is the basis for the Chair stating that RECORD portion is in error?

   I do not question the integrity of the Chair. I am only asking why does the Chair state--I know the Chair is being advised to that effect--why are we to say that this RECORD, as it is clearly written, is in error?

   The PRESIDING OFFICER. The Chair is relying on the Journal of proceedings.

   Mr. BYRD. And what does the Journal say?

   The PRESIDING OFFICER. The Journal indicates that only amendment No. 4869 was modified.

   Mr. BYRD. May I ask the distinguished majority whip, is that statement by the Chair in accordance with his understanding?

   Mr. REID. I say to my friend from West Virginia, I read directly from the paper that the Senator gave me. There were two unanimous consent requests on it. The one was not acceptable. The other was, and I read that into the RECORD. As I recall, it was changing section 4 to 3, or 3 to 4. That is what I submitted.

   Mr. BYRD. There were two requests, one changing the section numbers, and I am sure that one was agreed to.

   Mr. REID. Yes.

   Mr. BYRD. The other one, according to this RECORD, was also agreed to.

   Mr. REID. No. That is the only one that--in fact, I said on the RECORD the other was not agreed to.

   Mr. BYRD. May I read the RECORD. It is very short.

   Mr. REID. Mr. President, this has been cleared with the minority. Mr. President, on behalf of Senator Byrd, I ask unanimous consent to modify his amendment No. 4868 to remove paragraph 2, and further I ask consent to modify amendment No. 4869 to change references to section 3(a) to 4(a).

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. REID. I say to my friend from West Virginia, I had the paper here and the clerk took that paper. Maybe they made a mistake. But there is no question in my mind whatsoever--as I told the Senator this morning when he came in--that the one had been approved, the other had not.

   Mr. BYRD. Yes. The whip did tell me that, but when I looked at the RECORD, I saw, by the RECORD at least, it said that both requests were agreed to. I am not going to argue this point. I am going to take the distinguished whip's word, which is good for me at all times.

   Mr. REID. I say to my friend from West Virginia, I appreciate that very much. In fact, there are a lot of things going on I may not be quite certain on, but I am absolutely, unqualifiedly certain of what I did last night.

   Mr. BYRD. Madam President, I have absolute and complete faith in the integrity of the distinguished Senator from Nevada, and I thank the Chair, with the greatest of respect. I thank the Assistant Parliamentarian as well, for whom I have the greatest respect.

   Madam President, how much time do I have remaining?

   The PRESIDING OFFICER. Twenty-three minutes.

   Mr. BYRD. On this amendment?

   The PRESIDING OFFICER. On this amendment, that is correct.

   Mr. BYRD. Madam President, a point I want to make about this discussion that ensued after the statement was made by the distinguished Senator from Minnesota: There were references made to Public Law 105-235, August 14, 1998. Here is the resolving clause which has been quoted by the distinguished Republican whip:

   Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, . .....

   That the government of Iraq is in material and unacceptable breach of its international obligations, and therefore the President is urged to take appropriate action in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations. Approved August 14, 1998.

   Well, so what? What does that prove? What does that prove? Somebody tell me. Let's read it again. The resolving clause says that the Government of Iraq is in material and unacceptable breach of its international obligations. That is

   okay. But get this: And therefore the President is urged to take appropriate action.

   What does that mean? There is nothing definitive about that. That is ambiguous. It is not contemporaneous with today's question. It is ambiguous. It is vague. What would that prove in a court if the Supreme Court of the United States were to take this up? What would those who read this piece of junk maintain that this says? It is plain. The President is urged--well, what does that mean, ``urged''?--to take appropriate action. What is that? That is not a declaration of war. What is that? What does that mean, ``to take appropriate action''? Well, you can guess, I can guess, he can guess, he can guess. Anybody can guess.

   ``Urges the President to take appropriate action in accordance with the Constitution . .....'' Now, that is fine. It is in accordance with the Constitution. Then that would say that Congress has the power to declare war.

   ``In accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations.'' What is he supposed to do? What is the President being urged to do to bring Iraq into compliance with its international obligations? Anybody's guess. Why, surely this great country of ours is not going to be able to launch a war on the basis of that ambiguous and vague language.

   I wish those who are continuing to refer to this Public Law 105-235 and the so-called relevant U.N. resolutions would explain what they mean. I hear that over and over again. In connection with the resolution that is before this Senate today, it refers to all relevant U.N. Security Council resolutions. ``All relevant . .....'' What does that mean? And they keep referring to 660 and 678 and 687. I would like to discuss those resolutions with those who will do so. I hope they come on the floor. Where are they? Where are these men of great strength? Let them come to the floor. I want to debate with them these so-called resolutions.

   In this resolution that is before the Senate, S.J. Res. 46, it refers to relevant resolutions. They keep talking about the relevant resolutions. What resolutions are they talking about enforcing? Are they talking about 660? Are they talking about 678? No. 678 was adopted on November 29, 1990. Is that what they are talking about? U.N. Resolution 687 was the enforcement resolution. That was the resolution that authorized the member states to act to uphold Resolution No. 660. But that conferring of authorization was wiped out. No. 678 was wiped out by 687 when Iraq contacted the Security Council and accepted 687. It was wiped out. So I am prepared to argue that. I do not want to do it on my flimsy 1 hour, but I am prepared.

   I have heard the Senator from Connecticut--he is not in the Chamber right now, but he will be back. I have heard him and others refer to the so-called relevant resolutions. They have been wiped out. They are gone, and no single member state can revive them. They were extinguished on April 6,

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   Now we can talk about that at a later time. I would love to get into it. I would like to get into a discussion on that, but for now, suffice it to say, what I am saying is this resolution we are talking about would accept as fact certain things that are not facts--this blank check we have been talking about that we are going to turn over to this President of the United States, the power to determine when, where, how, and for how long he will use the military forces of the United States.

   It is flimsy. That resolution is full of holes. The whereas clauses are full of holes. Now they have been wiped out by unanimous consent so they are no longer ``whereas'' but ``since.'' It is flimsy. Full of holes. Ambiguities. Statements of facts that are not facts. I am ready to debate that at any time.

   Mr. DURBIN. Will the Senator yield?

   Mr. BYRD. I am happy to yield.

   Mr. DURBIN. I hope Members will carefully read this amendment by Senator Byrd. This amendment says two things. One of these things should not even be controversial. It asserts the constitutional authority of this Chamber and the U.S. Congress to declare war. The Senator and I have stood together on this floor.

   Mr. BYRD. Here it is, my Constitution.

   Mr. DURBIN. I thought you might have your Constitution with you.

   The Senator and I have stood on the floor and argued this point. Sometimes we did not fare so well. Keep in mind there was a question at the beginning of this debate about Iraq as to whether or not Congress would be engaged. Some argued that the President had the authority of his father's resolutions.

   The second point made by Senator Byrd in this resolution is one I hope you will read carefully because I address part of this in an amendment I will offer later. He establishes a standard by which we would declare war. A standard is stated clearly: A clear threat of imminent, sudden, direct attack upon the United States, its possessions or territories, or the Armed Forces.

   I hope Members of the Senate will read that. If that is not a standard by which we will measure whether this Nation will dedicate its Armed Forces and risk the lives of Americans in combat and the lives of innocent victims, I cannot imagine what we are going to debate. To take any other standard is to take the power away from Congress to declare war. This is a constitutional resolution. I applaud the Senator from West Virginia for offering it.

   Mr. BYRD. I thank the distinguished Senator. How much time remains?

   The PRESIDING OFFICER. Thirteen minutes.

   Mr. BYRD. I hope Senators will show an abundance of mercy before the day is over and perhaps give me some more time.

   Mr. President, this week the Senate is considering a very important resolution. The language of this resolution has been touted as a bipartisan compromise that addresses the concerns of both the White House and the Democratic leadership in Congress. But the only thing that I see being compromised in this resolution is this Constitution of the United States, which I hold in my hand, and the power that Constitution gives to Congress to declare war. This resolution we are considering is a dangerous step toward a government in which one man at the other end of this avenue holds in his hand the power to use the world's most powerful military force in whatever manner he chooses, whenever he chooses, wherever he chooses, and wherever he perceives a threat against national security.

   The Bush administration has announced a new security doctrine that advocates acting preemptively to head off threats to U.S. national security. Much has been said about the diplomatic problem with this doctrine. But we should also recognize that the administration's new approach to war may also pose serious problems for our own constitutional system.

   In the proposed use-of-force resolution, the White House lawyers claim ``the President has authority under the Constitution to use force in order to defend the national security interests of the United States.''

   It says no such thing. I dare them to go to the Constitution and point out where that Constitution says what they say it said. They cannot do it. I know the job of any good lawyer--I have never been a practicing lawyer, but I know the job of a good lawyer is to craft legal interpretations that are most beneficial to the client. But for the life of me, I cannot find any basis for such a broad, expansive interpretation in the interpretation of the Constitution of the United States. Find it. Show it to me. You can't do it.

   Where in the Constitution is it written that the title of Commander in Chief carries with it the power to decide unilaterally whether to commit the resources of the United States to war? Show it to me, lawyers, lawyers of the White House, or lawyers in this body. Show it.

   There is a dangerous agenda, believe me, underlying these broad claims by this White House. The President is hoping to secure power under the Constitution that no President has ever claimed before. Never. He wants the power--the Bush administration wants that President to have power to launch this Nation into war without provocation and without clear evidence of an imminent attack on the United States. And we are going to be foolish enough to give it to him. I never thought I would see the day in these 44 years I have been in this body, never did I think I would see the day when we would cede this kind of power to any President. The White House lawyers have redefined the President's power under the Constitution to repel sudden acts against the United States. And he has that power, to repel sudden, unforeseen attacks

   against the United States, against its possessions, its territories, and its Armed Forces.

   But they suggest he could also justify military action whenever there is a high risk of a surprise attack. That Constitution, how they would love to stretch it to give this President that power which he does not have. Those White House lawyers would have us believe that the President has independent authority not only to repel attacks but to prevent them. How silly. You cannot find it in that Constitution.

   The White House wants to redefine the President's implied power under the Constitution to repel sudden attacks, suggesting that the realities of the modern world justify preemptive military action whenever there is a high risk of a surprise attack. What in the world are they teaching in law school these days? What are they teaching? I never heard of such as that when I was in law school. Of course I had to go at night. I had to go 10 years to get my law degree. In the national security strategy released last week, a few days ago, the President argued--let me tell you what the President argued--we must adapt the concept of imminent threat to the capabilities of today's adversary. Get that.

   Defense Secretary Rumsfeld echoed this sentiment when he told the Senate Armed Services Committee: I suggest that any who insist on perfect evidence are back in the 20th century and still thinking in pre-9/11 years.

   What a profound statement that was. How profound. Perhaps the Secretary of Defense ought to go back to law school, too. I don't believe he was taught that in law school.

   The President does not want to shackle his new doctrine of 20th century ideas of war and security, much less any outdated notion from the 18th century about how this Republic should go to war. The Bush administration thinks the Constitution, with its inefficient separation of powers and its cumbersome checks and balances--they are cumbersome--has become an anachronism in a world of international terrorism and weapons of mass destruction.

   They say it is too old. This Constitution, which I hold in my hand, is an anachronism. It is too old. It was all right back in the 19th century. It was all right in the 20th century. But we are living in a new time, a new age. There it is, right up there, inscribed, ``Novus ordo seclorum.'' A new order of the ages. New order of the ages.

   This modern President does not have time for old-fashioned political ideas that complicate his job of going after the bad guys single-handedly.

   And make no mistake, the resolution we are considering will allow the President to go it alone at every stage of the

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   The most dangerous part of this modernized approach to war is the wide latitude the President will have to identify which threats present a ``high risk'' to national security. The administration's National Security Strategy briefly outlines a few common attributes shared by dangerous ``rogue states,'' but the administration is careful not to confine its doctrine to any fixed set of objective criteria for determining when the threat posed by any one of these states is sufficient to warrant preemptive action.

   The President's doctrine--and we are about to put our stamp on it, the stamp of this Senate. The President's doctrine, get this, gives him--Him? Who is he? He puts his britches on just the same way I do. He is a man. I respect his office. But look what we are turning over to this man, one man.

   The President's doctrine gives him a free hand to justify almost any military action with unsubstantiated allegations and arbitrary risk assessments.

   Even if Senators accept the argument that the United States does not have to wait until it has been attacked before acting to protect its citizens, the President does not have the power to decide when and where such action is justified, especially when his decision is supported only by fear and speculation. The power to make that decision belongs here in Congress. That is where it belongs. That is where this Constitution vests it. The power to make this decision belongs to Congress and Congress alone.

   Ultimately, Congress must decide whether the threat posed by Iraq is compelling enough to mobilize this Nation to war. Deciding questions of war is a heavy burden for every Member of Congress. It is the most serious responsibility imposed on us by the Constitution. We should not shrink from our duty to provide authority to the President where action is needed. But just as importantly, we should not shrink from our constitutional duty to decide for ourselves whether launching this Nation into war is an appropriate response to the threats facing our people--those people looking, watching this debate through that electronic lens there. They are the ones who will have to suffer. It is their sons and daughters whose blood will be spilled. Our ultimate duty is not to the President. They say: Give the President the benefit of the doubt. Why, how sickening that idea is. Our ultimate duty is not to the President of the United States. I don't give a darn whether he is a Democrat or Republican or an Independent--whatever. It makes no difference. I don't believe that our ultimate duty is to him. Our ultimate duty is to the people out there who elected us.

   Our duty is not to rubber-stamp the language of the President's resolution, but to honor the text of the Constitution. Our duty is not to give the President a blank check to enforce his foreign policy doctrine, but to exercise our legislative power to protect the national security interests of this Republic.

   Our constitutional system was designed to prevent the executive from plunging the Nation into war in the name of contrived ideals and political ambitions. The nature of the threats posed by a sudden attack on the United States may have changed dramatically since the time when Constitution was drafted, but the reasons for limiting the war powers of the President have not

   changed at all. In fact, the concerns of the Framers are even more relevant. Talk about this being old fashioned. The concerns of the Framers are even more relevant to the dangerous global environment in which our military must now operate, because the consequences of unchecked military action may be more severe for our citizens than ever before.

   Congress has the sole power under the Constitution to decide whether the threat posed by Iraq is compelling enough to mobilize this nation to war, and no Presidential doctrine can change that. If President Bush wants our foreign policy to include any military action, whether for preemption, containment, or any other objective, he must first convince Congress that such a policy is in the best interest of the American people.

   The amendment I am offering reaffirms the obligation of the Congress to decide whether this country should go to war. It makes clear that Congress retains this power, even in the event that we pass this broad language, which I believe gives the President a blank check to initiate war whenever he wants, wherever he wants, and against any perceived enemy he can link to Iraq. My amendment makes clear that the President has the power to respond to the threat of an imminent, sudden, and direct attack by Iraq against the United States, and that any military action that does not serve this purpose must be specifically authorized by the Congress.

   Other Senators have said on the floor that the language of this resolution does not give the President a blank check, and they have said that this resolution is narrowly tailored to Iraq. I do not read the resolution that way, but I hope that the President does. I hope the President reads this resolution as a narrowly crafted authorization to deal with Iraq's weapons of mass destruction, and not as an open-ended endorsement of his doctrine of preemptive military action.

   We should all hope that the President does not fully exercise his authority under this resolution, and that he does not abuse the imprecise language Congress may ultimately adopt. But I believe that Congress must do more than give the President a blank check and then stand aside and hope for the best. Congress must make clear that this resolution does not affect its constitutional power to declare war under Article I, section 8 of the Constitution; otherwise, this resolution may appear to delegate this important legislative function to the executive

   My amendment also clarifies the intent of this resolution is limited to authorizing a military response to the threat of an Iraqi attack upon the United States. Congress must ensure that the broad language of this resolution does not allow the President to use this authority to act outside the boundaries of his constitutional powers. This amendment affirms the constitutional requirement that the President must have congressional authorization before initiating military action for any purpose other than defending the United States against an imminent, sudden, and direct attack. We must not provide the temptation to this President, or any president, to unleash the dogs of war for reasons beyond those anticipated by the Congress.

   The power of Congress to declare war is a political check on the President's ability to arbitrarily commit the United States to changing military doctrines, and the evolving nature of war and security threats does not change the language of the Constitution. The President cannot use the uncertainty of terrorist threats to confuse the clearly defined political processes required by the Constitution, and Congress should not rush to endorse a doctrine that will commit untold American resources to unknown military objectives.

   The President admits in his National Security Strategy that ``America's constitution has served us well.'' But his actions suggest that he feels this service is no longer needed. Congress should ensure that the Constitution continues to serve our national security interests by preventing the United States from plunging headlong into an ever-growing war in the Middle East. I urge my colleagues to support this amendment in order to preserve the constitutional system of checks and balances that the founders of this republic valued so highly.

   Mr. REID. Madam President, I would like to be recognized on a unanimous consent request.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. REID. Madam President, based on the conversation I had earlier today, with everybody--Senator Byrd--about what is not in the RECORD, one of the things we did not do is dispose of the other amendments. Reciting from the RECORD, I said we

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   That is today, speaking for Senator Durbin, Senator Boxer, and Senator Levin. So I ask unanimous consent that their other amendments at the desk be withdrawn from the desk.

   Mr. BYRD. What is the request?

   Mr. REID. I was reading from the RECORD that the amendments of Durbin, Boxer, and Levin are not going to be offered. They are being withdrawn from the desk.

   The PRESIDING OFFICER. Is the Senator asking the amendments be recalled?

   Mr. REID. Yes.

   The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.

   Mr. REID. Senator Dayton would also ask his be recalled. I ask unanimous consent that be the case.

   The PRESIDING OFFICER. Without objection, the amendment is recalled.

   The Senator from Arizona.

   Mr. McCAIN. How much time do I have remaining?

   The PRESIDING OFFICER. The Senator has 14 minutes 40 seconds.

   Mr. McCAIN. I would like to yield 3 minutes to the Senator from Delaware.

   Mr. BIDEN. Madam President, the case that the Senator from West Virginia makes is a good case on the merits of whether or not we should, in fact, delegate this authority, but I am confused by the argument that constitutionally we are unable to delegate that authority.

   Historically, the way in which the delegation of the authority under the constitutional separation of powers doctrine functions is there have to be some parameters to the delegation. For example, we could not delegate to the President the authority to pick and confirm any Supreme Court Justice he wanted to confirm.

   The essence of the constitutional argument which my friend from West Virginia makes is, I assume, that there are no parameters to this delegation; therefore, the delegation per se is unconstitutional. I assume that is the rationale. But as I read this grant of authority, it is not so broad as to make it unconstitutional for us, under the war clause of the Constitution, to delegate to the President the power to use force if certain conditions exist. My time is about up, but I would argue that in section 4(a), subsections (1) and (2), the conjunctive ``and'' instead of ``or'' exists, which means that as a practical matter in reading this, the only circumstance the President could find, in my view, that the national security was being threatened would be as it relates to the resolutions relating to weapons of mass destruction. But I will speak to that later. I appreciate my friend yielding me the time.

   But, again, constitutionally, this resolution meets the test of our ability to delegate. It is not an overly broad delegation which would make it per se unconstitutional, in my view.

   The PRESIDING OFFICER. The Senator from Arizona.

   Mr. McCAIN. Madam President, according to the letter of the Byrd amendment, a clear threat of imminent, sudden, and direct attack upon the United States, its possessions or territories, et cetera, clearly would have, would absolutely deprive the President of the United States of what he is seeking today. It would deprive the President of the United States of the authority he has requested to compel Saddam Hussein to disarm, so let's have no doubt about the impact of this amendment.

   The President has spoken clearly of the threat Saddam Hussein's regime poses to America and the world today--even though Iraq today clearly does not meet the Byrd amendment's standard of threatening imminent, sudden, and direct attack upon the United States of our Armed Forces. To wait for Saddam Hussein to threaten imminent attack against America would be to acquiesce to his development of nuclear weapons, to ignore his record of aggression against his neighbors, and to disregard his continuing threats to destroy Israel.

   Failure now to make the choice to remove Saddam Hussein from power will leave us with choices later, when Saddam's inevitable acquisition of nuclear weapons will make it much more dangerous to defend our friends and interests in the region. It will permit Saddam to control much of the region, and to wield its resources in ways that can only weaken America's position. It will put Israel's very survival at risk, with moral consequences no American can welcome.

   Failure to end the danger posed by Saddam Hussein's Iraq makes it more likely that the interaction we believe to have occurred between members of al-Qaida and Saddam's regime may increasingly take the form of active cooperation to target the United States.

   We live in a world in which international terrorists continue to this day to plot mass murder in America. Saddam Hussein unquestionably has strong incentives to cooperate with al-Qaida. Whatever they may or may not have in common, their overwhelming hostility to America and rejection of any moral code suggest that collaboration against us would be natural. It is all too imaginable. Whether or not it has yet happened, the odds favor it--and they are not odds the United States can accept.

   Standing by while an odious regime with a history of support for terrorism develops weapons whose use by terrorists could literally kill millions of Americans is not a choice. It is an abdication. In this new era, preventive action to target rogue regimes is not only imaginable but necessary.

   Who would not have attacked Osama bib Laden's network before September 11th had we realized that his intentions to bring harm to America were matched by the capability to do so? Who would not have heeded Churchill's call to stand up to Adolf Hitler in the 1930's, while Europe slept and appeasement fed the greatest threat to Western civilization the world had ever known? Who would not have supported Israel's bombing of Iraq's nuclear reactor in 1981 had we then known, as Israel knew, that Saddam was on the verge of developing the bomb?

   In the new era we entered last September, warning of an attack before it happens is a luxury we cannot expect. Waiting for imminence of attack could be catastrophic. Many fear we will not know of an attack until it happens--and should our enemies use weapons of mass destruction in such an attack, the deaths of thousands or millions of Americans could occur with no warning--as happened last September. In this age, to wait for our enemies to come to us is suicidal.

   In 1962, President Kennedy made the point that America cannot wait until we face the threat of open attack without gravely endangering our security. In President Kennedy's words, ``Neither the United States of America, nor the world community of nations can tolerate deliberate deception and offensive threats on the part of any nation, large or small. We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maximum peril.''

   The Byrd amendment would overturn the doctrine announced by the President of the United States to guide his administration's conduct of American national security policy. The Byrd amendment would negate any Congressional resolution authorizing the President to use all means to protect America from the threat posed by Iraq. It would set such a high threshold for the use of military force as to render the Commander in Chief powerless to respond to the clear and present danger Saddam Hussein's regime poses to America and the world.

   I urge my colleagues to reject the Byrd amendment.

   The PRESIDING OFFICER. The Senator from Arizona.

   Mr. McCAIN. Madam President, how much time do I have left?

   The PRESIDING OFFICER. The Senator has 7 minutes.

   Mr. McCAIN. I yield 3 minutes to the Senator from Delaware.

   The PRESIDING OFFICER. The Senator from Delaware.

   Mr. BIDEN. Madam President, this is one of the confusing aspects of this debate. I find myself supporting this resolution but worried that supporting this resolution will get us into real trouble.

   We use Saddam, Hitler, and al-Qaida all in the same verbiage and language. Let me make the real distinction, as I see it, regarding preemption.

   If we knew that al-Qaida had particular weapons, knowing, as we did, what their stated objective was, and with the intelligence we had, we would be fully within our rights--not under

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   Conversely, with Hitler in the 1930s, the rationale for moving against Hitler wasn't a doctrine of preemption because we knew he was a bad guy. It was because his country signed the Treaty of Versailles. He was violating the Treaty of Versailles. The Treaty of Versailles did not have an end date on it. It didn't say you cannot have forces for the first 2 or 3 years, or you cannot do the following things. We were fully within our rights as a world community to go after Hitler in 1934, 1935, 1936, or 1937. It was not based on the doctrine of preemption but a doctrine of enforcement of the Treaty of Versailles, and in a very limited time.

   What we have here, I argue, as the rationale for going after Saddam, is that he signed a cease-fire agreement. The condition for his continuing in power was the elimination of his weapons of mass destruction, and the permission to have inspectors in to make sure he had eliminated them. He expelled those inspectors. So he violated the cease-fire; ergo, we have authority--not under a doctrine of preemption. This will not be a preemptive strike, if we go with the rest of the world. It will be an enforcement strike.

   I hope we don't walk out of here with my voting for this final document and somebody 6 months from now or 6 years from now will say we have the right now to establish this new doctrine of preemption and go wherever we want anytime.

   The part on which I do empathize with my friend from West Virginia is this is not a very clearly written piece of work. That is why I think Senator Lugar and myself and others had a better way of doing this. But it does incorporate with the President's words the notion that we are operating relative to weapons of mass destruction and U.S. security interests and enforcement--not preemption.

   I conclude by saying that the President started his speech explaining the reason why he wanted his resolution on Monday. I guess it was Monday. And he said at the very outset that this is based upon enforcing what was committed to in dealing with weapons of mass destruction.

   I know my time is up. I will speak to this more later.

   I am opposed to the Byrd amendment, but I hope we don't establish some totally new doctrine in our opposition to it.

   The PRESIDING OFFICER. The Senator from Arizona.

   Mr. McCAIN. How much time do I have remaining?

   The PRESIDING OFFICER. Three and one-half minutes.

   Mr. McCAIN. Madam President, I yield 2 minutes to the Senator from Tennessee.

   The PRESIDING OFFICER. The Senator from Tennessee.

   Mr. THOMPSON. Madam President, I thank the Senator from Arizona. I appreciate what the Senator from Delaware just said. I think it makes a lot of sense.

   I have many concerns about this amendment, but two stick out to me as I read it. My concern is that, under this rationale, if we were told we had good intelligence and we were convinced that within, let us say, 6 months we were going to be attacked, it would still not fit the definition of imminent and sudden.

   As I read it, the threat must be an imminent, sudden, and direct attack upon the United States. A sudden attack of 6 months would not qualify. It might be imminent, but it certainly wouldn't be sudden. I don't think we can afford that luxury.

   Second, our allies are totally excluded. Do we want to announce to the world that there must be only an imminent, sudden, direct attack upon the United States, its possessions, territories, and our Armed Forces, leaving our allies in that particular part of the world totally undefended by the United States? I don't think that is a message we want to send.

   I respectfully oppose the amendment.

   The PRESIDING OFFICER. The Senator from Arizona.

   Mr. McCAIN. Madam President, in summary, this amendment regarding the preservation of Congress's constitutional authority is unnecessary. A portion of the amendment that would limit the authority of the President to wage war is arguably unconstitutional. The Congress can declare war, but it cannot dictate to the President how to wage war. No law passed by Congress could alter the constitutional separation of powers.

   I urge my colleagues to defeat this amendment.

   I yield back the remainder of my time.

   The PRESIDING OFFICER. The question is on agreeing to amendment No. 4868.

   Mr. BYRD. Madam President, I ask for the yeas and nays.

   The PRESIDING OFFICER. Is there a sufficient second?

   There is a sufficient second.

   The clerk will call the roll.

   The assistant legislative clerk called the roll.

   The result was announced--yeas 14, nays 86, as follows:

   Boxer

   Byrd

   Dayton

   Durbin

   Feingold

   Inouye

   Jeffords

   Kennedy

   Leahy

   Mikulski

   Murray

   Sarbanes

   Specter

   Wellstone

   Akaka

   Allard

   Allen

   Baucus

   Bayh

   Bennett

   Biden

   Bingaman

   Bond

   Breaux

   Brownback

   Bunning

   Burns

   Campbell

   Cantwell

   Carnahan

   Carper

   Chafee

   Cleland

   Clinton

   Cochran

   Collins

   Conrad

   Corzine

   Craig

   Crapo

   Daschle

   DeWine

   Dodd

   Domenici

   Dorgan

   Edwards

   Ensign

   Enzi

   Feinstein

   Fitzgerald

   Frist

   Graham

   Gramm

   Grassley

   Gregg

   Hagel

   Harkin

   Hatch

   Helms

   Hollings

   Hutchinson

   Hutchison

   Inhofe

   Johnson

   Kerry

   Kohl

   Kyl

   Landrieu

   Levin

   Lieberman

   Lincoln

   Lott

   Lugar

   McCain

   McConnell

   Miller

   Murkowski

   Nelson (FL)

   Nelson (NE)

   Nickles

   Reed

   Reid

   Roberts

   Rockefeller

   Santorum

   Schumer

   Sessions

   Shelby

   Smith (NH)

   Smith (OR)

   Snowe

   Stabenow

   Stevens

   Thomas

   Thompson

   Thurmond

   Torricelli

   Voinovich

   Warner

   Wyden

   The amendment (No. 4868) was rejected.

   The PRESIDING OFFICER (Mr. EDWARDS). The Senator from Virginia is recognized.

   Mr. WARNER. Mr. President, it is the intention of the Senate now to proceed to the Levin amendment No. 4862, with 50 minutes for the Senator from Michigan, 15 minutes for the Senator from Delaware, 15 minutes for the Senator from Arizona, Mr. McCain, and 15 minutes for the Senator from Virginia. It is the intention of the Senator from Virginia to see that time is given to the distinguished Senator from Connecticut, Mr. Lieberman.

   We are now awaiting the opening statement of our distinguished chairman of the Armed Services Committee. I advise Senators that at the completion of that time, it is the intention of the Senator from Virginia to move to table the amendment.

   Mr. LEVIN. I wonder if the Senator will withhold for a moment.

   AMENDMENT NO. 4862

   The PRESIDING OFFICER. Under the previous order, the Senate will proceed to consider amendment No. 4862, the Levin amendment.

   Mr. LEVIN. Mr. President, I suggest the absence of a quorum.

   The PRESIDING OFFICER. The clerk will call the roll.

   The assistant legislative clerk proceeded to call the roll.

   Mr. WARNER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. WARNER. Mr. President, in consultation with my colleagues, I withdraw the comment at this time of the desire of the Senator from Virginia to table.

   The PRESIDING OFFICER. Who yields time?

   Mr. LEVIN. I yield myself 8 minutes.

   The PRESIDING OFFICER. The Senator from Michigan.

   Mr. LEVIN. Mr. President, the short title of our amendment is ``The Multilateral Use of Force Authorization Act of 2002.'' The very title of this alternative to the Lieberman-Warner amendment establishes both its similarity and its difference from the Lieberman amendment.

   It is similar because both of our approaches authorize the use of U.S.

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   Our resolution also supports the President's call and urges the United Nations Security Council to promptly adopt a resolution that demands Iraq to provide unconditional access, unconditional destruction of all weapons of mass destruction and, in the same resolution, authorize U.N. member states to use military force to enforce that resolution.

   Our resolution also affirms that the United States has at all times the inherent right to use military force in self-defense. There is no veto given the United Nations in this resolution of ours. Quite the opposite. We explicitly make it clear we maintain, of course, a right to use self-defense. And we provide that the Congress will not adjourn sine die this year, but will return to session to consider promptly proposals relative to Iraq if, in the judgment of the President, the United Nations fails to adopt or enforce the United Nations resolution for which he and we call.

   The Lieberman resolution, like ours, authorizes the use of U.S. military force to enforce the Security Council resolution

   that is being sought by the President, as well as in the case of the Lieberman resolution, as well as earlier U.N. resolutions. But the Lieberman resolution also would authorize the use of force on a unilateral basis, not requiring that there be an imminent threat, which is essential to using force in self-defense preemptively under international law, but a lower threshold called a continuing threat.

   That would be a departure from the requirement in international law that the use of force in self-defense be for imminent threats. That can have significant negative consequences for the world. If other nations adopt that precedent, if India and Pakistan adopt that precedent, two nuclear-armed nations, they can find continuing threats against each other, not imminent, just continuing threats and, using our precedent, if we adopt the Lieberman resolution, say: That is the new standard in international law; it does not have to be an imminent threat; we can preemptively attack a neighbor and anybody else if, in our judgment, it is a continuing threat.

   If China decided that Taiwan, which it labels a renegade province, is a threat to its security, then under this precedent it can attack Taiwan under the approach that ``imminent'' is no longer a requirement.

   Acting multilaterally--multilaterally--as our alternative resolution does--in other words, with the backing of the United Nations--has a number of advantages. It will garner the most support from other nations and avoid the negative consequences of being deprived of airbases, supply bases, overflight rights, and command-and-control facilities that are needed for military action.

   Saudi Arabia has already said explicitly: If you do not get a U.N. resolution, you cannot use our military bases. And other nations have said the same. If they are going to be involved with us in using force against Iraq, they want the authority of a U.N. resolution to do it.

   Our resolution has a better chance of success in persuading Saddam Hussein to comply, to capitulate, to cooperate finally with the U.N. weapons inspectors and to disarm because it will have the world community looking at the other end of the barrel down at him.

   Our multilateral resolution reduces the chances of losing support from other nations in the war on terrorism, and we need law enforcement, intelligence, and financial cooperation from other nations.

   Our multilateral approach reduces the potential for instability in an already volatile region, and that instability can undermine Jordan, Pakistan, and possibly even end up with a radical regime in Pakistan, a nuclear weapon nation.

   Our multilateral approach reduces the likelihood of Saddam Hussein or his military commanders using biological or chemical weapons against our forces, as he will be looking, again, down the barrel of a gun with the world at the other end rather than only at the United States.

   Both General Shalikashvili and General Clark testified in front of our committee that there is a significant advantage to our troops by going multilaterally in terms of the likely response of Saddam Hussein to a unilateral attack by the United States and the likelier use of weapons of mass destruction by him in response to a unilateral attack.

   Our multilateral approach will increase the number of nations that will be willing to participate in the fighting. It will increase the number of nations that will be willing to

   participate in the long and costly effort in a post-Saddam Iraq, and we would be avoiding setting that precedent of using force preemptively without an imminent threat.

   Mr. President, if we are serious about going to the U.N., as the President has said he is, we must focus our efforts there. We should not send an inconsistent message. We should not take the U.N. off the hook. We should not say: We really are interested in the U.N. acting, adopting a resolution, requiring an unconditional opening by Saddam, requiring the destruction of his weapons of mass destruction.

   We are saying we really mean that; that is the kind of resolution we want. We are saying that. We also want that resolution to authorize member states to use military force to enforce it. That is what we are saying on the one hand, but if the Lieberman resolution passes, then we will be sending the exact opposite message: If you do not, we will anyway.

   That takes the U.N. off the hook. That blurs the focus that we should be placing on the importance of multilateral action authorized by the United Nations.

   I believe that Saddam Hussein must be forced to disarm. I think it is going to take force, or the threat of force, to get him to comply.

   It seems to me there is a huge advantage if that force is multilateral, and going it alone is a very different calculus with very different risks.

   If we fail at the U.N., then under our resolution, the President can come back at any time he determines that the U.N. is not acting to either adopt or enforce its resolution. He can then come back here under our resolution, call us back into session, and then urge us to authorize a going-it-alone, unilateral resolution.

   I thank the Chair, and I yield 8 minutes to Senator Bingaman.

   The PRESIDING OFFICER. The Senator from New Mexico.

   Mr. BINGAMAN. Mr. President, I rise to speak on the two resolutions that the Senator from Michigan has talked about in his comments because there are two resolutions before the Senate, both of which authorize the President to use force, if necessary, against Iraq.

   Before I discuss those, let me just say a few words about the war on terrorism which has engaged the attention of this entire Nation during the last 13 months.

   Before I discuss those, I congratulate the President on the way he was able to bring our country together after the attack of September 11 of last year. In cooperation with the President, Congress put aside other matters, put aside partisan issues, and acted quickly to appropriate necessary funds and to enact important legislation to help safeguard our country and its citizens. I think all of us in Congress joined in meeting this challenge, and I am proud we were able to do so.

   The President has come to us again, and this time he has focused attention on another threat--that is, the threat that Saddam Hussein, the leader of Iraq, will use weapons of mass destruction against us or our allies or that he will provide such weapons to terrorists for them to use.

   The President has indicated his belief that regime change in Iraq is needed to deal with this threat, but he makes the point that at this time he has not made a decision about whether or when to commence any military action.

   The United Nations, for many years, has agreed with our country's view that Saddam Hussein should not be permitted to possess weapons of mass destruction. An inspection regime was established by the United Nations in April of 1991, and inspections by UNSCOM continued until August of 1998 to ensure that weapons were not being developed or maintained.

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   So in response to this threat, the President has urged Congress to adopt a broadly worded resolution that authorizes him at any time in the future:

   To use the Armed Forces of the United States as he determines to be necessary and appropriate, in order to defend the national security of the United States against the continuing threat posed by Iraq; and enforce the United Nations Security Council resolutions regarding Iraq.

   Senator Levin, who is chairman of the Armed Services Committee, with whom I have been privileged to serve for the last 20 years, has urged us to adopt a different resolution that grants the President the authority to use military power, but Senator Levin's proposed resolution differs from the broad grant of authority the President has requested in two very significant ways.

   First, it authorizes the use of force at this time only pursuant to a resolution of the U.N. Security Council. In this way, we would be ensuring our actions to eliminate Iraq's weapons of mass destruction continue to be taken in coordination with our allies.

   Second, the Levin resolution authorizes the use of:

   The Armed Forces of the United States to destroy, remove, or render harmless Iraq's weapons of mass destruction, nuclear weapons-usable material, ballistic missiles with a range greater than 150 kilometers, and related facilities, if Iraq fails to comply with the terms of the Security Council resolution.

   There is a specific objective we are saying the President is authorized to use military force to accomplish.

   The Levin resolution does not authorize unilateral action at this time to accomplish so-called regime change. Rather, it would leave open the option for the President to come back to seek and obtain that authority from Congress if and when he determines that military action against Iraq is required, even without U.N. sanction.

   I strongly support giving the President authority to work with our allies in the United Nations, to inspect for, locate, and destroy weapons of mass destruction in Iraq. It may well prove necessary to use military force to accomplish that objective. In my view, the Levin resolution grants the President that authority. Unless that effort, which is already underway, fails, I believe it would be wrong for us to grant authority to the President to use U.S. Armed Forces in what is essentially a unilateral action to achieve goals that are, at best, vague and broad.

   The President has made clear that in his view our goal should be regime change. The argument is Saddam Hussein has shown such a proclivity to lie, cheat, and evade that anything short of regime change will leave us vulnerable to a future attack by Iraq.

   Depending on the success of our current efforts to reinstitute an inspection regime, the American people and our allies may well conclude the President is correct. We may have to conclude that finding and destroying weapons of mass destruction in Iraq cannot be achieved as long as Saddam Hussein is in power, and if that is the necessary conclusion we reach, then a major military action will likely be required, with all the casualties and consequences such an action entails.

   Our allies have not reached that conclusion yet. They believe a new inspection regime can be made to work and that the threat can be dealt with short of going to war. At least they believe it is worthwhile for us to make that final effort.

   The President's proposed resolution authorizes him:

   To use the Armed Forces of the United States as he determines to be necessary and appropriate.

   This is, in my view, a virtually open-ended grant of authority. It is not a proper action for Congress to take at this time. I do not believe it is wise at this point to be authorizing war without the support of the United Nations and our allies. If war must be waged, other countries should be there with us, sharing the costs, both the financial and human costs, and helping restore stability in what will almost certainly be the tumultuous aftermath of that military action.

   I also do not favor an authorization for war unless and until the President is prepared to advise Congress that war is necessary, and he has explicitly said he is not prepared to advise us of that at this time.

   For all these reasons, I will support the resolution put forth by Senator Levin and not support the much broader grant of authority urged by the President.

   I yield the floor.

   The PRESIDING OFFICER. Who yields time?

   Mr. WARNER. Mr. President, will my colleague yield for a question on my time and a response on his time? In other words, I will ask the question on the time allocated to me and the Senator can respond on the time allocated to him.

   Mr. LEVIN. I am afraid my time is allocated totally, unless it can be a brief answer. I would be happy to answer briefly.

   Mr. WARNER. Then I am going to have to narrow our ability to enter into a colloquy, which you and I have done so many times.

   I will ask one question: As I read this amendment, I find it could be interpreted as precluding the ability to enforce the existing resolutions, namely 688, the no-fly zone. If the Senator wants a few minutes to study and reflect on that, I would like to have the Senator think this through. That is one very serious shortcoming. In other words, for 11 years we have been enforcing the no-fly zone, but as I read this, it could be construed as stopping that. I make that point.

   Mr. LEVIN. I would be happy to answer that. It would be misconstrued if it were interpreted that way. This does not preclude the President from doing anything. This is an authorization. It is not a prohibition. It is an authorization to the President to use force. It does not preclude the President. It does not say the President may not use force. It says the President is authorized to use force. So there is no prohibition; there is no negative.

   The President has sought our authority. This resolution would give the President that authority.

   Mr. WARNER. I draw my colleague's attention to the fact it would require the United States to wait for the U.N. Security Council to act on a resolution before the President could take action to protect our national security interests.

   Mr. LEVIN. Which is the WMD issue. It is only the WMD issue that is referred to.

   Mr. WARNER. I will have to reserve the remainder of my time.

   The PRESIDING OFFICER. Who yields time?

   The Senator from Virginia.

   Mr. WARNER. I yield 5 minutes to the distinguished Senator from Connecticut.

   The PRESIDING OFFICER. The Senator from Connecticut.

   Mr. LIEBERMAN. I thank the Chair and I thank my friend from Virginia for yielding me the time.

   Mr. SARBANES. Parliamentary inquiry: Will the Chair inform us what the time allocations are and how much time is remaining.

   The PRESIDING OFFICER. Senator Levin began with 50 minutes and has 33 minutes remaining. Senator Biden has 15 minutes, Senator McCain has 15 minutes, and Senator Warner has used 2 of his 15 minutes.

   Mr. SARBANES. I thank the Chair.

   The PRESIDING OFFICER. The Senator from Connecticut.

   Mr. LIEBERMAN. Mr. President, I rise to oppose the amendment offered by my friend, the Senator from Michigan. It seems to me, as I look at this amendment, that the difference we have--those of us who have sponsored the underlying resolution, and the Senator from Michigan and others sponsoring the amendment--is over tactics, not objectives.

   Perhaps we should acknowledge one to the other. We each have the objective, I believe, to compel Saddam Hussein to comply with the various U.N. Security Council resolutions, and in that sense, particularly, to disarm.

   I suggest to my friend from Michigan, noting how he continues to refer to his amendment as the multilateral approach, that those who sponsored the underlying resolution consider ours to be a multilateral international approach as well. We believe our willingness not only to accept and urge and encourage the President to go to the United Nations and hope the United Nations will authorize use of force if

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   There is a disagreement about tactics. The disagreement is whether we should do all this in one resolution, as we have, or, as the Senator from Michigan proposes in the amendment, to have two steps: First, go to the United Nations, only allow enforcement, particularly of the resolutions concerning Iraq's weapons of mass destruction, to be done by the United States with the permission of the United Nations. If that does not work, the President must come back for a separate resolution.

   Last night in a colloquy with the Senator from Michigan, I suggested that his resolution does in fact give the Security Council a veto over the President's determination, the President's capacity, to use the American military to enforce certainly those resolutions having to do with weapons of mass destruction and ballistic missiles and related facilities.

   It seems to me, notwithstanding the fact that the Senator's amendment affirms the President's inherent right to use military force in self-defense, section 4(a) also makes clear the President of the United States can only do that if he wants to take action to destroy or remove or render harmless Iraq's weapons of mass destruction, nuclear weapons, fissile material, ballistics, et cetera, pursuant to a resolution of the U.N. Security Council.

   That means any member of the Security Council--Russia, China, France, any temporary member--can veto action by the United States, by the Commander in Chief. I don't want that to happen.

   The question is, Why assume, if the United Nations does not take action, the United States will have to go it alone? Having gone to the United Nations, having made our case, the fact is if military action is necessary, the United States will never have to go alone. We will have allies in Europe, allies in the Middle East, who see our seriousness of purpose, who share in our desire to protect themselves and the world from Saddam Hussein, who will come to our side. We will have what we called in the case of Kosovo a coalition of the willing.

   The Kosovo case is instructive on several points raised in this debate. There was no United Nations resolution authorizing the United States to deploy forces in the case of Kosovo because everyone, including the Clinton administration, the President, determined we would possibly be subject to a Russian veto at the Security Council. The President was unwilling to accept that. There was no congressional resolution then organizing the deployment of our forces because there was controversy about that. There was clearly no imminent threat of a sudden direct attack against the United States, as in other amendments that have been before the Senate, because this was happening in the Balkans. But the President of the United States, President Clinton, clearly understood what was happening there was wrong. He wanted to take action not only to stop the genocide and prevent a wider war in Europe but in the most distant threat, to prevent a potential threat to the security of the United States, so he formed a coalition of willing nations.

   Here the threat from Iraq under Saddam Hussein is much more imminent to the United States. So to subject our capacity to defend ourselves against that threat to a veto by the United Nations Security Council is inappropriate and wrong.

   Again, I state a great phrase from the Bible: If the sound of the trumpet is uncertain, who will follow into battle?

   If we sound a certain trumpet with this resolution, which this amendment would make uncertain, then many other nations will follow us into battle.

   I oppose the amendment.

   The PRESIDING OFFICER. The Senator from Virginia.

   Mr. WARNER. I will take a few minutes under my time and give to this Chamber two quotations that frame the entire debate. The first quotation is from 40 years ago. It was the President of the United States, John F. Kennedy, in 1962:

   This Nation is prepared to present its case against the Soviet threat to peace and our own proposals for a peaceful world at any time and in any form, in the Organization of American States, in the United Nations, or in any other meeting that could be useful, without limiting our freedom of action.

   This is precisely what this amendment does. It is a total substitute for the work that has been done by the Senator from Connecticut, working with others, the leadership on both sides of the aisle, and the President's staff. That would all come down, and in its place would be this resolution which has provisions that could be interpreted as a veto, questions the authority of the President, and puts too much reliance that the United Nations is going to devise a resolution which would meet the criteria that our President and other nations deem essential for a new inspection regime.

   That was a quote by President Kennedy.

   Now, 40 years forward, a second quote:

   This resolution gives the President the authority he needs to confront the threat posed by Iraq. It is fundamentally different and a better resolution than the one the President sent to us. It is neither a Democratic resolution nor a Republican resolution. It is now a statement of American resolve and values.

   Continuing:

   For me, the deciding factor is my belief that a united Congress will help the President unite the world, and by uniting the world we can increase the world's chances of succeeding in this effort and reduce both the risks and the cost.

   That quote was made just over 40 minutes ago by the distinguished majority leader of the Senate.

   The House of Representatives debated language identical in both Chambers. To achieve that united Congress, we must maintain the integrity of the amendment that is presently pending. That is the amendment by Senator Lieberman and myself, Senator McCain, and Senator Bayh.

   I yield the floor.

   The PRESIDING OFFICER. Who yields time?

   Mr. LEVIN. I yield 8 minutes to the Senator from California.

   Mrs. BOXER. Mr. President, I thank Senator CARL LEVIN for his amendment. I thank the State of Michigan for sending Senator Levin to the Senate. His independence, his courage, his clear thinking, his love of country are evident in the work he has put behind this important amendment. I believe his answer to Iraq's challenge is, indeed, the right course for this country.

   To me, the issue of Iraq should be approached in the following way. Iraq must be held to its word that it will submit to thorough inspections and dismantlement of weapons of mass destruction. Let me repeat that: Iraq must be held to its word that it will submit to thorough inspections and dismantlement of weapons of mass destruction.

   The United Nations should pass an updated resolution ensuring unfettered inspections and disarmament, and that should take place or there will be dire consequences for Iraq. The weapons they have are a threat to the world. The world must respond. If we handle this matter correctly, the way Senator Levin is suggesting, I believe the world will respond. If we handle it wrong--and I think the underlying resolution is the wrong approach--if our allies believe we have not made the case, they believe somehow this is a grudge match, or if they believe they are being manipulated for domestic political reasons, that is going to hurt our Nation and that is going to isolate us.

   Indeed, this rush to pass unilateral authority--I have never seen anything quite like what has happened in the Senate. The rush to pass unilateral authority, the rush to say to the President, go it alone, don't worry about anybody else, is hurting this debate, and this debate looks political. It looks political.

   If there are those in the administration who believe this debate could hurt Democrats, they may be surprised. Democrats do not walk in lockstep. We are independent thinking. I believe the people want that.

   Remember, this administration started out thumbing its nose at the

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   Also, as the Presiding Officer knows, they wanted a resolution that gave the authority far beyond Iraq. They wanted to give the President authority to go anywhere in the world.

   Now that idea is gone from the underlying Lieberman resolution. So checks and balances do work. I think what we ought to do is continue those checks and balances by passing the Levin amendment.

   The Levin amendment puts America front and center in a way that will win over the civilized world. This is what it does.

   No. 1, it urges the U.N. Security Council to quickly adopt a resolution for inspections of Iraq's weapons of mass destruction and the dismantlement of those weapons.

   No. 2, this new U.N. Security Council resolution urges that we will back up the resolution with the use of force, including the United States. And the President gets that authority in Senator Levin's resolution.

   No. 3, it reaffirms that, under international law and the United Nations Charter, the United States has the inherent right to self-defense. So anybody who says, my God, we are giving everything over to the U.N., has not read the resolution.

   Last, it states the Congress will not adjourn sine die so that in a moment's notice we can return if the President believes we need to go it alone.

   Some have said that the Levin amendment, again, gives veto power to the U.N. Security Council. That is not true. Again, under the Levin amendment, if the President cannot secure a new U.N. resolution that will ensure disarmament of Iraq, he can come back, he can lay out the case and answer the questions that have not been answered.

   I have looked back through history. I never have seen a situation where the President of the United States asked for the ability to go to war alone and yet has not told the American people what that would mean. How many troops would be involved? How many casualties might there be? Would the U.S. have to foot the entire cost of using force against Iraq? If not, which nations are ready to provide financial support? Troop support? What will the cost be to rebuild Iraq? How long would our troops have to stay there? What if our troops become a target for terrorists?

   We have seen in Kuwait, a very secure place for our people; we have had terrorist incidents already against our young people there.

   Will weapons of mass destruction be launched against our troops? Against Israel? If you read the CIA declassified report--declassified report--they are telling us that the chance that he will use them is greater if he feels his back is up against the wall. Everybody knows the underlying resolution implies regime change. It implies regime change. What I think is important about the Levin resolution is that it goes to the heart, the core of the matter, which is dismantlement of the weapons of mass destruction.

   If Saddam knows his back is against the wall, he will use these.

   The PRESIDING OFFICER. The Senator has 1 minute remaining.

   Mrs. BOXER. I thank the President.

   So let's be careful. Why not take the conservative approach, the two-step approach of the Levin resolution, when it comes to the life and death of our people? There are more questions that have not been answered, and I have put them in the RECORD. Yet the President wants the authority to go it

   alone and he has not answered even one of those questions to Members of this Senate, let alone to the American people.

   I cannot vote for a blank check for unilateral action. I cannot vote for a go-it-alone approach before any of these fundamental questions have been answered. Twice in the past 4 years I voted to use force: once against Milosevic, once after September 11. So it is not that this Senator will never vote for force, but in this case, when the President is proposing to go it alone, I think we have the right on behalf of the people we represent to have the questions answered.

   In closing, the Levin resolution gives us that two-step approach. It says to this President: If you want to go as part of a world force and make sure that we get the dismantlement of these weapons, we give you the authority and the blessing. If not, come back and ask us and we will debate then and we will vote then. I hope we will vote for the Levin resolution.

   I yield the floor.

   The PRESIDING OFFICER. Who yields time? The Senator from Arizona.

   Mr. McCAIN. I understand I have 15 minutes.

   The PRESIDING OFFICER. The Senator is correct.

   Mr. MCCAIN. Mr. President, at the outset, let me state that I agree with the distinguished Chairman of the Armed Services Committee: U.S. policy would be stronger if we received the unequivocal support of the United Nations Security Council. Of that, there is no doubt.

   But that does not mean that our country must delegate our national security decisionmaking to the United Nations. It is neither morally necessary nor wise to give the U.N. Security Council veto power over our security.

   I am a supporter of the United Nations. I have supported efforts to pay U.S. arrears to the organization. The U.N. does many good deeds around the world.

   However, we should not kid ourselves: the Security Council is not a repository of moral goodness. It is not some supranational authority on international law, world peace or transnational justice. It is a collection of nation-states, each of whom makes decisions based on their national interests. Five nations have veto power. Ten more can vote up or down, or abstain on a given matter. Individual states may cloak their decisions in grand rhetoric of global interest, but they are driven by cool calculations of self-interest.

   As my friend from Michigan knows, the atmosphere before a Security Council vote often resembles a Middle Eastern bazaar more than it does a somber courtroom. Deals are cut, resolutions are watered down, and statements are made based on the national interests of the five permanent Security Council members. That is as it should be, but we should not fool ourselves that there is some innate moral authority once 15 nations negotiate a deal.

   Russia is engaged in vicious human rights abuses in Chechnya. Russia continues to undermine the sovereignty of the Republic of Georgia. Russia is owed billions of dollars from its ill-advised arms deals with Saddam Hussein's Iraq. Russia has long advocated easing and even lifting of sanctions against Iraq. Russia abstained on U.N. Security Council Resolution 1284 in December 1999, creating the current weapons inspections regime in Iraq--apparently because it believed the regime was too tough.

   China also abstained from supporting U.N. Security Council Resolution 1284. China has good reason to be concerned about international opinion. China has engaged in serious proliferation activities. China severely represses its own people. Gaining the diplomatic acquiescence of the People's Republic of China may be desirable but it does not add any moral stature to our position.

   And then there is France. France has armed Saddam Hussein for years. French President Chirac was Prime Minister when France sold a nuclear reactor to Iraq. In the words of the former head of Iraq's nuclear program, Khidhir Hamza, Saddam ``knew Chirac would eat old tires from the Tigris if it got him our nuclear deal, worth hundreds of millions of dollars, along with the prospect of cheap oil.''

   For years, French businessmen have been regular visitors to Baghdad, seeking commercial advantage despite U.N. sanctions. No one in this body should be under any illusions about French motivations.

   If President Bush and his team can gain French, Chinese and Russian support for a strong U.N. Security Council resolution, I applaud them. Recent signs are promising. Their support will help in the political and diplomatic realms. But their support will not make our case more just, or more right.

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   In fact, the U.S. position in making progress at the U.N. precisely because of our determination. If this body were to pass the Levin amendment, we would set our cause back in New York. We would send a signal of indecision that would embolden those who oppose a tough resolution. They would see that the U.S. Senate is deferring judgment to them, virtually inviting them to harden their opposition to the U.S. position.

   Let me address some real concerns I have about the amendment offered by my distinguished colleague. It urges the U.N. Security Council to adopt a particular resolution--one limited solely to inspectors' access to Iraq's weapons of mass destruction programs. I don't think we should try to put the U.S. Senate in the role of drafting the parameters of U.N. Security Council resolutions. Such a unilateral position by one legislative body in one U.N. member state seems a little bit out of keeping with his oft-stated desire for multilateralism.

   The U.N. Security Council resolution urged by the Levin amendment is silent on the real issues facing the U.S. government in New York right now. Does the amendment accept or reject the U.N. Secretary General's 1998 deal with Saddam Hussein to leave huge swaths of Iraqi territory under separate rules? Does the amendment take a position on the need to interview Iraqi scientists outside of Saddam's control--and with their families so the regime cannot hold them hostage?

   The Levin amendment is silent about many issues raised in U.N. Security Council resolutions--issues that the U.N. Security Council may see fit to address in the future as they have in the past: support for terrorism; threatening conventional military moves against Kuwait, and protection of the Iraqi people from Saddam's tyranny. Each of these has been addressed by U.N. Security Council resolutions in the past. Each of these has been addressed by the United States in the past. Why are they ignored in the Levin amendment.

   Even more troubling is the narrow authorization for the use of force in the Levin amendment. Right now, American and British pilots are risking their lives enforcing the northern and southern no fly zones in Iraq. They are being shot at. They are defending themselves by attacking Iraqi radar and SAM sites that target them. These zones were erected to prevent Saddam from continuing to slaughter the Iraqi people--not to engage in search and destroy mission for weapons of mass destruction. They are authorized by U.N. Security Council Resolution 688, passed on April 5, 1991. By omitting any reference to the ongoing Operation Northern Watch and Operation Southern Watch, one could construe the Levin

   amendment to not authorizing no fly zone enforcement. I am sure that is not its intent, but it could be its effect.

   The same is true of U.N. Security Council Resolution 949, passed on October 15, 1994, which prohibits Saddam from reinforcing his conventional forces in southern Iraq. This resolution was necessitated by Saddam's massing of thousands of troops--including at least two Republican Guard divisions--near the Iraq-Kuwait border. By limiting the authorization to only weapons of mass destruction, the Levin amendment's silence on the conventional threat to Kuwait could send the wrong signal to Iraq and undermine existing U.N. Security Council resolutions. Again, I am sure that is not its intent but it may be the effect.

   Finally, there is the issue of what to do if the U.N. Security Council does not act. It may be, at the end of the day, that the individual nations making decisions in the U.N. Security Council do not agree with the compelling case that President Bush has laid out. It may be that they will decide that U.N. Security Council resolutions are not to be enforced, that the worst violator of U.N. Security Council resolutions should not be confronted. It may be that other nations choose to appease, accommodate, or ignore the clear and present danger posed by Iraq. Under the Levin amendment, what is the United States to do if the U.N. proves to be as unable to deal with Iraq as it was to deal with genocide in Rwanda and mass murder in Bosnia committed under the nose of U.N. peacekeepers?

   Under the Levin amendment, Congress would reconvene to ``consider promptly proposals relative to Iraq if in the judgment of the President, the U.N. Security Council fails to adopt or enforce the resolution'' called for in the amendment. It is not sufficient to claim the Levin amendment affirms the U.S. right of self-defense and, therefore, there is not U.N. veto. If the U.N. vetoes action on Iraq, Congress will come back to ``consider proposals.'' Why? Why should we not decide now about the issue? Why should we wait and see?

   Does the Senator believe the administration is pursuing the wrong resolution in New York? If he does, he should say so. Does the Senator believe the administration is not seriously committed to pursuing a resolution? If he does he should say so. But if he believes the U.S. is seriously pursuing a serious resolution in New York, there is no need for this amendment. Unless he wants to grant bargaining power to those who oppose the U.S. position in the U.N. or unless he disagrees with the U.S. position, there is not need for his amendment. The diplomatic process will continue. We may succeed. We may fail. But I believe we have enough information to act now. I believe we do not need to wait for the U.N. to act. I believe that even if the U.N. does not act, America should--as we did in Kosovo in 1999.

   The case of NATO's preventive attack in Kosovo is instructive. I supported the NATO intervention. It was an intervention designed to stop ethnic cleansing and mass murder by a government against its own people. Milosevic had no weapons of mass destruction. The threat he posed was to citizens in his country, not his neighbors. In Kosovo, the U.N. Security Council could not pass a resolution because of Russian opposition. Yet NATO, under U.S. leadership acted. Indeed, in 1998, Senator LEVIN noted with approval the Administration's position ``that the Security Council's authorization was desirable but not required for NATO action to intervene in Kosovo.'' Remarks on the Senate floor, July 8, 1998. This was 8 months before hostilities began. This was before any serious effort had been made at the U.N. This was before any veto was cast. It seems to me that if my distinguished colleague from Michigan could reach that kind of judgment that far in advance concerning the use of force against a far less threatening adversary, he should be able to do the same today.

   In summary, the Levin amendment sends the wrong signal at the wrong time. It could give a green light to Saddam to repress his own people or use conventional forces to Kuwait while giving a red light to our diplomatic efforts at the U.N. This body should allow the executive branch the leeway to conduct diplomacy at the U.N.--not try to micromange it from the Senate floor. I urge the rejection of the amendment.

   I reserve the remainder of my time.

   The PRESIDING OFFICER (Mrs. CARNAHAN). The Senator from Michigan.

   Mr. LEVIN. Madam President, I will yield myself 30 seconds to, first of all, assure my good friend from Arizona that my amendment means what it says, that we reserve the right of self-defense at all times. There is no ceding of our security policy to the United Nations. We are very explicit on that.

   If I could also point out to my friend from Arizona, back in the gulf war time--and I will yield myself 30 additional seconds--the exact authorization in the gulf war was: The President is authorized, subject to such and such section, to use the Armed Forces of the United States pursuant to United Nations Security Council resolutions.

   And my friend from Arizona said at that time: I think we should get approval from the United Nations to use force, if necessary. And we should then, and if it could be done shortly, get approval from Congress to use force, if necessary.

   I am not suggesting--I am not suggesting--nor did I suggest then that the Senator from Arizona was ceding the policy of the United States to the United Nations just because he wanted to go to the United Nations first before we voted to get authority from the United Nations. I never suggested that because it was not true. He would never cede authority over our security policy to the United Nations, nor would I, nor would any Member of this

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   I yield 3 minutes to our friend from Maryland.

   The PRESIDING OFFICER. The Senator from Maryland.

   Mr. SARBANES. Madam President, I commend again the able Senator from Michigan for this proposal that he has before us. The strength of the proposal, and the care with which it has been crafted, is made manifest by the tortured argument of the Senators from Connecticut and Arizona against his resolution. They are in a convoluted posture to try to misinterpret this in order to try to make an argument against it. It is just incredible what has happened. We need some intellectual integrity here as we deal with this issue.

   Let me ask the Senator from Michigan if he would answer a question or two.

   The Senator from Connecticut said earlier that you were precluding the use of military force to exercise our inherent right of self-defense because we would have to have a United Nations resolution before, as I understand--before--we could exercise such force.

   I read in your resolution a specific affirmation under international law of our inherent right to use military force; is that right?

   Mr. LEVIN. The Senator is correct. It specifically ``affirms that ..... the United States has at all times the inherent right to use military force in self-defense.'' It explicitly preserves that right.

   Mr. LIEBERMAN. Will the Senator yield for a question?

   Mr. SARBANES. On your time.

   Mr. LIEBERMAN. Is there time remaining, I ask the Senator from Arizona--the Senator from Virginia?

   Mr. WARNER. Yes. Madam President, may I inquire as to the remaining time of the Senator from Arizona?

   The PRESIDING OFFICER. The Senator from Arizona has 3 minutes remaining.

   Mr. WARNER. Three minutes. And for the Senator from

   Virginia?

   The PRESIDING OFFICER. The Senator from Virginia has 3 1/2 minutes.

   Mr. BIDEN. Parliamentary inquiry, Madam President: How much time is under my control?

   The PRESIDING OFFICER. Fifteen minutes.

   Mr. BIDEN. Madam President, I would be happy to yield time for the Senator to respond.

   The PRESIDING OFFICER. The Senator from Connecticut.

   Mr. LIEBERMAN. I thank the Senator from Delaware very much.

   I want to ask my friend from Michigan or my friend from Maryland to explain how you relate two parts of the Levin amendment. One, yes, does say you affirm the right of the U.S. to self-defense, but then, two sections lower, it seems to me, you cut a very big exception, and you say ``pursuant.'' And because you say ``pursuant,'' I assume it means only pursuant to a U.N. Security Council resolution can the President authorize the use of ``the Armed Forces of the United States to destroy, remove, or render harmless Iraq's weapons of mass destruction, nuclear weapons-usable material, ballistics missiles ..... and related facilities. .....''

   So it is one thing to affirm the general right of self-defense, but then the amendment takes it away with regard to what we all acknowledge is the most serious threat that Iraq constitutes to the U.S., which is weapons of mass destruction.

   Mr. SARBANES. The Senator did this last night, and he is doing it again today. He has inserted into the authorization to use force pursuant to a U.N. resolution the word ``only.'' The word ``only'' is not there. These are two separate sections. One provides an authority under a U.N. resolution; the other preserves the inherent right of military--I want to say to my good friend from Connecticut, it is painful to me to see a former able and distinguished attorney general of the State of Connecticut twist and turn to try to do this, what he is trying to do, to the very well-crafted amendment of the Senator from Michigan. It is painful. It is painful to see this.

   Mr. LIEBERMAN. Well, let me relieve you of your pain.

   Mr. SARBANES. Will you withdraw the use of the word ``only''?

   Mr. LIEBERMAN. This comes directly from my experience as an attorney and attorney general. If you are saying ``pursuant,'' how else--I ask the Senator from Michigan, do you believe, under your amendment, and if there is no resolution of the United Nations regarding destruction of weapons of mass destruction of Iraq, that the President could authorize the use of force?

   Mr. SARBANES. Of course.

   Mr. LEVIN. Of course he could. Pursuant to----

   Mr. LIEBERMAN. Then why require that the President come back a second time to seek such authorization?

   Mr. LEVIN. Because we are explicitly saying, pursuant to the right of self-defense, he may always, at any time, without authority from anybody. But the United Nations----

   The PRESIDING OFFICER. The 3 minutes yielded to the Senator from Maryland has expired.

   Mr. LEVIN. I wonder if the Senator from Delaware would yield a couple minutes for me to answer.

   Mr. BIDEN. I am happy to.

   The PRESIDING OFFICER. The Senator from Michigan.

   Mr. LEVIN. This is a grant of authority. The word ``only'' is not in there. The Senator from Connecticut sought to add it

   last night.

   Mr. SARBANES. And again here.

   Mr. LIEBERMAN. And I am adding it----

   Mr. LEVIN. If I could finish my answer, when the Senator from Connecticut, in 1991, introduced and supported a resolution, which passed this Congress in a close vote--and the Senator from Connecticut was a leader in that effort; and I commend him for it--the resolution relative to the gulf war said:

   The President is authorized subject to this subsection to use U.S. Armed Forces pursuant to United Nations Security Council Resolution 678.

   Did that mean because that grant of authority pursuant to a U.N. resolution was present, that the President could not operate in self-defense? Did you, somehow or other, by granting that right intend to eliminate the right of this Nation to act in self-defense? I know the answer is no. I know the answer is no.

   Yet in our resolution, when we explicitly preserve that right, somehow or other the Senator from Connecticut is finding it inconsistent with the pursuant grant.

   Mr. LIEBERMAN. Since the Senator from Maryland has questioned my legal capacity, I want to----

   Mr. SARBANES. I said it just pained me to see it at work here on the floor.

   Mr. LIEBERMAN. I want to assure the Senator from Maryland----

   The PRESIDING OFFICER. Who yields time at this point?

   Mr. BIDEN. Madam President, how much time is under the control of the Senator from Delaware?

   The PRESIDING OFFICER. The Senator has 13 minutes remaining.

   Mr. LIEBERMAN. I will bring this to a close.

   Mr. BIDEN. Madam President, I will yield 2 more minutes to the Senator from Connecticut.

   The PRESIDING OFFICER. The Senator from Connecticut.

   Mr. LIEBERMAN. I want to assure the Senator from Maryland this is not a tactic. I am genuinely puzzled, for two reasons.

   You give the grant of authority, and then you say ``pursuant.'' It seems to me logical the grant of self-defense, and then you spell out that pursuant to only a U.N. resolution can the President use the Armed Forces. But then here is the second. Only----

   Mr. LEVIN. Only?

   Mr. SARBANES. Where is the word ``only''?

   If the Senator will yield to me, I think the Senator----

   Mr. LIEBERMAN. No. I think I will just finish because I am taking Senator Biden's time.

   I am reassured but still puzzled about why you then have the second part of your amendment, I say to Senator Levin. And it is this: If you believe you are not saying the ``only'' way the President can use America's military forces to disarm Iraq, then why do you require a return to the Congress for that authorization later?

   It seems to me your affirmation of self-defense is very broad, and in spelling out the pursuant clause, you are limiting it. If you are not, then your language is effectively a nullity.

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   Mr. LEVIN. It is a very significant section. What it says is, if the President does not get the resolution and if he cannot act in self-defense because the threat is not imminent, then he would come back to this Congress to seek unilateral authority. What the President has done is laid out a course of action which says even though the threat is not imminent, the President wants the authority to use unilateral action.

   As a matter of fact, the amendment which will be offered later on today by Senator Durbin will add the word ``imminent.'' I am quite sure the administration and the sponsors of the underlying amendment are going to fight very hard against adding that word ``imminent'' which has always, under international law, been required in order to attack based on a theory of self-defense.

   So all our language does is protect the opportunity for the President, in the absence of a threat which rises to self-defense, an imminent threat which would justify self-defense, in the absence of a U.N. resolution, it specifically says, we are not going to adjourn sine die. This is too important.

   If there is no threat that is imminent, if the U.N. does not act pursuant to this resolution, we would say to the President, we will come back to consider a unilateral authority. You don't need it, if it is self-defense. You don't need it, if the U.N. acts. But if it is not an imminent threat and the U.N. does not act, then we will be here to consider that request.

   Mr. LIEBERMAN. I thank my friend. This exchange has clarified for me the intentions of the amendment. If I may briefly state it, you are saying the President can only take--forgive me for using the word ``only,'' but I will clarify it--action against, can only use the Armed Forces of the U.S. to take action against the weapons of mass destruction in Iraq without a U.N. resolution if he determines the threat from those weapons is imminent.

   Mr. LEVIN. Is not imminent.

   Mr. LIEBERMAN. If he determines the threat is not imminent, then he cannot take action against those weapons without the U.N. resolution, unless he returns to the Senate.

   Mr. LEVIN. We are not saying what he cannot do here. This is an authority, if I may repeat.

   I assume this is coming out of the time of the Senator from Delaware; is that correct?

   The PRESIDING OFFICER. Yes.

   Mr. BIDEN. Then I will not yield any more time. How much time do I have?

   The PRESIDING OFFICER. Who yields time?

   Mr. BIDEN. If I may, how much time remains under my control?

   The PRESIDING OFFICER. The Senator has 9 minutes.

   Mr. BIDEN. I yield another 2 minutes to the Senator to finish his answer, but then I would want to speak briefly to this, if I may.

   Mr. LEVIN. If I could complete that thought, this is a grant of authority. It is not a limitation of authority. That is a critical difference which, as lawyers, I think we understand. We are not saying what the President cannot do. We are saying nothing in here is in any way affecting the

   inherent right of self-defense. We are reiterating the inherent right of self-defense to avoid the kind of argument the Senator from Connecticut is now making, to preclude the argument. It has not worked. The Senator from Connecticut is still making the argument. But to make it clear that in no way are we affecting the inherent right of self-defense, we reiterated that right.

   Secondly, there is a grant of authority to act pursuant to a U.N. resolution.

   The PRESIDING OFFICER. The Senator has used an additional minute.

   Mr. LEVIN. Could I have 30 seconds?

   Mr. BIDEN. Sure.

   Mr. LEVIN. If there is neither an imminent threat, which has been the traditional definition of self-defense, if there is neither a threat which is imminent, which would justify traditionally acting in self-defense, or if there is not a U.N. resolution authorizing member states to use force to go with those weapons of mass destruction, then we are saying we will be in session to consider a Presidential request.

   The PRESIDING OFFICER. The additional time has been used.

   Mr. SARBANES. Will the Senator yield me 10 seconds?

   Mr. BIDEN. Madam President, I yield myself 3 minutes of the remaining 9 minutes I have, and I yield 10 seconds of that to my friend from Maryland.

   Mr. SARBANES. I thank the Senator from Delaware.

   I strongly commend the Senator from Michigan for how carefully thought-out and reasoned and constructive his amendment is, as was just reflected in the exchange which he had with the Senator from Connecticut.

   Obviously, this amendment, which is before us and which I support, has been very carefully thought through to deal with all these eventualities. I commend the Senator from Michigan for it.

   The PRESIDING OFFICER. The Senator from Delaware.

   Mr. BIDEN. Madam President, I rise to explain why three brilliant lawyers can be all right at the same time--because they all started from a different premise, part of the confusion for the debate that listeners will find on the floor.

   I join my friend from Arizona and my friend from Virginia in being opposed to this amendment, but for reasons different than theirs. Let me try to explain as briefly as I can.

   The point about whether or not there needs to be an imminent threat to justify the President taking action is what is at stake. I am of the school that suggests the President need not, if the underlying amendment passes, have to show there is an imminent threat. He is enforcing a peace agreement in effect. He is enforcing, not preempting. And he is not responding to imminent threat.

   I do not believe there is an imminent threat in the next day or two or week or a month. The reason why I oppose my friend from the State of Michigan is because I believe there is an inevitable threat. We are either going to have to react, if not tomorrow, we will have to in the next 5 years. If this man is unfettered, with $2 billion per year in revenues, on the course he is on, I guarantee you, we will be responding. I guarantee you, we will.

   Is it imminent now? No. Is al-Qaida involved now? No. Is all this talk about the likelihood of cooperation with terrorist groups a real immediate threat? No. I don't believe any of that now. But I do know we are going to have to address it. So the question is, do we address it now or do we wait a year or two or three.

   The reason I oppose the amendment of my friend from Michigan is because the basic premise upon which I began is consistent with where my friend from Connecticut began, and that is the threat need not be imminent for us to take action. That is because we would be enforcing Security Council resolutions. That is authority we are about to delegate to the President.

   I can understand why my friend from Maryland is upset about the way it is characterized by the Senator from Connecticut.

   The bottom line is I believe if, in fact, we do not get a U.N. resolution, we are in a position we were in with regard to Kosovo. My friend from Arizona and I stood shoulder to shoulder on Kosovo trying to encourage the previous President of the United States to use force against the Serbs in Kosovo. I will submit for the RECORD at the appropriate time, after we had gone through an effort to get the U.N. to support it. The U.N. would not support it. And then we went.

   The bottom line was, the Senator from Arizona and I felt strongly we had to go. We had to move. Were the Serbs an imminent threat to the United States of America? No. Was it a threat to our security interests? Yes. The stabilization of southeastern Europe. And so I think part of the thing that confuses people here--anyone listening to the debate, myself included, as part of the debate--is this notion of the place from which you began.

   I reserve the remainder of my time.

   Mr. FEINGOLD. Mr. President, I rise to briefly comment on Senator Levin's alternative proposal relating to Iraq. Some of my colleagues for whom I have tremendous respect have tried to address the fact that the administration's proposal is simply not good enough by emphasizing the desirability of a United Nations resolution, thus transforming this dangerous unilateral proposal into an internationally sanctioned multilateral mission. But while I recognize that international support

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   Mr. CORZINE. Mr. President, I rise in support of the Levin amendment to the underlying resolution and am proud to be counted as a cosponsor. I believe Senator LEVIN's legislation represents a rational and measured approach to military action against Iraq's tyrannical regime.

   The Levin amendment emphasizes the importance of multilateralism and understands that the cooperation of the world community is an important component of American success in disarming Iraq and in Iraq's eventual reconstruction. As I said in my statement last night, if the world community is not with us when we take off, it will be hard to ask for their help when we land.

   Although the administration at times appears to believe otherwise, multilateralism is not an unnecessary inconvenience, but an important precondition for success not just for actions to disarm Iraq but more importantly is prosecuting our war on terrorism. We rely on other countries for logistics, intelligence, and overflight rights. We have called on other countries to help cover the costs of previous military engagements. And we rely on other countries to provide peacekeepers to help restore law and order around the globe, including most recently in Afghanistan. And we most certainly depend on the 90-odd countries in our global coalition to combat terrorism at home in the post 9-11 government.

   However, if we adopt a unilateral approach, we undermine cooperation of the world community we have so often enjoyed.

   Furthermore, the Levin amendment wisely stops short of codifying the Bush preemption doctrine, a dangerous and reckless new development in American foreign policy.

   Many countries have adversaries who they believe present continuing threats, maybe even imminent threats, to their security. If we establish a precedent of preemption, how in the future can we criticize Russia for attacking Georgia, stop India from taking action against Pakistan, or oppose a Chinese invasion of Taiwan in the court of world public opinion.

   Nothing in the Levin amendment precludes unilateral action by the United States in self-defense where imminent and immediate threats exist. And nothing in the Levin amendment prevents the Congress from authorizing force at a later date if the U.N. does not take action.

   I urge my colleagues to support the Levin amendment. I believe that it presents an excellent balance between the desire to contain and eliminate potential threats to American interests while demonstrating leadership in the post-cold-war world, and the value of devising a multilateral approach.

   Thank you and I yield the floor.

   The PRESIDING OFFICER. The Senator from Arizona is recognized.

   Mr. McCAIN. Madam President, I believe I have 3 minutes remaining. In all due respect to the Senator from Michigan, as Paul Harvey would say, ``Let's hear the rest of the story.'' The reason I said in 1991 that the U.N. Security Council should approve it is because the U.N. Security Council had already acted and approved. Never, at any time in my entire history, would I believe we are dependent upon the good will or the approval or disapproval of the U.N. Security Council. So I resent, slightly, the Senator from Michigan taking me out of context there.

   The fact is, in Kosovo, if we took the same course of action the Senator from Michigan is contemplating now, when butchery and genocide was going on there, we would have waited until the Security Council acted, or didn't act, and then we would have gone back into session to determine what we should do about Kosovo.

   How many thousands of people would have been murdered, butchered, and ethnically cleansed had we taken the same route that the Senator from Michigan is advocating on this issue, as far as Iraq is concerned?

   All I have to say about this amendment is--well, you can just read it:

   ..... will not adjourn sine die and will return to session at any time before the next Congress convenes--

   Et cetera, et cetera. If that isn't a dictate by the action of the U.N. Security Council, nothing is.

   We have come a long way. John F. Kennedy, on October 22, 1962, said this:

   This Nation is prepared to present its case against the Soviet threat to peace and our own proposals for a peaceful world at any time, and in any forum, in the Organization of American States, in the United Nations, or in any other meeting that could be useful, without limiting our freedom of action.

   The Levin amendment limits our freedom of action and contradicts the words of John F. Kennedy at the time of the Cuban missile crisis.

   I reserve the remainder of my time.

   The PRESIDING OFFICER. Who yields time?

   Mr. LEVIN. Madam President, I yield 6 minutes to the Senator from Hawaii.

   The PRESIDING OFFICER. The Senator from Hawaii is recognized.

   Mr. AKAKA. Mr. President, I rise to express my support for a resolution authorizing the use of force against Iraq. I do so with two cardinal prerequisites: first, that all possible means be exhausted short of war to enforce United Nations resolutions concerning Iraq and, second, that any attack against Iraq take place as part of an international coalition. That is why I am pleased to cosponsor the amendment offered by my colleague from Michigan, Mr. Levin, the Chairman of the Armed Services Committee.

   Before the United States wages war against Iraq, President Bush and the Congress owe it to the young Americans who face death or injury in that conflict to ensure that every effort has been made to obtain our ends without endangering them. Every ounce of preparation must be taken to ensure a swift and efficient outcome should war become necessary. As another President, Herbert Hoover, once said, ``Older men declare war. But it is youth that must fight and die.'' The burden is on our leaders to justify why young men and women need to risk their future now.

   Defense analysts suggest that anywhere from 100,000 to 400,000 troops will be necessary for an attack. There are already approximately 75,000 Reservists and National Guard troops on active duty, and even more may be needed to deal with the conflict in Iraq and Afghanistan while not degrading military missions elsewhere in the world. An occupation force in Iraq might require at least 75,000 troops plus a civilian counterpart to the military presence. The Congressional Budget Office estimates that the war will cost between $6 billion to $9 billion a month on top of an initial deployment cost of $9 billion to $13 billion and that an occupation force would cost $1 billion to $4 billion per month. Remember in the first Persian Gulf War, it was our allies who paid for the war. The cost of the war this time will be borne largely by the American treasury, unless we are supported by an international coalition. With a battered economy, it will be difficult to fund two wars at once for an indefinite period of time. Already our funds are stretched. The head of the U.S. Special Operations Command has indicated that he requires an additional $23 billion over the next 5 years to maintain his global responsibilities.

   The need to justify such a course of action is particularly critical in the case of Iraq as President Bush is advocating a preemptive strike against a potential threat to the American homeland. Traditionally, America has never sought war by striking first nor has America eagerly sought foreign entanglements. This would be a preemptive war and one in which we could have few allies. Not since the Spanish-American War would the United States be fighting a war so far from our borders with so few friends.

   As we consider this war, we must also consider the implications of what we are doing. Saddam Hussein is not the only dictator who oppresses his people, attacks his neighbors, and is developing weapons of mass destruction (WMD). North Korea's Kim Jong Il,

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   American troops stand eye to eye with North Korean troops on the DMZ. Libyan agents blew up an American commercial aircraft; Iran has imprisoned American diplomats; and Syria has supported terrorist groups who have attacked and murdered Americans. All have or are developing weapons of mass destruction, including nuclear weapons and missiles to deliver them. Some of these countries may already have nuclear weapons. Some have attacked--directly or indirectly through support for terrorist groups--their neighbors. In the case of Iran, recent reports indicate that it is sheltering and assisting al-Qaida leaders.

   In the case of other countries, we are working diligently, through bilateral and multilateral diplomacy, to constrain their efforts to develop weapons of mass destruction. However, in regard to Iraq, the President argues that Saddam poses a unique threat. His argument is convincing concerning the extent of devastation that Saddam has wreaked on his own people and his neighbors. He is truly, as the President notes, a ``homicidal dictator,'' but he is not the only dictator addicted to developing weapons of mass destruction. Nor is the policy solely a choice between invading Iraq or standing hopelessly by while Saddam becomes ever stronger. Since the Persian Gulf War, we and our allies have worked to make Saddam weaker and, according to all reports, including that of our own military, Saddam's military capability is much less now than it was in 1991.

   Congressional testimony, reports by the intelligence community and outside analysts, state that Iraq's WMD capability is much less now than it was before the Gulf War. A recent CIA public report states that Iraq's chemical weapons capability ``is probably more limited now than it was at the time of the Gulf war ..... '' Although it is probable that Iraq's biological weapons program is more advanced than it was before the war, its delivery capability, according to the respected London-based International Institute for Strategic Studies, ``appears limited.''

   I agree that we must neutralize Iraq's WMD threat. The question is how to do that most effectively while minimizing the loss in American lives. The argument that an inspection system cannot guarantee the elimination of Iraq's WMD program is certainly true but misses the point. There are few absolutes in this world. Defense Secretary Rumsfeld insists that we need American troops on the ground, rummaging through every Iraqi nook and cranny for evidence of WMD. Even with our troops doing so, there would be no guarantee that every item would be uncovered or how long it would take. We are still finding traces of chemical weapons left over from World War I in the backyards of homes in Washington, D.C. Nor have our troops in Afghanistan, despite heroic efforts, been able to eradicate every al-Qaida operative.

   But what aggressive inspections can do is destabilize the Iraqi WMD program, keep it bottled up, frustrate efforts at gaining new technologies and additional supplies, and force Iraqi technicians to hide and keep moving constantly. It will not be disarmament, but, if implemented effectively, it will be dismemberment of the Iraqi WMD program, splitting it in parts and preventing it from becoming whole.

   A new inspection regime has to be very aggressive, receive considerable support from the United States and its allies, have a fixed set of dates for marking compliance, and be backed by the threat of war. Iraq's record of evading inspections is well documented. Benchmarks for compliance will remove wiggle room for countries who argue for a softening of sanctions provisions. Putting in place an aggressive new inspection regime is not an insubstantial achievement, and it does not undermine necessary preparations to develop an effective war-fighting strategy and strengthen international backing for a conflict.

   Defense Secretary Rumsfeld and others in the administration tell us that time is not on our side. But we must make the time to ensure that we minimize American casualties. Time is not on Saddam Hussein's side either. Our patience has been exhausted and a new U.N. resolution

   must be firm in its deadlines. Some in the Administration believe Saddam's hold on those responsible for guarding him is so tenuous that in the event of an attack, they will turn on him and overthrow him.

   The current discussion about Iraq has obscured the successes of American policy toward Iraq. A recent Congressional Research Service report by its distinguished Middle East expert, Kenneth Katzman, observes, the United States ``has largely succeeded in preventing Iraq from reemerging as an immediate strategic threat to the region.'' A British Government intelligence report notes that the ``success of U.N. restrictions means the development of new longer-range missiles is likely to be a slow process.''

   If war becomes inevitable because Iraq refuses to give inspectors the liberty they need to perform their mission, then the United States must have an effective military strategy for fighting a war.

   Great uncertainty surrounds the President's post-war strategy. Remember the day the war ends, Iraq becomes our responsibility, our problem. The United States lacks strategic planning for a post-conflict situation. Retired General George Joulwan recently said that the U.S. needs ``to organize for the peace'' and design now a strategy with ``clear goals, milestones, objectives.'' General Joulwan argues we did not have such a plan for Bosnia and we are late to develop one in Afghanistan. Our objectives in Iraq have not yet been made clear: is it our goal to occupy Baghdad and if so, for how long? A rush to battle without a strategy to win the peace is folly.

   General Hoar observed that ``there has been scant discussion about what will take place after a successful military campaign against Iraq. The term ``regime change'' does not adequately describe the concept of what we expect to achieve as a result of a military campaign in Iraq. One would ask the question, ``Are we willing to spend the time and treasure to rebuild Iraq and its institution after fighting, if we go it alone during a military campaign? Who will provide the troops, the policemen, the economists, the politicians, the judicial advisors to start Iraq on the road to democracy? Or are we going to turn the country over to another thug, who swears fealty to the United States?''

   As General Shalikashvili stated in testimony before the Armed Services Committee, ``we were very fortunate in Afghanistan that in fact a government, interim government, emerged that seemed to have a modicum of support from its people. ..... We should not count on being lucky twice.'' Nor can we count on Iraq's oil funding reconstruction if wellheads are blown up as they were by retreating Iraqi forces in Kuwait.

   Experts indicate that American troops will need to remain inside Iraq for many years in order to ensure stability. Iraq will require extensive economic assistance. As the current situation in Afghanistan indicates, the process of restoring viability to a nation--nation-building--after years of repression is a difficult one and made more difficult by the inability of other nations to sustain their support in the effort. Violent attacks are on the increase in Afghanistan. Afghan officials have received only about half of the $1.8 billion in aid promised last January. A study by the Army's Center of Military History has concluded that we would need to commit 300,000 peacekeeping troops in Afghanistan and 100,000 in Iraq if we are to have an impact comparable to that which we had in reconstructing Japan and Germany after the war.

   The consequences of a long-term American occupation of Iraq needs to be carefully weighed. Anthony Cordesman, an analyst with the Center for Strategic and International Studies, has observed, ``there has been a `deafening silence' from the Administration about how Iraq will be run after Hussein.'' Historically, the United States has had a poor record in the Middle East. We supported Iraq in its war against Iran.

   Nor does eliminating Saddam necessarily mean that the Iraqi people will welcome American occupiers or that they will have democratic leaders to govern. Secretary Rumsfeld asserts that he trusts the Iraqi people will be

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   Even though our military forces may be equipped to fight a war in Iraq and a war on terrorism in Afghanistan, there is a significant price to be paid. In his testimony before the Senate Armed Services Committee, General Richard Myers, Chairman of the Joint Chiefs, noted that certain unique units, such as intelligence platforms, command and control assets, and Special Operations Forces would need to be prioritized if the war on terrorism expanded. Richard Solomon, former Assistant Secretary of State in the first Bush Administration, refers to the ``danger of over-stretch'' in which the United States assets are deployed in multiple nation-building enterprises and are not able to respond if another crisis erupts.

   All of these concerns point to the importance of international support as a critical ingredient of both our war-fighting and our peace-making strategy. Without the imprimatur of the international community, the President's war will be seen as a private vendetta by the United States.

   The President was right to frame his speech at the United Nations in the context of restoring credibility to the United Nations through enforcement of its resolutions. This is the essential context of this conflict but it can be validated as such only if the international community joins it. Regional support will provide an allied force with the forward basing needed to mount a large-scale attack. Right now no country in the region contiguous to Iraq is volunteering to host American troops in a war. International support will help dampen hostility toward the United States by the peoples of the region and help build support among the Iraqi people. International support for the post-war, peace-making phase of the operation will reduce the American military's footprint and decrease the need for American financial resources. Secretary Rumsfeld has testified that the United Nations or an international coalition will run Iraq after Saddam. For that to be the case, the United Nations or some ad hoc international coalition will have to be formed before the war.

   The President also must ensure our troops are properly prepared. Recently, the Pentagon's Deputy Assistant Secretary for Chemical and Biological Defense stated that American troops are not ``fully equipped and prepared'' against a bio-chem attack. Decontamination shelters are reported to be in short supply as is the decontaminant foam used to clean up following an attack. The General Accounting Office recently testified that 250,000 defective protective suits against a chemical or biological attack cannot be located and may remain in current Pentagon inventories.

   We must take the threat of an Iraqi chemical or biological attack very seriously. According to the British Government's White Paper on Iraq, Iraq chemical weapons caused over 20,000 casualties in the Iran-Iraq War. Iraq used sprayers, bombs, artillery rockets, and artillery shells to deliver these weapons. Thousands of rockets and artillery shells filled with chemical weapons remain hidden in Iraq's arsenal.

   Haste makes waste, affirms the adage, and in this case, haste means a waste of American lives. We may have an all-volunteer force but they are not mercenaries; they are citizen-soldiers and we owe it to each and every one of them and their families to proceed carefully when endangering their lives. Preparation is not the same as procrastination.

   Constituent opinion in my home state is running strongly against any authorization of the use of force against Iraq. The President and his Administration need to make a clear and compelling case to the American people and to our allies abroad as to why this confrontation is necessary now.

   For that reason, Mr. President, I support efforts to frame a multilateral approach to rid Iraq of its weapons of mass destruction. I support action by the United Nations in the form of a resolution calling for unconditional and unfettered inspections in Iraq. Only after we exhaust all of our alternative means should we engage in the use of force, and before then, the President must ensure we have a strategy and plans in place for winning the war and building the peace.

   I yield the floor.

   Mr. BIDEN. Madam President, how much time do I control?

   The PRESIDING OFFICER. The Senator has 2 minutes remaining.

   Mr. BIDEN. Madam President, I yield myself the remainder of my time.

   The reason to go to the U.N. Security Council does not relate to sovereignty, it relates to security, and the security of the United States based upon the notion the President of the United States has recognized when he said he thought it was necessary to go to the U.N. Security Council.

   I think the arguments made against the first part of the Levin amendment are specious. Why did the President of the United States go to the Security Council? Was he yielding our sovereignty? No more than our friend from Michigan is ``yielding our sovereignty.''

   The President went to the U.N. because, as one White House official said to me, he had to do so. Why? For our security interests. If we did not go to the U.N. Security Council and check off the blocks, the moment any force crossed into Iraq, we would find every U.S. embassy burned down in every Muslim country in the world. He went for security reasons.

   My only disagreement with my friend from Michigan is I do not think we need a two-step process. We should go to the United Nations, and the President says we should go to the United Nations. We should seek the authority to enforce the inspectors in disarming weapons of mass destruction. And if he fails, my friend says come back and get authorization to proceed anyway. I am prepared to give him the authorization now. That is the only disagreement we have.

   I would disagree with those who argue against my friend from Michigan saying that by his making this contingent of going to the United Nations first, he is in no way yielding to American sovereignty, any more than the President has.

   In the underlying resolution, it requires the President, in effect, to go to the United Nations and exhaust all diplomacy.

   Nobody has suggested the President of the United States has yielded our sovereignty. No one should suggest the Senator from Michigan is, either.

   Mr. WARNER. Will the Senator yield for a brief question?

   Mr. BIDEN. My time is up.

   The PRESIDING OFFICER. The Senator has 20 seconds.

   Mr. WARNER. The Senator raises a key point on which I was going to conclude, and that is, as we are debating, the Secretary of State is working before the U.N. Security Council.

   Mr. BIDEN. Correct.

   Mr. WARNER. He has made it clear to the Senator from Delaware, I am certain, as he has made it clear to me, that the two-step process will not achieve the goals a coalition of nations now working--Great Britain and the United States--desire to achieve; am I not correct?

   Mr. BIDEN. Yes, with one caveat. He has expressed to me his ability to achieve a tough resolution would be enhanced by our not making it a two-step process. But he personally has told me and my committee he would consider and the President would consider a U.N. two-step process if they had to. The reason for my saying not two steps now is it strengthens his hand, in my view, to say to all the members of the Security Council: I just want you to know, if you do not give me something strong, I am already authorized, if you fail to do that, to use force against this fellow.

   Mr. WARNER. That is right. Were we to act now, we would substantially reduce his leverage and ability.

   Mr. BIDEN. In response, I cannot honestly say substantially reduce it. I think it will reduce it some. This resolution, for example, reduces the possibility of getting a

   strong response compared to what Lugar-Biden would have done. The truth is it is marginal. Everyone has to make their own judgment. I think it would reduce his ability. I would be hard pressed to say it

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   Mr. WARNER. I say, Madam President, the distinguished majority leader said Congress should speak with one voice. We have in our resolution--you recognize the problem of one body. This is a total substitute amendment. It strips out everything. As the Senator from Delaware knows, I say to the distinguished chairman, the Levin resolution just takes part of 687. It does not incorporate the previous resolutions, the 16 which we have time and again on this floor said Saddam Hussein has ignored.

   I say to my friend, it is very important, as the leader said, that Congress speak with one voice, and the only way to do that is to retain our Lieberman-Warner-McCain-Bayh amendment and not have a substitute.

   I yield the floor.

   Mr. BIDEN. Madam President, I ask unanimous consent to proceed for 30 seconds.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. BIDEN. Madam President, if the President attempts to take this Nation to war over Kuwaiti prisoners, I hope to God that is not what you all mean by this underlying provision. If this President attempts to take this Nation to war over return of Kuwaiti property, if this President attempts to take this Nation to war based on this authority for any reason--any reason--other than weapons of mass destruction, I will be on this floor every day taking issue with this President attempting to stop the war. I cannot fathom anyone suggesting that Kuwaiti prisoners warrant us going to war. This is about weapons of mass destruction, in this Senator's view.

   The PRESIDING OFFICER. The Senator's time has expired.

   Mr. WARNER. Madam President, I totally reject there has been any inference on this side of such a nature, but we do incorporate in the preamble the other resolutions, and I think it important they be incorporated.

   The PRESIDING OFFICER. Who yields time?

   The Senator from Michigan.

   Mr. LEVIN. Madam President, I yield myself 15 seconds. There may not be an inference in their rhetoric, but there is more than an inference in the resolution they support. It says resolutions of the U.N. It identifies them all, including the one on Kuwaiti prisoners. I am afraid while they may want to ignore the language in their own resolution, that is more than an inference that is there; that is authorized there.

   It is amazing to me that language is inserted into my resolution, which is not there, by the opponents of my resolution, while ignoring the language in their own resolution which is there.

   I yield 3 minutes to the Senator from Vermont.

   The PRESIDING OFFICER. The Senator from Vermont.

   Mr. WARNER. Madam President, I should point out it also includes the return of an American prisoner, an accounting of him.

   Mr. LEVIN. That part I support.

   Mr. WARNER. Fine.

   The PRESIDING OFFICER. The Senator from Vermont.

   Mr. JEFFORDS. Madam President, the vote on the Levin substitute amendment is one of the most important votes we will cast in this process. I commend the Senator from Michigan for his fine work on this alternative. The Levin amendment urges the United Nations to take strong and immediate action to pass a resolution demanding unrestricted access for U.N. arms inspectors in Iraq. It also urges the United Nations to press for full enforcement of its prior resolutions on Iraq. The Levin substitute language makes it clear that the United States will stand behind the U.N. Security Council, even authorizing the use of U.S. military force to support the Security Council directives if necessary.

   At the conclusion of World War II, the United States had a vision of a world body that would be a forum for resolving future disputes with means other than war. There were many important initiatives that needed multilateral coordination by an international body. For more than half a century, the United States has poured diplomatic energy and considerable resources into the United Nations system. During the cold war years, the U.N. languished, weakened by the divisive United States-Soviet confrontation. But following the demise of the Soviet Union, the United Nations has regained considerable authority, and as the world's lone superpower, the United States is now finding that it has considerable use for the United Nations.

   Our decade-long struggle with Saddam Hussein is one example of how working with the United Nations serves our interests. We partnered with the United Nations very effectively during the Persian Gulf War. Sanctions have prevented any significant rebuilding of Iraq's conventional military capabilities. We maintain U.N. no-fly zones over Iraq that have restricted military reprisals against the Iraqi Kurds and Shiites. United Nations inspectors on the ground in Iraq learned a great deal about Iraq's weapons of mass destruction program immediately following the gulf war. But things fell apart in subsequent years.

   Once again, we need a strong United Nations to step up to Saddam Hussein. The United Nations must take the lead in enforcing its demands that Iraq give up its biological and chemical weapons stockpiles and production capabilities. The United Nations also demanded that Iraq dismantle its nuclear weapons program. I am pleased that last month, President Bush decided to take his case against Saddam Hussein to the United Nations. The U.N. Security Council has responded with vigorous debate, and is considering a strong U.S. proposal for enforcement of a strict U.N. inspections regime. I urge the Security Council to act now, and act decisively.

   The Levin amendment puts us squarely behind this United Nations effort. It is the only language that does so. It is critical that we give the U.N. our full support at this time, and give the Security Council the opportunity to take bold action as proposed by the United States. If we undercut the United Nations here today, we are depriving ourselves of the best chance to peacefully achieve the most important goal of disarming Saddam Hussein.

   As the world's lone super power, we need a partner in the United Nations. Many of the critical tasks before us are actually international tasks. For instance, degradation of the environment is a global problem and requires a global solution. The crisis of climate change can hardly be addressed by the United States alone. Improving the quality of our water and air requires internationally coordinated efforts. Economic, employment and health problems are increasingly becoming global issues, as people move across national boundaries in search of jobs and opportunity. We need a strong partner in these efforts, and the United Nations system is our best hope.

   We are becoming increasingly aware of the disparities in the economic wealth and use of resources around the globe. Addressing these problems will require a great deal of creative thinking and financial resources. While we are the world's strongest nation, we cannot solve these problems alone. Nor do we want to. We need a strong partner in this effort. A reinvigorated United Nations is the most likely venue for progress.

   The spread of weapons of mass destruction has clearly become a threat to our national security. There is much more that the United States can do to stop this proliferation. But in order to have much success at these efforts, we must work in concert with the international community. We need a strong United Nations as a partner in this effort.

   The effect of the Levin substitute is to give the United Nations a chance to prove it is up to the task. If we are to have a strong and effective partner in confronting the many problems facing the United States, then we must stand squarely behind the United Nations today. I urge my colleagues to support the Levin amendment.

   Mr. President, I yield the floor.

   The PRESIDING OFFICER. Who yields time?

   Mr. LEVIN. I yield 3 minutes to the Senator from Illinois.

   The PRESIDING OFFICER. The Senator from Illinois.

   Mr. DURBIN. Madam President, I rise in support of the Levin resolution. I salute my colleague from the State of

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   There is no one in this Senate Chamber making apologies for Saddam Hussein or his weapons of mass destruction. There is no one who wants to ignore the peril which that man could pose to the Middle East or to the United States of America. But what Senator Levin is suggesting is, frankly, to follow what the President is suggesting.

   On September 12, President Bush went to the United Nations and he said to them, if their organization means anything, then they have to stand up to this man. We have to have unconditional inspections. For 5 years we have been standing by the sidelines, and we want to know what is happening in Iraq.

   Senator Levin says that is the first place we should go, and I agree with him. And it is not as if the United Nations has ignored this. Secretary of State Colin Powell, a man I respect very much--one of the leaders in this administration--has been in New York working with the United Nations for this resolution. That is the best course of action. To have the United Nations behind us, as President Bush's father had the United Nations behind him in the Persian Gulf war, to have a coalition of allies representing countries from all around the world; countries that have joined us in the war on terrorism would now join us in a meaningful inspection regime in Iraq. That is what Senator Levin suggests.

   What a contrast it is from the President's own resolution. The President's resolution talks about continued discussion with the United Nations. But make no mistake, the President's resolution gives him unconditional, go-it-alone authority to launch a land invasion in Iraq with or without an ally. There is a world of difference between what Senator Levin and I support and what the President has asked for.

   Doesn't it make more sense for us to work with the United Nations for unconditional inspections to make certain we have inspectors on the ground looking at every square inch of Iraq, and if there is resistance from Saddam Hussein, if he obstructs us, if he creates obstacles, we then have the force of the United Nations behind us in enforcement? We do not stand alone. We stand with other nations and with the United Nations. That is what President Bush's father did, and it was the right thing to do. That is what we should do because, frankly, bringing this force together is a validation of this organization, the United Nations, which the United States, as much as any other nation in the world, helped to create.

   After World War II, we said: Let's come together in collective security to work together to solve the problems of the world and to deal with war and peace.

   Time and again, in over 100 instances, the United Nations has risen to that challenge. We should give them that same opportunity and responsibility with the Levin resolution. That is the better course of action. As Senator Levin says clearly in his resolution, nothing in the resolution ever diminishes in any way whatsoever the power of the President of the United States to defend this country, its people, its territory, its Armed Forces, against any threat of aggression. That is part of what we expect of the Commander in Chief, the President, and

   Senator Levin preserves and protects that.

   I urge my colleagues to support the Levin amendment. The Levin amendment is the best way for us to approach this challenge.

   The PRESIDING OFFICER. The Senator's time has expired.

   The Senator from Arizona has 1 minute.

   Mr. McCAIN. Madam President, I may be in the debate on the Durbin amendment. We can discuss the comparison between this situation and Kosovo. The United Nations Security Council never acted in Kosovo. The United States of America was not imminently threatened--was not threatened--but genocide was going on in Kosovo where thousands of people were being ethnically cleansed. If we had passed the Levin amendment at the time of Kosovo, when those of us supported then-President Clinton, we would have waited to find out whether the Security Council acted or not and then we would have come back and considered whether Kosovo was a threat to the United States of America. Kosovo is not today, was not then, and will not be tomorrow a threat, but the United States of America had an obligation, and because the United Nations Security Council did not act did not hamstring us.

   The reading of this amendment says the Congress will come back into session in case of certain Security Council actions. There is no other way to read it. This amendment should be resoundingly defeated.

   I yield the floor.

   The PRESIDING OFFICER. The Senator from Michigan controls the remaining 5 minutes.

   Mr. LEVIN. Madam President, that Saddam Hussein is a threat, must agree to inspections and be disarmed is something on which I hope we all agree. The only question here is: What is the best way to do that? Do we do that by going to the world community, as the President has, and saying we want the world community to enforce its resolution relative to weapons of mass destruction? And do we mean it? Do we go there, and are we serious when we say to them: We want you to act because it makes a difference, when force is used, as to whether or not it has the credibility and strength of the United Nations and the world community behind it? It makes a difference.

   It did not make a difference in Kosovo. It makes a difference here. The ramifications of going it alone here are major. In the short term, our troops are going to be more in danger if we go it alone without the U.N. authorization.

   We have been told by the Saudis and other countries we are not going to have access to their bases, their airspace, their support, unless there is a U.N. resolution. We have been informed of that.

   We know that the war against terrorism can be weakened unless we act as a world community. We cannot act unilaterally and expect that other nations are going to join us in a war on terrorism the way they would if there were a U.N. resolution supporting it.

   If we go it alone, there are both short-term risks as well as long-term risks. The long-term risks in going it alone are that without an imminent threat--if there is one, we can move in self-defense. No U.N. resolution is ever needed to act in

   self-defense. But to act without an imminent threat, to attack another nation, raises some significant precedent problems for other threatening parts of the world. India and Pakistan can easily say there is a continuing threat and use this kind of a precedent to justify attacking each other. That is not the kind of precedent we should set.

   So there are real risks that we should recognize in using force unilaterally. We should see the advantage of doing this multilaterally with the support of the world community. We should go to the world community, focus all of our efforts there, and tell them we are serious.

   We say we are. Let's mean it, not just say that we want them to be credible but mean it, and to tell them in advance: Oh, by the way, if you do not do it, we will anyway.

   It takes them right off the hook. Instead of putting a focus on the need for world community action to authorize this action and the advantage of it, our focus becomes blurred. It is an inconsistent message to the world. Now it is a message of unilateralism. We say: We need you, but whether you do it or not, we are going it alone.

   This resolution--and here I must say I agree with my friend from Arizona. He agrees with me that it would be better if we got authority from the U.N., and I am glad he does. And then when he says we must not delegate our security policy to the U.N., I agree with him. We never will; we never would. This resolution explicitly eliminates any such implication by the reiteration of the right to act in self-defense.

   Mrs. BOXER. Will the Senator yield for a question?

   Mr. LEVIN. I would be happy to yield for a question. How much time do I have remaining?

   The PRESIDING OFFICER. The Senator has 50 seconds.

   Mrs. BOXER. This is a quick question. Some of our colleagues on the other side have basically said the Senator is relying totally on the United

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   Mr. LEVIN. The Senator is very much correct. I thank the Senator for the support and for her kind words earlier this afternoon.

   Madam President, is there any time remaining?

   The PRESIDING OFFICER. The Senator has 3 seconds.

   Mr. LEVIN. I yield back the entire length of my remaining time.

   The PRESIDING OFFICER. The Senator from Nevada.

   Mr. REID. Madam President, I ask unanimous consent that I be allowed to speak.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. REID. Madam President, my good friend, the senior Senator from Pennsylvania, has questioned some of the things I have done today. I am disappointed he feels that way.

   Last night we worked for a long period of time. It was not a matter of minutes; it took a long time. The Senator from Virginia, the Senator from Arizona, the Senator from Connecticut, and others, including the people offering these amendments--I personally spent time on the phone calling Senators who had amendments. The result, after a long period of time, was that Senators who have amendments--Senator Boxer, Senator Durbin, Senator Levin, Senator Byrd--we worked out an arrangement where they could offer their amendments. Senator Dayton always was going to offer his amendment and he withdrew it and decided not to offer it. His was nongermane.

   In an effort to get this done, we allowed some amendments to be voted on today that were nongermane. That is how compromises are made in legislation. As part of the deal, the Senators who had other amendments would withdraw those amendments. There was clearly never any question about that. It is in the RECORD last night, ``and they will offer no other amendments tomorrow.''

   In the rush of things, they were not withdrawn last night. They should have been. They were not. Just like the problem we had with Senator Byrd today, he understood there was a unanimous consent request that had never been made that was in the RECORD.

   First, we did not need consent to withdraw this. Every Senator had the right on their own to withdraw this. That is a right. They did not need unanimous consent.

   My good friend who understands the rules as well as anyone here had the right at any time to file a first-degree amendment. For reasons he knows, he decided not to do so. He indicated he had second-degree amendments that he wanted to pin to some of the amendments, that the arrangements were made to not be part of the proceedings today.

   I also say to my friend, the senior Senator from Pennsylvania, he said: Well, I will not agree to any of your unanimous consent requests.

   I don't make unanimous consent requests for me. Rarely. I bet out of 100 unanimous consent requests, there is not three-tenths of 1 percent that I make for myself. I will try during this vote and the rest of the evening to see if we can work something out for the Senator from Pennsylvania that will satisfy him. We always try to do that. Both the majority and the minority floor staffs work very hard. We will try to do that. I don't want him upset and disappointed.

   I want the RECORD to indicate that what they did last night was for the good of this body. We did our best. It may not have been a perfect arrangement, but I think it was fair. Senators were allowed to offer an amendment and in exchange for that they withdrew the others. Technically, they didn't do that last night. I didn't do it on their behalf. We did it this morning. It is done. That was the fair thing to do.

   I repeat for the second time that I will be happy to work with the Senator from Pennsylvania to see if we can arrive at the conclusion he wants. We will see what we can do.

   Mr. McCAIN. Will the Senator yield?

   Mr. REID. I would be happy to yield.

   Mr. McCAIN. Along with the Senator from Virginia, the Senator from West Virginia, and other Senators, negotiations were conducted in good faith, in fairness, with full consultation. Many, many Senators are unhappy that they were unable to perhaps propose more amendments or perhaps do other things.

   I attest to the fact that the Senator from Nevada, fulfilling his duties of getting this legislation achieved with the consideration due every Senator, in my view, did a fair and unbiased job.

   I thank the Senator.

   The PRESIDING OFFICER. The Senator from Virginia.

   Mr. WARNER. I associate myself with the----

   Mr. SPECTER addressed the Chair.

   Mr. WARNER. The leader is to be recognized.

   The PRESIDING OFFICER. The Senator from Virginia is the manager and is recognized.

   Mr. WARNER. I associate myself with the remarks of my colleague, Mr. McCain. I attest to the accuracy of the statement the Senator made.

   I further add that the distinguished Republican leader, Mr. Lott, from time to time visited with the floor managers, so he, likewise, was very much aware of the procedures.

   Mr. REID. I kept the majority leader advised of everything that we did.

   The PRESIDING OFFICER. The Senator from Pennsylvania.

   Mr. SPECTER. Mr. President, I have sought recognition to respond to the Senator from Nevada, over the Senator from Virginia, because what the Senator from Virginia has said and what the Senator from Arizona has said does not bear on this issue.

   I am not upset. I think I have been treated unfairly. I did not offer a first-degree amendment to the so-called Biden-Lugar amendment because I had expected Senator Biden to offer that amendment. He did not do so up until 1 p.m. yesterday. Having found that out, I consulted with the Parliamentarian and found out that I could offer a second-degree amendment to some seven pending first-degree amendments. I worked it out very carefully and elaborately with the Parliamentarian this morning. The word was out that I was offering the Biden-Lugar amendment.

   Other Members of the Senate from the other side of the aisle approached me, liked the fact I was doing it, and wanted an opportunity to vote on it. I got a call from a ranking member of the State Department saying the White House was concerned that I offered the amendment. The word was out that I had moved ahead to offer the Biden-Lugar amendment as a second-degree amendment. I had done that because, after extensive conversations with Senator Biden last week, I had decided to cosponsor it. When it was not offered, I decided to offer it. I was under no illusion of its being successful. It seemed to me on a matter of this importance, going to war, that matter ought to be before the Senate. So I worked it out. When I walked off the floor, I was told by an aide that the Senator from Nevada had asked unanimous consent to withdraw not only the Levin amendment, the Durbin amendment, and the Boxer amendment, but also the Dayton amendment. That was done in my absence. I thought that was unfair. I approached the Senator from Nevada and said so. It seems to me that I ought to have an opportunity to offer that amendment.

   Now, I read the RECORD from last night that is referred to with respect to three of the Senators, Senator Levin, Senator Boxer, and Senator Durbin. Senator Dayton is not mentioned. I know he has the right to withdraw the amendment. Senator Dayton does not like the resolution. Perhaps he would not have. There is an issue as to whether Senator Dayton's amendment was germane. I am advised by the Parliamentarian that my second-degree amendment being germane cures whatever infirmity there may be on the Dayton first-degree amendment.

   I have been in this body for 22 years, and I do not think I have objected to any unanimous consent agreement. However, there are plenty of Senators who do. I am not talking about the percentage the Senator from Nevada offers on his own behalf. This is part of my

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   We are about to go to war and a Senator does not have a right to offer an amendment. A unanimous consent agreement is asked in my absence and I do not think that is fair.

   I yield the floor.

   Mr. WARNER. I ask for the yeas and nays.

   The PRESIDING OFFICER. Is there a sufficient second?

   There is a sufficient second.

   The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Michigan, Mr. Levin.

   The clerk will call the roll.

   The legislative clerk called the roll.

   Mr. NICKLES. I announce that the Senator from Utah (Mr. BENNETT) is necessarily absent.

   The PRESIDING OFFICER (Mr. NELSON of Nebraska). Are there any other Senators in the Chamber desiring to vote?

   The result was announced--yeas 24, nays 75, as follows:

   Akaka

   Bingaman

   Boxer

   Byrd

   Chafee

   Conrad

   Corzine

   Dayton

   Durbin

   Feinstein

   Harkin

   Inouye

   Jeffords

   Kennedy

   Kohl

   Leahy

   Levin

   Mikulski

   Reed

   Rockefeller

   Sarbanes

   Stabenow

   Wellstone

   Wyden

   Allard

   Allen

   Baucus

   Bayh

   Biden

   Bond

   Breaux

   Brownback

   Bunning

   Burns

   Campbell

   Cantwell

   Carnahan

   Carper

   Cleland

   Clinton

   Cochran

   Collins

   Craig

   Crapo

   Daschle

   DeWine

   Dodd

   Domenici

   Dorgan

   Edwards

   Ensign

   Enzi

   Feingold

   Fitzgerald

   Frist

   Graham

   Gramm

   Grassley

   Gregg

   Hagel

   Hatch

   Helms

   Hollings

   Hutchinson

   Hutchison

   Inhofe

   Johnson

   Kerry

   Kyl

   Landrieu

   Lieberman

   Lincoln

   Lott

   Lugar

   McCain

   McConnell

   Miller

   Murkowski

   Murray

   Nelson (FL)

   Nelson (NE)

   Nickles

   Reid

   Roberts

   Santorum

   Schumer

   Sessions

   Shelby

   Smith (NH)

   Smith (OR)

   Snowe

   Specter

   Stevens

   Thomas

   Thompson

   Thurmond

   Torricelli

   Voinovich

   Warner

   Bennett

   The PRESIDING OFFICER. The Senator from Virginia.

   Mr. WARNER. Mr. President, parliamentary inquiry: It is the understanding of the Senator from Virginia that the Durbin amendment is next under the order.

   The PRESIDING OFFICER. The Senator is correct.

   Mr. WARNER. And will the Chair state the allocation of time?

   The PRESIDING OFFICER. The Senator from Illinois controls 40 minutes; the Senator from Delaware, Mr. Biden, controls 10 minutes; and Senators Warner and McCain share 15 minutes.

   Mr. WARNER. Mr. President, we are ready to proceed. I would like to just address the Senate momentarily, and I say to my distinguished friend and floor leader, that on this side, the following Senators have indicated a desire for some time to speak: Senator DeWine, Senator Collins, Senator Specter, Senator Sessions, Senator Ensign, Senator Smith, Senator McConnell, Senator Gramm, Senator Fitzgerald, and Senator Shelby.

   Now, we have progressed very well through this debate to allocate the speakers going from one side to the other. I would hope we could do that. And in due course we could work together, I say to my good friend, who has been so helpful to move this piece of legislation, to get a UC to put speakers in line so as to sequence the times so that Senators can go about their duties today on other matters more conveniently.

   The PRESIDING OFFICER. The Senator from Nevada.

   Mr. REID. Mr. President, I say to my friend from Virginia, we also have a list of people who want to speak. Under the rules, we have 30 hours postcloture. We have used some of that time today. We have 100 Senators. A number of Senators have already spoken. I have looked at our list. I heard the Senator briefly mention his list. I would hope those Senators who have already spoken would allow some who have not the opportunity to speak. But that is a personal choice they have to make.

   During this next debate, I will be happy to direct our floor staff, as you will, to see if we can work out--I think if we do more than four at a time, it creates a problem. So we will work on that and see if we can come up with some speakers after we dispose of this next amendment.

   Mr. WARNER. I thank the leader. So we shall work together.

   Senator McCain and I will require additional time on this side, both of us, to address various issues. Having managed the bill, there are areas of this debate we believe need to be put in the proper context in which questions arose and were answered.

   Mr. REID. After the two leaders, you have the right of first recognition, so you would certainly be able to do that.

   Mr. WARNER. If I understand, I say to my leader, following disposition of the Durbin amendment, the parliamentary situation is that we are now on the balance of the 30 hours remaining under cloture; am I correct?

   Mr. REID. Since cloture was invoked this morning. I don't remember exactly when it was invoked.

   Mr. WARNER. About 11:10 is my recollection.

   Mr. REID. The 30 hours started running at that time.

   The PRESIDING OFFICER. The time was 11:38 a.m.

   Mr. WARNER. Just to inform Senators what the parliamentary situation is.

   I yield the floor.

   The PRESIDING OFFICER. Under the previous order, the Senator from Illinois is recognized to offer an amendment.

   Mr. DURBIN. Mr. President, if I am not mistaken, the Senator from Mississippi was seeking unanimous consent to speak at this time. I yield to him before I call up the amendment.

   The PRESIDING OFFICER. The Senator from Mississippi.

   Mr. COCHRAN. Mr. President, over the last several years the Subcommittee on International Security, Proliferation and Federal Services has monitored weapons systems development in Iraq and elsewhere. We have held numerous public hearings on the threat these developments pose to our national security.

   For the information of all Senators, I am putting in the RECORD an unclassified description of the subcommittee's findings from the testimony presented to us by the intelligence agencies at our hearings. I firmly believe we are confronted with a dangerous threat to our forces who are now deployed in that area of the world. I am also convinced the President has outlined a strategy for dealing with this threat and with the dangers faced by our homeland which involves the United Nations and the Congress in the decisionmaking process, and we should support him.

   This support would be clearly illustrated by approval of the Lieberman-Warner-McCain amendment. We should let our friends and adversaries alike know that, as a nation, we are united in our resolve to do whatever is necessary to protect our national security and the safety of our citizens, including the use of military force.

   I ask unanimous consent that the outline of findings from my subcommittee which I described be printed in the RECORD.

   There being no objection, the material was ordered to be printed in the RECORD, as follows:

   Facts About Iraq's Weapons of Mass Destruction

   Iraq's program to develop weapons of mass destruction and the means to deliver them has been underway for over three decades. Although it suffered setbacks during and immediately after the Gulf War, the program has since been reconstituted and has achieved significant progress in recent years. The following key facts about Iraq's program to acquire and employ weapons of mass destruction are drawn from publications and testimony of intelligence officials.

   In an October 2002 report entitled ``Iraq's Weapons of Mass Destruction Programs,'' the Central Intelligence Agency reached these key judgments:

   Iraq has continued its weapons of mass destruction (WMD) programs in defiance of UN resolutions and restrictions. Iraq has chemical and biological weapons as well as missiles with ranges in excess of UN restrictions; if left unchecked, it probably will have a nuclear weapon during this decade.

   Iraq hides large portions of its WMD efforts. Revelations after the Gulf War starkly demonstrate the extensive efforts undertaken by Iraq to deny the world information about its programs.

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   Since inspections ended in 1998, Iraq has maintained its chemical weapons efforts, energized its missile program, and invested more heavily in biological weapons; most analysts assess Iraq is reconstituting its nuclear weapons program.

   Iraq's growing ability to sell oil illicitly increases Baghdad's capabilities to finance WMD programs; annual earnings in cash and goods have more than quadrupled.

   Iraq largely has rebuilt missile and biological weapons facilities damaged during Operation Desert Fox and has expanded its chemical and biological infrastructure under the cover of civilian production.

   Baghdad has exceeded UN range limits of 150 km with its ballistic missiles and is working with unmanned aerial vehicles (UAVs), which allow for a more lethal means to deliver biological and, less likely, chemical warfare agents.

   Although Saddam probably does not yet have nuclear weapons or sufficient material to make any, he remains intent on acquiring them.

   How quickly Iraq will obtain its first nuclear weapon depends on when it acquires sufficient weapons-grade fissile material.

   If Baghdad acquires sufficient weapons-grade fissile material from abroad, it could make a nuclear weapon within a year.

   Iraq has begun renewed production of chemical warfare agents, probably including mustard, sarin, cyclosarin, and VX. Its capability was reduced during United Nations inspections and is probably more limited now than it was at the time of the Gulf War, although VX production and agent storage life probably have been improved.

   Saddam probably has stocked a few hundred metric tons of chemical weapon (CW) agents.

   The Iraqis have experience in manufacturing CW bombs, artillery rockets, and projectiles, and probably possess chemical agents for ballistic missile warheads, including for a limited number of covertly stored, extended-range Scuds.

   All key aspects--R&D, production, and weaponization--of Iraq's offensive biological weapon (BW) program are active and most elements are larger and more advanced than they were before the Gulf War.

   Iraq has some lethal and incapacitating BW agents and is capable of quickly producing and weaponizing a variety of such agents, including anthrax, for delivery by bombs, Scud missiles, aerial sprayers, and covert operatives, including potentially against the U.S. Homeland.

   Baghdad has established a large-scale, redundant, and concealed BW agent production capability, which includes mobile facilities; these facilities can evade detection, are highly survivable, and can exceed the production rates Iraq had prior to the Gulf War.

   Iraq maintains a small missile force and several development programs, including for an Unmanned Aerial Vehicle (UAV) that most analysts believe probably is intended to deliver biological warfare agents.

   Gaps in Iraqi accounting to UNSCOM suggests that Saddam retains a covert force of up to a few dozen Scud-variant missiles with ranges of 650 to 900 km.

   Iraq is deploying its new al-Samoud and Ababil-100 short-range ballistic missiles, which are capable of flying beyond the U.N.-authorized 150-km range limit.

   Iraq's UAVs, especially if used for delivery of chemical and biological warfare (CBW) agents, could threaten its neighbors, U.S. forces in the Persian Gulf, and the United States if brought close to, or into, the U.S. Homeland.

   Iraq is developing medium-range ballistic missile capabilities, largely through foreign assistance in building specialized facilities.

   Iraq's effort to extend the reach of its ballistic missile force is not limited to medium-range missiles capable of striking its immediate neighbors. Iraq has pursued long-range ballistic missiles in the past and has even tested a rudimentary space launch vehicle (SLV).

   In testimony before the Subcommittee on International Security, Proliferation and Federal Services, Robert Walpole, the National Intelligence Officer for Strategic and Nuclear Programs stated, ``Iraq's goals of becoming the predominant regional power, and its hostile relations with many of its neighbors, are the key drivers behind Iraq's ballistic missile program.''

   According to the Department of Defense's report ``Proliferation: Threat and Response,'' Iraq in December 1988 attempted to launch the Al Abid 3-stage space launch vehicle, which used 5 Scud missiles clustered together as a first stage.

   The Intelligence Community's unclassified summary of the ``National Intelligence Estimate on Foreign Missile Developments and the Ballistic Missile Threat Through 2015'' states:

   After observing North Korean missile development the past few years, Iraq would be likely to pursue a three-stage Taepo Dong-2 [TD-2] approach to a ICBM, or space-launched vehicle, which would be capable of delivering a nuclear weapon-sized payload to the United States.

   Iraq could develop and test a Taepo Dong-2-type system within about ten years of a decision to do so.

   If Iraq could buy a TD-2 from North Korea, it could have a launch capability within a year or two of a purchase.

   It could develop and test a TD-1-type [Taepo Dong-1] system, within a few years.

   Iraq could attempt before 2015 to test a rudimentary long-range missile based on its failed Al-Abid SLV .....

   If it acquired No Dongs from North Korea, it could test an ICBM within a few years of acquisition by clustering and staging the No Dongs--similar to the clustering of Scuds for the Al-Abid SLV.

   Mr. COCHRAN. I thank the distinguished Senator from Illinois.

   AMENDMENT NO. 4865 TO AMENDMENT NO. 4586

   Mr. DURBIN. Mr. President, pursuant to the unanimous consent agreement, I call up my amendment.

   The PRESIDING OFFICER. The clerk will report.

   The bill clerk read as follows:

   The Senator from Illinois [Mr. DURBIN] proposes an amendment numbered 4865 to amendment No. 4586.

    On page 7, line 20, strike ``the continuing threat posed by Iraq'' and insert ``an imminent threat posed by Iraq's weapons of mass destruction''.

   Mr. DURBIN. Mr. President, I call up this amendment to the underlying resolution presented by the President and sponsored by Senator Lieberman and others on the floor of the Senate.

   In this Capitol Building, there are many historic rooms. There is one that is of great significance to me. It is only a few steps down the hall. It was in room 219 where I gathered with about a dozen of my colleagues among the Senate Democrats for a meeting on the morning of September 11, 2001. I can still recall the meeting vividly as we watched the television screen and its report, as we heard of the evacuation of the White House, as we jumped from our chairs and looked down The Mall to see the black smoke billowing from the Pentagon. And then we were told immediately to leave this great building and rushed down the steps and far away.

   That is my image of September 11. Everyone who is following this debate has their own image of September 11. My world changed. America changed. Perhaps things changed all around the world on that day.

   I came to work on that morning never believing that just a few days later, on September 14, I would stand on this floor and join every one of my colleagues in the Senate in a unanimous bipartisan vote of support for President Bush's request for war on terrorism. I am not a person who comes to that vote easily. I am one who grew up with the specter of war during our war in Vietnam. I am a person who served in the Congress and considered the momentous decision of the Persian Gulf war. I always took those votes extremely seriously. But there was no doubt in my mind on September 14, this was the right one. The war against terrorism was the right one. We were going to go after those parties responsible for what they had done to us on that day of infamy.

   Now we gather in the Senate, a little over a year later, to face another historic vote. The President has asked Congress for the authority to wage another war, a war against Iraq. It is fair first to ask what progress we have made on the war against terrorism. Some things have happened for which we can be very proud.

   The Taliban is out of power in Afghanistan. They no longer will be catering to the kind of extremist we saw with al-Qaida. Osama bin Laden is at least on the run, and that is certainly good news. Afghanistan is moving back toward a civilized state. Women are returning to the streets without the burkas. Girls are going to school. Positive things are happening. We saw an intelligence network created around the world to support the U.S. war on terrorism, an amazing display of unity and support for what we were doing.

   But still, as I stand here today and make this assessment of the war on terrorism, the manhunt continues for Osama bin Laden and his top lieutenants. Afghanistan is still in its national infancy. Hamid Karzai, leader of Afghanistan, is a good man but barely escaped an assassination attempt a few weeks ago, an assassination that, had it resulted, would have thrown that nation into chaos. Al-Qaida is still known to be in 60 nations around the world, and this war is far from over.

   Make no mistake, we cannot dedicate the resources, the manpower, the skills, and the weapons of war to a new war in Iraq without sacrifices in our war on terrorism. This will be a war on two fronts; sacrifices will be made.

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   Let's speak to the President's request for a war against Iraq. If you have followed the comments from the President

   since August until today, you will note that his approach has changed. In fact, this is the third version of the resolution before us.

   In one respect it is a tribute to the President that he has worked with others to try to improve the resolution. We expect that. In another, it suggests a change in attitude and philosophy and perhaps an intent as this resolution develops.

   The speech the President gave on Monday night I listened to, every single word of it. I wanted to hear everything he had to say. The speech the President gave to the American people was far different than the language of the resolution before us.

   What has happened since August when the President first raised the specter of Iraq as a threat to the United States?

   Initially the White House said: We don't need congressional approval. We can move forward. They went on to say: We can do it unilaterally. We don't need any allies. We can attack Iraq if necessary by ourselves. And the President said our goal is regime change. We want Saddam Hussein gone. We have had enough of him. And he went on to say--Vice President Cheney backed him up--inspections by the U.N. are worthless. We tried that.

   That was the first cut, the first position of the White House.

   Last Monday, when the President gave a speech, it was a much different message. He is seeking congressional approval. That is why we are here today. He said that he is going to help lead a coalition of forces against Saddam Hussein, far different than what this resolution says, far different than what he said at the outset.

   He is now working through the United Nations; something that had been dismissed early on in the debate has now become a big part of it. The President went on to say that he is now focusing on weapons of mass destruction and destroying them. There won't be any argument here. I have yet to meet a single Member of Congress who defends Saddam Hussein and his weapons of mass destruction.

   The President said we need an inspection regime through the United Nations. That is a big departure from where he was. But that speech basically described a process the President suggested and endorsed, which many of us endorse as well.

   In 8 weeks the administration has changed its rhetoric but the resolution we have before us has not. This resolution is important for many reasons. First, it is a war resolution. With this expression of authority from Congress, the President will have what he needs under our Constitution to move forward,

   to dispatch troops, mobilize reserves, move the men and women in uniform into harm's way, and be prepared for battle. That is, of course, the most important part of the resolution.

   Another part rivals it in importance. This resolution is historically important because it marks a dramatic departure in the foreign policy of the United States of America. It is not simply a question of our policy toward Iraq or Saddam Hussein; it is a question of our policy toward the world.

   This resolution still authorizes a unilateral, go-it-alone invasion of Iraq. This resolution contains no requirement to build a coalition of allies behind us. It has been said over and over again, isn't it better for the United States to have a coalition behind us than to have a coalition against us? This resolution does not specify that we are targeting weapons of mass destruction. This resolution represents a dramatic departure in foreign policy. That is why I have offered this amendment.

   Senator Levin of Michigan was here earlier speaking about the role of the U.N. As much as any nation, the United States has guided and nurtured the U.N. We have gone through painful, frustrating moments when we have disagreed with their actions and could not agree with Security Council decisions, but by and large we have stood by the U.N. since its creation. In the words of Kofi Annan, ``The U.N. is the international community at work for the rule of law.''

   That is as succinct a description of what the U.N. is all about as I have ever read. We have been with the U.N. through NATO, in the cold war, on questions of post-Soviet transatlantic order, and a variety of other issues. Now comes the President, on September 12 of this year, who visits the U.N. and issues a significant challenge. He says to the U.N. on September 12: If this organization has a backbone, it is going to stand up to Saddam Hussein, demand inspections for the weapons of mass destruction, and remove or destroy them. And if it does not, the President basically said that the U.N. is irrelevant; it has become the League of Nations.

   Well, since then, progress has been made. A man whom I respect very much, Secretary of State Colin Powell, has been involved in shuttle diplomacy with the Security Council to put together U.N. support for just the very approach the President asked. It is the right approach--to really put our inspectors on the ground with no holds barred, nothing off limits, with no exemptions for Presidential palaces, so that we can go in and discover, with the help of our intelligence community, which will provide information where we think the weapons can be found and, in finding them, be able to establish once and for all that Iraq is in violation of U.N. resolutions and destroy the weapons.

   If Saddam Hussein and Iraq should resist or stop us, consider the position we are in. We can then turn to the U.N. and say: We gave you your opportunity. You know this man will not comply with orders. Now stand together in enforcing the U.N. inspection. What a strong position that is--for us to have a coalition of nations, through the U.N., working with us, rather than the Bush resolution, which says we will do it by ourselves.

   I think we have seen progress, but this resolution would brush it all aside. This resolution would say to the U.N. and others around the world: Go ahead and finish your debate and engage yourself as much as you like, but in the final analysis this Nation, the United States of America, will do exactly what it wants to do.

   I don't think that has been our approach historically. We have always said: If you attack us, expect an answer. That is what happened on September 14, when we voted on the resolution on the war on terrorism. But why, if the U.N. is making progress toward this goal, do we want to say we are going to ignore the progress you have made, ignore the fact that you have accepted this challenge, we are going to ignore the possibility of meaningful inspections to disarm Iraq, and we will go it alone, we will launch a land invasion?

   I think that is a mistake. This U.N. coalition effort is very important. In October of last year, President Bush stated, with some pride, that we had launched our war on terrorism, and he said: ``We are supported by the collective will of the world.'' And we were. The President has a right to be proud of that. The fact that we mobilized nations around the world to come behind us in the war against al-Qaida and the terrorists meant something in the war on terrorism.

   Why, then, does it not mean something today? Why, then, when we are considering this war resolution, are we not committing to build a coalition of force to make sure we are successful? We know what the coalition means. It means strength in numbers. It means a sharing of the burden. Why should it only be American soldiers walking through the deserts on the way to Baghdad? Should we not have an international force? Because the threat Saddam Hussein poses is certainly to the Middle East and other countries before it threatens the United States. Why should other nations not defray the cost of this war? The fact that we would spend $100 billion or $200 billion when we are currently in deficit--why should that not be shared? Certainly, when we fought in the Persian Gulf, that was what happened. There is nothing in the Bush resolution for a coalition of force to join us in this effort in Iraq.

   Also, the creation of a coalition establishes vital cover for other nations to join us. Do you recall the comments made by Saudi Arabia a few days after the President's visit to the U.N.? They had been not only cold but antagonistic to the idea of the United States going it alone against Iraq. They announced, after his visit to the U.N., that if the U.N. took action, they

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   Think of this for a moment, too: If our coalition includes Arab States and countries from around the world, it minimizes the impact this will have on the fundamentalists and extremists who are trying to breed and educate and train the next generation of terrorists. A third of the people living in the Arab world today are under the age of 14.

   If this is a coalition including Arab States, then we are in a much stronger position to argue that it is U.N. action, collective action, it is not the United States going it alone. This will help to defuse any terrorists who might come out and will help to establish stability after the attack.

   Let me go to the particular reason to raise this amendment to this resolution. The House has passed the resolution we are considering. It tells you we are drawing that much closer to the possibility of war. It is a historic decision, one which now is in this Chamber. If this Chamber agrees to the same resolution and presents it on the President's desk, my guess is it will be signed very quickly. It is more than just war against Iraq. Just a few weeks ago, the administration released what they called ``The National Security Strategy of the United States of America.'' It is a document which outlines what they consider to be the new parameters of foreign policy in our Nation. It is well worth the read.

   You will find in this document, on page 15, a significant and historic departure from the foreign policy of the United States. The argument is made in this publication by the administration, by President Bush's White House, that the world has changed so significantly since September 11, 2001, that the principles and values and norms of conduct of our foreign policy must be changed dramatically in this respect. We have always said to the world: The United States is not an aggressor nation. We are not seeking to invade your country for territory or treasure. But if you threaten us, you can expect that we will return with all the force and power we have.

   We are not trying to conquer you, but if you threaten our territory, our people, our allies, our Armed Forces, you can expect the worst. That is the way it should be.

   We have said historically we are a defensive nation. Even at the height of the cold war, we did not endorse a first strike against the Soviet Union. No, we are a defensive nation. This new foreign policy reflected in the resolution before us is a dramatic departure from that.

   The argument is made that we have no choice. Because we are now fighting terrorism, we can no longer wait for an imminent threat against the United States. We have to be able to move preemptively for what might be, as is said in this resolution, a continuing threat.

   What does it mean? If you list the nations of the world that pose any threat to the United States, unfortunately the list is fairly long. It would not just be Iraq. The President's ``axis of evil'' includes North Korea and Iran. One would certainly put Syria, Libya, and maybe many other countries on that list.

   What the President's foreign policy is calling for is the right of the United States to attack these countries without provocation, without imminent threat. That, I say to my friends in the Senate, is a dramatic departure in foreign policy. We are not just talking about how to deal with Saddam Hussein, how to deal with weapons of mass destruction in Iraq, what to do through the United Nations. The supporters of this resolution are calling for a dramatic departure in American foreign policy.

   From my point of view, it is a departure which is unwarranted and unwise. This is why I believe it: For over 50 years, with nuclear Armageddon facing us, with nuclear missiles poised in the Soviet Union and in the United States, our position was one of deterrence. We said, as I mentioned before, we would not strike first. We held that position, with some rare exceptions. That was our position as a nation, and it prevailed. It prevailed to overcome the Soviet Union and, frankly, to bring the Russians closer to our position in the world and to bring the world closer to peace.

   Look what has happened in the last 10 years in our relationship with Iraq. Since the Persian Gulf war, we have made it clear to Saddam Hussein and his leaders that if they make one bad move with a weapon of mass destruction, either through a terrorist organization or directly against the United States, its neighbors, or any of our allies, frankly, they will pay a heavy price. There has never been a doubt about that. There is no doubt about that today.

   The establishment and maintenance of the no-fly zone is our way of keeping an eye on Saddam Hussein from start to finish. There is not a tank or truck that moves in Iraq today we do not monitor. There is not a hole that is dug and filled up we do not monitor. We made that clear under existing foreign policy, but this resolution says it is time for us to change that policy. It is time for us to argue we can preemptively strike Iraq or any other country before they pose a threat to the United States. That is a dramatic change.

   My amendment goes to this issue and says the President has the authority to use force. Let me read it specifically because I do not want to misstate it for my colleagues:

   The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against an imminent threat posed by Iraq's weapons of mass destruction.

   That is what my amendment says. It spells that out in terms of foreign policy that we have created, in many respects, and honored throughout our history. To state it as stated in this resolution is to endorse this new rewrite of American foreign policy and to say in the age of terrorism that preemption is the answer.

   I asked Dr. Condoleezza Rice a question when she came before us a few weeks ago, as follows: If we are going to argue that we have the right as a nation to attack any nation we suspect may be a threat to us, how then can the United States play a role in the world supporting diplomacy and peace? How can we argue to countries that are in incendiary relationships, such as India and Pakistan over Kashmir, that they should not do preemptive attacks of their own? How do we make that argument?

   Oh, she said, diplomacy is working in Kashmir. It depends on what day of the week that question is asked. I hope it works. I hope peace comes to that region. We really lose our right to argue and demand more diplomacy and more peacekeeping when we say the United States may preempt any perceived threat, but other nations in the world should negotiate. The same can be said of China and Taiwan and many other places in the world.

   To my colleagues I say this: This resolution not only addresses Iraq, it marks a significant departure in foreign policy. I hope, even though we have not had hearings, even though we have not debated this at length, that this amendment which I offer, with just a handful of words, will call into question whether this is the wisest policy, whether this is a necessary policy.

   Let me say this as well. I know the United States is in a fearful and anxious situation since the attacks of September 11, 2001. Though we have been heartened by the strength of this Nation and its unity, there is still a lingering question as to whether we will be struck again.

   It is because of that anxiety, because of that fear, I think many of us are moving now to say, let's do what is necessary, let's make the changes, let's get on with it.

   I caution and beg my colleagues to think twice about that. America has faced periods of fear in its past, some not from foreign threats but from domestic situations.

   One of the most noteworthy in our history was the Great Depression which faced our country when then-President Franklin Roosevelt, in his Inaugural Address, said:

   This great Nation will endure as it has endured, will revive and will prosper. So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself. Nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert, retreat, and advance. In every dark hour of our national life, a leadership of frankness and vigor is met with that understanding

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   I have listened to speeches on this floor, speeches which have, frankly, touched the anxiety, concerns, and fear of America. I have heard people on this floor lionize Saddam's weapons of mass destruction as a threat. The President's own resolution said Saddam Hussein may launch a surprise attack against the United States, language which is almost, frankly, impossible to understand in the world in which we live.

   I heard those same voices minimize the impact of weapons of mass destruction on the battlefields of Iraq if we launch a

   land invasion to try to force regime change.

   As we know--it has been declassified this week--our intelligence community tells us the most likely scenario of weapons of mass destruction to be used against Americans is if we launch an invasion of Iraq. Saddam Hussein knows today if those weapons move or are used in any way against us and our allies, he will pay a terrible price.

   Our foreign policy must not be driven by fear. We must be vigilant. We must be careful. But at this moment of national concern over our vulnerability of terrorism, we cannot lose sight of the course which guided our Nation for generations. As we search every corner of our Nation and every corner of the world for danger and threats, we can never lose our sight on true north, and that rock-solid reliable point is a commitment to a rule of law, a commitment to a foreign policy based on established values and established standards of international conduct.

   We cannot now ignore the challenge of Saddam Hussein. We need to address it. We should push forward with inspections through the United Nations, and build a coalition of support to make sure he is kept under control. The Presidential resolution, which envisions the United States standing alone, is not the best course. The Presidential resolution, which calls for a dramatic departure in our foreign policy, is not the best course.

   Mr. President, I reserve the remainder of my time and yield the floor. How much time do I have remaining?

   The PRESIDING OFFICER (Mr. Carper). The Senator from Illinois has 15 minutes remaining.

   The Senator from Virginia.

   Mr. WARNER. Mr. President, my understanding is the Senator from Virginia and the Senator from Arizona have 15 minutes, equally divided.

   The PRESIDING OFFICER. The Senator is correct.

   Mr. WARNER. At this time, the Senator from Arizona wishes to allocate his time to Senator Kyl.

   The PRESIDING OFFICER. The Senator from Arizona.

   Mr. KYL. Mr. President, I will speak for about 7 minutes. If any other Senator wishes to speak, they may certainly do so.

   Mr. President, I want to address directly the Senator's amendment. He talked about everything but his amendment. His amendment is remarkable because instead of allowing the President to deal with the continuing threat posed by Iraq, this amendment would require the President to identify an imminent threat; that is to say, one that is immediate, pressing, upon us, imminent. I suggest, as a member of the Intelligence Committee for almost 8 years, that it is virtually impossible for us to know when a threat is imminent, a threat posed by a regime such as Saddam Hussein's, or a group of terrorists.

   These people do not announce their threats in advance. They conceal their intentions, as well as their capabilities, and it is very difficult for us to know the precise moment at which the threat is imminent.

   So this amendment is remarkable because it would literally force the President to wait until the last minute in order to take the action that is permitted by the amendment.

   There is a saying in the intelligence community that we do not know what we do not know. We find out later what we did not know.

   We did not know that Saddam Hussein, for example, had gone to the extent he had in the development of biological and chemical weapons until defectors came out of Iraq and told us what he had done. We did not find out about that through other intelligence. Then we sent inspectors, and before Saddam Hussein got it all hidden, they were able to find some of it, at which point he said: Oh, gosh I forgot about that--or words to that effect.

   We did not realize the extent to which he had developed his nuclear capability until after the gulf war was over, when we learned that he was years closer to having a nuclear weapon than we had thought.

   If Saddam Hussein had waited to attack Kuwait, had not attacked Kuwait, and gone ahead with his plans, he would have had a nuclear capability before the United States knew about it. By then, it would have been too late.

   My point is this: We may have pretty good intelligence, but it is not good enough to calibrate as closely as the Senator's amendment would require, to wait until the moment when the President says now it is imminent. And that is the problem. Action has to be taken when the threat is clear, when it is known to be there, but we do not really know exactly when he is going to make his move.

   As September 11 showed, if it showed us anything, our intelligence is not good enough to do that. We can know there is a threat. We can know it is growing, we can know it is continuing, but we cannot know that moment when it becomes imminent.

   This amendment asks an impossibility of the President: To prove that the threat is imminent or at least to wait until it is clear to him that the threat is imminent. But we may never know until it is too late that Saddam Hussein has a nuclear weapon.

   The Senator also complained about this new doctrine of preemption, but I would suggest that with respect to Iraq, we are not talking about preemption, we are talking about unfinished business called the gulf war.

   Every day the United States and the United Kingdom fly airplanes, pursuant to United Nations resolutions, to enforce

   those resolutions--frankly, to engage in aerial inspection called reconnaissance--and they get shot at almost every day. When they get shot at, they either try to take out the radar site or SAM missile site that is firing at them after they have been shot at, or what they try to do is knock it out before they get shot at. Now, somebody may call that preemption. I call it self-defense and common sense.

   This is not some new doctrine we are about to engage in that is going to threaten world peace. This is the unfinished business of the gulf war that is authorized by United Nations resolutions that we engage in every day and that requires us to act in our own self-defense.

   It is also said that for the last 11 years, Saddam Hussein has not used his weapons of mass destruction. So why deal with this now? Why not wait until the threat is imminent? Is that it? We are supposed to put our trust in Saddam Hussein? I am unwilling to place the security of the United States of America in the hands of the likes of Saddam Hussein. I do not believe we can trust him.

   Because our intelligence is not good enough to calibrate this threat to the action that would be authorized by the amendment, and because we cannot trust Saddam Hussein, I support the resolution that is before us and oppose the amendment of the Senator from Illinois.

   Finally, suggesting, as some have, although I did not hear these words from the Senator, that there has to be a smoking gun--that is the concept behind this notion of imminence--before we can take action, is extraordinarily misguided. Remember, a gun smokes after it has been fired.

   When I think of a smoking gun, I think of the Pentagon and the World Trade Center. I believe that the amendment of the Senator from Illinois is dangerous, misguided, and I hope my colleagues will join me in defeating it.

   The PRESIDING OFFICER. The Senator from Texas.

   Mr. GRAMM. Mr. President, how much time do we have remaining?

   The PRESIDING OFFICER. Who yields time to the Senator from Texas?

   Mr. KYL. Mr. President, on behalf of Senator Warner, unless Senator Lieberman wishes any time, I yield the remainder of the time to Senator Gramm.

   The PRESIDING OFFICER. Nine minutes.

   Mr. GRAMM. Mr. President, this has been a great debate. I want to congratulate Senator Warner and Senator Lieberman, and I want to thank my

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   Even error has been presented on the floor of the Senate in a way that one could be proud of. I think these kinds of debates build the stature of the Senate, and when the American people listen to this debate they will realize that on this issue there is a lot of serious thinking, a lot of good thought, and I believe in the end we are going to make the right decision.

   I have waited to speak--did the Senator want me to yield?

   Mr. WARNER. Yes. I had to speak to the Republican leader. I had 7 minutes. I wish to allocate several of those minutes to our colleague from Connecticut.

   Mr. President, how much time remains?

   The PRESIDING OFFICER. Seven minutes.

   Mr. GRAMM. Mr. President, I ask unanimous consent that I have 5 minutes.

   Mr. REID. Objection.

   The PRESIDING OFFICER. Objection is heard.

   Mr. WARNER. I regret to say to my good friend from Texas----

   Mr. GRAMM. How about 4 1/2 minutes?

   Mr. WARNER. Why doesn't the Senator take an additional 2 minutes so we can complete the debate on this amendment?

   Mr. GRAMM. Mr. President, I will wait until this amendment is completed and then I will speak.

   The PRESIDING OFFICER. The Senator from Virginia.

   Mr. WARNER. I thank my friend from Texas for his cooperation. I now yield the remaining time, with the exception of 1 minute for the Senator from Virginia, to the Senator from Connecticut.

   Mr. LIEBERMAN. Mr. President, I ask that the Chair notify me when a minute remains so I may terminate my remarks.

   The PRESIDING OFFICER. The Chair will do so.

   Mr. LIEBERMAN. Mr. President, I rise to oppose, respectfully, the amendment introduced by the Senator from Illinois.

   The underlying resolution, building on 11 years in which the world community has tried every way imaginable, except war, to get Saddam Hussein to keep the promises he made at the end the gulf war to disarm, is a strong resolution. This amendment would diminish it, and in that sense it would also diminish its effectiveness to convince the United Nations to act so we do not have to form our own international coalition.

   In two regards, it also diminishes the authority of the Commander in Chief, as granted by our resolution, and does so in a way that is far more restrictive than most any authorizing resolution for war or military action that I have seen before.

   First, it introduces the word ``imminent'' in place of the words ``continuing threat.'' We say in our resolution that the President may use the Armed Forces of the United States in order to defend the national security of our country against the continuing threat posed by Iraq. The Durbin amendment would change that to the imminent threat posed by Iraq's weapons of mass destruction.

   In changing it to ``imminent,'' which is a temporal term--it suggests time, that something is about to happen soon--it adds a qualification that I think is unwarranted. In the totality of Saddam Hussein's evil administration, weapons of mass destruction, ballistic missiles, unmanned aerial vehicles, there is a threat that is real to us, and I am convinced will be used against the American people unless we act, hopefully through the United Nations, to disarm him.

   So while it might not be imminent in the sense that he is about to use it against us, in my opinion it is a ticking time bomb.

   We do not know exactly how many seconds or minutes or hours are left on that timer. I don't want the President to be limited to an imminent threat to use the power we are giving him here.

   Second, it limits that authority for the President to act only in regard to an imminent threat of weapons of mass destruction.

   The resolution we have introduced provides two conditions under which the President may use the Armed Forces to defend the national security of the United States against the continuing threat posed by Iraq and to enforce all relevant U.N. Security Council resolutions regarding Iraq. This harkens back to a colloquy I had with Senator Specter of Pennsylvania yesterday.

   It seems to me these two parts have to be read in totality as modifying each other. The resolutions that are relevant in the U.N. Security Council are to be enforced particularly in relationship to the extent to which they threaten the national security of the United States. In doing this, we are expressing our understanding that the President is unlikely to go to war to enforce a resolution of the United Nations that does not significantly affect the national security of the United States.

   We want to do what the Constitution invites us to do. Congress is given the authority under article I to declare war. The President under article II is the Commander in Chief. There is a healthy tension there. It is up to Congress to authorize and to the President to act as Commander in Chief with the latitude that authority gives him but also with the accountability and responsibility that authority gives him.

   I have spent time looking at authorizing resolutions for war or military action from the past. The one that we put together--although some of our colleagues have described it, I think, erroneously as a blank check--is quite limited compared to the declaration of war authorizing and directing the President to employ the entire naval and military forces of the United States and the resources of the Government to carry on war--this was in the case of World War I--and to bring the conflict to a successful termination, all the resources of the country are hereby pledged by the Congress of the United States.

   We have only one Commander in Chief; 535 Members of Congress cannot effectively conduct a war. We set the parameters, as this resolution does. We authorize. But it is the President ultimately who carries out and serves as our Commander in Chief. That is what our resolution does. That purpose would be significantly altered and, I say respectfully, weakened by the language of the Senator from Illinois, which is why I respectfully oppose his amendment.

   I yield the floor.

   The PRESIDING OFFICER. The Senator from Virginia.

   Mr. WARNER. My understanding is that the Senator from Delaware has 10 minutes. He is not here. I will ask unanimous consent I take 7 of his 10 minutes.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. WARNER. Mr. President, I wish to retain 2 of those minutes for myself and give 4 minutes to our colleague from Texas.

   The PRESIDING OFFICER. The Senator from Texas.

   Mr. GRAMM. Mr. President, I thank my dear colleague and floor leader. I will make a couple of comments.

   I have listened to these arguments, and I would say they have been made very effectively and with great eloquence. But as I hear them, they boil down to two simple arguments. The first argument is that if we are going to use military power against Saddam Hussein, we ought to do it within the context of the United Nations and it ought to be part of a multinational effort. I reject that.

   I reject it because when we are talking about the security of our Nation, I am not willing to delegate the responsibility of protecting it to the U.N. When it comes to the lives and safety of our people, I am not willing to leave that up to the U.N. I am not even willing to leave it up to our allies. It is the responsibility of the U.S. Government. That is why we need this resolution.

   The plain truth is, if nobody else in the world is willing or able to do this job, we are able and we are willing. That is what this resolution says. And by being able and being willing, I believe there will be others who will help us.

   The second argument can be explained through an analogy. Let's say there is a rattlesnake nesting in your rock garden. Our colleagues are saying, look, if you go in there and try to find that rattlesnake and try to kill him, he is liable to bite you. The probability of being bitten is lower if you leave him alone.

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   For a short period of time, they are right. There is no doubt about the fact if you put on your snake boots and you get rat shot and your pistol and go out there with a stick and start poking around trying to find him, the probability during that period of time that you are going to get bitten does go up. But most rational people get their pistol and get that stick and go out there because that rattlesnake will be out there for a long time. Your dog might go through there and get bitten. Your grandchild might be playing out there. The good thing about going in to find a rattlesnake is you know he is there and you are alert to the threat.

   My view is we do have the rattlesnake in the rock garden. We have the ability to go in and get him out. And because of the threat that it poses to us, I don't think we ought to wait around to do what we know we need to do. In looking at the future, I say the threat is greater if we do not act than if we do.

   Those are the two arguments I hear. They are in fancier garb and they are better put. But it really boils down to, let's turn over our security to the U.N. or to our allies. I am not willing to do that. Let's avoid the risk of this conflict because it will be dangerous while the conflict is going on. It will be a lot safer once the conflict is over.

   That is where we are. I think we are doing the right thing. I think we are going to have an overwhelming vote. We have had great bipartisan success on this force resolution because Saddam Hussein has no organized political support in America. I wish we did not face organized political support for opposition to homeland security.

   The PRESIDING OFFICER. The Senator from Virginia is recognized.

   Mr. WARNER. Mr. President, I say to our distinguished colleague from Texas, I listened intently to his remarks. Two things occurred to me. First, how much we value the Senator's contribution these many years we have served together. We shall miss him. Also, the Senator cut right to the heart of the argument, leaving no doubt where he stands.

   Mr. President, I am happy to yield the floor. I think I have 3 minutes left under my control.

   Mr. DURBIN. It is my understanding the Senator from Delaware still has time remaining under the unanimous consent request.

   The PRESIDING OFFICER. The Senator from Delaware has 3 minutes remaining, and the Senator from Illinois has 15 minutes remaining.

   Mr. DURBIN. I thank the Senator for his courtesy. When we disagree, he is always courteous in his treatment and fair on the floor of the Senate.

   I might say to my friend from Connecticut, it is rare we disagree. I am sorry this is one of those cases. But I would pose a question, if he wants to answer it--without yielding the floor.

   Do you believe that the threat of weapons of mass destruction in Iraq is an imminent threat to the United States today?

   Mr. LIEBERMAN. I thank my friend. I agree it is rare we disagree, so I do so with respect.

   That is my point. I believe the threat is real. The weapons of mass destruction threat is real. Whether it is imminent or not, I do not know.

   As I said, the analogy that comes to mind is of a bomb on a timer. I don't know whether the timer is set to go off in a day or a year. But because the danger is so real, I don't want to establish the standard of imminence before the United Nations or the President of the United States can act to eliminate the danger.

   Mr. DURBIN. I thank my colleague from Connecticut, and I think it is an honest answer. But let me tell you, I serve on the Intelligence Committee and I would not disclose anything I learned there because it is classified and top secret, but some things I can say because they are public knowledge.

   If you want to talk about threats to the United States, let me quickly add to that list North Korea. Currently, North Korea has nuclear weapons. North Korea has missiles that can deliver that nuclear weapon to many countries that we consider our friends and allies in their region.

   Iran may not have a nuclear weapon today but could be further along than Iraq is at this moment. There is scant if little evidence that Iraq has a nuclear weapon.

   We do not trust Syria because it is a harbor for some 12 or 15 different terrorist organizations in Damascus, and we certainly do not trust Libya because of our fear of weapons of mass destruction.

   So now of all the countries I have listed, Iraq is one of them for sure. But I have given you five or six countries which, under this resolution's logic and under this President's new foreign policy, we should be considering invading. Which one and when?

   Historically, we have said it is not enough to say you have a weapon that can hurt us. Think of 50 years of cold war when the Soviet Union had weapons poised and pointed at us. It is not enough that you just have weapons. We will watch to see if you make any effort toward hurting anyone in the United States, any of our citizens or our territory.

   It was a bright-line difference in our foreign policy which we drew and an important difference in our foreign policy. It distinguished us from aggressor nations. It said that we are a defensive nation. We do not strike out at you simply because you have a weapon if you are not menacing or threatening to us. Has September 11, 2001, changed that so dramatically?

   The words ``imminent threat'' have been used throughout the history of the United States. One of the first people to articulate that was a man who served on the floor of this Chamber, Daniel Webster, who talked about anticipatory self-defense, recognized way back in time, in the 19th century. What we are saying today is those rules don't work anymore; we are going to change them.

   I might also add, even though the Senator from Connecticut didn't address it directly, as to whether Iraq is an imminent threat, the minority leader, Republican minority leader,

   Senator Lott, today on the floor came forward and said, and I quote:

   He [meaning the President] is prepared to try to find a peaceful solution here. But unless we make it clear he is committed, we are committed, the U.N. is committed, this problem will not go way. It is serious and it is imminent.

   The words of Senator Lott on the floor today, recognizing the point I am trying to make here. If the President believes it is an imminent threat from weapons of mass destruction, he should have the authority to go forward.

   But this is not just a matter of striking a strong position and showing that we have resolve. It is a matter of the people of the United States, through the Senate and the House, giving authority to the President of the United States to commit the lives of our men and women in the U.S. Armed Forces.

   I, for one, have thought long and hard about voting for war. As I said on September 14, 2001, I did. I would do it again on the war on terrorism. I believe every Senator--every Senator--Republican and Democrat alike, takes this responsibility particularly seriously.

   I had a personal experience in my district as a Congressman in the Persian Gulf war. One of my friends had a son who was in the Marines. She called me and said: He has just been sent over there, and I am worried to death about him.

   I said: Let's wait and see how this goes.

   We engaged in a debate on the floor of the House and Senate, and we gave President Bush's father, the President, authority to go forward. If you remember, we built up our troops and forces for 6 months, the day came, and the war began, and we were prepared, and we were decisive; in a matter of 48 hours the war ended and I breathed a sigh of relief. It was over quickly, and there were just a handful--I think about 200 American--of casualties out of the thousands and thousands of troops who were in harm's way.

   No sooner had I had this feeling of relief than I got a call. One of the 200 killed in that 48-hour period was Christian Porter, a lance corporal in the U.S. Marine Corps, killed by friendly fire--the son of my close friend. I went to that funeral, faced his mother and his father. There was little I could say. I went to the veterans cemetery, the National Cemetery, afterwards, as I am sure all of the Members of the Senate would do to pay their respects to his family and respect to this man who served his country.

   The image of that funeral at that service in that day is still in my mind

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   Is it unfair for us to say, on this side of the debate, that we should exhaust every reasonable and realistic option before we engage in war? That we should work through the United Nations if we can find an inspection regime that is honest, to try to lessen the threat on the United States at any time in the future? That we should gather a coalition of forces?

   I couldn't disagree more with my colleague from Texas. Yes, it is a threat to the United States. All of the countries I listed are threats. But why should we bear this burden alone? Should this burden not be shared by our allies and those who agree with us that we need a peaceful and civilized

   world? Shouldn't their troops be in the field with American troops fighting side by side for this cause? Only American soldiers? Only American tax dollars? Only America is assuming the responsibility for stability when the war on Iraq is over?

   I don't think it is a fair approach. It is far better for us to have a coalition working on it. But what triggers it, goes to the heart of this amendment, is that moment in time when this President--and he is the one who has the authority as Commander in Chief--says we now face an imminent threat from weapons of mass destruction.

   What could that be? It could be the identification of fissile material that is now going into Iraq which could lead to their development of a nuclear weapon. That, in my mind, shows imminent threat. It could be his using weapons of mass destruction and sharing them with terrorist organizations. That is clearly an imminent threat. All of these things would trigger the United States to step forward and say now we have to defend ourselves. But at this point in time, none of that is here.

   We are being asked, by voting on this resolution, not to wait for the United Nations, not to wait for a coalition, but to move forward on a continuing threat. Member after Member comes to the floor and tells us: The threat against the United States of weapons of mass destruction is an imminent threat. We have to take it seriously. We have to vote on this before the election. That is what the White House says: We have to do it now, we have to do it before we leave town.

   Yet when you ask them to put the words ``imminent threat'' in the resolution, watch them scatter and run when the vote comes to the desk here. There will be a handful of us voting for that, a handful of us who believe the foreign policy which has guided the United States for so many generations, so successfully, which has brought us peace and stability, should be honored and respected even on this resolution of great historic moment.

   I yield the floor and reserve the remainder of my time. I don't know if there are others who wish to speak.

   The PRESIDING OFFICER. Who yields time?

   The Senator from Virginia.

   Mr. WARNER. Mr. President, we are making excellent progress on this bill. Did the leader wish to speak?

   Mr. REID. Not quite yet. We need a few more minutes.

   Mr. WARNER. I am sorry. I did not hear the leader.

   Mr. President, we have some matters moving along very well. I thank my colleague from Illinois for his remarks. I shall proceed to use my 3 minutes, and the 3 minutes from the Senator from Delaware, which as I understand it is still there, without objection.

   The PRESIDING OFFICER. Without objection.

   Mr. WARNER. I have listened carefully to our colleague. His amendment is very simple on its face. But behind the simplicity lies a great deal of history.

   This Nation of ours has been protected by the two oceans, and by wonderful neighbors to the north and to the south. We have had a sense of security. But with the advent of high technology, and with the advent of worldwide syndicates of terrorists, America will never be the same again.

   That is a tough thing for me to tell my children and my grandchildren because I have labored in my life--as everyone in this Chamber has--to provide not only for my family, friends and neighbors such that they can enjoy the life we have enjoyed these many years. However, high technology, while it benefits mankind in so many ways, has brought about dramatic change.

   If you wish to have the standard of imminent threat placed in the bill that Senator Lieberman, Senator McCain, Senator Bayh and I have crafted, I say to you most respectfully, with the advent of this extraordinary evolution of technology, the time involved in warning that is implicit in imminent threat left us with the end of the 20th century. The 21st century high technology has erased that. Imminent danger struck us on September 11th. We didn't know it was coming. The doctrine of imminent danger, as I say, has changed in this 21st century. It no longer gives us the warning that we must have.

   I urge my colleagues to let this resolution remain unchanged by this amendment as they have with the other amendments that have been brought before us.

   I expect Senator Reid in the Chamber momentarily. I know he has a concluding matter by way of a unanimous consent request.

   Before I, ask for regular order, I want to make certain that----

   The PRESIDING OFFICER. The Chair advises the Senator from Virginia that all time has not expired.

   Mr. BYRD. What is the Chair saying, may I ask?

   The PRESIDING OFFICER. The Chair advises the Senator from Virginia that all time has not expired. Forty-five seconds remain to the Senator from Virginia, and 6 minutes remain to the Senator from Illinois.

   Mr. DURBIN. Mr. President, I thank the Senator from Virginia for his courtesy. I am not going to use all 6 minutes. The Senator is correct.

   The PRESIDING OFFICER. Has the Senator from Virginia yielded?

   Mr. WARNER. Yes.

   The PRESIDING OFFICER. The Senator from Illinois.

   Mr. DURBIN. I thank the Chair.

   The Senator is correct. The tools of war, the incidence of war, the timing of war has changed. But it has changed throughout our history. The principles, the rules of value, the norms and conduct which we apply today were applied starting in a much different era, and applied again and again as we saw ourselves move into an era of airplanes, into an era of intercontinental missiles. The same standards, principles, norms, conduct, and value remain.

   I do not believe the war on terrorism is easy. But I also believe the United States has established an international reputation behind the rule of law--a reputation which I am afraid is going to be changed dramatically by this resolution. No longer will we wait for that imminent threat if this amendment is defeated. It is enough for us to assert that a country is a threat to the United States and begin a land invasion. And that, to me, is a dramatic change from where the United States has always been throughout its history.

   I hope we will think twice about that. I have no illusions about the result of this vote. But to think we are going to make this wholesale change in foreign policy without the deliberations and hearings and without a direct debate, to me, is just wrong.

   I think the Foreign Affairs Committee and others should have taken the President's new foreign policy suggestions directly and seriously and gone forward with them. Instead, through Saddam Hussein and the debate on Iraq, we are about to make a historic change in foreign policy which I hope we do not do.

   In the interest of moving this to a vote, I not only yield the floor, but I yield the remainder of my time.

   Mr. WARNER. Mr. President, have the yeas and nays been ordered?

   The PRESIDING OFFICER. They have not.

   Mr. WARNER. Mr. President, I ask for the yeas and nays.

   The PRESIDING OFFICER. Is there a sufficient second?

   There is a sufficient second.

   The yeas and nays were ordered.

   Mr. WARNER. Mr. President, if I might conclude, time doesn't permit

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   I think we are about to proceed as soon as the distinguished majority whip addresses the Senate.

   Mr. REID. Mr. President, I haven't had a chance to speak to my friend from Virginia, but the chairman of the Foreign Relations Committee--if we could just get a unanimous consent request agreed to, which I am hopeful and confident we will--the Senator from Delaware wants to be recognized to speak.

   Mr. WARNER. Mr. President, yes. I received this information. But I would be happy to allow our distinguished chairman time.

   Mr. REID. We know others want to speak, but he is chairman of the committee, and he has been very quiet, which is unusual.

   Mr. WARNER. I wouldn't suggest that he has been quiet, but I certainly want to recognize him and give him such time----

   Mr. BIDEN. Mr. President, if the Senator will yield, let the RECORD show I have spoken about one-tenth the amount of time my friend from Virginia has, but not nearly with the persuasiveness he has. I want the opportunity to speak before the final vote.

   Mr. REID. Mr. President, I ask unanimous consent that upon disposition of the Durbin amendment, Senator Byrd be recognized to speak for up to 2 hours; that upon the disposition of the Lieberman amendment, the joint resolution be read a third time; the cloture vote on the joint resolution be vitiated; the Senate proceed to the consideration of the House companion, H.J. Res. 114; the joint resolution be read a third time, and the Senate vote on final passage of that joint resolution; that the preamble be agreed to and that no amendments to the title be in order; and that S.J. Res. 45 be indefinitely postponed, with the preceding all occurring without any intervening action or debate.

   The PRESIDING OFFICER. Is there objection?

   Mr. WARNER. Mr. President, reserving the right to object, I had not intended to, but I just received a request from Senator McCain that he be allowed to follow Senator Byrd's speech for not to exceed 30 minutes.

   Mr. BIDEN. Mr. President, reserving the right to object, as chairman of this committee, I have yet to make a full speech on this subject. I have withheld for 3 days on the request of everyone else. I understand that.

   Two things: No. 1, I just want to make sure I get to speak before the final vote; and, No. 2, that I speak at some point after Senator McCain speaks and very close to Senator Byrd's speech.

   Mr. REID. The Senator will speak after Senator McCain.

   I ask unanimous consent that be part of the request.

   Mr. BIDEN. This is highly unusual. I can't think of another time when the chairman of the Foreign Relations has been denied an opportunity to speak when he wishes to. But I will be happy to yield, because I just want to be a nice fellow. But this is preposterous.

   The PRESIDING OFFICER. Is there objection?

   Mr. BYRD. Mr. President, may I say to the distinguished Senator from Delaware that at the request of the distinguished majority whip, which was agreed to, I will have two hours. This Senator will be glad to yield to the chairman of the Foreign Relations Committee the first one-half hour of my time.

   Mr. BIDEN. Mr. President, there is no need for that. I just want an opportunity to make my speech. It will take about 35 or 40 minutes to lay out in the RECORD why this is an important position which we are all about to take.

   The PRESIDING OFFICER. Is there objection?

   Mr. WARNER. No objection.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. REID. Regular order, Mr. President.

   The PRESIDING OFFICER (Ms. Cantwell). The question is on agreeing to amendment No. 4865. The yeas and nays have been ordered, and the clerk will call the roll.

   The assistant legislative clerk called the roll.

   The result was announced--yeas 30, nays 70, as follows:

   Akaka

   Bingaman

   Boxer

   Byrd

   Cantwell

   Carper

   Conrad

   Corzine

   Dayton

   Dodd

   Dorgan

   Durbin

   Feingold

   Harkin

   Inouye

   Jeffords

   Kennedy

   Kerry

   Leahy

   Levin

   Mikulski

   Murray

   Nelson (NE)

   Reed

   Sarbanes

   Schumer

   Stabenow

   Torricelli

   Wellstone

   Wyden

   Allard

   Allen

   Baucus

   Bayh

   Bennett

   Biden

   Bond

   Breaux

   Brownback

   Bunning

   Burns

   Campbell

   Carnahan

   Chafee

   Cleland

   Clinton

   Cochran

   Collins

   Craig

   Crapo

   Daschle

   DeWine

   Domenici

   Edwards

   Ensign

   Enzi

   Feinstein

   Fitzgerald

   Frist

   Graham

   Gramm

   Grassley

   Gregg

   Hagel

   Hatch

   Helms

   Hollings

   Hutchinson

   Hutchison

   Inhofe

   Johnson

   Kohl

   Kyl

   Landrieu

   Lieberman

   Lincoln

   Lott

   Lugar

   McCain

   McConnell

   Miller

   Murkowski

   Nelson (FL)

   Nickles

   Reid

   Roberts

   Rockefeller

   Santorum

   Sessions

   Shelby

   Smith (NH)

   Smith (OR)

   Snowe

   Specter

   Stevens

   Thomas

   Thompson

   Thurmond

   Voinovich

   Warner

   The amendment (No. 4865) was rejected.

   Mr. REID. Madam President, I suggest the absence of a quorum.

   The PRESIDING OFFICER. The clerk will call the roll.

   The senior assistant bill clerk proceeded to call the roll.

   Mr. REID. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. REID. Madam President, Senator Byrd has indicated to me and a number of us that he will not use the full 2 hours. In that we are waiting for him, I think it appropriate that the time of the quorum call I will make run against his allotted 2 hours. I ask unanimous consent that be the order.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. REID. Madam President, I withdraw my unanimous consent request.

   The PRESIDING OFFICER. Without objection, the request is vitiated.

   Mr. REID. I ask the Senator from Arizona--he is entitled to a half hour after Senator Byrd speaks--if he would mind using that time now?

   Mr. McCAIN. I say to the Senator from Nevada, not only will I be glad to start using the time now, but when Senator Byrd returns to the floor, I will be glad to interrupt my speech for Senator Byrd.

   The PRESIDING OFFICER. The Senator from Arizona.

   Mr. McCAIN. Madam President, I will proceed with my statement. If Senator Byrd arrives on the floor, I will interrupt it and yield to Senator Byrd.

   In the history of nations, greatness is forged, or opportunity squandered, not by natural evolution or by the hand of mysterious Fate, but by decisions leaders make in times of potential or imminent peril. A common view in America is that these decisions are thrust on us--the world wars, Iraq's invasion of Kuwait, the attacks of September 11--and we find meaning, and honor, in our response. As Americans, that response is guided by faith in our founding principles, in our love of freedom, and the blessings of justice.

   Yet leaders always have choices, and history teaches that hard choices deferred--appeasing Hitler, choosing not to deter Saddam Hussein in 1990, failing to act sooner against al Qaeda--often bring about the very circumstances we wished to avoid by deferring action, requiring us to react in freedom's defense.

   America's leaders today have a choice. It will determine whether our people live in fear behind walls that have already been breeched, as our enemies plan our defeat in time we have given them to do it. It will answer the fundamental question about America's purpose in the world--whether we perceive our beliefs to be uniquely American principles or universal values, for if they are so dear to us that we believe all people have the right to enjoy them, we should be willing to stand up for them, wherever they are threatened.

   It will reveal whether we are brave, and wise or reluctant self-doubting, and in retreat from a world that still, in its cruelest corners, possesses a merciless hostility to our values and interests. It will test us, as did September

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   Our choice is whether to assume history's burden to make the world safe from a megalomaniacal tyrant whose cruelty and offense to the norms of civilization are infamous, or whether to wait for this man, armed with the world's worst weapons and willing and able to use them, to make history for us.

   It is a question of whether preemptive action to defeat an adversary whose designs would imperil our vital interests is not only appropriate but moral--and whether our morality and security give us cause to fire the first shot in this battle. It will help determine whether the greater Middle East will progress toward possession of the values Americans hold to be universal, or whether the Arab and Islamic worlds will be further influenced by a tyrant whose intent is to breed his own virulent anti-Americanism in all who fall under his influence, and use that influence to hurt us gravely.

   The government of Saddam Hussein is a clear and present danger to the United States of America. Would that he were just another Arab dictator, pumping oil and repressing his people but satisfied with his personal circumstances within the confines of his country's borders.

   That situation alone would offend our sense of justice and compel us to militate for a regime change, but buy means short of preemptive military action. But Saddam Hussein has shown he has greater ambitions.

   His ambitions lie not in Baghdad, or Tikrit, or Basra, but in the deserts of Kuwait and Saudi Arabia. They lie in Jerusalem and Tel Aviv, where he sponsors suicide bombings by Palestinians he calls ``martyrs'' and the civilized world calls terrorists, using murder by proxy to advance his aspirations to lead the Arab world and fan hatred of Israel, America, and the universal ideal of freedom. These ambitions have led him to attack his sovereign neighbors--Kuwait, Saudi Arabia, Israel, Iran and Bahrain. His will to power has so affected his judgment that he has started two major wars and lost them, each time imperiling his own grip on power.

   His moral code is so spare that he has gassed his own people--horror the world thought it had left behind at Auschwitz and Treblinka. We are told that he enjoys watching video of his opponents being tortured, for fun. He kills not just his political opponents but their families, cruelly.

   He has developed stocks of germs and toxins in sufficient quantities to kill the entire population of the Earth multiple times. He has placed weapons laden with these poisons on alert to fire at his neighbors within minutes, not hours, and has devolved authority to fire them to subordinates. He develops nuclear weapons with which he would hold his neighbors and us hostage.

   No, this is not just another self-serving, oil-rich potentate. He is the worst kind of modern-day tryant--a conscienceless murderer who aspires to omnipotence who has repeatedly committed irrational acts since seizing power. Given this reality, containment and deterrence and international inspections will work no better than the Maginot Line did 62 years ago.

   He has unrepentantly violated sixteen United Nations Security Council resolutions, defying the will of the international community so consistently, so compulsively, so completely that no leader who professes allegiance to the values the United Nations was formed to uphold can sanction his audacity. His defiance, if not ended, is a threat to every nation that claims membership in the civilized world by virtue of its respect for law and fundamental human values.

   Because Saddam Hussein respects neither law nor values, advocating inspections of his weapons facilities as an alternative to war posits a false choice between ending the threat he poses peaceably or by force of arms. His character, his ambition, and his record make clear that he will never accept the intrusive inspections that, by depriving him of his arsenal of dangerous weapons, would deprive him of his power. This power gives him international stature, feeds his fantasy of being a Saladin for our time, and sustains his ability to repress his people and thus remain the rule of Iraq.

   Saddam Hussein is on a crash course to construct a nuclear weapon--as he was in 1981 when Israel preemptively destroyed his reactor at Osirak, enabling U.S. forces to go into Iraq a decade later without the threat of nuclear attack, and as he was in 1990, when he thought development of such a weapon, if completed in time, would have deterred American military

   action against him, allowing him to secure his control over his neighbors and dominate the region.

   Saddam has masterfully manipulated the international weapons inspections regime over the course of a decade, enabling him to remain in power with his weapons of mass destruction intact, and growing in lethality. He knows how to play for time, and how to exploit divisions within the international community, greased by the prospect of oil contracts for friendly foreign powers.

   His calculated ambiguity about his willingness to accept a new inspections regime are intended to stave off military attack until such time as he is able to deter it through deployment of an Iraqi nuclear weapon. He is using opponents of war in America, including well-intentioned individuals who honestly believe inspections represent an alternative to war, to advance his own ends, sowing divisions within our ranks that encourage reasonable people to believe he may be sincere.

   He is not. He has had ten years to prove otherwise, and he has transparently failed. His regime would be secure if he would only acquiesce to the international community's demands to disarm, but he has not. It is Saddam Hussein who puts his own regime at risk by developing these weapons. The burden is not on America to justify going to war. The burden is Saddam Hussein's, to justify whey his regime should continue to exist as long as its continuing existence threatens the world.

   Giving peace a chance only gives Saddam Hussein more time to prepare for war--on his terms, at a time of his choosing, in pursuit of ambitions that will only grow as his power to achieve them grows. American credibility, American security, and the future of the United Nations Security Council rest on the will of the United States to enforce the legitimate demands of the international community for Iraq's disarmament, by means that match the menace posed by his ambitions.

   Saddam Hussein's regime cannot be contained, deterred, or accommodated. Containment has failed. It failed to halt Saddam's attacks on five sovereign nations. The sanctions regime has collapsed. As long as Saddam remains in power, he will be able to deceive, bribe, intimidate, and attack his way out of any containment scheme.

   Some say we can deter Saddam Hussein, even though deterrence has failed utterly in the past. I fail to see how waiting for some unspecified period of time, allowing Saddam's nuclear ambitions to grow unchecked, will ever result in a stable deterrence regime. Not only would deterrence condemn the Iraqi people to more unspeakable tyranny, it would condemn Saddam's neighbors to perpetual instability. And once Iraq's nuclear ambitions are realized, no serious person could expect the Iraqi threat to diminish.

   As for accommodation, I am reminded of Winston Churchill's characterization of appeasement: continually feeding the alligator in the hope that he will eat you last.

   I do not believe the threat posed by Saddam Hussein's regime will be eliminated until he is removed from power. Congress made the same point in 1998 when we passed the Iraq Liberation Act, which made regime change in Baghdad a priority of American policy.

   Our regional allies who oppose using force against Saddam Hussein warn of uncontrollable popular hostility to an American attack on Iraq. But what would really be the effect on Arab populations of seeing other Arabs liberated from oppression? Most Iraqi soldiers will not willingly die for Saddam Hussein. Far from fighting to the last Iraqi, the people of that tortured society will surely dance on the regime's grave.

   I wish the Bush administration and its predecessor had given more serious support to internal and external Iraqi opposition than has been the case. But it's a safe assumption that Iraqis will be grateful to whoever is responsible

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   I commend the President for making a strong case for bringing Iraq into compliance with its international obligations to the United Nations. The Security Council bears the responsibility for enforcing the obligations it has imposed on Iraq in order to uphold international peace and security. The President was right to tell our friends and allies on the Council that if it does not act, America will.

   Diplomacy is important, and I welcome the diplomatic campaign the administration is waging to solicit the support of other nations. At the end of the day, we will not wage this war alone. Many nations are threatened by Saddam Hussein's rule, and many nations have a stake in the new order that will be built atop the ruins of Saddam Hussein's fascist state. Our friends and allies will help us construct this new order, and we should welcome that.

   Our friends and allies must know that we do not target Saddam's regime simply because he is a bad man, although his continuation of his tyranny is a rebuke to every decent value of humanity. We contemplate military action to end his rule because allowing him to remain in power, with the resources at his disposal, would intolerably and inevitably risk American interests in a region of the world where threats to those interests affect the whole world.

   For the United States to accept Saddam's continued rule is to acquiesce to the certain prospect of strategic blackmail when, soon, Saddam wields a nuclear weapon and threatens the destruction of Israel or the invasion of Saudi Arabia, or demands the withdrawal of all American forces from the region, and America finds itself forced to respond at much more terrible cost than we would pay today.

   Failure now to make the choice to remove Saddam Hussein from power will leave us with few choices late, when Saddam's inevitable acquisition of nuclear weapons will make it much more dangerous to defend our friends and interests in the region. It will permit Saddam to control much of the region, and to wield its resources in ways that can only weaken America's position. It will put Israel's very survival at risk, with moral consequences no American can welcome.

   Failure to end the danger posed by Saddam Hussein's Iraq makes it more likely that the interaction we believe to have occurred between members of al Qaeda and Saddam's regime may increasingly take the form of active cooperation to target the United States.

   We live in a world in which international terrorists continue to this day to plot mass murder in America. Saddam Hussein unquestionably has strong incentives to cooperate with al Qaeda. Whatever they may or may not have in common, their overwhelming hostility to America and rejection of any moral code suggest that collaboration against us would be natural. It is all too imaginable. Whether or not it has yet happened, the odds favor it, and they are not odds the United States can accept.

   To those who argue that America's threat to Saddam's rule makes it more likely that he would collaborate with terrorists to attack our homeland, I would ask: how can we sanction the continuing existence of a regime whose ruler has the capability to inflict such damage on us and would even consider doing so?

   Standing by while an odious regime with a history of support for terrorism develops weapons whose use by terrorists could literally kill millions of Americans is not a choice. It is an abdication. In this new era, preventive action to target rogue regimes is not only imaginable but necessary. Who would not have attacked Osama bin Laden's network before September 11th had we realized that his intentions to bring harm to America were matched by the capability to do so? Who would not have heeded Churchill's call to stand up to Adolf Hitler in the 1930s, while Europe slept and appeasement fed the greatest threat to Western civilization the world had ever known? Who would not have supported Israel's bombing of Iraq's nuclear reactor in 1981 had we then known, as Israel knew, that Saddam was on the verge of developing the bomb?

   Opponents of this resolution offer many questions that are designed to persuade the President to wait before moving against Saddam Hussein. They have every right to do so. But there is one question I don't want to be asked in the months and years ahead: ``Why did you give Saddam Hussein time to harm us?''

   Weighing the costs of inaction is an important as chronicling the costs of action in blood and treasure as we prepare to confront Iraq in 2002. In an age of weapons of mass destruction and global terrorists bent on acquiring those weapons, the costs of inaction could well be catastrophic.

   As we hold this debate today, this future is not preordained. We have choices. I hope we make the right one.

   Politics has no place in this debate. Voting for a course of action that will send young Americans off to fight and die for their country is the most solemn responsibility every member of this Congress will undertake. Those of us who have the honor of bearing that responsibility must weigh our words, and consult our consciences carefully. By voting to give the President the authority to wage war, we assume and share his responsibility for the war's outcome. Others have neither that burden nor that privilege.

   We have a choice. The men and women who wear the uniform of our country, and who might lose their lives in service to our cause, do not. They will do their duty, as we see fit to define it for them.

   We have a responsibility to these men and women to judge responsibly when our security is so threatened that we must call on them to uphold their oath to defend it. When we call them to serve, they will make us proud. We should strive to make them proud by showing deliberation, judgment, and statesmanship in the debate that will determine their mission.

   There is no such thing as a Democrat or a Republican war. We vote on this resolution in the same way brave young men and women in uniform will fight and die as a result of our vote-as Americans. The freedom and security Americans will continue to enjoy as history's greatest nation will be their legacy, and their honor.

   They will do their duty. Ours lies before us. Its outcome will determine America's course in this century, in an age when waiting for imminence of attack is catastrophic.

   In this age, liberating oppressed peoples from the tyranny of those who would do us harm serves not only narrow American interests but the ordered progress of freedom. The global success of liberty is America's greatest strategic interest as well as its most compelling moral argument. All our other interests are served in that cause. In it rests our faith in the greatness of America, the last, best hope of earth.

   What ensures our success in this long struggle against terrorism and rogue leaders who conspire against us is that our military strength is surpassed only by the strength of our ideals. Our enemies are weaker than we are in men and arms, but weaker still in causes. they fight to express an irrational hatred for all that is good in humanity, a hatred that has fallen time and again to the armies and ideals of the righteous. We fight for love of freedom and justice, a love that is invincible. We will never surrender. They will. All we must do is stay true to our faith.

   Mr. REID. I ask unanimous consent to speak.

   The PRESIDING OFFICER. The Senator from Nevada.

   Mr. REID. Before the Senator from West Virginia begins his remarks, I wish to say something publicly that I should have said privately. That is, I know a little bit about the rules of the Senate, but very little compared to the Senator from West Virginia.

   I am not sure everyone appreciates how far along we are. This is a very important resolution we are debating no matter on what side of the resolution you are. The Senator from West Virginia has expressed his thoughts now for almost a week off and on. We would not be in the position we are today to finish this sometime tonight but for the Senator from West Virginia.

   In my younger days when I would be involved in things physical, there is not anyone I would like to have next to

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   The Senator from West Virginia has forgotten more about the Senate rules than I will ever know. I am searching for words to express my admiration and respect for the Senator from West Virginia. He is a fighter, but he is a fair fighter and is always willing to see the other side of the picture, even though we may not agree.

   Senator Byrd, you have made my life and that of the Senate, while interesting today, a lot easier than it could have been. The Senator accomplished this. No one in the world could have expressed themselves with the sincerity of feelings and love of country and Constitution as has the Senator.

   I say again, thank you for allowing us to be in this situation we are in today.

   Mr. McCAIN. May I add to the comments of the Senator from Nevada. I find from my days trying to enact a line-item veto, the days when the Senator from West Virginia was the majority leader, that he has always treated me with the utmost courtesy and consideration. In all of my encounters, I have found him to be incredibly enlightening, very educational, and occasionally frustrating. I would like to thank Senator Byrd for setting the tone and the tenor of this debate at a level that I think was important to maintain and one that I think all Members of the Senate, no matter which side they are on on this issue, can be proud of as we will look back at this debate and this very important resolution that is being considered.

   I thank the Senator from West Virginia. I look forward to hearing him for the next couple of hours.

   I thank the Chair.

   How much time do I have remaining on my time?

   The PRESIDING OFFICER (Mr. DAYTON). Eight minutes.

   Mr. MCCAIN. I ask unanimous consent to reserve the remainder of my time for Senator Bayh, who is one of the original cosponsors.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. MCCAIN. I yield the floor.

   The PRESIDING OFFICER. The Senator from West Virginia.

   Mr. BYRD. Mr. President, I wish to begin. I read this quote:

   Naturally, the common people don't want war but, after all, it is the leaders of a country who determine the policy and it is always a simple matter to drag the people along. Whether it is a democracy or a fascist dictatorship or a parliament or a Communist dictatorship, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for a lack of patriotism and exposing the country to danger. It works the same in every country.

   Hermann Goering, 1893-1946, field marshal, German Army, founder of the Gestapo, President of the Reichstag, Nazi parliament, and convicted war criminal. Speech, 1934.

   Mr. President:

The moving Finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it.

   So said the Persian poet, Omar Khayyam, in the 11th century.

   And so I say today. The Senate has made clear its intentions on the Iraq resolution. There is no doubt, there is no question. The Senate has made its intentions indubitably clear. The outcome is certain. The ending has been scripted. The Senate will vote, and the Iraq resolution will pass.

   I continue to believe that the Senate, in following this preordained course of action, will be doing a grave disservice to the Nation and to the Constitution on which it was founded.

   In the newly published ``National Security Strategy of the United States,'' the document which I hold in my hand--``The National Security Strategy of the United States of America,'' date: September 2002, the document in which the President of the United States outlines the unprecedented policy of preemptive deterrence which the Iraq resolution will implement--the President asserts that: ``The constitution has served us well.''

   There you have it, 31 pages, and that is the only reference to the Constitution of the United States that is made in this document titled ``The National Security Strategy of the United States of America.'' He asserts that: ``The constitution has served us well.'' That's it. That is the alpha and the omega of the reference to the Constitution, this great Constitution of the United States which creates the Presidency of the United States, which creates a bicameral legislative body, which creates the judicial branch of this great Nation--provides for it. That is all it says about the Constitution. He asserts that ``the Constitution has served us well.''

   And note, too, that the word ``constitution'' as mentioned in the President's document is in lower case. It doesn't begin with a capital letter, it begins with a lower-case letter, ``the constitution.''

   I have a constitution. The Senator from New Mexico has a constitution. His constitution, which was given to him by his Roman ancestral forebears, that is his constitution. He is strong, he is weak, he has strong mental processes, he has a good heart, or whatever it is--his constitution, lower case. But this Constitution is with a capital C. This administration doesn't believe that it merits a capital C even, and only mentions, as I say, one time in passing that ``the Constitution has served us well.''

   That, apparently, is what this administration thinks of the Constitution. And it references the Constitution as though it were some dusty relic of the past that needs to be eulogized before it is retired. And so it says: ``The constitution has served us well.''

   He is wrong about that. The Constitution is no more dated than the principles that it established than is this great book that I treasure above all books, this great book right here.

   The President is wrong. The Constitution is no more dated in the principles it established than is the Holy Bible.

   The Constitution continues to serve us well, if only we would take the time to heed it.

   I am deeply disappointed that this Senate, which I have believed in for all these many years--and which God and the people of West Virginia have blessed me to experience, 44 years come next January 3rd--I am deeply disappointed the Senate is not heeding the imperatives of the Constitution and is instead poised to hand off to the President of the United States the exclusive power of Congress to determine matters of war and peace--to declare war.

   I do not in my heart believe this is what the American people expect of the Senate.

   I have had many occasions in which to stand and laud the Senate, and to renew my expression of deep belief in the Senate of the United States as an institution. I have done that many times. But I am deeply disappointed the Senate is not heeding the imperatives of the Constitution, and is instead poised, as I say, to hand over to the President the exclusive power of Congress to determine matters of war and peace.

   I do not in my heart believe this is what the American people expect of the Senate.

   I have heard from tens of thousands of people--people from all across this country of ours--people from every State in the Union, from New Mexico to Florida to California to the State of Washington, and to the States of Wisconsin, Minnesota, West Virginia, New York, and all in between. I have heard from thousands of Americans who have urged me to keep up the fight--almost 50,000 e-mail letters within the last 5 days, and more than 18,000 telephone calls to my office in the last 5 days--urging me to keep up the fight. So they are listening, and they want to hear more.

   If Senators don't think for a moment that people are listening to this Senate debate, the people are listening. They want to be informed. They have questions they want answered.

   When I came to this body, we didn't have televised coverage. We didn't have a radio. We didn't even have radio coverage of the debates in this Senate. I can remember that when a Senator stood to his feet, other Senators gathered closely. They moved up close in their seats to listen to that Senator. We had no public address system in

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   But I can remember. If I were to take the time now, I could call the names of the faces who in my dreams come back to

   me--the faces of those who sat in those seats years ago, decades ago. They were men. There was only one woman at that time, Margaret Chase Smith of Maine. But Senators, Republicans and Democrats, joined in informing the people through the process of debate.

   I am only one Senator from a very small State. Yet, as I say, within the past week, I have received nearly 20,000 telephone calls and nearly 50,000 e-mails supporting the position I have taken on this floor. This is not counting the calls and the e-mails that have come in to my State office in Charleston, WVA.

   I want all of those people across America, out there across the plains, the Great Rockies, across the Mississippi, and to the Pacific coast, from the gulf coast to the Canadian border--I want all those people who took the time to contact me to know how their words have strengthened, heartened me and sustained me in my feeble efforts here to turn the tide of opinion in the Senate.

   ``The iron will of one stout heart shall make a thousand quail.''

   These are my heroes--the people out there who have called, who have written, and who have told me in person as I have walked across the street. They are my heroes. And I will never forget the remarkable courage and patriotism that reverberated in the fervor--in the fervor--of their messages. I gave them hope because they love this country. And they love this Constitution. Senators all know that. The people out there love this Constitution. They love this Constitution. All of the people out there do.

   So they are my heroes.

   As the Apostle Paul, that great apostle, said, ``I have fought a good fight, I have finished the course, I have kept the faith.''

   There are Americans all across this country in every State of this Union who have joined in spirit with me and with a small band of like-minded Senators in fighting the good fight.

   We could stay here on this floor and continue to fight. They say, well, we might stay here until 4:30 in the morning. Come on. Come on.

   I am thinking of the words of Fitzjames in ``The Lady of the Lake,'' when he stood there before Roderick and said: ``Come one, come all! this rock shall fly From its firm base as soon as I.'' So come on. Let's see the clock turn to 4:30 in the morning. Who cares what time it is as long as we are speaking for our country?

   So I say to the distinguished Senator who presides over this Chamber tonight, whose forebear and ancestral relative signed his name at the Constitutional Convention on September 17, 1787--his name was Dayton, Jonathan Dayton. This is his relative who presides over the Senate at this moment.

   So we could continue this fight. Let me tell you, ladies and gentlemen, there are several checkpoints--I will call them checkpoints--at which, under the rules, I could cause the Senate to have to go through another cloture and another 72 hours. I could do that. And I would have no hesitancy, not any, in doing it if I did not know the Senate has already spoken.

   Also, there is a point at which it becomes time to accept reality and to regroup. It is clear we have lost this battle in the Senate. The next front is the White House. I urge all those people who are following the debate out there, and who have encouraged me in my efforts, and have encouraged the other Senators who have stayed with me firmly--without faltering, without fainting, and without wavering--I urge the people to keep on in their behalf, who have encouraged us in our efforts, I urge them to turn their attention to the President of the United States. Call him, write him, e-mail him, urge him to heed the Constitution and not short circuit this Constitution by exercising the broad grant of authority the Iraq resolution provides.

   The President has said on many occasions that he has not yet made up his mind to go to war. And here we are, we have been stampeded into this moment, when we will soon approve this resolution.

   Let me say again, there are several checkpoints at which we could play this record over and over again. For example, the title of the resolution could be amended. How about that? And then there is going to be a House resolution coming over to this body, and there is going to be a request, I suppose, after the Senate votes on that resolution, a request to insert the words of the Senate, which are likewise the same words, so that it will have a House number. And there would have been a place.

   I will not go through all these places. But we could fight on. No, we would not finish at 4:30 tomorrow morning, we would not finish it at 4:30 the next morning, if we wanted to. I hope the leadership and the Senators will all understand that. I am not bragging. Dizzy Dean said: It's all right to brag if you have done it. We could do that. We could do that. But what good would it do? What good would it do? The course of destiny has already been set by this Senate.

   So the President has said on many occasions he has not made up his mind to go to war. When he does make up his mind, if he does, then he should come back to Congress and seek formal authorization.

   Let those high-powered lawyers of the White House tell him otherwise. They are going to stand by their client, I suppose.

   But they did not go to the same law school I went to. They probably did not have to work as hard as I had to work. Their wives may not have worked as hard as my wife to put me through law school. Well, so much for that.

   Let him come back to the Congress for authorization.

   Mr. President, I continue to have faith in our system of Government. It works. I continue to have faith in the basic values that shape this country, this Nation. Ours was a great country before it became a great nation. Those values do not include striking first at other countries, at other nations. Those values do not include using our position as the strongest and most formidable Nation in the world to bully and intimidate other nations.

   There are no preemptive strikes in the language of the Constitution, I do not care what other Senators say. Those values do not include putting other nations on an enemies list so we can justify preemptive military strikes.

   Were I not to believe in the inherent ability of the Constitution to withstand the folly of such actions as the Senate is about to take, I would not stop fighting. Yes, he is 85--85. I will be 85 years old 41 days from now if the good Lord--if the good Lord--lets me live. But don't you think for a moment I can't stand on this floor all the rest of this night. I like to fight when I am fighting for the Constitution and for this institution. I will fight until I drop, yes, fight until they hack my flesh to the bone. I would fight with every fiber in my body, every ounce of my energy, with every parliamentary tool at my disposal--and there are parliamentary tools at my disposal; don't you ever think there are not--but I do believe the Constitution will weather this storm. The Senate will weather the storm as well.

   I only hope that when the tempest passes, Senators will reflect upon the ramifications of what they have done and understand the damage that has been inflicted on the Constitution of the United States.

   Now, those people out there believe in the Constitution. And I have been very disappointed to have stood on my feet--an 85-year-old man, standing on his feet, and pleading with his colleagues to stand up for the Constitution--I have been disappointed that some of them seem not to have listened at all. That is a real disappointment. It

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   And we all take an oath, a solemn oath, to support and defend the Constitution of the United States against all enemies, foreign and domestic.

   In the greatest oration that was ever delivered in the history of mankind, the oration ``On the Crown,'' delivered in the year 331 B.C. by Demosthenes in his denunciation of Aeschines, he asked this question: Who deceives the state?

   He answered his own question by saying: The man who does not speak what he thinks. Who deceives the state? The man who does not speak what he thinks.

   I believe we ought to speak what we think. A political party means nothing, absolutely nothing to me, in comparison with this Constitution which I hold in my hand. It means nothing, political party means nothing to me, in comparison with this great old book which our mothers read, the Holy Bible.

   It seems to me that in this debate--thinking about the 50,000 e-mails that have come to this country boy from the hills of West Virginia, 50,000 e-mails, almost 20,000 telephone calls; my wonderful staff have been hard-pressed to take all these calls and log them in--the American people seem to have a better understanding of the Constitution than do those who are elected to represent them.

   Now, that is a shame, isn't it? I feel sorry for some of my colleagues. I love them; bless their hearts. I love them. I forgive them. But you might as well talk to the ocean. I might as well speak to the waves as they come with the tides that rise and fall. I might as well speak to the waves, as did King Canute, as to speak to some of my colleagues. They won't hear me. And it isn't because it is ROBERT BYRD. They just don't want to hear about that Constitution.

   That is what these people are writing me about. Perhaps it is that their understanding, the understanding of the people, the great mass of people out there, it may be that their understanding of the Constitution has not yet filtered through the prism of the election year politics. That's it--the election year politics.

   I believe the American people have a better understanding of what the Senate is about to do, a greater respect for the inherent powers of the Constitution, and a greater comprehension of the far-reaching consequences of this resolution, a greater comprehension than do most of their leaders.

   I thank my colleagues who have allowed me to express at considerable length my reasons for opposing the resolution. I thank those Senators, such as the Senator who presides over the Senate at this very moment, I thank those Senators who have stood with me in my fight for the Constitution and for this institution and for that provision in the Constitution that says, Congress shall have power to declare war.

   I thank those Senators who have engaged in thoughtful debate with me. I thank Senator McCain. I thank Senator Warner. I thank these men. They stood up for what they believe. They stood up for this administration. The only difference is, I will stand for no administration--none--when it comes to this Constitution. If the administration took a position opposite that Constitution, forget it. I don't care if it is a Democrat.

   I do not believe the Senate has given enough time or enough consideration to the question of handing the President unchecked authority to usurp the Constitution and declare war on Iraq. I have no brief for Iraq. But I accept the futility of continuing to fight on this front. So I could keep us here all night tonight. I know there would be other Senators who would stand with me. Other Senators believe as I do. I could keep us here tomorrow. I could keep us here through Saturday. I would hope we would not be in on Sunday. That is the Sabbath Day. But come back on next Tuesday, have at it again, until the flesh from my bones be hacked.

   I say to the people of America, to those who have encouraged other Senators and me to uphold the principles of the Constitution: Keep up the fight. Keep fighting for what is right. Let your voices be heard.

   Why do you think George Washington crossed the Delaware? I say to my good friend from Delaware, JOE BIDEN, my esteemed friend, my esteemed colleague. He crossed the Delaware, I say to my friend FRED THOMPSON--Senator FRED THOMPSON, we are going to soon miss him. I like him. I like him. He always speaks with great passion and fervor, and he is always respectful of other Senators. He was here during the days of Sam Ervin, Howard Baker, the days of Watergate, that Senator from Tennessee.

   Let me say, I will always listen to you, the people out there, and I hope the President will begin to listen to you.

   If the President really wants to do something for this country, let him help to fight the war at home. This week, we will soon be passing another CR. Time and time again, the President's Attorney General and the Director of Homeland Security have put the Nation on notice that there is an imminent threat of another terrorist attack to our homeland. And from time to time, they have even identified the most likely targets, such as our nuclear powerplants, our transportation infrastructure, our Nation's monuments, our embassies. They have told our citizens to be vigilant about this imminent risk.

   What has the President done to respond to this imminent risk of terrorist attack on our Nation's shoulders? The President has proposed to create a new bureaucracy. He has proposed to move boxes around on an organization of flowcharts. He has proposed to create the second-largest domestic agency in the history of the Republic. Even the President recognizes that actually creating the new Department of Homeland Security will take at least 1 year.

   I tell you, my friends, if I ever saw a good lawyer, he sits right here on the back row, right now--that Senator from Tennessee, FRED THOMPSON. Why do I say that? Because he made the most rousing defense of this sorry resolution that is before the Senate and on which we will soon vote, the most rousing defense of it. And yet he is against it. He is against it. That is what I call a good lawyer; he makes a rousing defense of this thing which he hates.

   Even the President recognizes that actually creating the new Department of Homeland Security will take at least 1 year. The GAO has said it will take at least 5 to 10 years for a new Department to be effected.

   So while our citizens are facing this imminent risk, under the President's proposal, the agencies responsible for securing our borders, such as the Customs Service, the Immigration and Naturalization Service, and the Coast Guard, will spend the next year or more figuring out for whom they work, with whom they work. Instead of focusing on their mission, our border agencies and inspectors will be wondering whether their units will be reorganized or transferred to new locations, and they will be wondering where their phones are, where their computers are, and whether their jobs are going to be eliminated. And what would be happening in the meantime? Who will be keeping the store and watching the terrorists?

   Reorganizing our bureaucracy will not improve our Nation's immediate capacity to deter or respond to the imminent threat of a terrorist attack. Since September 11, the Senate Appropriations Committee has focused on providing immediate resources to Federal, State, and local agencies and first responders in order to improve our capacity to respond to this evolving threat.

   On September 14, 2001--just 3 days after the horrific attacks on September 11--Congress approved $40 billion. That is $40 for every day since Jesus Christ was born. Congress approved $40 billion, including $9.8 billion for homeland defense. Resources were provided to the FBI to hire more agents and to improve their computers; to State and local governments to improve the capacity of our hospitals and clinics to respond to chemical or biological weapons attacks; to State and local governments to train and equip our law enforcement and fire personnel to respond to attacks; for HHS to purchase smallpox vaccine for USDA; to the FDA to protect our food safety; to the Postal Service to purchase equipment that can protect the mail--where have you been, Mr. President? That is what

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   To listen to the President, he is the only person who has been thinking anything about homeland security. Here is the great Congress of the United States that has been providing moneys for the defense of our country.

   Despite objections from the White House, Congress was able to increase funding for homeland security programs by $3.9 billion. Where have you been, Mr. President? If you want to do something, do something here at home.

   On November 14, 2001, Senate Democrats supported the inclusion of $15 billion for homeland security in an economic stimulus package, including $4 billion for bioterrorism and food safety; $4.6 billion for law enforcement and responsive initiatives; $3.2 billion for transportation security: and $3 billion for other homeland security programs, including mail screening and protection for our nuclear plants and labs, water projects, and other facilities.

   Where has he been, Mr. Commander in Chief? Out on the campaign trail raising money for the campaign? This is what Congress has been doing.

   On November 14, 2001, the White House strongly objected to the amendment, asserting that existing funding was ``more than adequate to meet foreseeable needs.''

   Now, who is fighting for homeland security? Under pressure from the White House, Senate Republicans, objecting to the emergency designation for the homeland security funding, raised the Budget Act point of order. Efforts to waive the budget point of order failed. On December 4, 2001, the Appropriations Committee reported out, by a vote of 29 to 0, the Defense appropriations bill for fiscal year 2002.

   In addition to the $20 billion appropriated on September 14, the bill would have provided $7.5 billion in additional homeland security funds, including $3.9 billion for bioterrorism and food safety; $1.3 billion for antiterrorism law enforcement; $1.43 billion for security of mail and nuclear facilities; $879 million for transportation and border security. The bill would also have provided an additional $7.5 billion to FEMA's disaster relief account for activities and assistance related to 9/11.

   On December 5, 2001, in a meeting with congressional leaders, President Bush threatened to veto the Defense appropriations bill because of funding ``that is not needed at this time.''

   On December 6, 2001, Senate Republicans objected to the emergency designation for the homeland security funding in the Defense appropriations bill and raised the Budget Act point of order. Efforts to waive the budget point of order failed.

   On December 7, 2001, after negotiations with Senate Republicans, homeland security programs were reduced by over $3.6 billion. The Senate then passed the Defense appropriations bill. In April and May of 2002, the Senate Appropriations Committee held five bipartisan hearings, led and conducted by Senator TED STEVENS and me, concerning the defense of our homeland. Senator Stevens and I, and others on that committee, Republicans and Democrats, heard from Governors and from mayors. We heard from firemen, law enforcement, and emergency medical personnel. We heard from specialists in the field of counterterrorism. Based on those hearings, the Committee on Appropriations in the Senate produced a bipartisan supplemental appropriations bill to continue our effort to provide immediate resources to improve our Nation's capacity to deter and respond to terrorist attack.

   On May 22, 2002, the Senate Appropriations Committee, by a vote of 29 to 0, reported out a supplemental appropriations bill that included $8.3 billion for homeland defense programs.

   Once again, on June 4, 2002, the President threatened to veto the bill because he believed it contained unnecessary homeland security spending.

   On June 7, 2002, the Senate passed the Supplemental Appropriations Act for further recovery from and response to terrorist attacks on the United States. The bill provided $8.3 billion for homeland security programs, including the following amounts above the President's request: $265 million for airport security funds; $646 million for first responder programs; $716 million for port security. However, under pressure from the White House, conferees on that bill were forced to reduce homeland security funding from $8.3 billion to $6.7 billion--under pressure from the White House.

   In negotiations with House Republicans, homeland security funding was dropped for cybersecurity, for improved capacity for the Centers for Disease Control to investigate potential biological attacks, for airport security, for the Coast Guard, and for the Customs Service.

   On July 24 of this year, the Senate passed the conference report to the Supplemental Appropriations Act for further recovery from and response to terrorist attacks on the United States. Get this now; we are talking about war here, the war on terrorism. Where? Here in this country. This act reduced the $8.3 billion for homeland security appropriated by the Senate to $6.7 billion.

   Did the White House agree to fund the full $6.7 billion for homeland defense programs? Did it?

   No. The White House talks a good game on homeland defense, but the White House support is more about rhetoric than it is about resources. In order for the President to spend $2.5 billion for homeland defense spending, it was necessary for him to do what? Just sign his name on a document designating the funding as an emergency requirement.

   What did the President choose to do? Did he choose to sign his name and start that $2.5 billion to flowing into the States and counties and municipalities of this country? No. The President chose not to make that designation.

   In making that decision, he terminated $2.5 billion of funding for the FBI, funding to train and equip our Nation's firefighters, funding for the Corps of Engineers to help ensure our water supply, funding for security at nuclear facilities, funding for the Coast Guard.

   Now tell that, Mr. President, at your next campaign stop, your next fundraiser when you are talking about making war on Iraq. Tell the people there what I have been reading. It is fact. These are for the record.

   One of the lessons we learned at the World Trade Center on September 11 was that our fire personnel could not communicate by radio with police personnel; that local officials could not communicate with State and regional personnel.

   When the President decided to block the $2.5 billion, he blocked the $100 million that we approved to help State and local governments across the land to solve the problem, and $90 million to provide medical assistance to the first responders at the World Trade Center was lost.

   What is the President's solution for the imminent threat to our Nation's homeland security? Rhetoric? Yes. More bureaucracy? Yes. Resources to respond to the immediate threat? No.

   Mr. President, with reference to this Commander in Chief business that we hear about--oh, the Commander in Chief, they say. I listen to my friends across the aisle talking about the Commander in Chief. We must do this for the Commander in Chief; we must stand shoulder to shoulder with the Commander in Chief. The Commander in Chief. Of what is he Commander in Chief? The army, the navy, and the militia of the several States. But who provides the army and the navy? Who provides for the calling out of the militia of the several States? Congress. So much for the the term ``Commander in Chief.''

   Charles I used that term in 1639--Commander in Chief. You know what happened to Charles I of England? The swordsman cut off the head of Charles I on January 30, 1649. So much for Commander in Chief.

   Parliament and the King of England fought a war. Can you imagine that? Can you imagine Congress fighting a war with the President of the United States? They did that in England. Yes, Parliament and the King fought a war. Who lost? The King. Who was it? King Charles I. A high court convened on January 1, I believe it was, 1649, and in 30 days they cut Charles I's head off--severed it from his body. So much for

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   I respect the President as much as anybody else. But the Barons at Runnemede on the banks of the Thames on June 15, 1215, took it upon themselves to let the King know that there was a law, and that Kings had to live by the law, just as did barons and others.

   I do not know who is talking to this President down here. I do not know who among his crowd down there is trying to pump him up, but my friends, this President of the United States is the President by virtue of this Constitution. He is created by this Constitution that I hold in my hand, which says in article II that the President shall be Commander in Chief. And yet this refers to the Constitution in this national security strategy of the United States of America printed on September 2002. It refers to the Constitution not even with a capital letter.

   The Constitution of America--what is the matter with those people? Haven't they studied the Constitution down at the other end of the avenue? They better become aware of it. This is the Constitution, and that Constitution refutes this resolution on which Congress is about to vote to give to the President of the United States power to determine the use of the military forces, when he will use them, where he will use them, how long he will use them. It is this Constitution. You better believe it, may I say to those who advise the President.

   I think the President is probably a much better individual by himself, but somebody is giving him bad advice.

   Here is what Hamilton says. Let's read what Hamilton says. He is one of the three authors of the ``Federalist Papers.'' Hamilton, who was shot to death in Weehawken, NJ, on the 11th of July, 1804. He died on the 12th of July, 1804; shot by the Vice President of the United States; murdered by the Vice President of the United States. Let's hear what Alexander Hamilton has to say in the Federalist Paper No. 69. Read it. These are the ``Federalist Papers.'' There are 85 of them written by Jay, Hamilton, and Madison. Let's hear what he says about the Commander in Chief. I want the Commander in Chief to hear me. I want the Commander in Chief to hear not what ROBERT BYRD said--who is he?--but read what Alexander Hamilton said:

   The President is to be the ``commander-in-chief'' of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. .....In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these:--First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore--

   Talking about this article of the Constitution--

   In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it.

   Get that down there at the other end of the avenue. Read it.

   Second. The President is to be commander-in-chief. .....It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies--all which, by the Constitution under consideration, would appertain to the legislature.

   That is Hamilton.

   I am reading from the Federalist Papers. Perhaps I ought to send a copy down to the White House. I will see if I can't do that. I will send them a copy. It will not cost them anything, just a gift from ROBERT C. BYRD.

   Now, I have a little more to say. Suffice it to say there are other of my colleagues, and I, who have stood on this floor and we have pointed to the Constitution of the United States. We have said time and time again, as we have offered amendments, to try to uphold this Constitution of the United States, read those amendments. They went down, I am sorry to say, but I am not discouraged.

   Let me read some verses from the Book of Luke in the Holy Bible, beginning with chapter 16, verse 19 and continuing through verse 31:

   There was a certain rich man, which was clothed in purple and fine linen, and fared sumptuously every day. And there was a certain beggar named Lazarus, which was laid at his gate, full of sores, and desiring to be fed with the crumbs which fell from the rich man's table. Moreover the dogs came and licked his sores. And it came to pass that the beggar died, and was carried by the angels into Abraham's bosom. The rich man also died, and was buried.

   And in hell he lift up his eyes, being in torments, and seeth Abraham afar off, and Lazarus in his bosom. And he cried and said, Father Abraham, have mercy on me, and send Lazarus, that he may dip the tip of his finger in water, and cool my tongue; for I am tormented in this flame.

   But Abraham said, Son, remember that thou in thy lifetime receivedst thy good things, and likewise Lazarus evil things; but now he is comforted and thou art tormented. And beside all of this, between us and you there is a great gulf fixed; so that they which would pass from hence to you cannot. Neither can they pass to us, that would come from thence.

   Then he said, I pray thee therefore, father, that thou wouldest send him to my father's house; For I have five brethren: that he may testify unto them, lest they also come into this place of torment. And Abraham saith unto him, They have Moses and the prophets; let them hear them. And he said, Nay, father Abraham; but if one went unto them from the dead they will repent. And he said unto him, if they hear not Moses and the prophets, neither will they be persuaded, though one rose from the dead.

   There you have it. We can speak until we are blue in the face, we can speak until our tongues fall out, and they will not hear us. So if there were those who were brought from the dead, would some listen?

   Some would; some would not.

   We have spoken. We have spoken out of our hearts, and we can speak until our hearts fall from our bodies, but some would not hear. Let those who will not hear understand that this Constitution will endure. It will endure because it was written, as John Marshall said, to endure for the ages.

   In closing, I want to thank my dear friends in this Senate who have stood in this Chamber day after day in the effort to educate our people.

   The Senate is a great institution, but somehow I think we are failing. We are failing to educate the people. Why? Because we do not want to spend enough time. How much time have we spent on this resolution as of yesterday at 4 p.m.? A little over 25 hours on this bill--25 hours. Why, many of the larger municipalities in this country would spend a week on an application for a sewer permit. And here we spend 2 days?--that is what it amounts to, 25 hours--and we are ready to quit.

   We know we might as well quit because this cloture rule is being used against us. Why at this critical time, when we are discussing the most critical legislation we have had before the Senate this year, the most critical legislation we may have in a long time? We have been stampeded, we have been rushed, and it is unfair to the people of this country. Yet it has to be that way.

   I have letters from constitutional scholars in response to my inquiry of them as to the war powers of the United States Congress. I received several letters from constitutional scholars from around the country, and I ask unanimous consent that they be printed in the RECORD: A letter by Jane E. Stromseth, professor of law, Georgetown University Law Center; a letter from Tufts University, the Fletcher School of Law and Diplomacy, a letter signed by Michael J. Glennon, professor of international law.

   There being no objection, the material was ordered to be printed in the RECORD, as follows:

    GEORGETOWN UNIVERSITY LAW CENTER,

   Washington, DC, August 26, 2002.
Hon. ROBERT C. BYRD,
U.S. Senate,
Washington, DC.

   DEAR SENATOR BYRD: Thank you for your letter of July 22, asking for my opinion regarding whether the Bush Administration currently has sufficient constitutional and/or statutory authority to introduce U.S. Armed Forces into Iraq for the purpose of removing Saddam Hussein from power. This question is of vital importance to our country and our Constitution, and I appreciate the opportunity to address it.

   The answer to your question requires an interpretation of the Constitution and of several statutes, and it also depends on the factual circumstances surrounding any contemplated military action. As I discuss below, if the United States or its armed

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   First Principles

   As you know well, the Constitution's war powers provisions are part of a structural system of checks and balances designed to protect liberty by guarding against the concentration of power. The Constitution gave Congress the power to declare war because the Founders believed that such a significant decision should be made not by one person, but by the legislature as a whole, to ensure careful deliberation by the people's elected representatives and broad national support before the country embarked on a course so full of risks. As James Madison put it: ``In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislation, and not to the executive department . . . [T]he trust and the temptation would be too great for any one man. . . .''\1\ The Founders, in short, vested the power to decide whether the country should go to war in the Congress to ensure that the decision to expose the country to such sacrifices and costs reflected the judgment and deliberation of the legislative branch as a whole. \1\ James Madison, in Alexander Hamilton & James Madison, Letters of Pacificus and Helvidius on the Proclamation of Neutrality of 1793, at 89 (Washington, D.C., J. Gideon & G.S. Gideon, 1845).

   At the same time, the framers wanted a strong Executive who could ``repel sudden attacks'' and act with efficiency and dispatch in protecting the interests of the United States in a dangerous world. By making the President Commander in Chief, moreover, they sought to ensure effective, unified command over U.S. forces and civilian accountability. My best reading of the constitutional sources is that the Founders expected the President, as Commander in Chief and Chief Executive, to protect the United States in a dangerous and uncertain world by repelling attacks or imminent attacks against the United States, its vessels, and its armed forces, but not, on his own, to go beyond this authority and commence war without congressional authority. The Founders, in short, made a clear distinction between defending against attacks initiated by others and commencing war.

   Historical practice since the Constitution's ratification has not fundamentally altered how we should understand the Constitution's allocation of war powers today. On the contrary, practice cannot supplant or override the clear requirements of the Constitution, which gives the power to declare or initiate war to Congress. Furthermore, of the dozen major wars in American history, five were formally declared by Congress and six were authorized by other legislative measures.\2\ Whatever conclusions one might reach about small-scale uses of force, which admittedly raise more complicated issues, the fact remains that major wars have been authorized by Congress.\3\ \2\ President Truman committed U.S. forces to Korea without seeking congressional authorization. For a discussion of constitutional war powers and the Korean War, see Jane Stromseth, ``Rethinking War Powers: Congress, The President, and the United Nations,'' 81 Georgetown Law Journal 597, 621-640 (1993). Congress subsequently enacted legislation to provide funds for the Korean War and to extend the draft, id. at 626, 630.

   \3\ In a longer piece, I discuss original intent, historical practice, and current arguments about war powers more fully and systematically, and I draw upon my conclusions in that piece here. See Jane E. Stromseth, ``Understanding Constitutional War Powers Today: Why Methodology Matters,'' 106 Yale L.J. 845 (1996).

   The War Powers Resolution (Pub. L. No. 93-148) aims to ``insure that the collective judgment of both the Congress and the President'' apply to the introduction of U.S. forces into hostilities and to the continued use of those forces. Moreover, it seeks to enable the Congress to better fulfill its constitutional responsibilities by requiring the President ``in every possible instance'' to ``consult with Congress before introducing'' U.S. armed forces into hostilities or imminent hostilities. Among its other provisions, the War Powers Resolution makes clear, in Section 8(a), that authority to introduce U.S. Armed Forces into hostilities or imminent hostilities ``shall not be inferred . . . from any provision of law . . . , including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.'' This clear-statement rule is designed to serve the constitutional purpose of ensuring a clear and deliberate congressional authorization of force. Thus, when Congress authorized commencement of the Gulf War in 1991, and again when Congress authorized the use of force in response to the September 11 attacks, it expressly affirmed that it was providing specific statutory authorization within the meaning of the War Powers Resolution.

   Moreover, the War Powers Resolution makes clear that it is not intended ``to alter the constitutional authority of the Congress or of the President,'' nor shall it ``be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities . . . which authority he would not have had in the absence of this joint resolution.'' (Section 8(d)(1) and 8(d)(2)). Thus, contrary to claims sometimes made, the War Powers Resolution does not authorize the President to commit U.S. forces to war for 60 days.\4\ On the contrary, because the Constitution requires congressional authorization to commence war, the War Powers Resolution should not be read to confer such authority on the President. Congress thus expressly authorized the 1991 Persian Gulf War and certainly did not view the War Powers Resolution as obviating the need for such authorization. (I have attached my summary of the congressional debate preceding the Gulf War as an appendix to this letter). \4\ The War Powers Resolution and its 60/90 day time-clock apply to a wide variety of situations in which U.S. forces are introduced into hostilities as well as into ``situations where imminent involvement in hostilities is clearly indicated by the circumstances.'' Whatever effects this statute has, or was intended to have on smaller-scale deployments of force, including deployments that involve simply the prospect of hostilities, the War Powers Resolution cannot be read as authorizing 60 days wars because of the clear language to the contrary in sections 8(d) and 2(c) of the statute.

   If the President were to commit U.S. armed forces to Iraq for the purpose of removing Saddam Hussein from power, the United States would be embarking on what likely would be a major and sustained commitment of military forces in a campaign that would involve enormous risks and substantial potential casualties. In order to commit U.S. forces to such a military action, the President would need authority to act.

   Constitutionally, the President possesses the power to repel sudden attacks, which, in my view, includes the power to forestall imminent attacks against the United States and its armed forces, and to protect Americans in imminent danger abroad.\5\ In an age of terrorism, there may well be direct and imminent threats to the United States that require an immediate defensive response by the President and constitute a legitimate exercise of the international right of self-defense. But, at this point, the President has not offered evidence of an imminent attack by Iraq on the United States or its forces. The purpose behind the President's power as Chief Executive and Commander in Chief to ``repel sudden attacks'' is to give the President the flexibility to act to defend the United States when there is not time to consult with Congress. But the decision to go beyond this and to commence a war is vested in Congress. Moreover, there is time for a thorough legislative debate regarding Iraq; the United States and its forces are not currently being attacked; military forces would be built up over a period of time before military action could be commenced; and ample time exists to consult with Congress and seek its authorization to use force. \5\ This interpretation of the President's authority is consistent with the understanding reflected in the original Senate version of the War Powers Resolution. See S. Rep. No. 93-220, at 22 (1973). For a discussion of the scope of the President's defensive war powers, see Stromseth, ``Understanding Constitutional War Powers Today: Why Methodology Matters,'' 106 Yale L. J. 845, 888-892 (1996).

   Major military action with far-reaching objectives such as regime change is precisely the kind of action that constitutionally should be debated and authorized by Congress in advance. Under present circumstances, which admittedly could change, military action against Iraq to force a change in regime would pose significant risks to U.S. forces, including risks of Iraqi retaliation with weapons of mass destruction, and risks of a larger conflict in an already hemoraging Middle East. Initiating a military confrontation of this nature would be a decision to engage in war that is precisely the kind of decision the Founders vested in Congress by virtue of its power to declare war. Moreover, the purposes behind that power (ensuring deliberation, democratic consensus and national unity before

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   Congress's Post-September 11 Authorization of Force

   Whether statutory authority presently exists to introduce U.S. armed forces into Iraq to depose Saddam Hussein depends on whether such action would fall within the provisions of S.J. Res. 23 (Pub. L. No. 107-40), adopted in response to the September 11 attacks.

   Congress's authorization for the use of force against those responsible for the attacks of September 11 is an express recognition that Congress and the President both have a critical constitutional role to play in the war on terrorism. S.J. Res. 23 authorizes the President: ``to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.'' Thus, the force must be directed against those responsible for the September 11th attacks, or those who harbored such organizations or persons; and the purpose of using force is focused and future-oriented: to prevent additional terrorist acts against the United States by the states, organizations, or persons responsible for the September 11th attacks or who harbored those responsible.

   Congress' post-September 11th resolution was an unambiguous decision to authorize force. Like the Gulf War authorization in 1991, the authorization explicitly affirms that it ``is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.'' This removes any actions that fall within the scope of the authorization from the War Powers Resolution's 60-day time-clock provision. At the same time, Congress made clear that the requirements of the War Powers Resolution otherwise remain applicable, which would include the requirement of regular reporting and consultation. Moreover, in signing the Joint Resolution, President Bush made clear that he would consult closely with Congress as the United States responds to terrorism.

   Whether this joint resolution authorizes military action against Iraq to remove Saddam Hussein from power depends on whether the requisite link to the attacks of September 11 exists or not. That is, did Iraq ``plan [ ], authorize, [ ] commit [ ], or aid [ ] the September 11 attacks,'' or ``harbor'' organizations or persons who did? Under the terms of the resolution, the President determines whether such a link to the September 11th attacks is established, but Congress undoubtedly expected that the President would make his determination and the basis for it known to Congress. In a matter as momentous as commencing hostilities against Iraq, Congress and the American people would certainly expect a clear and convincing indication of evidence linking Iraq to the September 11 attacks. As of August 26, 2002, the Administration, to my knowledge, has not made such a showing nor publicly argued that there is a direct link between Iraq and the September 11 attacks. Nor has the Administration presented its views regarding whether using force to remove Saddam Hussein from power is ``necessary and appropriate force ..... in order to prevent any future acts of international terrorism against the United States'' by the nations, organizations or persons responsible for the September 11 attacks. If the link between Iraq and the September 11 attacks is tenuous, additional congressional authorization clearly addressing Iraq would better serve the important constitutional purposes underlying Congress's power to declare war: congressional deliberation and national consensus before the country embarks on a major military action so full of risks.

   The 1991 Gulf War Authorization

   Some argue that the President has current authority to use U.S. forces against Iraq to remove Saddam Hussein based on the 1991 Use of Military Force Against Iraq Resolution (Pub. L. 102-1). This Resolution, adopted prior to the 1991 Gulf War, authorized the President to use U.S. Armed Forces pursuant to U.N. Security Council Resolution 678 to achieve implementation of previous, enumerated Security Council resolutions.\6\ Those Security Council resolutions included Resolution 660 (1990) demanding that Iraq withdraw immediately from Kuwait. UN Security Council Resolution 678, in turn, authorized UN member states cooperating with Kuwait ``to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.'' In contrast to this UN resolution, which refers to ``all subsequent relevant resolutions,'' the 1991 congressional authorization of force was crafted to refer only to implementation of specific UN resolutions adopted prior to Resolution 678--resolutions that focus above all on Iraqi withdrawal from Kuwait and restoration of Kuwait's sovereignty. Congress, in short, tailored its 1991 authorization to the specific goal of liberating Kuwait rather than providing an open-ended authorization of force. \6\ H.J. Res. 77, Pub. L. No. 102-1, provides in Section 2(a): ``The President is authorized, subject to subsection (b), to use United States armed forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677.'' Section 2(b), in turn, requires the President, before using force, to make available to Congress his determination that ``the United States has used all appropriate diplomatic and other peaceful means to obtain compliance by Iraq with the United Nations Security Council resolutions cited in subsection (a); and ..... that those efforts have not been and would not be successful in obtaining such compliance.''

   Those who invoke the 1991 Use of Military Force Against Iraq Resolution as current authority to remove Saddam Hussein begin by noting that Iraq is in material breach of UN Security Council Resolution 687 (the Gulf War cease-fire resolution). That resolution requires Iraq to relinquish all weapons of mass destruction and authorized a UN Special Commission (UNSCOM) to monitor Iraq's compliance. Resolution 687, in particular, requires Iraq to ``unconditionally accept the destruction, removal, or rendering harmless, under international supervision'' of all chemical and biological weapons and all ballistic missiles with a range exceeding 150 kilometers and to ``unconditionally undertake not to use, develop, construct or acquire'' such weapons. (Resolution 687, paragraphs 8 and 10). Iraq likewise is required not to develop or acquire nuclear weapons or subsystems or components, and to submit to ongoing monitoring and verification of its compliance (paragraphs 12, 13). Undoubtedly, Iraq's persistent refusal to allow full, unimpaired weapons inspections is a clear and unacceptable breach of Resolution 687. The domestic legal question then is: has Congress authorized the use of U.S. armed forces to remove Saddam Hussein from power in order to enforce UN Security Council Resolution 687?

   The 1991 Authorization for Use of Military Force Against Iraq Resolution does not, on its face, provide authorization to use force to implement Resolution 687. Adopted prior to the Gulf War, the 1991 Joint Resolution authorized the President to use U.S. armed forces pursuant to UN Resolution 687 in order to achieve implementation of specific UN resolutions adopted prior to Resolution 687. So purely as a temporal matter, the cease-fire resolution (687), which came at the end of the Gulf War, is not among the UN resolutions enumerated in the 1991 Joint Resolution. Consequently, the 1991 authorization does not provide clear authority to use force today to remove Saddam Hussein from power as a means to enforce the Gulf War cease-fire resolution.

   Since 1991, Congress has indicated in a ``sense of the Congress'' resolution its support for using ``all necessary means'' to achieve the ``goals'' of UN Resolution 687; Congress has also indicated its support for a policy of regime change in Iraq. Yet, upon careful examination, these indications of congressional intent do not provide a clear authorization by Congress of the use of U.S. armed forces to attack Iraq to remove Saddam Hussein from power. If the United States is to commence war against Iraq, and to expose U.S. forces and citizens to the considerable costs and sacrifices that this would entail, both the Constitution and the War Powers Resolution (section 8(a)(1)) expect a clear authorization from Congress that reflects a deliberate decision to initiate hostilities on a major scale. The various congressional actions since 1991 concerning Iraq do not provide that authorization.

   First, Section 1095 of the FY1992 Defense Authorization Act (Pub. L. 102-190, signed December 5, 1991) declared the sense of the Congress that Iraq's noncompliance with UN Resolution 687 constitutes ``a continuing threat to the peace, security, and stability of the Persian Gulf region'' and that ``the Congress supports the use of all necessary means to achieve the goals of Security Council Resolution 687 as being consistent with the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1).'' At the same time, Section 1095 also expressed the sense of the Congress that ``the President should consult closely with the partners of the United States in the Desert Storm coalition and with the members of the United Nations Security Council in order to present a united front of opposition to Iraq's continuing noncompliance with Security Council Resolution 687.''

   Some may contend that Section 1095 together with the 1991 Authorization for Use of Military Force Resolution gives the President the authority to use force to commence war against Iraq to impose a regime change because the 102nd Congress expressed its view that using ``all necessary means to achieve the goals of Security Council Resolution 687'' is ``consistent with'' the 1991 authorization of force. Iraq is in material breach of Resolution 687, as it was back in 1991, and thus, according to this argument, the President can use force to achieve Iraq's compliance, in accordance with Section 1095 and the 1991 authorization, by removing Saddam Hussein from power.

   Yet, upon careful review, this argument ultimately falls short. First, regime change goes beyond the provisions or requirements of UN Resolution 687, so Congress has not provided clear authority for commencing hostilities for this purpose as a means to implement 687. It is one thing to use limited force to enforce no-fly-zones, for instance; it is a quite different thing to commence war

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   The Constitution vested the power to declare war in Congress to ensure careful deliberation by the Congress as well as the President before the United States commenced war. Much has changed over the last decade, particularly after the attacks of September 11, and initiating war against Iraq today clearly would involve substantial costs and risks for the United States, our forces and citizens, and for our allies. Reasonable people may come to different conclusions on the merits of this issue. But commencing a major military action against Iraq to remove Saddam Hussein from power would clearly constitute war, and congressional deliberation and clear authorization is required. Reliance on an ambiguous ``sense of the Congress'' resolution adopted over a decade ago falls short of clear authority to commence war against Iraq. The American people, including the brave men and women who fight for our country, would expect a full debate and consideration of the issue from their elected representatives in Congress in light of the circumstances we face today. The Constitution's wisdom on this point is compelling: Authorization, if provided by Congress, ensures that the costs and implications of any such action have been fully considered and that a national consensus to proceed exists. Congressional authorization also ensures American combat forces that the country is behind them, and conveys America's resolve and unity to allies as well as adversaries.

   To be sure, congressional action since 1991 indicates Congress's continuing concern about Iraq's noncompliance with UN Resolution 687 and Congress's support for maintaining the no-fly-zones. But Congress has not provided clear statutory authority to commence war against Iraq to overthrow Saddam Hussein. In 1998, in response to Saddam Hussein's continuing defiance of UN Resolution 687 and his refusal to allow weapons inspections, the Senate and House passed a resolution, S.J. Res. 54 (Pub. L. 105-235, signed Aug. 14, 1998), which declared Iraq in ``material breach'' of its international obligations and ``urged'' the President ``to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations.'' This did not, however, provide clear authorization to use U.S. armed forces.

   Later in October 1998, Congress declared in the Iraq Liberation Act of 1998, Pub. L. 105-338 (112 Stat. 3178), that it ``should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.'' (sec. 3). But that Act also declared that ``[n]othing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces . . . in carrying out this Act'' except as provided in section 4(a)(2) of the Act, which authorizes the President to provide assistance to Iraqi democratic opposition organizations through a ``drawdown of defense articles from the stocks of the Department of Defense, defense services of the Department of Defense, and military education and training for such organizations.'' (sec. 4(a)(2)).

   Some may argue that the 1991 Authorization and Section 1095--combined with Pub. L. 105-235 (declaring Iraq in material breach of its international obligations); Publ. L. 105-338 (calling for a regime change in Iraq); and congressional acquiescence during ``Operation Desert Fox'' (Dec. 16-19, 1998) when force was used in response to Iraq's refusal to readmit weapons inspectors--amounts to implied authorization by Congress to use U.S. armed forces on a more substantial scale to remove Saddam Hussein from power. See Dames & Moore v. Regan, 453 U.S. 654 (1981) (relying on related legislation and congressional acquiescence in holding that the President was implicitly authorized to suspend claims pending in U.S. courts).

   This argument falls short as well. While Congress's acts and resolutions clearly indicate its concern about Iraq's noncompliance with UN Resolution 687, nowhere in the record is there explicit authorization by Congress to commence a war against Iraq to remove Saddam Hussein from power. Sense of the Congress resolutions and congressional acquiescence cannot substitute for a clear authorization to initiate war. They do not meet the clear-statement provisions of Section 8 of the War Powers Resolution. Furthermore, the principles underlying the Constitution's decision to vest the power to declare war in Congress are not served by relying on ambiguous indications of Congressional intent regarding force. Moreover, Congress itself decisively closed the door to ``composite'' interpretations of its intent in 1998, when it made clear that its support for a policy of regime change should not be ``construed to authorize or otherwise speak to the use of United States Armed Forces.''

   Summing Up

   To recap the basic points of this letter: If the United States is subject to attack or imminent attack by Iraq, the President clearly possesses constitutional authority to use U.S. armed forces. Likewise, if it can be demonstrated that Iraq ``planned, authorized, committed, or aided'' the September 11 attacks, or ``harbored'' those responsible, the President would have authority to use force under S.J. Res. 23. If the link is tenuous and disputed, however, the constitutional purposes underlying the vesting of the power to declare war in Congress would be best served by an additional clear, express authorization of force against Iraq that reflects the deliberation and judgment of the Congress. Finally, Congress's authorization of the Persian Gulf War, together with subsequent legislative action, fall short of a clear authorization of war against Iraq to remove Saddam Hussein from power.

   Both the Constitution and the War Powers Resolution affirm the critical importance of ensuring that decisions to commit U.S. forces to war reflect the deliberation and support of both the President and the Congress. Prior to the Persian Gulf War, the President obtained clear authority to use force from Congress. Likewise, in response to the September 11 attacks, Congress and the President acted together in enacting S.J. Res. 23. As our country moves ahead in the war against terrorism and as it considers policy options with respect to Iraq, I sincerely hope that the Congress and the President will work together as the Constitution envisions.

   Please call on me again if I can be of assistance.

   Sincerely,

   Jane E. Stromseth,
Professor of Law.

--

   TUFTS UNIVERSITY, THE FLETCHER SCHOOL OF LAW AND DIPLOMACY,

   MEDFORD, MA, AUGUST 20, 2002.
Hon. ROBERT C. BYRD,
U.S. Senate, Washington, DC.

   DEAR SENATOR BYRD: Thank you for your letter of July 22, 2002 requesting my opinion whether the President currently has authority under U.S. domestic law to introduce the U.S. armed forces into hostilities against Iraq for the purpose of removing Saddam Hussein from power.

   To summarize, I believe that he does not, although that conclusion is based upon the assumption that Iraq was not involved in the events of September 11, and that use of force for this purpose would risk substantial casualties or large-scale hostilities over a prolonged duration. I reach that conclusion for the following reasons:

   A. No treaty currently in force gives the President authority to use force.

   B. None of the three relevant statutes gives the President authority to use force.

   1. The War Powers Resolution confers no power on the President to introduce the armed forces into hostilities that he would not have had in its absence.

   2. Congress's Gulf War authorization would confer such power only if Security Council Resolution 678 did so, and Resolution 678 probably does not do so.

   a. The authority conferred by Resolution 678, which authorized use of force against Iraq following its invasion of Kuwait, was narrowly circumscribed and was directed at reversing the Iraqi invasion of Kuwait.

   b. That authority most likely was extinguished on April 6, 1991, the date the Iraqis notified the United Nations of their acceptance of the pertinent provisions of Security Council Resolution 687, which declared a formal cease-fire.

   c. Once extinguished that authority did not revive when Iraq failed to comply with its obligations under Resolution 687.

   d. A decision to revive Resolution 678 must be made by the Security Council and cannot be made by an individual member state.

   e. It would be inappropriate to infer Security Council intent to revive Resolution 678 from acquiescence by the Council to subsequent military strikes against Iraq that were not expressly authorized.

   f. The War Powers Resolution requires that doubts flowing from ambiguous or unclear measures be resolved against finding authority to use force; at a minimum, these considerations raise such doubts.

   3. S.J. Res. 23 would permit use of force against Iraq only if Iraq participated in the events of September 11.

   C. Absent authorization from a treaty or statute, authority to use force against Iraq can derive only the Constitution. The Constitution's text, the case law, custom, the intent of the Framers, and structural and functional considerations all suggest that, to the extent that use of force against Iraq would risk substantial casualties or large-scale hostilities over a prolonged duration, prior congressional approval would be required.

   I now turn to a closer examination of each of the three sources from which authorization to use force could in principle derive: a treaty, a statute, or the Constitution.

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   A. Authorization by treaty

   No treaty currently in force gives the President authority to use force. Indeed, the United States has never been a party to any treaty that purported to give the President authority to use force. The constitutionality of any such treaty would be doubtful in that it would necessarily divest the House of Representatives of its share of the congressional war power. (For this reason, all of the United States' mutual security treaties have made clear that they do not affect the domestic allocation of power.) Moreover, war-making authority conferred by any such treaty would be cut off unless it met the requirements of section 8(a)(2) of the War Powers Resolution. Section 8(a)(2) requires, in effect, that any treaty authorizing the use of force meet two conditions. The first condition is that any such treaty must ``be implemented by legislation specifically authorizing'' the introduction of the armed forces into hostilities or likely hostilities. This condition is not met because no treaty is so implemented. The second condition is that any such implementing legislation must state that it is ``intended to constitute specific statutory authorization'' within the meaning of the War Powers Resolution. Again, since no implementing legislation is in effect, the second condition is also not met. Thus it must be concluded that, if further authority to use force is required, the President cannot seek that authority from any treaty.
* * * * *

   B. Authorization by statute

   The second source to which the President might turn for authority to use force is statutory law. I referred above to the provision of the War Powers Resolution that limits authority to use force that can be inferred from a treaty. A companion provision limits such authority that can be inferred from a statute. That provision is section 8(a)(1). Section 8(a)(1) sets out two similar conditions that must be met before authority to use armed force can be inferred from a given statute. The first condition is that such a statute must ``specifically authorize'' the introduction of the armed forces into hostilities or likely hostilities. The second condition is that such a statute must state ``that it is intended to constitute specific statutory authorization within the meaning of'' the War Powers Resolution. Unless each condition is met, a given statute may not be relied upon as a source of authority to use armed force. Arguments challenging the validity of this provision are essentially frivolous. (Archibald Cox testified that he was ``aghast'' at the contention; I addressed the argument in an appendix to my testimony before the Senate Judiciary Committee on April 17, 2002.)

   The War Powers Resolution cannot itself be relied upon as authorization to introduce the armed forces into hostilities because it does not meet these two conditions and because it explicitly provides that it confers no power on the President to introduce the armed forces into hostilities that he would not have had in its absence. Two statutes now in effect, however, may meet these conditions. The first statute is H.J. Res. 77 of January 14, 1991 (P.L. 102-1), the law authorizing use of force against during the Gulf War. The second statute is S.J. Res. 23, the law enacted by Congress and signed by the President on September 18, 2001 (P.L. 107-40).

   1. The Gulf War authorization

   Congress's Gulf War resolution authorized the President to use force against Iraq only to the extent that such use of force had been authorized by the United Nations Security Council. Section 2(a) of P.L. 102-1 provides that ``[t]he President is authorized, pursuant to subsection (b), to use the United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677.'' (Subsection (b) required the President to determine, before using force, that all appropriate diplomatic and other peaceful means had been used.) Thus the Gulf War resolution would continue to authorize use of force against Iraq if such use continues to be authorized under resolution 678 of the Security Council. If Resolution 678 does not continue to authorize the United States to use force against Iraq, on the other hand, the Gulf War resolution would not authorize the President to introduce the armed forces into hostilities against Iraq, and further congressional approval would be required. This would be true, as indicated above, even if the Security Council adopts new approval to use force against Iraq, since the existing congressional authorization, the Gulf War resolution, refers only to specific Security Council measures adopted at the time of the Gulf War.

   In considering this key issue, it is helpful to recall the chain of events that led to the adoption of the relevant congressional and Security Council resolutions:

   On August 2, 1990, Iraq invaded and occupied the territory of Kuwait.

   On August 2, 1990, the Security Council adopted the first of the eleven resolutions later set out in Congress's Gulf War resolution, quoted above. This was Resolution 660, which condemned the Iraqi invasion of Kuwait and called for an immediate and unconditional withdrawal. All eleven Security Council resolutions related to the Iraqi invasion of Kuwait and represented an effort gradually to tighten the screws before authorizing use of force.\1\ \1\ Among other things, those resolutions imposed economic sanctions on Iraq (661), found that the Iraqi annexation of Kuwait was null and void and demanded that Iraq rescind its annexation (662), demanded that Iraq permit the departure of third-country nationals and ensure their safety (664), authorized member states to halt maritime shipping to Iraq so as to inspect cargoes incident to the economic embargo (665), took steps to ensure a supply of foodstuffs to alleviate human suffering in Iraq (666), demanded the release of diplomatic personnel seized by Iraq in Kuwait (667), established a consultative mechanism to deal with special economic problems arising from the economic sanctions (669), extended limitations on aircraft destined to land in Iraq or Kuwait (670), demanded that Iraq cease and desist from taking third-country nationals hostage or otherwise mistreating them or Kuwaiti nationals (674), and condemned the Iraqi destruction of civil records maintained by the government of Kuwait (677).

   On November 29, 1990, the UN Security Council adopted Resolution 678 which, among other things, authorized ``all member States to uphold and implement Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the region.'' The Resolution provided that this authority could not be exercised, however, if Iraq ``on or before January 15, 1991, fully implements ..... the above-mentioned resolutions. . .'' (The ``above mentioned resolutions'' were the same eleven measures.)

   On January 14, 1991, Congress adopted the Gulf War resolution.

   On January 17, 1991, the United States commenced air attacks against Iraq.

   On February 24, 1991, the United States commenced the ground attack.

   On February 27, 1991, Iraq in a letter to the President of the Security Council, promised to comply with the twelve Security Council resolutions.

   On February 28, a cease-fire was declared.

   On March 2, 1991, the Security Council adopted Resolution 686, noting the cease-fire, noting Iraq's promise to comply with the the Council's twelve resolutions, demanding that Iraq do so, and demanding that Iraq meet additional conditions spelled out in paragraphs (2) and (3). Significantly, Resolution 686 further provided that, ``during the period required for Iraq to comply with paragraphs 2 and 3 above, the provisions of paragraph 2 of resolution 678 (1990) remain valid. .....''

   On April 3, 1991, the Security Council adopted Resolution 687 which demanded that Iraq destroy all weapons of mass destruction and set up a comprehensive on-site inspection regime under the aegis of the UN Special Commission on Iraq (UNSCOM). The Resolution also declared that ``upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990).''

   On April 6, 1991 in a letter from its Iraqi Minister of Foreign Affairs, Iraq notified the President of the Security Council and the Secretary-General that it accepted the provisions of the Resolution 687.

   In light of this background, can Resolution 678 reasonably be construed to continue to authorize use of force by the United States against Iraq? While reasonable arguments can be made on both sides,\2\ the more persuasive argument appears to be that it does not, for these reasons: \2\ Most commentators have rejected the argument that authority to use force continues to flow from Resolution 678. See, e.g., Gray, After the Cease-Fire: Iraq, the Security Council and the Use of Force, 65 British Yearbook of International Law 135 (1994); Krisch, Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council, 3 Max Planck United Nations. Y.B. 59 (1999); Lobel & Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 American Journal of International Law 124 (1999); Tomuschat, Using Force against Iraq, 73 Die Friedens-Warte-Journal of International Peace and Organization 75 (1997); and Dekker & Wessel, Military Enforcement of Arms Control in Iraq, 11 Leiden Journal of International Law 497 (1998). But see Wedgewood, The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq's Weapons of Mass Destruction, 92 American Journal of International Law 724 (1998).

   (a) The authority conferred by Resolution 678 was narrowly circumscribed and was directed at reversing the Iraqi invasion of Kuwait. Resolution 678 conferred authority to use armed force for three different purposes. (i) The first purpose was to uphold and implement resolution 660. Resolution 660, however, simply called upon Iraq to withdraw from Kuwait that goal has been achieved. (ii) The second purpose was to uphold and implement ``all subsequent relevant resolutions'' The phrase could conceivably be construed as referring to any resolution adopted after the date on which Resolution 660 was adopted, August 2, 1990. Read in context, however, it seems more likely that the phrase refers to the nine ``foregoing resolutions'' that were recalled and reaffirmed in the first prefatory clause of Resolution 678. Those resolutions were ``subsequent to'' Resolution 660 but of course all preceded Resolution 678. ``All subsequent resolutions,'' it might further be argued, could hardly be taken as referring to any resolution ever adopted on any future date by the Security Council. Such a construction would have had the effect, internationally, divesting the Security Council of any future role in deciding whether to authorize use of force against Iraq--even though paragraph 5 of Resolution 678 explicitly affirms the intent of the Security Council ``to remain seized of the matter.'' Domestically, given the incorporation by reference of the phrase in Congress's Gulf War resolution, such as interpretation would

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   (b) The authority to use force conferred in Resolution 678 was most likely extinguished April 6, 1991, the date the Iraqis notified the United Nations of their acceptance of the pertinent provisions of Resolution 687. Under that Resolution, ``a formal cease-fire'' took effect upon such notification. The legal obligations that flow from a formal cease-fire are incompatible with the legal rights that flow from authorization to use force. The Security Council did ``reaffirm'' Resolution 678 in Resolution 949, adopted October 15, 1994, and also in Resolution 1137, adopted November 12, 1997. However, this was done only in prefatory clauses; neither Resolution 949 nor Resolution 1137 re-authorizes the use of force against Iraq. No resolution has done so. The Security Council has never declared that either the cease-fire or Resolution 687 is no longer in effect.

   (c) The authority to use force conferred in Resolution 678, once extinguished did not revive when Iraq failed to comply with its obligations under Resolution 687. Resolution 687 makes clear that the termination of that authority was conditioned upon Iraq's notification of acceptance of the pertinent provisions of Resolutions 687, not upon Iraq's compliance with those provisions. In this regard it is instructive to compare the terms of Resolution 687 with the terms of its predecessor resolution, Resolution 686. Resolution 686 implemented a provisional cease-fire following the suspension of hostilities between Iraq and the coalition forces. As noted above, Resolution 686 provides that compliance, not acceptance, by Iraq was required with respect to two paragraphs of Resolution 686 to bring about the termination of authority to use force. (It is agreed that Iraq has complied with those two paragraphs.) In contrast, Resolution 687 provides that acceptance, not compliance, was all that was required to terminate authority to use force. Had the Security Council intended to cause that authority to revive upon Iraqi non-compliance, the Council presumably would have used the same words, or similar words, that it used in the preceding resolution to bring about that result. But it did not. There is no indication in the terms of Resolution 687 or any other Security Council resolution that the Council intended that Iraqi non-compliance would trigger a revival of authority to use force.

   (d) A decision to revive Resolution 678 must be made by the Security Council and cannot be made by an individual member state. As suggested by the interactive context in which the Gulf War was ended, the transaction that brought hostilities to a close was in the nature of an agreement. Its terms were set forth in Resolution 686 and 687. Those terms were agreed to and approved by Iraq and the U.N. Security Council, not by Iraq and individual member states of the Security Council, and not by Iraq and individual member states of the Gulf War coalition. An earlier, informal, battlefield cease-fire was instituted by coalition forces. But the coalition owed its presence to authority conferred by the Security Council, and the informal cease-fire was superseded by the formal termination of hostilities set out by the Security Council in Resolution 687. The parties to that formal undertaking were Iraq and the U.N. Security Council. With rare exceptions that are not applicable here, under long-settled principles of international law rights flowing from the material breach of an agreement run to the aggrieved party of the agreement; a state has no right to complain of the breach of an agreement to which it is not a party. One of the rights that flows from the power to complain of the material breach of an agreement is the option to terminate or suspend the agreement in whole or in part. In Resolution 687 the Security Council apparently intended to retain that right: paragraph 34 of Resolution 687 provides that the Council, not individual states, ``shall take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region.'' Thus it would be up to the Council as a body to decide what action to take in response to a breach. Individual states such as the United States have no right to terminate or suspend those provisions of Resolution 687 that caused the authorities granted in Resolution 678 to be extinguished upon the notification of Iraqi acceptance. The option to terminate or suspend those provisions resides exclusively in the author of Resolution 678 and party to the agreement with Iraq: the Security Council, not individual member states.

   (e) It would be inappropriate to infer implicit Security Council intent to revive Resolution 678 from acquiescence by the Council to subsequent military strikes against Iraq that were not expressly authorized. It can be argued that a consistent pattern of acquiescent practice would constitute evidence of the authoritative interpretation of the Resolution. However, the right of veto that inheres in the Council's five permanent members renders this argument unconvincing in these circumstances. All five members have not remained silent during each of the subsequent strikes against Iraq; several have on occasion objected. Following the 1998 air strikes on Iraq, for example, the President of the Russian Federation declared that ``[t]he U.N. Security Council resolutions on Iraq do not provide any grounds for such actions. By the use of force, the U.S. and Great Britain have flagrantly violated the U.N. Charter and universally accepted principles of international law.'' \3\ The Chinese also objected.\4\ When Resolution 1154 was adopted, warning that continued violations of Iraq's obligations to permit unconditional access to UNSCOM ``would have the severest consequences,'' the French representative to the Security Council stated that the resolution was designed ``to underscore the prerogatives of the Security Council in a way that excludes any question of automaticity. ..... It is the Security Council that must evaluate the behavior of a country, if necessary to determine any possible violations, and to take the appropriate decisions.'' \5\ Even if all five permanent members of the Security Council had remained silent, silence under such circumstances does not necessarily signify consent or approval. Silence may simply indicate a belief that objection is futile. Moreover, if formal objection were now legally required, this argument would in effect establish a new procedure under which each of those five members would be required to take the affirmative step of voicing objection to acts not authorized by the Council that they did not wish to be seen as approving. The U.N. Charter itself places no such obligation on the permanent five members of the Council; to prevent the Council from acting, each is required to voice objection only to a formal proposal made by a member of the Council within the Council's proceedings, not to the external conduct of third states. In any event, even if it were appropriate to infer the Council's approval to attack Iraq from its acquiescence to other attacks on Iraq, there would be no reason to assume that the Council, in its acquiescence, intended to revive Resolution 678 rather than to create new, implicit authority. New, implicit Security Council authority would not constitute authorization under Congress's Gulf War Resolution to introduce the armed forces into hostilities against Iraq. As noted above the Gulf War Resolution permits such use of force only if it is permitted by Resolution 678. New Security Council authorization, whether given explicitly in the form of a new resolution or implicitly in the form of acquiescence, would not satisfy the terms of the Gulf War Resolution and could not, under U.S. domestic law, authorize the President to introduce the armed forces into hostilities. \3\ Statement of the President of the Russian Federation, press release of the Mission of the Russian Federation to the U.N., Dec. 20, 1998.

   \4\ Press release of the Foreign Ministry of China, Dec. 17, 1998 (``The unilateral use of force ..... without the authorization of the Security Council runs counter to the U.N. Charter and the principles of international law.')

   \5\ U.N. Doc. S/PV.3858, at 15, 18 (1998).

   (f) The War Powers Resolution requires that doubts flowing from ambiguous or unclear measures be resolved against finding authority to use force; at a minimum, these considerations raise such doubts. As discussed above, section 8(a)(1) of the War Powers Resolution requires that Congress ``specifically authorize'' the introduction of the armed forces into hostilities if its enactment is to suffice as statutory approval. The War Powers Resolution, in other words, requires that doubts flowing from ambiguous or unclear measures be resolved against finding authority to use force. Because serious doubt exists whether Security Council Resolution 678 confers continuing authority on the United States to use force against Iraq,\6\ the Gulf War Resolution, which incorporates Security Council Resolution 678 by reference, cannot be said to constitute specific statutory authorization within the meaning of the War Powers Resolution to introduce the armed forces into hostilities against Iraq. \6\ Because your letter requests my views concerning the application of U.S. domestic law, I do not here discuss whether international law would permit use of force against Iraq absent Security Council approval.

   For these reasons, I conclude that the Gulf War authorization is most reasonably construed as conferring no such authority.

   2. S.J. Res. 23

   The second statute that meets these conditions is the law enacted by Congress and signed by the President on September 18, 2002, P.L. 107-40, also known as Senate Joint Resolution 23 or S.J. Res. 23.

   The statute contains five whereas clauses. Under traditional principles of statutory

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   To determine the breadth of authority conferred upon the President by this statute, therefore, it is necessary to examine the legally operative provisions, which are set forth in section 2(a) thereof. That section provides as follows: ``In General.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.'' The central conclusion that emerges from these words (which represent the only substantive provision of this statute) is that all authority that the statute confers is tightly linked to the events of September 11. The statute confers no authority unrelated to those events. The statue authorizes the President to act only against entities that planned, authorized committed, or aided the terrorist attacks that occurred on September 11. 2002. No authority is provided to act against entities that were not involved in those attacks. The closing reference limits rather than expands the authority granted, by specifying the purpose for which that authority must be exercised--``to prevent any future acts of international terrorism against the United States.......'' No authority is conferred to act for any other purpose or to act against ``nations, organizations or persons'' generally. Action is permitted only against ``such'' nations, organizations or persons, to wit, those involved in the September 11 attacks.

   The statute thus cannot serve as a source of authority to use force in prosecuting the war on terrorism against entities other than those involved in the September 11 attacks. To justify use of force under this statute, some nexus must be established between the entity against which action is taken and the September 11 attacks.

   The requirement of nexus between the September 11 attacks and the target of any force is reinforced by the statute's legislative history. Unfortunately, because of the truncated procedure by which the statute was enacted, no official legislative history can be compiled that might detail what changes were made in the statute and why. It has been reported unofficially however, that the Administration initially sought the enactment legislation which would have set out broad authority to act against targets not linked to the September 11 attacks. The statute proposed by the Administration reportedly would have provided independent authority for the President to ``deter and preempt any future acts of terrorism or aggression against the United States.'' \7\ Members of Congress from both parties, however, reportedly objected to this provision.\8\ The provision was therefore dropped from the operative part of the statute and added as a final whereas clause, where it remained upon enactment. You outlined this history in your remarks on the Senate floor on October 1, 2001 (Cong. Rec., daily ed., Oct. 1, 2001 at S9949). \7\ Helen Dewar & Juliet Eilperin, Emergency Funding Deal Reached; Hill Leaders Agree to Work Out Language on Use of Force, Wash. Post, Sept. 14, 2001 at A30.

   \8\ Helen Dewar & John Lancaster, Congress Clears Use of Force, Aid Package; $40 Billion--Double Bush's Request--Earmarked for Rebuilding. Terror Response, Wash. Post, Sept. 16, 2001 at A11.

   Accordingly, unless Iraq participated in the events of September 11, authority for use of force against Iraq must derive from a source other than S.J. Res. 23. Only one possible source remains: the United States Constitution. If use of force by the President is authorized by the Constitution, no authority is needed from any treaty or statute.

   C. Constitutional authorization

   A starting point in considering the scope of the President's independent constitutional powers is to note a proposition on which commentators from all points on the spectrum have agreed: that the President was possessed of independent constitutional power to use force in response to the September 11 attacks upon the United States. As was widely observed at the time, the War Powers Resolution itself supports this conclusion. Its statement of congressional opinion concerning the breadth of independent presidential power under the Constitution (section 2(c)(3)) recognizes the President's power to use force without statutory authorization in the event of ``a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.'' Thus, U.S. military operations in Afghanistan could have been carried out under the President's constitutional authority, even if S.J. Res. 23 had never been enacted. This conclusion has important implications for the question you have posed. If it turns out that Iraq is linked to the September 11 attacks, S.J. Res. 23 will continue to suffice, along with the President's constitutional authority, to provide all necessary authorization.

   A more difficult question arises if Iraq was not connected with the September 11 attacks. In the last 30 years, Congress has on two occasions expressed its opinion concerning the scope of the President's power to use armed force without prior congressional approval the issue. One statement of opinion, as I mentioned, is set forth in section 2(c)(3) of the War Powers Resolution. I've also alluded to the other statement: the final whereas clause in S.J. Res. 23. That whereas clause expresses the opinion of Congress that ``the president has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.'' Obviously, these two statements are inconsistent. The scope of presidential power to wage war that was recognized by Congress in the War Powers Resolution is much narrower than that recognized in S.J. Res. 23. If the President only has power to act alone in ``a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,'' then he obviously is without power to ``to take action to deter and prevent acts of international terrorism against the United States'' where no attack upon the United States has occurred. Which statement is correct?

   In my view, neither. The statement in the War Powers Resolution is overly narrow, and the statement in S.J. Res. 23 is overly broad. The original, Senate-passed version of the War Powers Resolution contained wording, which was dropped in conference, that came close to capturing accurately the scope of the President's independent constitutional power. It provided--in legally binding, not precatory, terms--that the President may use force ``to repel an armed attack upon the United States, its territories or possessions; to take necessary and appropriate retaliatory actions in the event of such an attack; and to forestall the direct and imminent threat of such an attack.'' This formula, unlike the hastily-crafted words of the S.J. Res. 23 whereas clause, was drafted over a period of years, with numerous hearings and advice from the top constitutional scholars in the country. It was supported by Senators Fulbright, Symington, Mansfield, Church, Cooper, Eagleton, Muskie, Stennis, Aiken, Javits, Case, Percy, Hatfield, Mathias, Scott and yourself--not an inconsequential group. They agreed upon a simple premise: that the war power is shared between Congress and the President.

   This is the premise that animates all efforts by members of Congress who seek to have the Executive meet authorization and consultation requirements. This is the premise that is, for all practical intents and purposes, rejected by proponents of sole executive power.

   The premise flows from each source of constitutional power:

   .The constitutional text. Textual grants of war power to the President are paltry in relation to grants of that power to the Congress. The president is denominated ``commander-in-chief.'' In contrast, Congress is given power to ``declare war,'' to lay and collect taxes ``to provide for a common defense,'' to ``raise and support armies,'' to ``provide and maintain a navy,'' to ``provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions,'' to provide for organizing, arming, and disciplining, the militia,'' and to `'make all laws necessary and proper for carrying into execution...all...powers vested by this Constitution in the Government of the United States.''

   The case law. Support for the Executive derives primarily from unrelated dicta pulled acontextually from inapposite cases, such as United States v. Curtiss-Wright (1936). The actual record is striking: Congress has never lost a war powers dispute with the President before the Supreme Court. While the cases are few, in every instance where the issue of decision-making primacy has arisen--from Little v. Barreme (1804) to the Steel Seizure Case (1952)--the Court has sided with Congress.

   Custom. It is true that Presidents have used armed force abroad over 200 times throughout U.S. history. It is also true that practice can affect the Constitution's meaning and allocation of power. The President's power to recognize foreign governments, for example, like the Senate's power to condition its consent to treaties, derives largely from unquestioned practice tracing to the earliest days of the republic. But not all practice is of constitutional moment. A practice of constitutional dimension must be regarded by both political branches as a juridical norm, the incidents comprising the practice must be accepted, or at least acquiesced in, by the other branch. In many of the precedents cited, Congress objected. Furthermore, the precedents must be on point. Here, many are not. Nearly all involved fights with pirates, clashes with cattle rustlers, trivial naval engagements and other minor uses of force not directed at significant adversaries, or risking substantial casualties or large-scale hostilities over a prolonged duration. In a number of the ``precedents,'' Congress actually approved of the executive's action by enacting authorizing legislation (as with the Barbary Wars).

   Structure and function. If any useful principle derives from structural and functional considerations, it is that the Constitution gives the Executive primacy in emergency war powers crises, where Congress has no time to act, and that in non-emergency situations--circumstances where deliberative

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   Intent of the Framers. Individual quotations can be, and regularly are, drawn out of context and assumed to represent a factitious collective intent. It is difficult to read the primary sources, however, without drawing the same conclusion drawn by Abraham Lincoln. He said: ``The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.'' Chief Justice William Rehnquist, quoting Justice Robert Jackson in Dames & Moore v. Regan (1981), shared Lincoln's belief that the Framers' rejected the English model. He said: ``The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.''

   Notwithstanding the plain import of these sources of constitutional power, some argue that the only role for Congress occurs after the fact--in cutting off funds if the president commences a war that Congress does not support. Two problems inhere in this theory. First, it reads the declaration-of-war clause out of the Constitution as a separate and independent check on presidential power. The Framers intended to give Congress control over waging war before the decision to go to war is made. Giving Congress a role only after the fact, however, would make its power to declare war nothing but a mere congressional trumpet to herald a decision made elsewhere.

   Second, the theory flies in the face of the Framers' manifest intention to make it more difficult to get into war than out of it. This approach would do the opposite. If the only congressional option is to wait for the president to begin a war that Congress does not wish the nation to fight and then cut off funds, war can be instituted routinely with no congressional approval--and seldom if ever ended quickly. The practical method of cutting off funds is to attach a rider to the Department of Defense authorization or appropriation legislation. This means, necessarily, passing the legislation by a two-thirds vote so as to overcome the inevitable presidential veto. The alternative is for Congress to withhold funding altogether--and be blamed by the president for closing down not merely the Pentagon but perhaps the entire federal government. The short of it is, therefore, that to view the congressional appropriations power as the only constitutional check on presidential war power is for all practical purposes to eliminate the declaration-of-war clause as a constitutional restraint on the president.

   For reasons such as these, the Office of Legal Counsel of the Justice Department concluded in 1980 that the core provision of the War Powers Resolution--the 60-day time limit--is constitutional. It said: ``We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of [section 5(b)] of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of ``unavoidable military necessity.'' This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers.

   ``We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of [section 5(b)] of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of ``unavoidable military necessity.'' This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers.

   ``Finally, Congress can regulate the President's exercise of his inherent powers by imposing limits by statute.'' \9\ \9\ Presidential Power to Use the Armed Forces Abroad without Statutory Authorization, 4A, Op. Office of the Legal Counsel, Dept of Justice 185, 196 (1980).

   Finally, it is worth recalling that much the same issue arose prior to the outset of the Gulf War. The President, executive branch lawyers maintained, was constitutionally empowered to place the United States at war against Iraq without congressional approval. A number of Members of Congress brought an action seeking an injunction to prevent him from initiating an offensive attack against Iraq without first securing a declaration of war or some other explicit congressional authorization. The action was dismissed by a federal district court as not yet ripe for review. In the course of doing so, however, the court made the following pithy but important observation, which seems directly pertinent to events unfolding today: ``If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an ``interpretation'' would evade the plain language of the constitution, and it cannot stand: \10\\10\ Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).

   To the extent that use of force against Iraq to remove Saddam Hussein from power would risk substantial casualties or large-scale hostilities over a prolonged duration, I therefore conclude that prior congressional approval would be required.

   Sincerely,

   MICHAEL J. GLENNON,
Professor of International Law.

   Ms. STABENOW. Will my friend from West Virginia yield for a moment?

   Mr. BYRD. Yes, I would be happy to.

   Ms. STABENOW. Before the Senator concludes this evening, I wanted to thank him, as a new Member to this body, for his incredible commitment to our Constitution, our country, and our people. It has been an inspirational time for me to watch the Senator from West Virginia on the floor, listen to his arguments, and see his dedication. I have been proud to stand with him in opposing this resolution.

   I ask unanimous consent that a New York Times op-ed written today by the distinguished Senator from West Virginia be printed in the RECORD. It is an excellent summary of the concerns that many of us have in rushing into this war, and I want to thank the Senator for that. I think it is important this be in the RECORD of the Senate as a part of this debate today.

   There being no objection, the material was ordered to be printed in the RECORD, as follows:

   Congress Must Resist the Rush to War

   A sudden appetite for war with Iraq seems to have consumed the Bush administration and Congress. The debate that began in the Senate last week is centered not on the fundamental and monumental questions of whether and why the United States should go to war with Iraq, but rather on the mechanics of how best to wordsmith the president's use-of-force resolution in order to give him virtually unchecked authority to commit the nation's military to an unprovoked attack on a sovereign nation.

   How have we gotten to this low point in the history of Congress? Are we too feeble to resist the demands of a president who is determined to bend the collective will of Congress to his will--a president who is changing the conventional understanding of the term ``self-defense''? And why are we allowing the executive to rush our decision-making right before an election? Congress, under pressure from the executive branch, should not hand away its Constitutional powers. We should not hamstring future Congresses by casting such a shortsighted vote. We owe our country a due deliberation.

   I have listened closely to the president. I have questioned the members of his war cabinet. I have searched for that single piece of evidence that would convince me that the president must have in his hands, before the month is out, open-ended Congressional authorization to deliver an unprovoked attack on Iraq. I remain unconvinced. The president's case for an unprovoked attack is circumstantial at best. Saddam Hussein is a threat, but the threat is not so great that we must be stampeded to provide such authority to this president just weeks before an election.

   Why are we being hounded into action on a resolution that turns over to President Bush the Congress's Constitutional power to declare war? This resolution would authorize the president to use the military forces of this nation wherever, whenever and however he determines, and for as long as he determines, if he can somehow make a connection to Iraq. It is a blank check for the president to take whatever action he feels ``is necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq.'' This broad resolution underwrites, promotes and endorses the unprecedented Bush doctrine of preventive war and pre-emptive strikes--detailed in a recent publication, ``National Security Strategy of the United States''--against any nation that the president, and the president alone, determines to be a threat.

   We are at the graves of moments. Members of Congress must not simply walk away from their Constitutional responsibilities. We are the directly elected representatives of the American people, and the American people expect us to carry out our duty, not simply hand it off to this or any other president. To do so would be to fail the people we represent and to fall woefully short of our sworn oath to support and defend the Constitution.

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   We may not always be able to avoid war, particularly if it is thrust upon us, but Congress must not attempt to give away the authority to determine when war is to be declared We must not allow any president to unleash the dogs of war at his own discretion and or an unlimited period of time.

   Yet that is what we are being asked to do. The judgment of history will not be kind to us if we take this step.

   Members of Congress should take time out and go home to listen to their constituents. We must not yield to this absurd pressure to act now, 27 days before an election that we will determine the entire membership of the House of Representatives and that of a third of the Senate. Congress should take the time to hear from the American people, to answer their remaining questions, and to put the frenzy of ballot-box politics behind us before we vote. We should hear them well, because while it is Congress that casts the vote, it is the American people who will pay for a war with the lives of their sons and daughters.

   Mr. SARBANES. Will the Senator yield?

   Mr. BYRD. Mr. President, let me first thank the Senator from Michigan, DEBBIE STABENOW, for her eloquence, for her steadfast determination to stand by the Constitution as she has shown so many days, so many times in recent days. I thank her for being the Senator she is, a Senator who is indebted to her people and stands every day somewhere in this Senate complex working for the people she represents. I have received great inspiration from watching her. I serve on the Budget Committee with her and she is an outstanding voice for the people who believe in the Constitution, who takes a stand and is so eloquent, so articulate on behalf of that Constitution.

   I thank the Senator from Michigan from the bottom of my heart.

   I am about to yield the floor.

   Mr. SARBANES. Will the Senator yield for a moment?

   Mr. BYRD. Yes.

   Mr. SARBANES. Mr. President, I join my colleague from Michigan in expressing my deep thanks to the Senator from West Virginia for his extraordinarily effective and powerful presentations in the course of this debate. I was also planning to put this article in, as my colleague has already done.

   It is a very powerful statement that appeared in this morning's New York Times entitled ``Congress Must Resist the Rush to War.'' The Senator from West Virginia, as he always does, asks some very piercing questions and calls the Congress to its responsibilities.

   Let me quote a paragraph or two from the article:

   This broad resolution underwrites, promotes and endorses the unprecedented Bush doctrine of preventive war and pre-emptive strikes--detailed in a recent publication, ``National Security Strategy of the United States''--against any nation that the president, and the president alone, determines to be a threat.

   Of course, the particular resolution that is before the Senate, as is pointed out in this article, and I quote the Senator from West Virginia:

   This resolution would authorize the president to use the military forces of this nation wherever, whenever, and however he determines, and for as long as he determines if he can somehow make a connection to Iraq.

   And there actually were other proposals to narrow that authority, but of course none of them carried.

   Further quoting:

   It is a blank check for the president to take whatever action he feels ``is necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq.''

   I say to my colleague from West Virginia, it seems to me clear that upon approval of this resolution, as far as the Congress is concerned, war has been declared against Iraq. Would the Senator agree with that observation?

   Mr. BYRD. I do, I do. And I say further to my dear friend that as soon as this resolution is adopted and signed by the President of the United States, Congress is out of it. It is on the sidelines. We may wish we could say something. We may wish we could do something. But as far as the human eye can see, we are out of it until such time as Congress asks to repeal this legislation or to put a limit on it internally.

   Mr. SARBANES. Let me ask my colleague this question: Suppose some unforeseen, extraordinary development should take place after this resolution is passed and sent down and signed by the President which transforms perhaps the weapons of mass destruction situation. The President, though, could still move ahead and go to war, could he not?

   Mr. BYRD. Yes.

   Mr. SARBANES. They would have been given the authority to do that; would that be correct?

   Mr. BYRD. Absolutely. We would have handed this over to the President--lock, stock, and barrel. Here it is.

   Mr. SARBANES. When would the President have to decide whether he was going to use this authority? Let's assume with respect to passing it later in the evening--although I will oppose it--assuming it is passed and the Congress authorizes the President to go to war, in effect, with Iraq, is there a limit on the time period in which the President could then use that power to launch war against Iraq?

   Mr. BYRD. There is no limit.

   I offered an amendment, and the distinguished Senator from Maryland supported that amendment today, as the distinguished Senator from Minnesota supported it, the distinguished Senator from Michigan, the distinguished Senator from New York, but we only got 31 votes. That amendment was defeated.

   Mr. SARBANES. That underscores what the distinguished Senator says in this op-ed piece that appeared in this morning's New York Times. I quote:

   We may not always be able to avoid war, particularly if it is thrust upon us, but Congress must not attempt to give away the authority to determine when war is to be declared. We must not allow any president to unleash the dogs of war at his own discretion and for an unlimited period of time.

   Yet that is what we are being asked to do [in the resolution before the Senate].

   Mr. BYRD. Yes.

   Mr. SARBANES. This, of course, is a decision with far-sweeping consequences, certainly as it deals with Iraq and all of its implication. But the precedent is being established in terms of the future, it seems to me, and that constitutes a major erosion of the role of the Congress with respect to the Nation going to war.

   Mr. BYRD. It does. And it is easy enough, I suppose, to pass this resolution. But should we try to negate it, should we try to repeal it, should we try to change the law, a President can veto any change that Congress might bring along later, any change it might enact, in order to overturn this law it is now about to adopt.

   Mr. SARBANES. I am glad the distinguished Senator made that point because that is the next item I wanted to go to. People could say: If the circumstances changed and the Congress wants to pull it back, why not come in, pass a law, and pull it back? But the fact is that a President who wanted to keep that authority and may well want to use it, as long as he could keep the support of one-third--not of each House of the Congress but only one-third of one House, either a third of the Senators, plus one, or a third of the Members of the House of Representatives--he could negate congressional action that tried to pull back this war-making authority, could he not?

   Mr. BYRD. The distinguished Senator from Maryland is absolutely correct. It only takes a majority of both Houses to pass this resolution, but it would take two-thirds in the future if the President should attempt to veto a substitute piece of legislation by this Congress to abort what we are doing here today, to appeal it, to amend it. One-third plus one in either