CONGRESSIONAL RECORD VOL 134

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• Publication Date: March 2, 1988
• Content Type: OPEN SOURCE

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OS REGISTRY
tov/tx-ig
Vol. 134 WASHINGTON, WEDNESDAY, MARCH 2, 1988
No. 23
Congressional Record
United States
of America
PROCEEDINGS AND DEBATES OF THE 100th CONGRESS, SECOND SESSION
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United States
of America
Tortgressional Record
PROCEEDINGS AND DEBATES OF THE 100th CONGRESS, SECOND SESSION
Vol. 134
WASHINGTON, WEDNESDAY, MARCH 2, 1988
No. 23
The Senate met at 10 a.m., and was
called to order by the Honorable JOHN
BaEdux, a Senator from the State of
Louisiana.
PRAYER
The Chaplain, the Reverend Rich-
ard C. Halverson, D.D., offered the fol-
lowing prayer:
Let us pray:
If my people, which are called by my
name, shall humble themselves, and
pray, and seek my face, and turn from
their wicked ways; then will I hear
from heaven, and will forgive their sin,
and will heal their land.?II Chron-
icles 7:14.
God of Mercy, we hear this glorious
promise addressed to Your people with
its unequivocal conditions. We pray
for the church. Forgive its material-
ism, its preoccupation with success?its
love of comfort and wealth, its con-
formity to the culture it so often criti-
cizes. God of grace, help Your people
to turn from their wicked ways?to
obey Your command?to quit making
scapegoats of government and educa-
tion, the press and media. Deliver
Your people from embracing the very
secularism they protest so loudly. For-
give Your church the sin for which
she so easily judges others. Grant that
Your people will take seriously the
mandate "` ? ? seek first the Kingdom
Of God and His righteousness ?
knowing then the church will have her
greatest moral and spiritual influence
In the world around her. Help her to
realize that her failure to conform to
the Kingdom of God compounds con-
fusion and decay in the world. Gra-
cious Lord, remind Your people that
You will keep Your promise to heal
the land if they will meet Your condi-
tions. In His name who is the way, the
truth, and the life, we pray. Amen.
Senate
APPOINTMENT OF ACTING
PRESIDENT PRO TEMPORE
The PRESIDING OFFICER. The
clerk will please read a communication
to the Senate from the President pro
tempore [Mr. STENNIS].
The assistant legislative clerk read
the following letter:
U.S. SENATE,
PRESIDENT PRO TEMPORE,
Washington, DC, March 2, 1988.
To the Senate:
Under the provisions of rule I, section 3,
of the Standing Rules of the Senate, I
hereby appoint the Honorable JOHN
BREAUX, a Senator from the State of Louisi-
ana, to perform the duties of the Chair.
JOHN C. STENNIS,
President pro tempore.
Mr. BREAUX thereupon assumed
the chair as Acting President pro tern-
pore.
RECOGNITION OF THE
MAJORITY LEADER
The ACTING PRESIDENT pro tem-
pore. Under the standing order, the
majority leader is recognized.
?
THE JOURNAL
Mr. BYRD. Mr. President, I ask
unanimous consent that the Journal:
of the proceedings be approved to
date.
The ACTING PRESIDENT pro tern-
pore. Without objection, it is so or-
dered.
Mr. BYRD. Mr. President, I ask
unanimous consent that the time of
both leaders be reserved for the time
being at least.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
MORNING BUSINESS
The ACTING PRESIDENT pro tern-
pore. Under the previous order, there
will now be a period for the transac-
tion of morning business for not to
exceed IO minutes, with Senators per-
mitted to speak therein for not to
exceed 5 minutes each.
The Chair recognizes the Senator
from Wisconsin [Mr. PROXMIRE].
WHY IS AN END TO THE ARMS
RACE IMPERATIVE NOW?
Mr. PROXMIRE. Mr. President, if
this Senator were given the power to
have just one wish come true, I would
wish that every Member of the Con-
gress and every policymaker in the ad-
ministration fully understand the im-
plications of the fact that a superpow-
er nuclear war is no longer an alterna-
tive. Think about this for 1 or 2 min-
utes. What would be the consequences
Of a nuclear war between the Soviet
Union and the United States? The
answer is sure. It is certain. The
answer is the total and I mean total
destruction of both countries. Most of
the population of both sides would be
dead. Most of the rest would be dying.
Our country would lie in utter ruins.
So would Russia. There would be no
chance for the miserable, few Ameri-
can survivors to live in freedom. Ruth-
less martial law would have to be im-
posed for generations to come. Presi-
dent Reagan certainly knows this. So
does Secretary Gorbachev. Both have
said that a nuclear war can never be
won and must never be fought.
So what does it mean that a super-
power nuclear war must never be
fought? First, it means that no war,
however limited between these two
armed to the teeth nuclear powers
must never take place. Why? Because
there would be an overwhelming likeli-
hood that in such a war nuclear weap-
ons at some level, perhaps beginning
with tactical nukes would be employed
by whichever side considered that it
was losing. Once the first nuclear
weapon was fired by either superpow-
er, the nuclear exchange would rapid-
ly escalate to the finish.
? This "bullet" symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.
S1673
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S 1674 CONGRESSIONAL RECORD ? SENATE March 2, 1,988
Second, if in fact no war will ever be
fought between the United States and
the U.S.S.R., most of the colossal hun-
dreds of billions of dollars of Military
buildup on both sides is completely
wasted. Both sides will need to main-
tain a credible nuclear deterrent to
forestall an attack from the other. But
the enormous navies, armies, air forces
of both sides will be unnecessary. Each
superpower will have every reason to
negotiate a far smaller military force
for both sides.
Third, none of this reasonable reduc-
tion in sterile military expenditures
can prudently take place without reli-
able, mutual agreement between the
Soviet Union and the United States.
,The first object of such an agreement
must be to establish and guarantee the
credibility of the nuclear deterrent of
each side. The United States must be
confident that its nuclear deterrent
could survive any attack or any de-
fense by? the Soviet Union. Our coun-
try must know?not hope, not assume,
not guess. It must know that whatever
attack the U.S.S.R. might launch,
however relentless it might be our re-
taliatory capability would survive and
so would the will of our President to
use it. The Soviet Union must have
precisely the same confidence and the
same will. The verification provisions
of the INF Treaty sharply advance the
prospects of negotiating exactly the
kind of intrusive, detailed verification
that military reductions on both sides
would require.
So why is it reasonable now to
expect the superpowers to achieve
something that has, never, been
achieved in human history? Why at
long last has the time arrived to nego-
tiate an end to the arms race? The
answer is that we have two crucial
events occurring at the same time.
First, we have the universal realization
that a world war today?a superpower,
war?would be totally destructive. Nei-
ther nation could gain. Both nations
would lose. Both would lose utterly.
The second crucial event is that both
superpowers are suffering deeply from
the immense burden of the arms race.
In America our deficits have become
far and away our most intractable do-
mestic problem. Our enormous Feder-
al deficits can literally destroy our
economy. Right at the heart of our
huge deficits is our crushing military
spending. In the Soviet Union the eco-
nomic problems are worse, in fact,
much worse. Their far less productive
economy is staggering under the sub-
stantially heavier military spending.
The Soviets desperately need relief
from this arms race. Secretary Gorba-
chev and his Politburo thoroughly un-
derstand this. So what are we waiting
for?
As I said at the beginning of this
statement, if I were given one wish, I
would wish that all Members of the
Congress and all policymaking offi-
cials of our Government understood
the meaning of the fact that a super-
power nuclear war is no longer an al-
ternative. It means we are wasting
hundreds of billions of dollars every
year in building an ever more powerful
military force. So is the Soviet Union.
Arms control?as never before?is the
only sane way to peace. It is also the
only sane way to financial solvency.
The ACTING PRESIDENT pro tem-
pore. The Chair recognizes the Sena-
tor from Colorado [Mr. WIRTH].
REDRESSING THE
CONVENTIONAL BALANCE
Mr. WIRTH. Mr. President, again,
this morning, I want to share with my
colleagues another excellent analysis
of the conventional balance in Europe
and our relationship with the Soviet
Union.
It is Andrew Hamilton's "Redressing
the Conventional Balance," in Inter-
national Security.
Andrew Hamilton, a well-regarded
Washington defense analyst, has stud-
ied the issue of redressing the conven-
tional balance in NATO's central
region. He contends that NATO is
within reach of a highly credible ca-
pacity to defend itself successfully, but
that currently, NATO's "margin of
safety" is too narrow to ensure suc-
cess. He seeks to demonstrate that
NATO has the means with which to
correct deficiencies in its defensive ca-
pabilities, primarily by forming new
operational combat units from avail-
able trained military manpower.
Hamilton criticizes two common
measures of the European convention-
al balance: Direct comparison of "raw
resources," and such as GNP, riopula-
tion, or defense spending; and, tradi-
tional "bean counts" of primary weap-
ons systems. He believes neither of
these measures accurately meaningful-
ly assesses relative military capabili-
ties.
According to Hamilton, one can
derive more useful measurements of
relative capabilities and combat effec-
tiveness from three variables. These
are first, the relative values assigned
to different military formations and
weapons, usually converted into some
kind of division equivalent; second, the
quantity of resources that each side is
assumed to allocate to the central
region; and third, the speed with
which each side can bring these rein-
forcements into battle. Hamilton pre-
sents three different analyses based on
data using these variables.
Although these analyses produce
somewhat differing estimates, Hamil-
ton notes that when one converts
these into assessments of NATO re-
quirements, all three reach a consist-
ent conclusion: "While NATO lacks a
robust conventional defense today, the
shortfall between capabilities and re-
quirements is not insurmountable."
This being so, Hamilton pessimisti-
cally observes the current NATO plans
for ground force improvements do not
promise much relative progress by
1990. Assuming that NATO's ground
force improvement plans are fully im-
plemented by that time, Hamilton
notes that in a crisis or conflict in
which NATO mobilizes, its greatest
gains will come during the first 2
weeks after mobilization. But by 90
days after mobilization, the Warsaw
Pack will have neutralized earlier
NATO gains. Hamilton contends that,
prior to mobilization, the current con-fl balance is basically even, but
that after mobilization, the pact pro-
gressively gains until NATO is out-
numbered by about 2 to 1.
To determine NATO conventional
defense requirements, Hamilton con-
tends that one must -necessarily make
critical assumptions regarding relative
pact and NATO buildup capabilities,
strategy, and tactical effectiveness.
The more optimistic these assump-
tions are, the less NATO must do to
improve its relative position. Hamil-
ton, however, is not very sanguine. He
concludes that a, successful NATO de-
fense would require relatively "ineffec-
tive pact strategy and tactics" and an
unfailingly "high degree, of NATO tac-
tical effectiveness and efficiency." To
correct this thin margin of safety and
redress the imbalance, according to
Hamilton, NATO must utilize extant
trained military reserve manpower by
reorganizing and arming it more
wisely to exploit its combat potential.
Hamilton asserts that NATO largely
wastes this manpower in lightly armed
and poorly organized reserve forces.
Mr. President, I ask unanimous con-
sent that a -summary of Hamilton's ar-
ticle "Redressing the Conventional
Balance" In the Summer, 1985, Inter-
national Security, volume 10, be print-
ed in the RECORD.
There being no objection, the article
was ordered to be printed in the
RECORD, as follows:
ANDREW HAMILTON, "REDRESSING THE
CONVENTIONAL BALANCE"
Two arguments are advanced in this arti-
cle. First, .the NATO-Warsaw Pact conven-
tional balance in Central Europe today is
shaky but not beyond repair. NATO stands
within striking distance of a high-confi-
dence capacity to defend successfully, but
does not yet have one: Current NATO con-
ventional forces might be able to thwart a
Pact attack, but their margin of safety is
woefully thin and the possibility of a NATO
defeat is quite real. A robust NATO defense
would require at least 20 more "division-
equivalents" beyond the roughly 52 divi-
sion-equivalents that will be available two
months after mobilization when present
NATO modernization plans are completed
around 1990.'
Second, NATO conventional capabilities
can be strengthened dramatically by equip- ,
ping and reorganizing available trained Eu-
ropean military, manpower to form new
operational combat units. (Most of these
formations would be reserve units.) If this
were done, the gap between NATO conven-
tional forces and NATO requirements could
be erased at a relatively modest cost.
I use the term "division-equivalent" to refer 'to a
Heavy Division Equivalent, defined below as a for-
mation with the military capability of an average
American heavy (armored mechanized) division.
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March 2, 1988 _ CONGRESSIONAL RECORD ? SENATE S 1675
THE CONVENTIONAL BALANCE IN CENTRAL
EUROPE
Two niisleading measures of the NATO-
Warsaw Pact balance are commonly seen in
public discussions of defense matters. First,
the raw resources of NATO and the Pact
are compared, without directly measuring
their military capabilities. [Much compari-
sons demonstrate that aggregate NATO eco-
nomic strength and population far exceed
those of the Pact, while NATO's defense
spending and military manpower roughly
match those of the Pact. However, such
comparisons paint an unduly optimistic pic-
ture because NATO has failed to distill an
adequate conventional defense from this
ample resource base.
Second, NATO and Pact capabilities are
often compared in "bean counts" of princi-
pal weapons systems. The worldwide bal-
ance of tactical air forces is about even but
the figures for ground forces convey an im-
pression of vast Pact material superiority of
2.6:1 in tanks, 2:1 in artillery and multiple
rocket launchers and almost 2:1 in anti-air-
craft guns and missile-launchers.
Bean counts, however, also have short-
comings as portraits of relative military ca-
pabilities. They omit people and organiza-
tions?an important omission in the case of
ground forces, where people make up nearly
three-quarters of the annual cost. NATO
has as many men in its active-duty ground
forces as the Pact, and ample trained re-
serves. Bean counts also fail to show how
the resources on each side might be concen-
trated over time in the theater of interest,
which most assessments agree is the West
German border or, in NATO terminology,
the "Central Region."
A better method of estimate lies in direct-
ly measuring the combat effectiveness of
military formations, and the rates at which
these formations can be deployed into a the-
ater of war. Tables 3 and 4 are based on
measures of this kind, and are derived from
data describing three variables: (1) the rela-
tive values assigned to different military
formulations and weapons, usually convert-
ed into some kind of division-equivalent; (2)
the quantity of resources that each side is
assumed to allocate to the Central Region;
and (3) the speed with which each side
can bring these reinforcements into the
battle. . .
Tables 3 and 4 present different balance
estimates derived from such measures,
giving a spread of views on the fighting
power of the forces likely to be available on
each side at different times during the first
four months after mobilization. While di-
verging somewhat from one another, all
three estimates provide a better guide to
NATO and Pact capabilities than the simple
"bean count". Moreover, when these esti-
mates are transformed into statements
about NATO requirements, all three meas-
ures point towards the same conclusion, sug-
gesting that while NATO lacks a robust con-
ventional defense today, the shortfall be-
tween capabilities and requirements is not
insurmountable.
Each of these models estimates the
strength of ground forces alone, excluding
air forces, but in doing so all focus on the
element of the overall theater balance that
has caused the most concern. None of the
three depicts the balance under the tradi-
tional "worse case" of a fully mobilized
Warsaw Pact army confronting an unmobi-
lized and indecisive NATO, since this sce-
nario seems relatively unlikely. Each of the
three assumes that NATO begins mobilizing
three days after the Pact begins.
While differing in detail and in relative
optimism about the balance, these three es-
timates paint a broadly similar picture, as
the force ratios in Table 3 show. The bal-
ance is about even in peacetime, but after
mobilization it shifts more or less rapidly in
the Pact's favor until NATO is outnumbered
by about 2:1.
Moreover, the table shows that current
NATO plans for strengthening ground
forces do not promise much relative im-
provement by 1990. My extrapolations from
current plans show that while both sides
will add a few Heavy Division Equivalents,
the relative balance in 1990 at M+30 (thirty
days after the Pact begins mobilizing) will
not be greatly changed from today. The
principal benefits to NATO from currently
planned improvements all come within the
first two weeks after mobilization and are
primarily due to planned improvements in
the peacetime standing forces in Europe
and to the more rapid arrival of early U.S.
reinforcements.
In a comparison of details, the three esti-
mates agree on some matters and disagree
on others. In figures not presented in my
tables, they agree that NATO will have
about 30 divisions available in the Central
Region on the day of mobilization (M-Day)
or soon thereafter. By the end of two weeks,
NATO will deploy a total of 43-47 divisions.
The key issue creating this numerical
spread is whether France would commit all
of its available armored and mechanized di-
visions to defend Germany or only the 5 di-
visions of the First French Army (3 of
which are stationed in Germany). During
the next 75 days, NATO strength rises to a
total of 49-61 divisions, with all of this fur-
ther increase being supplied by American
reinforcements.
In comparison, the Warsaw Pact would
deploy roughly 32 Soviet-style divisions on
M-Day, and is expected to deploy some 56-
57 Soviet-style divisions by M+9 to M+10,
rising to 110-120 Soviet-style divisions by
M+60 to M+ 90. The key issues creating
these numerical spreads lie in disputes over
the rate of Pact buildup and the eventual
size of the committed Soviet force.
All three estimates agree, however, that
the Pact would gain a substantial lead by
M+60 to M+90. All three estimates also
agree that the Pact gains its edge over
NATO mobilizing reserve manpbwer to fill
out skeleton units. While nearly 80 percent
of the reinforcing Pact division formations
require mobilization of reserves, this is true
of only 40 percent of reinforcing NATO divi-
sions: active duty units make up about 60
percent of the NATO reinforcements to
arrive in the first two months.
In sum, the current conventional balance
in Central Europe is about even prior to mo-
bilization and shifts more or less rapidly to
the Pact's favor after mobilization, until
NATO is outnumbered by about 2:1. Most of
the improvement in the Pact's relative
strength comes from skeleton units filled
out with reserve manpower. NATO is not
credited with a comparable ability to create
additional combat power from its own man-
power reserves during the first weeks after
mobilizing. Anticipated changes in forces on
both sides between now and 1990 will im-
prove NATO's position in the early phases
of mobilization but will not fundamentally
alter the relative balance.
ESTIMATING NATO'S CONVENTIONAL
REQUIREMENTS IN CENTRAL EUROPE
If the more pessimistic buildup curves for
the Warsaw Pact and NATO shown in
Tables 3 and 4 represent reality, the Pact-
NATO force ratio exceeds 2:1 after about
two weeks of mobilization. In that situation,
most analysts would agree that NATO needs
to add forces if it wishes to have a better
than even probability of preventing a large-
scale conventional attack from achieving a
breakthrough in the Central Region, an
event that would force N ATO to consider
using nuclear weapons. The problem is to
define how much needs to be added.
The objective in adding forces to the
NATO side is to improve the chances of de-
terring conventional military threats and
conventional war by making it appear to the
Soviet leadership that a conventional attack
probably would not succeed. From a strictly
political perspective, equality of forces
would appear to offer the best deterrent.
fHlowever, equality of forces does not guar-
antee deterrence and superiority does not
guarantee victory. How much more force
NATO needs to add depends on one's assess-
ment of the strategy of Pact and NATO
forces and of their relative quality.
I have used two concepts to measure qual-
ity. The first, and more significant, defines
the local ratio of attackers to defenders at
which the defense will have a better than
even probability of defeating an attack. It is
an estimate of the relative effectiveness of
the two sides in employing firepower and
maneuver to attack and defend terrain, and
could be termed an index of relative tactical
effectiveness.
The second concept of quality estimates
the fraction of available NATO "operational
reserve"?divisions not committed to the
first line of defense?which can actually be
moved quickly to shore up those sectors of
the front that are under heaviest attack.
The second concept captures the effects of
Imperfect intelligence, mobility constraints,
and bad decisions, and could be termed a
NATO efficiency index.
Ulf one rejects the more pessimistic
curves shown in Tables 3 and 4, and the
more pessimistic estimate of NATO effec-
tiveness, and also assumes a more risk-
averse_Pact strategy and greater NATO effi-
ciency, then one may conclude that NATO
does not need to add any forces. As Table 3
shows, William Mako has estimated that
the Pact may not be able to rapidly assem-
ble large numbers of divisions manned
mostly by reservists, and could take 90 to
120 days to get its fully mobilized 81 Ar-
mored Division Equivalents (ADEs) into
place.
To summarize, Table 3 can be used with
other assumptions to support irguments
that NATO does not need to add divisions or
that it needs to add as many as 45 HDEs, in
order to have a credible defense posture.
Thus, one's definition of a NATO require-
ment depends heavily on one's assumption
not only about comparative buildup rates
but also about strategy, tactical effective-
ness, and what I have called efficiency,
which is a measure of ability to bring avail-
able forces to bear where needed.
While NATO's forces might hold today,
their margin of safety is thin and successful
NATO defense would depend not only on
relatively ineffective Pact strategy and tac-
tics, but also on a uniformly high degree of
NATO tactical effectiveness and efficiency.
In my judgment, the margin is too thin for
effective conventional defense.
USING EUROPEAN RESERVES TO MEET NATO
REQUIREMENTS
The NATO European allies can meet
these requirements at relatively small cost,
by reorganizing and arming the trained mili-
tary manpower that is now largely wasted in
lightly armed and poorly orgainzed reserve
forces.
Six European states contribute to the de-
fense of the Central Region: Belgium, Bri-
tian, Denmark, France, the Netherlands,
and West Germany. Together, they have a
great deal of under-utilized trained military
manpower in their reserves and in their
lightly armed active-duty units. This man-
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S 1676 CONGRESSIONAL RECORD ? SENATE
power is now largely relegated to light
combat units, most of which are not as-
signed or committed to NATO, and which
serve anachronistic functions such as terri-
torial militia. Indeed, contrary to wide-
spread belief, the European members of
NATO probably have enough trained mili-
tary manpower to more than double their
present contributions to alliance ground
forces in the Central Region, if this man-
power were properly organized into regular
NATO reserve formations. What is lacking
is the requisite organization, equipment,
training, and supplies to convert this man-
power?NATO's wasted resource?into
combat potential.
European reserves clearly could supply
more than enough manpower to create the
20 additional Heavy Division Equivalents
that I suggest NATO requires to provide a
robust defense in the 1990s.
It is not impractical to create rapidly mo-
bilized heavy combat formations from re-
serves. The Soviet Union does it. Israel
relies on such mobilization. Britian, Den-
mark, the Netherlands, and West Germany
all do so on a smaller scale. What I am sug-
gesting is that these European allies, to-
gether with Belgium and France dramatical-
ly increase the capabilities of their remain-
ing reserves, and some active duty units, in
much the same way.
The addition Of the requisite 20 armored
and mechanized division-equivalents would
absorb less than half of the very large pool
of trained but under-utilized European mili-
tary manpower. Indeed, the European allies
appear to have the capability to field as
many as 45 additional Heavy Division
Equivalents if, as some analysts have
argued., they restructure to take more ad-
vantage of trained manpower, and use more
civilians in support upon mobilization. The
addition of these 45 HDEs would bring
NATO fairly close to equality with the Pact
at M +60.
SUBSTITUTES FOR GROUND FORCES?
Like the United States, the northern Eu-
ropean allies will experience declining num-
bers of 18-year-olds each year during the
1980s and early 1990s. Recent developments
in precision-guided, conventional anti-tank
submunitions (PGSMs) capable of wide-area
coverage have persuaded some that these
could be substituted for tactical nuclear
weapons in NATO arsenals in sufficient
number to compensate for the disparity be-
tween Warsaw Pact and NATO ground
forces in the Central Region.
However, the costs and military benefits
of what NATO cans "emerging technol-
ogies" are highly speculative, involve long
development lead times, and raise new arms
control questions. At present, the emerging
technologies are a major focus of European
efforts to demonstrate movement towards
more reliance on conventional weaponry. As
time goes by, however, these weapons are
likely to look less attractive as a unique so-
lution to NATO's conventional weakness. In
limited numbers they may help to deter
short-warning attacks and also to force Pact
planners to consider less concentrated,
hence higher-risk, conventional attack op-
tions. But while they may supplement
added ground forces, they cannot provide a
full substitute.
Mr. WIRTH. Mr. President; I sug-
gest the absence of a quorum.
The ACTING PRESIDENT pro tem-
pore. The clerk will call the roll.
The assistant, legislative clerk pro-
ceeded to call the roll.
Mr. LEAHY. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
Mr. LEAHY. Mr. President, I ask
unanimous consent that I be able to
proceed for 11 minutes as though in
morning business.
The ACTING PRESIDENT pro tern-
pore. Without objection, it is so or-
dered.
The Chair recognizes the Senator
from Vermont.
CHIEF GEORGE CONNOR
Mr. LEAHY. Mr. President, during
the years I was growing up in Montpe-
lier, we always knew that our very spe-
cial community was protected because
of the dedication and concern of Chief
George Connor. Even though as
youngsters we had the proper respect
and awe of the chief of police, we also
knew that he was a man who would
stop and speak with each one of us
and actually knew every single young-
ster in Montpelier.
Chief Connor was always a good
friend of my mother and father and I
know how often both my parents
spoke of him.
Because so many of us who grew up
in Montpelier owe so much to him, I
was pleased to see an article recently
written about Chief Connor and I am
sure his many friends have called him
to talk about it.
I would like to share it with my
fellow Senators, and I ask unanimous
consent that it be printed in the
RECORD.
There being no objection, the article
was ordered to be printed in the
RECORD, as follows:
GEORGE CONNOR REMEMBERS HIS DAYS ON
THE FORCE
(By Mame Ramey)
George Connor, 85 of Montpelier, has in-
fluenced his birthplace more than he might
imagine. His life, or at least 40 years of it,
has been spent keeping the peace in Mont-
pelier. His parents and grandparents were of
strong Vermont stock and he learned well
the practicality needed for his lifestyle.
Grandfathers on both sides of his family
served in the Civil War. He recalls one of
the gentlemen, his mother's father, was
very tall and had a flowing white beard that
touched the ground. In the winter he
tucked it into his vest for warmth. The man,
as did many of George's ancestors, lived well
Into his nineties.
George's father cut stone, outlived many
of his peers and died at 88. He was an out-
standing athlete. He gave boxing and wres-
tling lessons and was a very good ball
player?both batter and catcher.
"They used to come from all over the
state to drag him off to play," says George
proudly. "They used his name in advertise-
ments. My brother was good player too.
Once father had to go to England to check
out a surface cutting machine for granite.
He went by boat and there was some legal
hold up. Finally mother went over, three
weeks it took, to join him. While he was
there waiting for the okay to come home, he
organized the first all American baseball
league in England."
George's mother born in Moretown. His
grandmother made all the family bread
without a recipe and her own mincemeat for
March 2, 1988
pie. He says she never could show any of
her 12 children how to do it and they never
could pass their own good bread off as hers.
"I remember that we were happy chil-
dren," says George. "We made up our own
games and had a good time. I think life was
better back then when we farmed in Middle-
sex."
"I remember one year I shot a deer and
tracked it from Middlesex to Waterbury
Center," George recalls. "I was afraid some-
one else was going to shoot it. It went right
through a barnyard not six feet from the
barn door where a farmer stood plucking a
bird, maybe a turkey. He never saw it. As I
was pointing out the tracks right next to
him we heard two shots and someone else
finished off my deer. I walked home
through Middlesex Notch Road. I was so
tired. I went by a farmhouse and the folks
asked me what I was doing out on Thanks-
giving day so I told them the story and how
far I had walked. They were very friendly
and had me come inside to rest and eat.
After I did, I headed home and shot and
killed a big spikehorn at dusk right within
sight of my house. I took those nice people
a hunk of that deer.
"It was very different then. If a man took
sick, all his neighbors chipped in to do his
work and they did it just the way_he would.
When the thresher came each year to do
the wheat, it came to each farm and all the
men and women worked together. I tell you,
if the food wasn't good they wouldn't come
back next time to help out.
"About the time there was a shortage of
wheat, my folks moved to Montpelier. My
wife, Lillian and I stayed and farmed a
while. She was 18 and I was 19. Then we
moved to Montpelier. My folks ran a poor
farm in Montpelier. There were people
there who had had money and lost it and
people who had never had it. My folks ran a
good farm. All the food that went on the
table was good and the very same food my
family ate, not like some other places.
"I sold the farm in Middlesex and went to
work for Dad," says George. "I was waiting
for a job in the Lane Shops. The pay there
was good. Father had been on the police
force twice but it didn't pay well and he
didn't stay with it. I was trapping with a
friend who had an automobile. We made
over $200 a year which, in those days was
enough to buy .a small farm. So things were
pretty good.
"We had been setting fox traps in springs
and I remember it was a pretty dry fall be-
cause it was hard to find springs for the
traps. It had rained steadily all one day and
we thought it would help with trapping. I
started for home with the car and realized
the water in the culvert was boiling. When I
tried to cross it, the ear sunk in and got
stuck. I got out and walked the rest of the
way home. Every bridge was out. I couldn't
get across the river to get to my-family so I
borrowed a plank from a farmer and walked
over, the water. The farmer thought I was
crazy but my wife was on the other side.
The next morning I walked back across and
down to where I had left the car. Someone
had pulled it with a team of horses so I got
back into it and drove to town.
"When I got to the city hall," says
George, "there was a lawyer on the front
steps named Deavitt. He asked me what I
was doing for work and I told him I hoped
to work in the Lane Shops soon. He said,
'No you won't. From now on you are a po-
liceman.' I tried every way out of it but it
was Marshall Law and there was nothing I
could do. That was November 4, 1927. I re-
tired from the force 40 years later in 1967
and had served for 15 years as the Chief of
Police of Montpelier. I knew enough about
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE S 1677
it I guess, they said use common sense and
that is what I did. After a while the money
got better. The people of Montpelier were
very good to me. I had gone to school with
many of them and I think it helped that
they knew me. . ?
"We used to work 11 hour shifts and every
15th day we got a day off. The men on the
day shift got $27.50 a month but some of us
worked special assignment and we were paid
better. We got $1.25 a day. I didn't have any
schooling for the job, but a local banker
took me under his wing and talked to me a
lot about common sense. I think I used it
pretty good. One time I almost messed up.
"I was standing on the corner and a car
came around wobbling back and forth," he
says. "I stopped the car and had the driver
get out. He was staggering all over the place
so I took him down to jail. The next morn-
ing when I went to get him out, he was still
staggering. I asked him if he was sick or
something and he said no. He had two artifi-
cial legs! I told his wife right away, I would
go talk to the judge and get it straightened
out but she said no. She Said he had been
drinking heavily and they both felt he de-
served what had happened. They had a
pretty good sized boy with them and he
drove home.
"Back then you didn't get arrested for in-
toxication unless you broke the peace. It
was a serious offense to have on your record
and it could keep you from getting a job. So
unless you were making a lot of trouble, you
didn't get arrested. We didn't have cars on
the force then and I've carried quite a few
men home on my back. I could always tell
the drifters Would make trouble when they
were drinking. They wanted to go to jail
where it was warm and dry and where they
would get food. For the first offense it was
10 days in jail, for the second it was 30 days,
and for the third it was six months in Wind-
sor State Prison. I always thought those
men were better off because they would be
in long enough to get dried out."
In 1922, George married Lillian Holmes,
whom he found out later, he had gone to
kindergarten with. Lillian's father was from
Maine and as a child she moved there while
her father worked as a carpenter building
houses. When the family got homesick they
returned to Vermont. Later Lillian, who had
two sisters, moved to Massachusetts with a
married sister and worked in an office job
for a time. The money was very good but
she soon got homesick and returned to Ver-
mont. George met her again at a dance and,
thinking they "were fully grown," they soon
married. They raised a son and daughter
and were married for 64 years.
"Lillian was very handy, "George says
fondly. "She worked in a store some and she
could make any kind of clothing and people
would think it has come from the store.
Back then, she had to wear uniforms made
of 16-ounce serge. They were double-breast-
ed-with a military color. They were brutal in
the summer. One night, she didn't say any-
thing to me but she moved all the buttons,
opened up the neck and let the whole thing
out. I didn't know if it would make trouble
or not but I wore it to work. The chief took
one look at it and said, 'That looks good.' He
got permission to order open-collar, single-
breasted coats. I'm sure we were the first in
the state of Vermont to wear open collars.
Later we even went to shirt sleeves in the
summer."
George's children both live in California
and he has flown out to spend time with
each of them. He now has six grandchildren
and 12 great-grandchildren. He feels he has
been blessed with a healthy and fortunate
life. He never has been very sick except for
the time as a child when he broke some ribs
in a sleighing accident and the time a year
ago when he fell and broke a couple more.
He spends three days a week at the Montpe-
lier Senior Center where he socializes and
plays some serious pool. George thinks his
good health is due to all of the exercise he
gets and a very slow heart rate. His hobbies
are hunting and fishing and although he
couldn't pursue either this year, he plans to
next. He is concerned about the obvious
effort of acid rain on-the streams and ponds
and isn't sure where he might find fish next
summer but intends to look for them.
NORIEGA HAS TO GO
Mr. LEAHY. Mr. President, I come
to the floor on a very serious matter
this morning.
Mr. President, I would like to take a
look at a few facts about the turmoil
In Panama.
Panama is the main transshipment
point for cocaine from Colombia
coming into the United States. It is
also the world banking center for
laundering billions of dollars of drug
money that comes from the poisoning
of the youth of the United States.
Gen. Manuel Noriega and his cronies
have institutionalized corruption, put-
ting Panama's military services, banks
and even airfields at the service of
drug traffickers. It is nothing less than
the prostitution of an entire country.
And their payoff? Kickbacks in the
hundreds of million of dollars going
into Swiss bank accounts and French
villas.
Yesterday, President Reagan signed
an order penalizing Panama for failing
to cooperate effectively in the fight
against the drug trade.
The United States Government gave
Panama every chance?in fact, too,
many chances for too many years a lot
of us would say?to throw out its cor-
rupt officers and officials. We waited
and waited for Panama to find its na-
tional honor and get rid of this
common criminal, Manuel Noriega.
I welcome President Reagan's action
yesterday. But I am deeply concerned
that he gave Noriega such a light tap
in terms of real pressures on the Pana-
manian economy.
The President stopped short of im-
posing the maximum penalties allowed
under the law. In fact, the sanctions
he imposed?cutoff of Panama's sugar
quota and a 50-percent cut in United
States aid?fall short of actions that
we here in Congress had already legis-
lated.
'Congress had directed that United
States directors on international
banks vote against loans to Panama.
We ordered all economic and military
assistance terminated, not just cut in
half, but terminated, cut off entirely.
We stopped the importation of Pana-
manian sugar. And, we barred any
funding of joint military exercises
with the Panamanian military.
Congress did this last year.
The President drew back from ap-
plying full trade sanctions, even
though the law gave him the author-
ity to do so. He apparently was not
willing to be as tough as Congress al-
ready had been.
It was as if he found Noriega guilty
of murder and then let him off with
probation.
This is not a time to pull punches.
It is ironic that a President who de-
clared war on drugs now refuses to use
his power to punish a murderous mili-
tary dictatorship that made its coun-
try the hub of the South American
drug trade.
It is doubly ironic that this decision
comes just days after General Noriega
refused dismissal by the constitutional
President, Eric Delvalle, after he
staged a coup to oust the legitimate
government and after he was indicted
by two U.S. grand juries on Federal
drug and racketeering charges.
Mr. President, this administration
talks tough on drugs until it is time to
start being tough. Then it acts like its
hands are tied. It is delighted to
impose a complete trade embargo
against Nicaragua and spend half a
billion dollars of the taxpayers' money
to overthrow the Sandinistas.
But it cannot bring itself to institute
even partial trade sanctions against a
vicious military dictator who poses a
far greater threat to this country than
bankrupt Nicaragua.
Drugs are pouring into this country
from South America through Panama
and Mexico. Efforts to eradicate co-
caine at the source have failed. Drugs
are killing thousands of young Ameri-
cans every year.
And what does the President say?
That we have "turned the corner" on
drugs. He seems to believe the "just
say no" campaign is actually work-
ing?when all the evidence is that we
are in the middle of a nationwide drug
epidemic.
Remember that it was a courageous
U.S. attorney in Florida who indicted
Noriega on drug trafficking, not the
Drug Enforcement Agency which
cozied up to him for years.
And it was our colleagues, Senators
KERRY and D'AmATo, who held the
hearings that tore the veil off the
drug dealing by Noriega and his
henchmen, not an administration that
turned a blind eye until it could no
longer be ignored.
The Latin drug trade?not the
ragtag Sandinistaa?is the most serious
threat we face in our own hemisphere.
There is no better place to demon-
strate our resolve than to destroy the
drug empire that is strangling
Panama.
The fight against drugs goes hand-
in-hand with the fight for democracy
in Panama. Last summer, thousands of
Panamanians took to the streets and
called for an end to oppression, an end
to crime and corruption, and a return
to democracy and the rule of law.
They have had enough of seeing their
country raped and pillaged by drug
kingpins and power-crazed colonels.
The United States shares the blame
for this crisis. Until the evidence for
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S 1678 CONGRESSIONAL RECORD --- SENATE
his corruption just became overwhelm-
ing, this administration was more in-
terested in Noriega's support for the
Contras through Oliver North than
his subversion of democracy in
Panama.
The White House cannot have it
both ways. It cannot claim it is carry-
ing on a war against drugs while soft-
pedaling the thugs in Panama who
funnel the drugs into our schools and
our streets.
How can anyone argue against im-
posing the strongest sanctions possi-
ble? President Eric Arturo Delvalle,
still in hiding in Panama, has called on
the United States and the world's de-
mocracies to levy tough sanctions on
Panama as long as Noriega stays.
General Noriega himself may be
beyond pressure. But the colonels who
keep him in power are not. We can
show them just how painful things
can get as long as Noriega is in, power.
Sixty percent of Panama's exports
come to the United States. The Presi-
dent has the power to impose a 50-per-
cent tax on those exports, to cut off
preferential tariffs, and bar airline
flights between Panama and the
United States.
The President could order an imme-
diate cutoff of short-term loans by
United States banks or other financial
institutions to the government or Pan-
amanian banks. This would have an
obvious and severe impact on Panama-
nian financial activity very quickly
without harming United States banks
unduly. Our banks are rapidly backing
away from making these short-term
loans to Panama anyway, and we
would accelerate a process already un-
derway.
Even more draconian financial sanc-
tions are possible, though we need to
do more ?study to determine their
impact before we make decisions. We
do not want to harm ourselves more
than Noriega or the power brokers
who back him.
Ultimately, if the colonels in
Panama will not force Noriega to go
quietly, the President could even
impose a complete economic embar-
go?just as he has done against Nicara-
gua.
Mr. President, I want to make a final
point.
Some political leaders, including, I
am sorry to say, senior Members of
this body from the other side of the
aisle, have started talking about the
United States abrogating the Panama
Canal treaties.
This is irresponsible, and plays right
into the hands of Noriega and his
gang. They are claiming that this is
nothing more than a plot by the
United States to get out of the treaties
and take over the Canal Zone again.
They are trying to pose as the nation-
alist defenders of Panama's sovereign-
ty over the canal.
I urge all Senators and indeed all re-
sponsible Americans to stop such talk.
The treaties are permanent. We are
not going to tear them up and go back
to a ?dead past. The days when the
United States could own a strip right
through the center of another country
are gone forever.
Let us all join together for the
common goal?kick out Noriega, re-
store democracy to Panama, and save
our children from the drug empire.
You know, Mr. President, I spent 8Y2
years as a prosecutor. I know that if
you want real law enforcement, you do
not talk tough, you have to act tough.
We cannot stop drug traffic in this
country by just asking everybody to
stand up and say, "Just say no." It has
not worked in the past. It is not work-
ing now. It is not going to work in the
future.
Let us stop it at the source. The
quickest way to do that is to stop Gen-
eral Noriega.
Mr. President, I yield the floor.
Mr. BYRD, Mr. President, has morn-
ing business closed?
The ACTING PRESIDENT pro tem-
pore. The Chair will respond that
morning business is now closed.
Mr. BYRD. I understand Senator
KARNES wishes to speak in morning
business.
Mr. KARNES. Yes.
The ACTING PRESIDENT pro tern-
pore. The Chair will recognize the
Senator from Nebraska. Does he seek
unanimous consent to extend the time
for morning business?
Mr. BYRD. No. I would object to
that.
How much morning business time re-
mains?
The ACTING PRESIDENT pro tern-
pore. The Chair would advise the Sen-
ator we have 30 seconds left for morn-
ing business.
Mr. BYRD. I do not want business to
extend beyond 10:30.
The ACTING PRESIDENT pro tem-
pore. That request has not been made.
Morning business was extended for 10
minutes.
Mr. BYRD. I stand corrected.
ORDER EXTENDING MORNING
BUSINESS FOR 5 MINUTES
Mr. BYRD. Mr. President, I ask
unanimous consent that morning busi-
ness be extended for 5 minutes.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
The Chair recognizes the Senator
from Nebraska, Senator KARNES.
Mr. KARNES. Mr. President, I
thank the leader very much for that
accommodation. I appreciate that very
much.
(The remarks of Mr. KARNES will
appear later in today's RECORD under
"Statements on Introduced Bills and
Joint Resolutions.")
CONCLUSION OF MORNING
BUSINESS
Mr. BYRD. Mr. President, is morn-
ing business closed?
March 2, 1.988
The ACTING PRESIDENT pro tern-
pore. We have 1 minute remaining
under the unanimous-consent agree-
ment.
Mr. BYRD. I ask unanimous consent
morning business be closed.
The ACTING PRESIDENT pro tern-
pore. Morning business is closed.
POLYGRAPH PROTECTION ACT
OF 1987
Mr. BYRD. Mr. President, I ask that
the pending business be laid before
the Senate.
The ACTING PRESIDENT pro tern-
pore. The bill will be stated by title.
The assistant legislative clerk read
as follows:
A bill (S. 1904) to strictly limit the use of
lie detector examinations by employers in-
volved in or affecting interestate commerce.
The Senate resumed consideration
of the bill.
QUORUM CALL
Mr. BYRD. Mr. President, I suggest
the absence of a quorum.
The ACTING PRESIDENT pro tem?
-
pore. The absence of a quorum will be
noted.
Mr. BYRD. It will be a live quorum,
Mr. President. As I indicated on yes-
terday there will be a rollcall request-
ing the Sergeant at Arms.
The ACTING PRESIDENT pro tern-
pore. The clerk will call the roll to as-
certain the presence of a quorum.
The legislative clerk called the roll
and the following Senators entered
the Chamber and answered to their
names:
Adatns
Breaux
Byrd
(Quorum No. 123
Ford Wallop
Karnes Warner
Leahy Wirth
The PRESIDING OFFICER (Mr.
ADAMS). A quorum is not present. The
clerk will call the names of the absent
Senators.
Mr. BYRD. Mr. President, I move
the Sergeant at Arms be instructed to
request the presence of absent Sena-
tors. 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.
The PRESIDING OFFICER. The
yeas and nays have been ordered. The
clerk will call the roll.
The assistant legislative clerk called
the roll.
Mr. CRANSTON. I announce that
the Senator from Tennessee [Mr.
GORE], the Senator from Massachu-
setts [Mr. KERRY], the Senator from
Hawaii [Mr. MATSUNAGA], and the Sen-
ator from Illinois [Mr. Simoril are nec-
essarily absent.
I also announce that the Senator
from Delaware [Mr. BIDEN) is absent
because of illness.
Mr. SIMPSON. I announce that the
the Senator from Kansas [Mr. DoLEl
is necessarily absent.
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE 8 1679
The PRESIDING OFFICER. Are
there any other Senators in the Cham-,
ber desiring to vote?
The result was announced?yeas 67,
nays 27, as follows:
(Rollcall Vote No. 34 Leg.)
YEAS-67
Adams Glenn Pell
Baucus Graham Pressler
Bentsen Grassley Proxmire
Bingaman Harkin Pryor
Boren Hatfield Reid
Boschwitz Heflin Riegle
Bradley Hollings Rockefeller
Breaux Humphrey Roth
Bumpers Inouye Rudman
Burdick Johnston Sanford
Byrd Names Sarbanes
Chiles Kassebaum Sasser
Cranston Kennedy Shelby
Danforth Lautenberg Simpson
Deschle Leahy Stafford
DeConcini Levin Stennis
Dixon McClure Stevens
Dodd Melcher Thurmond
Domenici Metzenbaum Trible
Durenberger Mikulski Warner
Exon Mitchell Wirth
Ford Moynihan
Fowler Nunn
Armstrong
Bond
Chafee
Cochran
Cohen
Conrad
D'Amato
Evans
Garn
NAYS-27
Gramm
Hatch
Hecht
Heinz
Helms
Kasten
Lugar
McCain
McConnell
Murkowski
Nickles
Packwood
Quayle
Specter
Synuns
Wallop
Weicker
Wilson
NOT VOTING-6
Biden Gore Matsunaga
Dole Kerry Simon
So the motion was agreed to.
The PRESIDING OFFICER. A
quorum is present.
Mr. HELMS. Mr. President, I move
to reconsider the vote by which the
motion was agreed to.
Mr. BYRD. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
agreed to.
Mr. BYRD. Mr. President, I hope
that Senators are ready to proceed
with amendments on this bill.
May I inquire if there are Senators
on the floor who have amendments
that they intend to call up?
Mr. HELMS. I have one.
Mr. BYRD. Mr. HELMS has one.
Are there other amendments that
will be called up?
The PRESIDING OFFICER. The
Senate will be in order. The majority
leader is requesting that Members who
wish to offer amendments please indi-
cate at this time their intention.
The Senator from North Carolina.
The Senator from Wyoming.
The majority leader.
Mr. BYRD. I yield to the distin-
guished Senator from Wyoming, the
acting Republican leader; and ask
unanimous consent that I might retain
my right to the floor.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The Senator from Wyoming, under
the unanimous-consent request, is rec-
ognized.
Mr. SIMPSON. Mr. President, the
majority leader has asked about
amendments on this side of the aisle.
We have at least two of which I can
inform the majority leader, an amend-
ment of Senator COCHRAN and Senator
NICKLES. So I can assure the majority
leader that there are two amend-
ments?three amendments, and the
Senator from North Carolina. So we
have three amendments here to show
the majority leader we are anxious to
do the business required.
Mr. BYRD. I thank the distin-
guished leader on the other side of the
aisle.
There will be a cloture vote on this
measure tomorrow if it is not disposed
of today.
On yesterday, I introduced a cloture
motion; there was-not an inclination at
that time to call up amendments. Now,
I hope that we could finish this bill
today and thus vitiate the cloture vote
for tomorrow. I also hope that we
could take up the intelligence authori-
zation bill. We only have today, Thurs-
day, and a full day on Friday, and I
would like to at least finish these two
bills and take up the Price-Anderson
legislation so that when the Senate re-
turns from the break, the Senate will
be on the Price-Anderson legislation.
Now, I have indicated what I would
hope to do, and I welcome any sugges-
tions on the part of Senators that
would help me to do what I have said I
think the Senate needs to do.
Mr. JOHNSTON. Mr. President, will
the leader yield?
Mr. BYRD. Yes. First, let me ask if
the distinguished acting leader has
any suggestion or proposal that he
would make at this time to assist the
Senate in moving on that schedule ac-
cordingly, if it can be done.
The PRESIDING OFFICER. The
Senator from Wyoming.
Mr. SIMPSON. Mr. President, I
would inform the majority leader that
I think the aspect of the cloture vote
does impel us to do our work, and we
are going to do that. I think it would
be good if the majority leader and I
visited about what we visited about
last night. I think perhaps we might
be in a position to utilize the services
of the new committee, the ad hoc com-
mittee, for the referral of a sense-of-
the-Senate resolution which could be
discussed today, and I would like to
visit with the majority leader about
that. We have been asked to appoint
one new member. I am ready to do
that. That group would then deal with
the rules issues that we discussed.
Then we could go to a double track for
the intelligence authorization and
then get to Price-Anderson and be
dealing with it and have it as the
pending item of business when we
return, because it is a very important
piece of legislation.
I think the scenario is appropriate,
and I would respectfully suggest that,
as Senator HELMS goes forward, the
majority leader and I visit, and I think
we can put this week's package togeth-
er.
Mr. BYRD. Very well. If the Senator
will allow me to yield to Mr. JOHNSTON
first.
Mr. SIMPSON. Indeed.
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. I yield, with the under-
standing I retain my right to the floor,
to the Senator from Louisiana.
Mr. JOHNSTON. Mr. President, I
thank the leader for yielding.
As the leader knows, I am most anx-
ious to bring up the Price-Anderson
legislation, with only one caveat, and
that is on Monday after the recess, our
new Governor is being inaugurated,
and our delegation wanted to be there
and fly back that afternoon. There
may be other aspects of the legislation
which could be considered other than
those that I am involved in that morn-
ing, but I would not be available that
morning unless ?there was no other
way to do it, in which event I will
probably cancel attendance at the in-
auguration, but I hate to do that.
Mr. BYRD. Yes. I fully appreciate
.the Senator's situation and will be gov-
erned accordingly.
Mr. President, I wonder if I might
make this proposal. In order to expe-
dite, if I can, action on both this meas-
ure, which is before the Senate, and
the intelligence authorization meas-
ure, and get action completed on those
two bills this week and hopefully get
into a position of taking up Price-An-
derson for action following the recess,
I wonder if Senators would give me
consent that I might be able to main-
tain the status quo position vis-a-vis
the rules until later in the day, at such
time as we may be able to give me con-
sent to take up the intelligence au-
thorization bill.
What I am saying is I think now, so
that Senators may understand, I am in
position at this moment to move to
take up the intelligence authorization
bill. That would not require unani-
mous consent. That would be a nonde-
batable motion at this moment and
will be for the next hour. I do not
want to do that if I can get consent to
take it up at any time today. I prefer
that. But what I would like to do oth-
erwise is move to take that up and
have a vote on it. Of course, that vote
would displace the pending business
until tomorrow, at which time the clo-
ture vote would occur and the Senate
could vote for cloture on the pending
business.
I would like to proceed today either
with the intelligence authorization
matter or the pending business. But in
any event, this would be one way of
utilizing today not in a way that the
Senate would be spinning its wheels.
And with only Thursday and Friday
left after today, unless today can be
utilized beneficially and to the extent
of making progress on both these
measures, I am concerned that we may
go out Friday without finishing action
on one or both of these measures.
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S 1680 CONGRESSIONAL RECORD ? SENATE
Mr. SIMPSON. Mr. President, would
the majority leader yield? ?
Mr. BYRD. Yes.
Mr. SIMPSON. Mr. President, I real-
ize that the procedures now could go
forward on the nondebatable motion
and the majority leader could go with
what he wishes to go on, too. I would
respectfully suggest that if he would
withhold, I think I have about two
Members here that I think consent
could come from a little later in the
day. I really do believe that. But after
I visit with the leader about the other.
proposal, there may be some material
to deal with on the floor today. I can
visit with him in his chambers after
that. -
Mr. BYRD. I certainly thank the
distinguished Senator. I want to work
with him.
Mr. BOREN. Will the leader yield?
Mr. BYRD. I hope that the Senate
can make progress on the pending bill
today, but I would not want to waste
today.- Much of yesterday afternoon
was wasted because we only have 2
days left this? week, and I hope we can
-complete action on the pending busi-
ness and on the intelligence authoriza-
tion bill. -The chairman of the Intelli-
gence Committee has indicated to me
on yesterday that 'he and Senator
COHEN . Would be ready at any time
after yesterday to proceed to that bill.
So what lam trying to do, let me say
once again for the RECORD, is put the
Senate in the position where it can
complete action on .both those meas-
ures and be ready to go .to Price-An-
derson by the time the Senate goes
? out for the recess.
Yes, I yield.
Mr. BOREN. I thank the leader.
I just want to state again that I be-
lieve?and I talked with Senator
COHEN about . this yesterday, and I
talked with interested Senators on this
matter; the intelligence oversight bill
which was a committee product with
strong majority on both sides of the
aisle in favor of that bill, came out of
' committee by almost a unanimous
vote?we are prepared as well to en-
deavor to be ready at any point that
the leader wishes to proceed to that.
So we? will be prepared and ready if
the leader decides to move forward on
that legislation. I do not anticipate
very many amendments in terms of
volume that would delay consideration
of that bill because it has been a
matter that we have worked on in our
committee for many, Many scores and
scores of hours.
Mr. BYRD. I thank the distin-
guished Senator. my friend, the chair-
man of the Intelligence Committee.
? Mr. HELMS. Mr. President, would
the Senator yield "without of ? course'
-losing his right to the floor? ?
Mr. BYRD. Yes. '
?,Mr. HELMS. May I inquire of the
distinguished majority leader and the
Republican leader if there are plans to
proceed today with the General Burris
nomination to the U.S Arnis Control'
and Disarmanent Agency. I think that
we should proceed unless there is some
reason to not proceed. I do want to
make a statement in that connection.
But I have had repeated contact with
the White House about this and other
matters, and we have resolved all
except one point which is not minor
but I do not think we ought to delay
the nomination of General Burns.
Mr. BYRD. Mr. President, may I say
that Secretary Shultz spoke to me
about this nomination last week, and I
do hope--
Mr. HELMS. Mr. President, I cannot
hear the majority leader as near as I
am to him.
The PRESIDING OFFICER. The
Senators will suspend. The Senate will
be in order. Those Senators and others
conversing will please take their seats
or retire to the cloakroom.
Mr. HELMS. I thank the Chair.
The PRESIDING OFFICER. The
Senator from North Carolina ad-
dressed a question to the majority
leader.
Mr. BYRD. Mr. President, I hope we
can go to this nomination at some
point today or certainly before the
week is out. Secretary Shultz spoke to
me about the nomination last week,
?and I would be yery happy to proceed
on that matter at any time, if we can
get clearance on it. Otherwise, we
could move to it and dispose of that,
hopefully, before the recess.
I would like to add that to the list of
items that I hope we can get done
before the close of business on Friday.
Mr. HELMS. Very well. I thank the
leader.
Mr. BYRD. Mr. President, I had
heard some rumor to the effect that
inasmuch as we have offered a cloture
motion on the pending business, and
that cloture vote will not occur until
tomorrow, a good bit of today might
be'spent in wrangling over the rules. I
do not know whether there is any sub-
Stance to that rumor or not. But I am
not interested in spending today wran-
gling over old bones. What I would
like to do is get on with today's busi-
ness and the authorization for intelli-
' gence.
It is for that reason that I am asking
now, and I ask unanimous consent be-
- cause I want to have the opportunity
to talk with the distinguished leader
on the other side of the aisle, that I
may yield the floor at this time, re-
taining throughout the day the posi-
tion that I maintain as of this
moment; namely, the ability to move
to make a motion to proceed to an-
other matter on the Calendar of Busi-
ness, that motion being nondebatable
as of now and for the next 53 minutes.
Also, at this moment, not only could I
move to do that, which would tempo-
rarily displace, if that motion carried,
the pending business, but I would be
In a position once the intelligence au-
thorization bill was before the Senate
to offer a cloture motion on it, and
then I would have at this moment
time remaining to 'move back to the
March 2, 1988
pending business, and that again.
would be a nondebatable motion.
So I ask unanimous consent that I
may yield the floor, and that the
status quo situation in these respects
may be continued until such time as.
later in the day I could either take
whatever action may appear to be the
best at that time, or I waive the status
quo.. This would allow me to have
these conversations with the distin-
guished leader on the other side. He
would lose nothing, and nobody would,
because I am in a position now of hold-
ing the floor to move. Actually nobody
loses any ?rights, under this matter. I
would simply retain the rights that I
have at this moment as the leader to
act in the interests as I see of the
Senate in moving forward on these
two measures this week, plus the nom-
ination.
I yield, Mr. President, to the distin-
guished acting leader.
Mr. SIMPSON, Mr. President, that
has been proposed as a unanimous-
consent request. Reserving the right
to object, and I just want to have it
clearly said that the leader could do
all of those things right now that he
has discussed doing later.
I think that is important for our
people to realize that he could go to
the nondebatable motion, the intelli-
gence authorization, and I do not
think we will have a bit of problem
getting to that later today. have one
person that has indicated some con-
cern; and I think that will fall away
and we can go to it from what,I under-
stand. _
So I just want it to be certain that
we all see that what he is doing by this
unanimous consent is simply preserv-
ing his procedural advantage of the
moment which if we did not concur ?
with the unanimous-consent agree-
ment he could go ahead and de,
anyway. I think that is important. I
believe we can do some business today,
and we will be in a position to do that.
I think that after .we have a visit with
the majority leader in his office, we
will know a great deal more about the
. progress of the day.
At this point, I am well aware as to
-what the majority leader could do at
this moment, By agreeing' to this
unanimous-consent request, it will ac-
commodate that other Member, and
we can go forward and allow, the ma:
jority leader to preserve his position of
the moment.
I believe others may wish to speak..
Mr. QUAYLE. Mr. President, will
the Senator yield? .
Mr. BYRD. yield, without ? losing
my right to the floor, to Mr. QUAYLE.
First, let me thank the acting Re:
publican leader.
Mr. QUAYLE. Did! correctly under-
stand the Republican leader to Say.
.that he did not think that he wriUld
raise an objection to the majority
leader's request that he be in the same
position later on? I had a difficult time
hearing back here, with the noise.
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE
I am trying to learn exactly what
was said; because I will say, as one
Senator who is somewhat interested in
the bill?I can count noses and know
where we are going?that there are a
number of amendments on this bill
that could or could not be called up.
Senator HELMS has an amendment.
The majority leader has the floor
and has it in his power to move to do
whatever he wants to. As one Senator,
I would not like him to retain that
throughout the day, because then it
would not give some of us who may
want to raise various issues an oppor-
tunity to do so. He has the power to do
that, if he wants to; that is his right.
At least we would know what the re-
mainder of today is going to be.
I, for one, would not like to see him
retain that status throughout the day.
If the minority leader does not object,
I would object to that status remain-
ing throughout the day, because, it
would not allow us, in the minority, to
know how we are going to proceed
throughout the day, and it would not
be in the best interests of this Senator.
I will object, if the minority leader
does not, to allowing the status to
remain throughout the day.
Mr. SIMPSON. Mr. President, I
share with my colleague from Indiana
the fact that the majority leader can
make that motion now, and we could
lose all our status in this process, and
the polygraph bill could then disap-
pear and not come up again until we
deal with it on cloture.
What I am saying, and I think the
majority leader will concur, is that we
have three amendments?an amend-
ment by the Senator from North Caro-
lina, one by Mr. COCHRAN, and one by
Mr. NicKLES. All those amendments, I
assume, will be dealt with, without
question, as the majority leader pro-
pounds this unanimous-consent re-
quest.
We want to make progress on poly-
graph. We have these three amend-
ments. If there are others, I will imme-
diately communicate them. I know of
no other amendments. I know of no
dilatory amendments. We are not in-
terested in wrangling. We have serious
concerns which I think can be resolved
in a procedure that the majority
leader and I have discussed, and I have
discussed it with my Members.
I think we all should realize that at
this point, under the morning hour,
we are a bit defenseless as to what
could be done.
Mr. QUAYLE. Mr. President, will
the majority leader yield for an obser-
vation?
Mr. BYRD. Before the Senator re-
sponds, may I say that I think the
Senator raises a reasonable point. I do
not think I should ask to retain this
privilege throughout the day. I would
be willing to limit it to a couple of
hours. I am sure that I will be able to
say within a couple of hours where we
are going and whether or not Senators
are going to be offering serious amend-
ments to the pending business.
All I am asking is that we get the
business going and have serious
amendments and not engage in extra-
neous type of amendments.
Mr. QUAYLE. Mr. President, will
the Senator yield for an observation?
Mr. BYRD. I yield, without losing
my right to the floor.
Mr. QUAYLE. I certainly under-
stand the majority leader wanting to
retain his right, whether it be all day
or until 3 o'clock, to see what the flow
of events is going to be. He certainly
can move now.
I would like to establish what the
flow of events is going to be as soon as
possible, and that means within 2
hours.
If he wants to move the intelligence
authorization bill, the majority leader
can do so, and I will know that is the
pending business. I do not want to pro-
long what may happen throughout
the day, because, depending on wheth-
er we go to the intelligence authoriza-
tion bill or stay on this bill is going to
determine what I am going to do.
The minority leader does, not know
what is going to happen, under the 2-
hour rule, and the majority leader has
the power, established by precedent,
to move to do that. If he makes that
decision, the Senator from Indiana
will make his decision on what he
wants to do. That is why I will object
to retaining that status by the majori-
ty leader.
I would like to know what we are
going to do. I believe we can sit down
during this 2-hour timeframe which
expires at 12 o'clock. We have 45 min-
utes to see if we can get an under-
standing. I do not desire to go beyond
that. The majority leader can make
his decision, and then we can make
our decision.
Mr. BYRD. Mr. President, I am
happy that the Senator is ready to
make a decision. Yesterday afternoon,
I did not see a great inclination on the
part of Senators to move this bill
along.
I ask unanimous consent that I may
retain for 1 hour the status quo inso-
far as the position I am in vis-a-vis the
rules and precedents-1 hour.
The PRESIDING OFFICER. Is
there objection to the request?
Mr. SIMPSON. Mr. President, I
would like to clarify that. Would it be
1 hour past the hour of 12?
Mr. BYRD. No. One hour from this
moment. I have until 12. I am simply
asking for an additional 15 minutes.
That would give the assistant Republi-
can leader and myself time to have our
discussion.
Mr. SIMPSON. Mr. President, I
want to clarify another thing. I have
assumed, as I have heard the majority
leader propound the request, that the
leader is not in any way using this ar-
rangement to cut off amendments to
the polygraph bill.
Mr. BYRD. No.
Mr. SIMPSON. I think that is im-
portant.
S 1681
I can now share with the majority
leader that there is another amend-
ment, by Senator BOSCHWITZ. So there
are four amendments to be dealt with.
That is important in doing our busi-
ness.
Perhaps my friend from Indiana has
something further to add, but at this
point I would not object to the unani-
mous consent request for 1 hour.
Mr. QUAYLE. Mr. President, reserv-
ing the right to object?and I will not
object, in deference to the majority
leader and the minority leader?it is
my understanding that the unanimous
consent request is that the 2-hour rule
expire not at 12 but at 12:15, which
would allow time for discussion. Is-
that correct?
The PRESIDING OFFICER. That is
the understanding of the Chair, that it
be until 12:15.
Mr. BYRD. Mr. President, I will
make it easier on all Senators, so that
this discussion can be brought to a
close.
I ask unanimous consent that I be
recognized at the hour of 12 noon and
at that time my rights will continue as
they are, or I can hold the floor until
then, or I can move now.
Mr. QUAYLE. Reserving the right
to object on the first unanimous con-
sent request--
The PRESIDING OFFICER. The
Senator from Indiana.
Mr. QUAYLE. With respect to ob-
jecting to that, in deference to the ma-
jority leader and the minority leader,
extending it 15 minutes, I will not
object. But I will put the Senate on
notice that if there are further re-
quests to extend that, I will be con-
strained to object, so that we will
know what the order of business will
be by 12:15.
Mr. BYRD. I thank the Senator.
The PRESIDING OFFICER. Has
the majority leader withdrawn the
first request or is it still pending?
Mr. BYRD. I guess I would withdraw
the second request.
The PRESIDING OFFICER. The
second request is withdrawn. The first
request, which was unanimous consent
to extend the period until 12:15?is
that request to be propounded by the
majority leader?
Mr. BYRD. That is the request.
The PRESIDING OFFICER. Is
there objection?
Mr. BYRD. I will also ask unani-
mous consent to be recognized at
12:15.
The PRESIDING OFFICER. Is
there objection to the two requests of
the majority leader: ',hat the time be
extended to 12:15 and that the majori-
ty leader be entitled to recognition at
12:15? The Chair hears none, and it is
so ordered.
Mr. BYRD. Mr. President, I thank
all Senators. I yield the floor.
The PRESIDING OFFICER. The
Senator yields the floor.
The Senator from North Carolina-.
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S 1682 CONGRESSIONAL RECORD ? SENATE
MAJ. GEN. WILLIAM BURNS AND
ABM TREATY
Mr. HELMS. Mr. President, I thank
the Chair.
In further reference to the colloquy
between this Senator and the distin-
guished majority leader concerning the
nomination of General Burns, to be
Director of the Arms Control and Dis-
armament Agency, I would like for the
record to show that I have been in
direct consultation with General
Powell and others at the White House
about this nomination and about mat-
ters related thereto.
Now, General Burns appeared before
the Foreign Relations Committee, and
I would emphasize that he testified
freely and frankly about the problems
facing arms control in the near future.
General Burns is an able man, and I
support his nomination to be head of
ACDA.
ACDA, however, Mr. President, has
a great deal of other problems which
have gone unresolved for far too long,
for months on end.
There are three reports long overdue
which are of significant importance to
this Senate in the consideration of the
INF Treaty.
The Senate cannot responsibly pro-
ceed to markup and have discussion of
the INF Treaty without having the in-
formation in these reports, all of
which are mandated by law, I might
add.
So technically speaking, the law is
being violated by the protracted ab-
sence of these reports.
Moreover, ACDA is under investiga-
tion by both the FBI and the GAO for
serious breaches of national security.
My office has received detailed infor-
mation about the shredding and burn-
ing of several bags of documents from
the offices under investigation.
My discussion with the White House
has been to ascertain where the White
House stands and to make sure that
the White House understands where I
stand, because this incident casts a
shadow over ACDA's role in the INF
negotiations, which I hope General
Burns will remedy.
Now, as to the reports which I men-
tioned, they are as follows:
First is the third 5-year review
report on Soviet ABM Treaty compli-
ance which was due last October. The
second is the report required under
section 52 of the Arms Control and
Disarmament Act which we call the
Pell amendment report. The required
report is on Soviet and United States
compliance with arms control treaties,
and that report is 1 month overdue al-
ready, or more. And the third is a
report required by the Arms Control
and Disarmament Act, section 37,
which we refer to as the Derwinski
amendment report and that report
was due months ago. But not a peep
out of ACDA.
That is what the discussion between
this Senator and the White House has
been about, and there is going to be a
lot of discussion from now on, and an
amendment which we will have pend-
ing in just a few months will deal with
that.
It is time for them to get off the
dime. These reports are highly signifi-
cant, Mr. President.
The third 5-year review must decide
whether there have been any material
breaches of the ABM Treaty. In my
judgment, and in the judgment of
many other Senators, the seven re-
ports which the President has sent to
Congress show conclusively that there
have been material breaches of the
ABM Treaty by the Soviet Union.
That is no secret around this place.
We all know it, whether we acknowl-
edge it or not.
The difference, however, is that the
5-year review must be conducted at
the standing consultative committee
with the Soviets themselves, and, oh,
Mr. President, that is the hangup.
There is a tendency among so many
down in the State Department not to
ruffle any Soviet feathers. Some call it
appeasement. Some call it get along,
go along.
Well, this is the first time the ad-
ministration must actually confront
the Soviets in an international forum
with these material breaches which
the President of the United States has
reported to us, but not a peep out of
the administration. They are too busy
encouraging the euphoria about a seri-
ously flawed INF Treaty.
Now, of course, the consequences of
such a confrontation have a bearing
not only on the INF Treaty, but upon
all ongoing negotiations.
The Pell amendment report must
certify United States and Soviet com-
pliance with arms control treaties.
That is what the amendment which is
now law requires. And the Derwinski
amendment, as we call it around this
place, that report must report on the
verification of proposed treaties, in-
cluding the INF Treaty.
Now, up to this point, in addition to
the telephone conversations between
General Powell and me and others, I
have a letter from General Powell to
the effect that the Pell amendment
report will be submitted to Congress
by March 14 and the Derwinski
amendment report by March 8. This is
good progress, and I feel that we have
made some headway, and I appreciate
the cooperation of General Powell and
others.
But General Powell's response on
the third 5-year review is somewhat
less than satisfactory, and I was
candid with the general about it. He
knows how I feel, and I think I know
the spot he is in. But that does not
matter. What matters is that compli-
ance was due last October, not this
coming October, and there is a great
dragging of feet because they do not
want to ruffle the feathers of the
Soviet Union.
The general, General Powell, stated
that he felt the United States has
until next October to complete that
review, and I will get to it in just a
March 2, 1988
minute, but the United States does not
have that luxury. The United States
was required to have it last October,
not this coming October, and I will get
to that in short order.
I told the general we will just have
to agree to disagree agreeably, but
that he was engaging in a strained in-
terpretation of treaty law which has
no legal precedent in an effort to
delay the review and the report for
more than a year.
I think it makes no sense to proceed
with any treaty, including the INF,
until this 5-year review is accom-
plished, but that is the problem. All
the warts will be visible in terms of the
Soviet Union's duplicity, its violation,
its flagrant violations of the ABM
Treaty, not to mention all other trea-
ties down the line dating back to 1920.
I have confidence that General
Powell and others will act in good
faith on this. I have confidence that
he will consult their attorneys and ask
them what the language means, and I
have confidence that their attorneys
will tell him, "This was due last Octo-
ber; Senator HELMS was right."
And that is why I mentioned to the
majority leader earlier that I personal-
ly, as one Senator, hoped that the
Senate would proceed to the nomina-
tion of General Burns and get this
gentleman confirmed.
Mr. President, I ask unanimous con-
sent that my letter to the President,
bearing the date of February 22, be
printed in the RECORD, followed by the
letter from General Powell, dated Feb-
ruary 25.
There being no objection, the letters
were ordered to be printed in the
RECORD, as follows:
U.S. SENATE,
COMMITTEE ON FOREIGN RELATIONS,
Washington, DC, February 22, 1988.
The PRESIDENT,
The White House,
Washington, DC.
DEAR MR. PRESIDENT: The nomination of
Maj. General William Burns to be Director
of the Arms Control and Disarmament
Agency is now on the Senate Calendar
awaiting action. General Burns testified
forthrightly and fully at his nomination
hearing and appears to be an excellent
nominee.
While I am willing to do anything of a
reasonable nature to expedite confirmation
of General Burns, I am obliged to state that
I am convinced that it would be counterpro-
ductive to debate General Burns' nomina-
tion-at a time when ACDA appears to be in
non-compliance with its legal obligations?a
situation that clouds the current hearings
over the INF Treaty.
I have received reports from witnesses
that large quantities of documents were
shredded late last week in ACDA offices
under investigation by the FBI and GAO.
There is an Implicit confirmation of these
reports in that today an order was issued
that no documents should be shredded. I am
apprehensive that this order was issued too
late.
Moreover, there are three reports mandat-
ed by law which are overdue. All three have
important bearing on the INF Treaty, and it
will be difficult to mark up the treaty intel-
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE S 1683
ligently unless they are received in a timely
fashion. These reports include:
(1) The Third Five Year Review report on
Soviet ABM Treaty compliance (three and
one-half months overdue);
(2) The Arms Control and Disarmament
Act Section 52 (Pell Amendment) report on
Soviet and U.S. compliance with arms con-
trol treaties (one month overdue);
(3) The Arms Control and Disarmament
Act Section 37 (Derwinski Amendment)
report (months overdue).
It is essential that the GAO be given an
opportunity to comment upon the docu-
ment-shredding before General Burns as-
sumes his post; it is also essential that the
three reports be delivered to the Senate in a
timely manner.
I want to be cooperative, and if the above
matters can be dealt with, confirmation of
General Burns can be expedited.
Sincerely,
JESSE HELMS.
THE WHITE HOUSE,
Washington, DC, February 25, 1988.
DEAR SENATOR HELMS: Your letter of Feb-
ruary 22 to the President raises several
issues in connection with the Senate confir-
mation of the pending nomination of Major
General William F. Burns to be Director of
the Arms Control and Disarmament
Agency. I am pleased to note that your con-
cerns are not related to General Burns' per-
sonal qualifications for the position which,
obviously, we both agree are excellent.
With regard to the three reports you ad-
dressed, the report required by Section 37 of
the Arms Control and Disarmament Act will
be forwarded to the Congress not later than
March 8. The report on compliance with
arms control treaties, the so-called Pell
Amendment report, will be submitted to the
Congress no later than March 14.
We believe that the third ABM Treaty
review should take place consistent with Ar-
ticle XIV of the ABM Treaty. Under that
provision, the parties have until October of
this year to accomplish such a review. We
have informed the Soviet Union that ar-
? rangements for the Treaty review, to occur
prior to October 1, will be made through
diplomatic channels.
With respect to reports of documents
being shredded at ACDA that might be re-
lated to a GAO review, General Burns has
given his personal assurances that, if con-
firmed, he looks forward to cooperating
fully with the GAO and the FBI as they
conduct ongoing investigations.
I hope you agree with our judgment that
General Burns should be confirmed as soon
as possible, so that we may have the benefit
of his leadership in dealing with the arms
control issues that lie ahead. Your support
in expediting General Burns confirmation
would be deeply appreciated.
Sincerely,
COLIN L. POWELL.
POLYGRAPH PROTECTION ACT
OF 1987
The Senate continued with consider-
ation of the bill S. 1904.
AMENDMENT NO. 1488
(Purpose: To encourage the United States to
end its present violation of the ABM
Treaty)
Mr. HELMS. Mr. President, I send to
the desk an unprinted amendment and
I ask that it be stated.
The PRESIDING OFFICER. The
clerk will report the amendment.
The legislative clerk read as follows:
The Senator from North Carolina (Mr.
HELMS) proposes an amendment numbered
1488.
Mr. HELMS. Mr. President, I ask
unanimous consent that further read-
ing of the amendment be dispensed
with.
Mr. KENNEDY. Reserving the right
to object, I inquire of the Senator
from North Carolina if I may have a
copy of the amendment.,
Mr. HELMS. That is a fair proposi-
tion.
Mr. KENNEDY. I did not get a copy
of the amendment.
Mr. HELMS. I assure the Senator
will have it in his hands within 10 sec-
onds. I thought it already had been
done.
Mr. BYRD. Mr. President, I object.
The amendment is a short one. I will
object.
Mr. HELMS. No, it is not a short
amendment. I am going to explain it.
Mr. BYRD. It is a short one to read.
I was just objecting to the calling off
of the reading of the amendment.
Mr. HELMS. That is fine. I will be
glad to have it read.
The PRESIDING OFFICER. The
clerk will report the amendment.
The legislative clerk read as follows:
Add at the end of the bill the following
new section:
"Ssc. . (a) Findings.
(1) The Senate finds that the Treaty Be-
tween the United States of America and the
Union of Soviet Socialist Republics on the
Limitation of Anti-Ballistic Missile Systems,
With Associated Protocol, (hereinafter the
"ABM Treaty" or the "Treaty") in its Arti-
cle XIV, Paragraph 2, reads as follows:
"Five years after entry into force of this
Treaty, and at five-year intervals thereafter,
the Parties shall together conduct a review
of this Treaty."
(2) The Senate further finds that such
Treaty entered into force on October 3,
1972, and that the third five-year anniversa-
ry date specified by Article XIV, Paragraph
2, for the conduct of the review contemplat-
ed therein was October 3, 1987.
(3) The Senate further finds that, as a
fundamental principle of the canons of legal
construction, a specified number of years
after a specific and determinable date
means and can only mean the specified an-
niversary of such date and not any time
during such year as may follow such date.
(4) The Senate finds further that had the
Parties to the ABM Treaty intended other-
wise then Article XIV, Paragraph 2, of the
Treaty would have read "During the fifth
year after entry into force of this Treaty,"
but it does not so read.
(5) The Senate finally finds that the Par-
ties to the Treaty have not met as required
by Article XIV, Paragraph 2, because the
United States of America refused or neglect-
ed to meet on the date required, to wit: Oc-
tober 3, 1987, and that the United States,
five months later, still fails or neglects to
meet or even to establish a date for meeting.
(b) Taking account of the findings of this
Section, it is the sense of the Senate that
the United States is violating the ABM
Treaty.".
(Mr. HEFLIN assumed the chair.)
Mr. HELMS. Mr. President, now I
will explain what you have just heard
read by the clerk, although I know the
distinguished Chair understands the
amendment as it has been read.
A number of months ago, Mr. Presi-
dent, our distinguished colleague from
Arkansas, Mr. BUMPERS, alluded in this
Chamber to a possible American viola-
tion of the ABM Treaty. At that time,
I asked the able Senator from Arkan-
sas if he would specify the violation he
had in mind. The ensuing discussion
on the floor resulted in Senator BUMP-
ERS never identifying the violation
and, frankly, I did not pursue the
matter. We left it right there.
Now I find myself in the somewhat
interesting position of concurring with
the view of the Senator from Arkan-
sas, Mr. BUMPERS, that the United
States has in fact engaged in a viola-
tion of the ABM Treaty. It probably is
not the kind of violation that the Sen-
ator had in mind, although it may be.
I do not know what he had in mind.
In any event, as the amendment
states, article XIV, paragraph 2 of the
ABM Treaty reads as follows?and the
actual text is important, Mr. Presi-
dent. Without understanding what the
treaty actually says, some Senators,
understandably, might be misled by
the glib arguments and obfuscation of
the State Department lawyers.
Now the provision that I referred to,
article XIV, paragraph 2, reads: "Five
years after entry into force of this
Treaty, and as 5-year intervals there-
after, the Parties"?and that means
the Soviet Union and the United
States?"the Parties shall together
conduct a review of this Treaty."
That is article XIV, paragraph 2 of
the ABM Treaty.
All right. Mr. President, the term
"entry into force of this treaty" is a
legal specification of a date certain. It
does not mean about such-and-such a
time. It does not mean we will slip it
further down the road a year or 6
months or 30 days. It means what it
says.
The joint committee print entitled
"Legislation on Foreign Relations" on
page 69 states categorically that "The
ABM Treaty"?and I am quoting?"en-
tered into force on October 3, 1972."
Now, bear that in mind: October 3,
1972. That is when this treaty entered
Into force.
So it follows, as Sam Ervin used to
say, at least to those who are able to
read and understand the English lan-
guage, that "5 years after" October 3,
1972, is obviously October 3, 1977, and
that the date of the two succeeding 5-
year intervals after that date, October
3, is?guess what??October 3, 1987,
not 1988, unless they have changed
arithmetic since I have learned it.
So that is the hangup between the
Senator from North Carolina and the
White House and the State Depart-
ment and on down the list. They are
trying to say that October?no, they
do not even say that. They say the 1st
of October of this year. That is not
what the treaty says. In other words,
they are engaged in an interpretation
that is contrary to the plain meaning
of the English language used.
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S 1684 CONGRESSIONAL RECORD ? SENATE March 2, 1988
So that report is long overdue right
now and to delay it until the 1st of Oc-
tober of 1988 just will not wash.
Maybe I ought to spell it out in Eng-
lish. A year is the length of time it
takes the Earth to orbit the Sun. We
read all about that on February 29.
In practical usage, it is either 365
days or 366 days in a leap year. Either
way, it is fairly precise. You can get
down to where that orbit is 365 days
and 6 hours or 365 day and 4 hours
and 37 minutes, or whatever. But we
are talking about what a year is in
terms of the language in the ABM
Treaty, which is being violated by the
United States of America right now.
Maybe the Russian version of a year
is different, but I doubt it. Regardless,
we are, according to the rules and pro-
cedures of the Senate, bound by the
English version, I suppose. And the
English version is certainly unambig-
uous.
Mr. President, the point is this. On
October 3, 1987, last year, the parties,
meaning the Soviet Union and the
United States of America, did not, in
compliance with the treaty, conduct a
review of the ABM Treaty, nor did
they even begin such a review. Nor did
they even set a date for beginning
such a review. And that, as I say, is the
hangup between the administration
and this Senator.
I think I have been trying to support
this administration. The President and
I have been very good friends for a
long time. That does not enter into it.
But I refuse to be a yes-man to the
U.S. State Department when they
start playing fun and games with what
a treaty says and what it means.
On October 3, 1987, there was no
option under the terms of this treaty
but to begin to conduct a review of the
ABM Treaty with respect to violations
by the Soviet Union and by the United
States, if any. But the two parties, the
Soviet Union and the United States,
did not move a peg. They did none of
those things; none. And it was because
the United States?not the Soviet
Union?it was because the United
States did not want to do it. Or they
had this big deal going. Mr. Gorbachev
was coming over here, smile and con-
duct his PR campaign and get out of
his car on Connecticut Avenue and
wave to the people and everybody said:
"Hooray, hurrah; peace is at hand."
Not quite.
Some, in fact, may believe that the
United States wished to avoid this be-
cause the administration would have
been required, no option about it, to
protest at least one material breach of
the ABM Treaty by the Soviet Union.
There is a widespread belief that the
administration may not have wished
to discuss a material breach of one
treaty, meaning the ABM, amidst all
of this PR hype, public relations
effort, on behalf of the INF Treaty.
Maybe they assume that the American
people are stupid and cannot handle
the truth and therefore they will not
share it with them. But I hope that is
not the case.
But this much is clear, Mr. Presi-
dent: At the insistence of the United
States, 5 months have elapsed since
the day on which the meeting was re-
quired under the terms of the treaty
to begin and that failure on our side?
this is not Soviet duplicity, this is
State Department duplicity?that fail-
ure stripped of all the legal blue
smoke and mirrors provided by the
lawyers down in Foggy Bottom in that
vast bureaucracy is, in fact, quite
simply stated, a clear violation by the
United States of the ABM Treaty.
So, Senator BUMPERS was right, last
October. I was wrong. I did not believe
he knew about any ABM violation by
the United States. So to a certain
extent I may be eating a little crow
here. But I am not sure that is the vio-
lation that Senator BUMPERS has in
mind.
One further word and I shall con-
clude. I am sure my friend from South
Carolina, a distinguished and able
lawyer, will agree the Constitution re-
quires the President to see that the
law is faithfully executed. The Consti-
tution makes a treaty supreme law,
which binds all Americans including
even, or perhaps particularly, the
President of the United States. The
President surely agrees that he should
obey the law and without delay direct
that the required meeting occur imme-
diately. Not just sometime this year;
not by October 1 of this year; but im-
mediately. That is what the treaty
says and the treaty is the supreme law
of the land.
I say again, Mr. President, that has
been the hangup between the White
House and me and the State Depart-
ment and me. They can be cavalier
about which laws they obey and exe-
cute if they wish. But as long as I am
here, they are not going to get by with
it.
Thus the pending amendment. I
simply propose to encourage the ad-
ministration to move along and no
longer delay in confronting the Soviet
Union with their violations of the
ABM Treaty. That is all it does.
The violations by the Soviets are far
more dangerous to world peace than
our procedural violations. I will say
again that the failure to abide by that
provision of the treaty no doubt falls
under the general category of appease-
ment and compromise, rather than
one of deliberate falsification. But
either way, it is time for the State De-
partment to get off the dime and
comply with the IBM Treaty.
Mr. President, the reason that I
called up this amendment is I want
the Senators to understand what is
going on. I did not draw the amend-
ment to any particular bill but, of
course, it could have been offered to
any one of several measures and I
guess the polygraph legislation may
have been the best choice that I made,
because the amendment would not be
at all amiss in that context, since the
question is truth in treaties.
Mr. President, having said all that,
and I apologize to the distinguished
manager of the bill for taking so much
time, I am going to end by withdraw-
ing the amendment.
The PRESIDING OFFICER. The
Senator has a right to withdraw the
amendment.
Mr. HELMS. I thank the Chair, and
I yield the floor.
The PRESIDING OFFICER. The
amendment is withdrawn.
Mr. HELMS. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. BYRD. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
CONRAD). Without objection, it is so or-
dered.
Mr. BYRD. Mr. President, I hope
the Senators who have amendments to
the bill will show a disposition to call
them up today. Up to this point, I
have seen no indication on the part of
Senators to call up serious amend-
ments to the bill.
A cloture motion will, of course, be
voted on tomorrow. But in the mean-
time, this is valuable time to spend on
the bill.
Mr. President, does the Senator
from Indiana have an amendment he
wishes to call up at this point?
Mr. QUAYLE. I have a number of
amendments concerning the poly-
graph bill, and if we go ahead on the
polygraph bill today, I would probably
call up some amendments.
Mr. BYRD. The Senator does not
wish to call up one right at this
moment?
Mr. QUAYLE. No, I have no desire
to call one up right at this moment
until we find out what will be the
order of business today.
Mr. BYRD. All right. Mr. President,
we have spent almost 24 hours?it
soon will be, I guess?on this bill.
RECESS
Mr. BYRD. I ask unanimous consent
that the Senate stand in recess for 10
minutes to give me an opportunity to
talk with the Republican leader.
There being no objection, the
Senate, at 12 noon, recessed until 12:10
p.m.; whereupon, the Senate reassem-
bled when called to order by the Pre-
siding Officer [Mr. CONRAD].
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. Mr. President, if the
Chair will indulge me momentarily,
and protect my rights to the floor.
The PRESIDING OFFICER. The
majority leader's rights are protected.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The
majority leader.
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Mr. BYRD. Mr. President, I ask
unanimous consent that the vote on
the polygraph bill occur and final pas-
sage of the polygraph bill occur no
later than 9 o'clock p.m. today, provid-
ed further that no nongermane
amendments be in order, and that no
motions to commit with or without in-
structions be in order.
The PRESIDING OFFICER. Is
there objection?
Mr. SIMPSON addressed the Chair.
The PRESIDING OFFICER. The
acting minority leader.
Mr. SIMPSON. I believe that I
would defer to my colleague from Indi-
ana who is one of the floor managers
and active participants with this legis-
lation. And I do so at this point.
Mr. BYRD. Mr. President, I yield for
the reservation by the Senator from
Indiana. I do not have to yield for
that.
Mr. SIMPSON addressed the Chair.
The PRESIDING OFFICER. The
majority leader has yielded to the Sen-
ator.
Mr. BYRD. No. The Senator can re-
serve the right to object. I maintain
the floor.
Mr. SIMPSON. Mr. President, re-
serving the right to object, the proce-
dural aspects a this matter are that
the majority leader has every right
under the rules to request a nondebat-
able motion to go forward with the
intelligence authorization. There is
nothing to preclude that or prevent
discussion of that.
If we were to go forward with the
polygraph legislation, and we are ap-
parently ready to 'do that, we have ger-
mane amendments that are thought-
ful and address the bill, and those are
ready to be presented. But they have
not yet been presented to this time.
And I would hope that my colleagues
would have come here with the pur-
pose of amending, knowing full well
that cloture has been requested, and
will be performed tomorrow 1 hour
after convening; that they would have
come forward with the amendments.
At this point, I inquire of the majori-
ty leader. The time for the vote cer-
tain, together with the remaining part
of the request that no nongermane
amendments be in order and no mo-
tions to commit or recommit be in
order, that the purpose of that, vis-a-
vis the cloture procedure tomorrow,
would be what?
Mr. BYRD. The purpose of the re-
quest, as I have made it, is to rule out
amendments we know nothing about,
have not seen, could range from the
points of the compass from north to
south, and the Senate would dispose
of this bill today. The cloture vote on
tomorrow would be vitiated.
Of course, I could not go to the intel-
ligence authorization bill except by
unanimous consent unless I find
myself in the position such as I am in
right at this point, in view of the fact
that the Senate has been on this bill
almost 24 hours, it will soon be 24
hours, has made no progress whatso-
ever, there has been very little debate
on it other than debate on nonger-
mane amendments, nongermane
amendments were called up, and were
withdrawn with no progress at all.
I am sure there are Senators who
have germane amendments but they
have not been to the floor and called
them up. Today is a good day, it is
Wednesday, to get some business done.
I am in a position right now to go to
the intelligence authorization bill, and
I would not require unanimous con-
sent to go to it, if I could do that
within the next 5 minutes. Hopefully
the Senate would complete action on
that bill today.
From what I have heard said, it is
believed by the manager, the chair-
man, I believe we can complete action
on that today, and tomorrow the
Senate will automatically vote on the
cloture motion on the polygraph bill.
So in that way I could be sure that
at least the Senate would spend these
3 days on these two bills, and hopeful-
ly we could finish both bills in those 3
days. But if I throw away the next 5
minutes, I then lose my privileged po-
sition that I am in at the moment of
moving to the intelligence authoriza-
tion bill and having that motion not
debatable after which I would have
unanimous consent to go to it, and one
Senator could block that. It is for
these reasons that I feel constrained
to go to the intelligence authorization
bill now unless we can get a unani-
mous consent request that action be
completed on the polygraph bill by no
later than 9 o'clock p.m. tonight, that
there be no nongermane amendments,
and I would have to add to that now
the request that upon final disposition
of the polygraph bill the Senate pro-
ceed to the consideration of the intelli-
gence authorization bill, else I will
have lost the privileged status that the
situation is in right now.
Mr. SIMPSON. Mr. President, is the
majority leader asking unanimous con-
sent that at the completion of the
polygraph measure, we go immediately
to the intelligence authorization bill?
Mr. BYRD. Yes. I am hooking that
to the first request, that the Senate
complete action on the polygraph bill
no later than 9 o'clock p.m. today; that
no nongermane amendments be in
order; and that no motion to commit,
with or without instructions, be in
order.
Mr. SIMPSON. Mr. President, I re-
spectfully say that I must object to
that. I know that the majority leader
could go tomorrow to the same posi-
tion and have a nondebatable motion
tomorrow, with procedures tonight
that would assure that.
I am still ready to produce amend-
ments that are germane to the poly-
graph bill, but I know that he is on
limited time, and I will not transgress.
I think we will have to go forward as
the majority leader would wish to go
forward at this point.
Mr. BYRD. Mr. President, how
much time do I have before morning
hour is closed?
The PRESIDING OFFICER. Three
minutes remain.
Mr. BYRD. I ask to proceed for 2
minutes. That will leave me 1 minute.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, let me
change the request.
I ask unanimous consent that the
Senate complete action on the poly-
graph bill today; that there be a final
vote on passage no later than 9 o'clock
p.m. today; that no nongermane
amendments be in order to the bill;
that no motion to commit or recom-
mit, with or without instructions, be in
order; provided, further, that on to-
morrow, during the morning hour, I be
permitted to be- in the position that I
am right now, of making a nondebata-
ble motion to proceed to the intelli-
gence authorization bill.
The PRESIDING OFFICER. Is
there objection?
Mr. SIMPSON. Mr. President, I re-
serve the right to object.
Mr. QUAYLE. A couple of people
have said to me that on amendments,
with a time certain tonight, we would
move to polygraph. If the majority
leader wants to move to intelligence
after polygraph, this Senator will not
object to that. I have a number of
amendments to offer and will probably
offer them at some time. They are ger-
mane to the bill. A couple may not be
germane in a postcloture-type situa-
tion, but they are with respect to
preemployment screening.
Mr. BYRD. Mr. President, are my
rights being preserved?
The PRESIDING OFFICER. Yes.
Mr. QUAYLE. They are germane to
preemployment screening.
So I would not object, if it is the
desire of the majority leader to move
the authorization bill after we dispose
of the polygraph bill, whether it is to-
night or tomorrow. I could not give a
time certain tonight.
The PRESIDING OFFICER. The 2
minutes have expired.
Mr. BYRD. I have 1 minute remain-
ing.
Mr. President, this thing is so in-
volved from the standpoint of parlia-
mentary procedure that I do not have
the time to describe the position I
have to be in on tomorrow and what I
have to do to get into that position.
I ask unanimous consent that I may
preserve the status quo, vis-a-vis my
position and the nondebatable motion
I could make, for 10 minutes.
The PRESIDING OFFICER. Is
there objection? The Chair hears
none, and it is so ordered.
Mr. BYRD. Mr. President, the dis-
tinguished acting Republican leader
has indicated that on tomorrow, I
could be in the same position to make
a nondebatable motion. I might or I
might not be. One Senator can block
me from getting into that position.
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S 1686 CONGRESSIONAL RECORD ? SENATE March 2, 1988
Mr. President, how much time do I
have remaining?
The PRESIDING OFFICER. Five
minutes and twelve seconds.
Mr. BYRD. Mr. President, I thank
the distinguished acting Republican
leader, who is doing everything he pos-
sibly can to help to resolve this matter
in a way that will see the Senate com-
plete action on the polygraph bill in a
very reasonable length of time, with-
out nongermane amendments, and
allow the Senate to go to the intelli-
gence authorization bill and, hopeful-
ly, to complete action on that before
the break. I thank the distinguished
acting Republican leader for his ef-
forts. He wishes some additional time
so that he can make some contacts.
I ask unanimous consent that my
privileged status in this situation be
preserved for an additional 20 min-
utes, that the status quo remain the
same for 20 minutes.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, I believe
that if I were to yield the floor now
and someone put in a quorum call and
the quorum extended beyond the
point of my 20 minutes, I would lose
my privileged status to move to take
up the intelligence authorization bill.
Am I not correct?
The PRESIDING OFFICER. The
Senator is correct.
15-MINUTE RECESS
Mr. BYRD. Mr. President, I ask
unanimous consent that the Senate
stand in recess for 15 minutes.
There being no objection, the Senate
recessed at 12:30 p.m. until 12:45 p.m.;
whereupon, the Senate reassembled
when called to order by the Presiding
Officer [Mr. CONRAD].
The PRESIDING OFFICER. The
majority leader is recognized.
Mr. BYRD. Mr. President, I yield to
the distinguished acting -Republican
leader for whatever he wishes to say
or whatever he may wish to propose.
We have had some discussion now. I
think we all understand the desire on
the part of myself that the Senate
complete action on the polygraph bill
and the intelligence authorization bill
before the Senate goes out for the
break, and hopefully get on the Price-
Anderson bill. I am not suggesting the
Senate complete action on that bill
before the Senate goes out, but, at
least, upon its return, it would be on
that measure.
But, insofar as the intelligence au-
thorization bill and the polygraph bill,
which is the pending bill, are con-
cerned, we had our recess and I would
be interested in knowing what the dis-
tinguished acting leader is in a posi-
tion to indicate at this point, based on
his conversations.
?Mr. SIMPSON. Mr. President, I have
visited with my colleagues on this
issue. Some have been deeply involved
in this for many months. I believe that
the law of the land is?and you can
propound this or we can do it in the
form of a gentlemen's agreement
which we did quite successfully the
other evening. I was pleased with the
results of that. We never varied from
our agreement one whit, and that was
a long, long evening, as I recall.
So we would then proceed with our
business on the polygraph legislation
today. We have several amendments.
We would go to that immediately
upon the arrival at an agreement. We
would keep people working here this
afternoon doing the Senate's business.
We would vote cloture tomorrow in
the a.m., as set by the majority leader.
We have amendments of Senators
QUAYLE, NICKLES, GRAMM, WALLOP,
MCCONNELL, KARNES, SYMMS, COCH-
RAN, and BOSCHWITZ. As I am able to
determine, all of those are subject to
reasonable time agreements.
But, in any event, we know that clo-
ture is tomorrow and that we have
business to do. Then, after the cloture
vote tomorrow, should it be invoked,
we would go and give consent to go
then to the intelligence authorization
legislation tomorrow. That should not
be terribly contentious from what I
understand here. Then the majority
leader could go forward and lay down
or begin to address Price-Anderson
before we go out for the recess.
I can say that I am not aware per-
sonally whether all of the amend-
ments are totally germane, but I do
not know of any that are detonating
devices. I do not know of those here. I
believe that the purpose of the Senate
will be served. We will debate and we
will have another item of business to
go to and be prepared to go to that to-
morrow.
That is the general outline. We can
develop that further as to motions or
activity or protection as you wish.
Mr. BYRD. Mr. President, I am
happy to enter into a gentlemen's un-
derstanding with the distinguished
acting Republican leader. I have en-
tered into those understandings with
him before and he has always kept
them to the letter. He has had suffi-
cient discussions with his colleagues
on his side of the aisle to know what
he is talking about and to know what
can be counted upon.
I think that the proposal as he has
outlined it ?here is perfectly agreeable
to me. It would be as follows: That the
Senate continue on the polygraph bill
today; there are Senators on that side
of the aisle who are ready to call up
amendments; that the Senate will
debate those amendments, act on
them during the afternoon. We will
have the cloture vote on tomorrow.
Upon the disposition of this legisla-
tion, which will undoubtedly be clo-
tured on tomorrow, the majority
leader would be given consent to pro-
ceed to the consideration of the intelli-
gence authorization bill. So there
would be no question about getting it
up. And that upon the disposition of
that bill, as I understand it, the major-
ity leader would be able to take up?I
assume we are talking about consent; I
have as many problems on my side as
there are on the other side on that
bill; maybe more?that I could have
consent to take up, at least go to,
Price-Anderson before the Senate goes
out for the recess.
Mr. SIMPSON. Mr. President, two
inquiries: that under this proposal the
amendments to the polygraph meas-
ure would be germane to the subject
matter of the bill and not any type of
postcloture germaneness test as we do
our business today, would that be
agreeable?
Mr. BYRD. Yes. That is agreeable.
Mr. SIMPSON. And that at the time
of going toward Price-Anderson that it
would be the House bill that we would
be dealing with?
Mr. BYRD. It would be the House
bill.
Mr. President, the gentlemen's
agreement is fine with me. I do not
intend to try to lay that in stone. As I
say, I do not care to attempt to lay the
details of this understanding into
cement. Because the gentlemen's un-
derstanding is fine with me, absolutely
fine with me. But I wonder if I can get
unanimous consent that upon the dis-
position of the polygraph bill and the
intelligence authorization bill, that
there would be no objection to my
going to the House Price-Anderson
bill?
The PRESIDING OFFICER. Is
there objection?
Mr. SIMPSON. Mr. President, I--
Mr. BYRD. With the understanding
that action would not occur on that
measure this week.
Mr. SIMPSON. Mr. President, I
think I need to?we should resolve the
issue of germaneness today as we
debate precloture; that it will be regu-
lar order of amending and debating
and that there be ordinary rules of our
procedure, with regard to that?
Mr. BYRD. In other words, there
may be nongermane amendments
called up today?
Mr. SIMPSON. There might be, but
I am told it might be a question of
judgment; that they are not truly non-
germane such as dealing with Contra
aid or something of that nature; but
they might be something with regard
to employee testing or something of
that nature.
Mr. BYRD. Yes. That is understood.
Mr. QUAYLE. Will the Senator
yield?
Mr. BYRD. I yield.
Mr. QUAYLE. At least my amend-
ments that I intend to offer will be
generally germane. They may not be
germane on the postcloture situation,
but they will be germane to the discus-
sion of the bill. But, however, I would
hope that we operate under the regu-
lar order that if another Senator
wants to offer something that is non-
germane that he has, or she, perfectly
has that right before cloture is in-
voked? We have not restricted the
Senate's?we have not imposed any re-
strictions on the Senate's nongermane
rules?
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CONGRESSIONAL RECORD ? SENATE S 1687
Mr. BYRD. Mr. President, the Sena-
tor's understanding is correct as far as
I know. Senators may call up nonger-
mane amendments today under the
understanding, but I think the inten-
tion of the acting leader, and col-
leagues on this side, is to, as well as
possible, keep it in the general con-
fines of germaneness today.
Mr. SIMPSON. Mr. President, the
purpose of the exercise is to have a
debate on polygraph, so I hope that
those who want to have an honest
debate on polygraph will visit with
those who have nongermane amend-
ments that do not really deal with
polygraphs so that the debate can be
had as it should be had on a very seri-
ous issue.
Mr. BYRD. All right. Mr. President,
I am satisfied on all four corners of
the understanding. I ask unanimous
consent, however, that upon the dispo-
sition of the polygraph bill, the Senate
proceed to the consideration of the in-
telligence authorization bill.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
Mr. BYRD. Now, Mr. President, I
think we have reached a good under-
standing and it will be my intention,
may I say to all Senators concerned,
that upon the disposition of the intel-
ligence authorization bill I will do ev-
erything I can to proceed to the con-
sideration of the Price-Anderson legis-
lation.
Mr. SIMPSON. Mr. President, that
would be a clarification; that is upon
disposition of the intelligence bill re-
garding whether it is in agreement or
final passsage, if it should get into
contention, we will still go forward
with the Price-Anderson, House ver-
sion?
Mr. BYRD. Yes. That is absolutely
correct.
So all Senators on both sides are
aware of the intentions of the majori-
ty leader insofar as these three meas-
ures are concerned.
I thank the acting leader. I thank
the distinghished Senator from Massa-
chusetts [Mr. KENNEDY] and the Sena-
tor from Utah [Mr. HATCH]. -
Mr. President, I yield the floor.
The PRESIDING OFFICER. The
acting minority leader is recognized.
Mr. SIMPSON. Mr. President, I
want to thank very much Senator
QUAYLE for his assistance. He is a spir-
ited advocate of his position and I re-
spect that greatly and because of his
persistent advocacy we have reached a
result which will bring us to debate on
the polygraph bill, which is something
we all wish to do and the American
public will want to hear that debate. I
thank the majority leader for his un-
usual courtesies and extreme patience
with me in my role as acting leader;
and the Senator from Massachusetts
who, I know along with our ranking
member, Senator HATCH, do very much
want to finish this bill. We have ar-
ranged the path to do that and I
thank him sincerely. I thank the Sena-
tor from South Carolina for his cour-
tesy.
The PRESIDING OFFICER (Mr.
DASCHLE). The Senator. from South
Carolina is recognized.
Mr. THURMOND. Mr. President, I
know that many Members of this body
are concerned about the potential for
polygraph abuse. There certainly is
the possibility that examiners could
use the tests to ask inappropriate or
embarrassing questions to examinees.
We don't want to see these things
happen and, in fact, want to see such
practices stopped when and if they do
occur,
However, the question I ask is
whether the Congress of the United
States is the appropriate legislative
forum for addressing these questions.
As I have said during previous meet-
ings of the Senate Labor Committee, I
strongly believe it is not. I believe that
the Constitution of the United States
clearly grants jurisdiction over this
issue to the States. Moreover, I believe
that the States have proven they are
much better to deal with the complex-
ities of this issue and to develop the
best legislation to meet the needs of
their citizenry than the Congress.
PRINCIPLE OF FEDERALISM
As you know, I am deeply devoted to
the principle of federalism. This is the
fundamental issue before us today. We
may differ on whether the polygraph
works. We may disagree on whether
use of the polygraph should be al-
lowed in the public sector and denied
to the private sector. Moreover, we
may disagree on the best way to pro-
tect the rights of individual citizens
who are asked to take polygraph ex-
aminations.
However, I don't believe we can dis-
agree on whether we should be guided
by the Constitution, and in particular
the principles of the 10th amendment
to the Constitution, in our delibera-
tions about new legislation.
One of the axioms of American con-
stitutional law is that Congress has
only powers that are delegated to it by
the Constitution, or reasonably im-
plied from those so delegated. When
Edmund Randolph, a delegate from
Virginia, proposed the Virginia plan in
the Constitutional Convention of 1787,
it contained a principle by which the
powers of Nation and State could be
divided. It stated:
? " The national legislature ought to be
empowered . . . to legislate in all cases to
which the separate states are incompetent,
or in which the harmony of the United
States-may be interrupted by the exercise of
individual legislation.
This outlined a principle rather than
a method of allocating powers, and as
a principle, it was approved by the
Constitutional ? Convention. Two
months later, the convention gave
these instructions regarding national
powers to those who would be formu-
lating the text of the Constitution:
The national legislature ought to possess
the legislative rights vested in Congress by
the Confederation; and, moreover, to legis-
late in all cases for the general interests of
the Union, and also in those to which the
states are separately incompetent, or in
which the harmony of the United States
may be interrupted by individual legislation.
Acting upon this instruction, the
committee reported back to the con-
vention the specific enumeration of
the powers of Congress found in arti-
cle I, section 8. The committee, adher-
ing, as did the entire convention, to
the principle of delegated powers, thus
gave to the new Congress all of the
powers then believed to be described
in the article of instruction. Further-
more, it provided, in article V, a means
by which those powers could be al-
tered when necessary.
PRESERVING INDIVIDUAL LIBERTY
I fear we have a tendency to disre-
gard this principle that was so central
to the formulation of our Constitu-
tion. Yet it is fundamental to the pres-
ervation of individual liberty and to
preventing the consolidation of over-
whelming governmental power.
The delegates to the Constitutional
Convention were well aware of the
abuses which flowed from the absolute
coalescence of power in one govern-
mental authority. Fresh from their ex-
perience with tyranny, they conceived
a government of limited and delegated
powers.
Their prime concern was that the
people maintain their sovereignty. In
order to accomplish that, power was
first divided between the people and
the government, reserving to the
people the control of the power allot-
ted to the government. This power was
then divided between the Federal and
State 'governments. These parts, in
turn, were -split up among the coordi-
nated legislative, executive, and judi-
cial bodies.
Through these safeguards, they be-
lieved they would be able to prevent a
highly centralized government which
historically have been fatal to civil lib-
erty.
CLOSER TO THE PEOPLE
According to Thomas Jefferson, lim-
iting government to its proper sphere
was the very essence of republican
government; and an important ele-
ment was assuring strong and viable
local governmental authorities. To Jef-
ferson, local governments were closer
to the people, and consequently, more
safely trusted than the national Gov-
ernment.
I speak out about federalism so
often because I believe firmly this is a
central principle in maintaining a
whole system designed to secure limit-
ed Government and individual liberty.
COMPETENCE OF THE STATES
The people of the States created our
National Government and in so doing,
delegated to it specific powers relating
to matters they felt were beyond the
competence of the individual States
Our founders trusted the States to
govern the affairs of their citizens
unless there was an overriding need
for uniformity in national policy.
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S 1688 CONGRESSIONAL RECORD ? SENATE
I believe that governing the poly-
graph industry is not beyond "the
competence of the individual States,"
and I see no need for uniformity in na-
tional policy. In fact, I believe this
issue requires the diverse approaches
of State-by-State legislation that are
being developed to meet the different
needs of the citizenry of our various
States.
As Members of the U.S. Senate, it is
incumbent upon us to protect and
ensure the proper balance of power be-
tween the States and the Federal Gov-
ernment. This legislation has the op-
posite result. It is an intrusion into an
area never delegated to the Federal
Government.
STATES PRODUCE BETTER LEGISLATION
The wisdom of the framers is evi-
dent today through the application of
their arguments to the issue before us.
The principles of federalism are not
just abstract concepts. I believe we are
much likely to get a more precise body
of polygraph law that is much more
responsive to the needs of our citizenry
if the law is developed on a State-by-
State basis.
QUESTIONS LEFT UNANSWERED
S. 1904 simply does not and could
not address the many complex issues
that should be explored regarding
polygraph regulation. Questions in-
volving the merit of preemployment
testing verses incident-specific testing.
Issues such as the diverse body of
opinion concerning the validity of
polygraph testing and how to maxi-
mize the chances of? obtaining the
most accurate results when the tests
are given; and basics such as detailing
and enforcing protections for examin-
ees' rights.
However long and hard we might
work to try to develop the perfect bill,
I believe we would always fail. I do not
believe that the Congress of the
United States ever could or should
write legislation that would adequate-
ly address all of the subtle and com-
plex issues involved in the polygraph
debate. We do not have the authority
to do so, even if we could. We are
bound by the Constitution to allow
the States to resolve these questions.
They, and not the Federal Govern-
ment, clearly are empowered to govern
regarding this issue.
Because the State government pro-
vides a better and closer ear to hear
the voices of individual citizens, the
States will be better enforcers of the
legislation they do develop. They will
more quickly find out how it is work-
ing and be able to follow up with
amendments that assure that their
laws continue to be responsive to the
needs of their citizens.
REASONS FOR STATE AUTHORITY
As many of you know, the adminis-
tration strongly opposes the ban on
polygraph testing contained in S. 1904.
I received a letter from Assistant At-
torney General John Bolton, who out-
lined some of the reasons for the ad-
ministration's opposition. In it, he also
underscores the administration's
strong support for the principles of
federalism. Mr. Bolton outlined a
number of reasons why States are the
appropriate functional jurisdiction for
regulating the polygraph industry. I
would like to relate some of those rea-
sons to you today.
The first is accountability. State gov-
ernments, by being closer to the
people, are more able to be responsive
and accountable to the needs and de-
sires of their citizens.
Second, participation. Citizens are
better able to be involved in develop-
ing legislation at the State level, re-
sulting in a clearer sense of their
actual needs, which in turn are reflect-
ed in the legislation they help to de-
velop.
Third, diversity. The citizens of dif-
ferent States may well have different
needs and concerns. If this matter is
left to the individual States, a much
richer, more diverse, and more appro-
priate body of law will be developed. If
the Federal Government sets the
policy, public policies must conform to
a low common denominator in order to
cover everyone with the same umbrel-
la.
Fourth, experimentation. The
States, by providing diverse responses
to various issues, allow us to test many
different approaches to solving public
policy problems. One State may seize a
novel idea that no one in Washington
would have thought of but which is a
fitting solution to a particular prob-
lem. Without this well-spring of crea-
tivity, our lawmaking would become
stale and sterile.
And that leads me to a fifth point,
containment. If experiments in public
policy are not successful, they can be
tremendously damaging if imposed on
a national scale but , much less so at
the State level. As Mr. Bolton points
out, "While the successful exercises of
state regulation are likely to be emu-
lated by other States, the unsuccessful
exercises can be avoided."
In fact, the heated debate among sci-
entists and scholars about the validity
of the polygraph is evidence that this
Issue has not been resolved to the
point that any national policy could be
formulated.
POLICY UNIFORMITY
There are clearly issues where there
is a need for national policy uniformi-
ty. We must have a uniform foreign
policy if we are to effectively deal with
other nations. If our foreign policy
were dictated by the 50 States instead
of by the Federal Government, our ef-
fectiveness in the world arena would
be severely diluted. Further, the need
for an efficient transportation system
argues strongly for national rather
than State regulation of our airline,
maritime, and rail systems. There are
other examples of things that the Fed-
eral Government is better equipped to
handle than the States, but polygraph
law is not one of them.
March 2, 1988
The States are actively engaged In-
assuming this responsibility. Thirty-
two of the fifty States have some kind
of license or certification requirements
for polygraph examiners. Forty-four
of the fifty States have laws governing
the use of the polygraph in the work-
place; and 33 of the 50 States have ad-
dressed this' issue legislatively since
1980.
STATE-BY-STATE ANALYSIS
For example; the State of Massachu-
setts addressed this issue as recently
as 1982. The law bans most polygraph
testing and requires polygraph exam-
iners in private practice to be licensed.
Utah has required polygraph exam-
iners to be licensed since legislation
was passed in 1973.
The laws in the home States of the
other Members of this body reflect the
richness and diversity of law that our
States are developing.
Alabama has required since 1975 for
a polygraph examiner to be licensed.
This law was revised as recently as
1983.
In Arkansas an examinee must be
told the test is voluntary and State li-
censing is required.
Florida requires a State license.
Georgia requires questions to be pro-
vided in advance in writing, and pro-
hibits questions on race, religion or
politics.
Louisiana has a license requirement,
as well as Mississippi.
New Mexico prohibits questions on
sexual affairs, race, creed, religion,
union affiliations or activity unless
agreed to by written consent. Virginia
requires a license and prohibits ques-
tions similar to those prohibited by
New Mexico.
Mr. President, as I have already
mentioned, 44 States have laws gov-
erning the use of polygraphs in the
workplace. I urge my colleagues to ex-
amine this chart, before voting on this
issue.
STATES SHOW "COMPETENCE"
I believe that this chronicle of State
law presents the case more effectively
than any argument I can make of the
States' ability and willingness to regu-
late or ban the administration of poly-
graph tests. Only the States have the
power and the ability to develop a
body of polygraph law that will ad-
dress the many complexities this issue
presents. If polygraph abuse is a prob-
lem in one State, then that State has
the option of outlawing its use there.
But other, States may find that it is a
tool that is being used responsibly and
that it is contributing to the stability
of the companies operating there. If
so, those States have the option of
regulating it to protect citizens from
abuse, as so many have done.
Mr. President, S. 1904 completely
undermines the solutions fashioned,
through their legislative process, by
the people of these and other States.
When the Federal Government
threatens to overrule the States on
issues that are clearly in their pur-
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CONGRESSIONAL RECORD ? SENATE S 1689
view, it is no surprise that some are
hesitant to tackle tough questions if
they fear it will be negated by unnec-
essary Federal intervention.
LEARNING FROM EXPERIENCE
In my opinion, Mr. President, we did
not have ample opportunity to hear
from the States when we conducted
our hearings on this issue earlier this
year. I believe that we could have
learned a great deal by hearing testi-
mony from a representative group of
State officials who have had experi-
ence with administering polygraph
laws.
Instead, we heard from only one
State official, Attorney General
Robert Abrams of New York who
? asked for Federal legislation because
he has been unable to get a State law
passed in New York. I must say that as
a former Governor, it was displeasing
for me to see a statewide elected offi-
cial appear before the Labor Commit-
tee petitioning the Federal Govern-
ment to take over a responsibility that
clearly belongs to the States.
EXPERIENCE OF STATES
Testimony that we did not hear, but
should have, was submitted to the
Labor Committee in writing by the
former Secretary. of State from Flori-
da, Mr. George Firestone.
Mr. Firestone has had ample experi-
ence administering polygraph law in
Florida, and he indicated his belief
that polygraph regulation works. He
said that he believes the public has a
right to privacy and that that right
should be protected. However, he said
his experience proves it is possible to
protect those rights without prohibit-
ing polygraph testing which, he said,
"has consistently proven that its merit
to society outweighs its risk."
His experience also shows that, with
proper regulation, the abuses we are
concerned about can be virtually elimi-
nated. There are more than 500 fully
licensed polygraph examiners in Flori-
da, conducting more than 300,000 tests
annually. State law requires that each
examinee be told he or she can file a
complaint if there are any impropri-
eties. Yet only one validated complaint
had been filed against an examiner in
the year before Mr. Firestone submit-
ted his testimony to the committee.
RESPECTING DIFFERENCES
I also believe that the Florida expe-
rience underscores another important
point that I made earlier. In discussing
States rights, I indicated that there
may be differences in the States that
require them to have different regula-
tions. Mr. Firestone gave us a perfect
example: He said that Florida is a par-
ticularly transient State where tradi-
tional background investigations are
frequently impossible to perform. Fur-
ther, it also has a large immigrant
population.
Proponents of a polygraph ban say
that background investigations and
reference checks are a suitable substi-
tute for polygraph testing. However,
they are not always possible. Mr. Fire-
stone pointed but that in Florida?
and, of course, in many other States?
the use of the polygraph actually
allows residents to establish them-
selves in the work force. It is not the
employment barrier that polygraph
opponents so often claim but rather
an opportunity for employment that
might not otherwise be available.
Mr. Firestone said that the poly-
graph provides the business sector
with an objective method of minimiz-
ing risk to itself and to the public by
assuring the integrity of potential em-
ployees.
It benefits all of us when those who
are qualified to work can-find jobs.
EXONERATING THE INNOCENT
Further, State officials have argued
their citizens should have access to the
polygraph because it often serves to
protect the jobs of employees who
may be working in an area where theft
occurs. There are many instances
every day in American business and in-
dustry where a crime is committed and
several employees are implicated.
Without the polygraph, the employer
may have felt it necessary to dismiss
all of them. However, when he has
access to polygraph test results, the
person who committed the crime can
more easily be determined?and the
innocent employees exonerated, in-
stead of fired. Whether we agree that
this works or not is not the issue. The
Issue is whether or not local policy-
makers believe it does. Those who be-
lieve this is a useful tool for that pur-
pose have the constitutional authority
to allow their citizens to use it. Many
States have found it can be especially
effective when they enforce their own
sets of standards, restrictions, and
practices regarding the polygraph.
If the Congress were to outlaw poly-
graph testing in the private sector, as
S. 1904 would require, the Federal
Government would be barging into an
area where it has neither the jurisdic-
tion nor the ability to adequately reg-
ulate. The consequences could be to
intrude on the legitimate right of local
authorities to manage their own af-
fairs.
REGULATION, NOT PROHIBITION
The legislation that we are consider-
ing here today would have far reach-
ing and sweeping affects on American
businesses, on employees and prospec-
tive employees, and on the body of
polygraph law that is being developed
by the States. Before we take such a
major step, I believe we are obligated
to develop a much more substantial
hearing record than we have so far.
There are many who feel that regula-
tion, and not prohibition, is the key to
protecting our citizens. I believe we
need to learn much more about the
successes and failures of the States'
experience with regulation and bans
on polygraph testing.
We would need to have good reason
to strip polygraph regulation from the
purview of the States, especially since
they have developed a significant body
of law already on this issue.
STATES ARE BEST REGULATORS OF SERVICES
It traditionally is the purview of the
States to regulate commerce within
their boundaries. They have mecha-
nisms to certify that those who deliver
health care services to residents are
qualified to do so. They oversee insur-
ance and real estate brokers, utility
companies, doctors, lawyers, and den-
tists, to name just a few.
The States are equipped to regulate
the services offered by polygraph eX-
aminers as well.
Assistant Attorney General Bolton
also has addressed this issue. He said:
Polygraph misuse may be more appropri-
ately deterred by restricting the conditions
under which polygraphs are administered
rather than prohibiting their use altogeth-
er. The states are better equipped to make'
those determinations.
OTHER PROTECTIONS
Mr. President, besides existing State
law, other mechanisms are in place to
address the issue of polygraph abuse
in the private sector: namely, the col-
lective bargaining process and the
courts.
The courts provide an appropriate
forum for redress for any citizen who
feels his or her rights have been vio-
lated.
American workers have additional
protection from polygraph abuse
through the collective bargaining
process. Mr. William Wynn of the
United Food and Commercial Workers
Union has said that 90 percent of the
union's collective bargaining agree-
ments prohibit polygraph testing.
Labor and management have the
tools to find their own solutions in
conjunction with existing State law on
polygraph testing. This system allows
even more fine tuning than State
law alone.
I recognize that there may be abuses
In the polygraph industry, and I urge
the industry and the States to correct
these deficiencies. However, under our
constitutional system, not every prob-
lem has a Federal solution. If a Feder-
al solution is desired, but not constitu-
tionally available, then there is a pro-
vision for amending the Constitution
wherein these additional powers can
be granted.
THEORY OF NATIONAL POWER
In spite of the conclusive evidence to
the contrary, it has sometimes been
urged that the framers intended that
Congress should haVe the power to
deal with any truly national problem,
whether that power is delegated to it
or not.
It was this theory of national power
which was presented to the Supreme
Court in the case of Kansas versus
Colorado in 1907 by President Theo-
dore Roosevelt's Attorney General.
The Supreme Court's decision on
this issue was very clear, and reads in
part:
The proposition that there are legislitive
powers affecting the nation as a whole
which belong to, although not expressed in,
the grant of power, is in direct conflict with
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S 1690 CONGRESSIONAL RECORD SENATE March 2, 1988
? the doctrine that this is a government of
enumerated powers. That this is such a gov-
ernment clearly appears from the Constitu-
tion, independently of the Amendments, for
otherwise there would be an instrument
granting certain specified things made oper-
ative to grant other and distinct things.
This natural construction of the original
body of the Constitution is made absolutely
certain by the 10th Amendment. This
amendment . . . disclosed the widespread
fear that the national government might,
under the pressure of a supposed general
welfare; attempt to exercise powers which
had not been granted. With equal determi-
nation the Framers intended that no such
assumption should ever find jurisdiction in
the organic act, and that if, in the future,
further powers seemed necessary, they
should be granted by the people in the
manner they had provided for amending the
act. It read: "The powers not delegated to
the United States by the Constitution, nor
prohibited by it to the states, are reserved
to the states respectively, or to the people."
It is incumbent upon us to respect
and abide by these constitutional prin-
ciples.
In conclusion, I would like to make
just one further point that I believe
further emphasized the wisdom of our
Constitution in reserving authority to
our states.
DOUBLE STANDARD
If S. 1904 were to pass, it would es-
tablish a double standard in which the
public sector would be allowed to use
the polygraph for employee screening
and incident investigation. However,
the private sector would be much
more limited in its use of the poly-
graph. How would we explain that to
our constituents?
The Federal Government, and espe-
cially its national security agencies,
apparently feel they need access to
the polygraph to conduct their busi-
ness, and they have access to it.
Whether individual citizens or busi-
nesses need the polygraph to conduct
their business is not a matter for the
Federal Government but rather one
for local governments to decide. If
they decide it is not in their citizens'
best interest to allow use of the poly-
graph, then they can outlaw it. That
ban would not set up the national
double-standard that S. 1904 would
perpetuate.
I urge my colleagues to consider
these issues during the debate today.
Perhaps the constitutional question is
abstract and not pertinent to contem-
porary political concerns; but the
Senate of the United States has a
solemn obligation to uphold the Con-
stitution of the United States. This
legislation, in my opinion, violates
that obligation. I urge my colleagues
to join with me in opposing S. 1904
and allowing our local governments to
continue to do their job in exploring
and debating this issue and developing
their own body of legislation.
Now, Mr. President, a very able
lawyer from Richmond, VA, Mr. David
E. Nagle, has made an analysis of this
bill, the benefit of which I would like
to give the Senate. This is a letter that
Is written to Mr. Powell A. Moore, of
Ginn, Edington, Moore & Wade, 803
Prince Street, Alexandria, VA 22314.
Mr. Nagle says:
DEAR MR. MOORE: As an attorney who rep-
resents management in employment litiga-
tion, I am frequently called upon to advise
employers regarding the lawful use of the
polygraph in the workplace. I have accord-
ingly kept abreast of efforts to secure feder-
al legislation restricting employers' rights to
conduct such tests. Pursuant to your re-
quest, I have reviewed Senator Kennedy's
bill, S. 1904, and offer the following com-
ments.
Even before it was formally introduced,
Kennedy's bill was touted as a compromise
measure, one that would resolve the endur-
ing battle over polygraph testing. It was
supposed to be a trade-off--the elimination
of pre-employment and periodic examina-
tions, in exchange for allowing testing in in-
vestigations into employee misconduct.
In fact, the bill as drafted will virtually
eliminate all polygraph testing in the work-
place. The circumstances in which testing
can be conducted are so limited, the expo-
sure to litigation is so substantial, and the
penalties for violations are so severe, that I
suspect the vast majority of employers have
no alternative but to abstain from all test-
ing. While I recognize this as the objective
of the bill's patron, I fear many of the bill's
current supporters are unaware of the true
character of this legislation.
The issues raised here are complex, and
in-depth analysis would be preferred, but
the reasons that the bill fails as a compro-
mise fall into three categories.
I. The bill does not provide an employer
with a meaningful opportunity to utilize
polygraph testing as part of an investigation
into employee misconduct.
First, the bill does not allow testing in the
course of investigations into drug use or
drug sales on the premises, into allegations
of sexual harassment, or many other mat-
ters relating to unsafe and/or criminal con-
duct on the job.
Second, in those limited subject areas
where testing may be allowed, the employer
must establish "reasonable suspicion" with
respect to any employee tested, then file a
formal report of the incident or develop a
lengthy internal statement (a copy of which
is given to the suspect) setting forth the
basis for the suspicion.
It is this aspect of the bill, when viewed in
conjunction with the risk of litigation and
harsh penalties, that may lead employers
investigating misconduct to discharge all
employees in a group of suspects, rather
than raise the issue of polygraph testing. If
the polygraph is effectively made unavail-
able to help clear the innocent, or to help
identify the guilty, the "protection" afford-
ed employees under this legislation is of du-
bious value. Investigations into misconduct
may be resolved In a non-discriminatory
manner?through discharge of guilty and
Innocent alike.
Third, even in those situations where the
employer is able and willing to accept the
legal risks associated with testing to further
its investigation, the suspect employee
cannot be required to take the polygraph,
and neither the test results nor a refusal to
submit to a test can serve as the basis for
discipline or discharge without additional
supporting evidence.
An employer who does not utilize the
polygraph needs no evidence to terminate
an individual under the prevailing doctrine
of employment at will, but under this bill,
when an employee is found deceptive on a
polygraph (or refuses to submit to a test)
then an employer must have additional sup-
porting evidence. A discharge that fails to
meet this vague standard subjects the em-
ployer to harsh penalties.
II. The restrictions and requirements are
so ambiguous as to be certain to result in
much litigation.
While some aspects of the bill are compa-
rable to many state laws limiting areas of in-
quiry and imposing examiner licensing re-
quirements, other provisions go much fur-
ther. For example, the bill prohibits the
asking of questions "in a manner that is de-
signed to degrade, or needlessly intrude"
upon the examinee. As noted above, a dis-
charge on the basis of polygraph test results
Is unlawful without "additional supporting
evidence"?but there is no guidance as to
what will be sufficient.
III. An employer acting in good faith and
attempting to comply with the law might
well be found in violation. The penalties for
non-compliance are so severe that few em-
ployers will be willing to exercise their right
to use polygraph in ongoing investigations.
Virtually all employers (even those who
have never used polygraphs) would be re-
quired to post a notice to employees regard-
ing this law; failure to post resulting in fines
of 6100 per day. Any other violations of the
law can result in civil penalties of up to
$10,000. There are no comparable penalties
imposed for violations of our most signifi-
cant employment laws, e.g., the National
Labor Relations Act, Title VII of the 1964
Civil Rights Act, or the Equal Pay Act.
Furthermore, an individual can bring a
private civil action under this bill, and if an
employer is found to have violated this law,
the person may be awarded "employment,
reinstatement, promotion, and the payment
of lost wages and benefits" as well as other
"legal and equitable relief as may be appro-
priate"?perhaps opening the door to
awards for pain and suffering, embarrass-
ment, and punitive damages. To keep the
wheels of justice rolling, of course, prevail-
ing parties recover their costs and attor-
neys' fees as well.
In summary, as currently drafted, the bill
does not do what its sponsors claim, but in-
stead effectively eliminates employers' right
to utilize polygraph testing in the investiga-
tion of misconduct, and the preservation of
safety and property in the workplace. I fear
that many of those who innocently and sin- ,
cerely endorsed the notion of "compromise"
have, in fact, been duped. If this bill is
passed into law, I see no alternative but to
advise my clients to eliminate all polygraph
testing from their workplace.
Finally, if an explanation of my creden-
tials is in order, I have published one law
review article and several pieces in journals
regarding polygraph in the workplace. I
have lectured on this subject in 9 states to
some 25 groups of employers, polygraph ex-
aminers, and university students, and I have
served on the Virginia Polygraph Advisory
Board since 1985 when I was appointed by
Governor Robb.
Thank you for this opportunity to explain
my concerns with this proposed Piece of leg-
islation. I sincerely, hope you will be able to
shed sufficient light on the true impact of
this bill to bring about its defeat. If there is
any other way in which I can be of assist-
ance, please do not hesitate to contact me. I
remain,
Sincerely yours,
DAVID E. NAGLE.
Mr. President, as I say, Mr. Nagle is
a very able and prominent lawyer
from Richmond, VA. I think his analy-
sis clearly sets out the situation.
Mr. President, there are many orga-
nizations that oppose this bill. I will
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Mach 2, 1988 CONGRESSIONAL RECORD ? SENATE S 1691
read a letter from the U.S. Chamber
of Commerce:
U.S. CHAMBER OF COMMERCE,
Washington, DC, February 11, 1988.
Hon. STROM THURMOND,
U.S. Senate,
Washington, DC.
DEAR STROM: The U.S. Chamber of Com-
merce, on behalf of its approximately
180,000 members, respectfully urges you to
oppose S. 1904, the Polygraph Protection
Act of 1987.
S. 1904, introduced by Senator Kennedy
(D-MA), would prohibit most private em-
ployers from using the polygraph for the
purpose of screening prospective employees.
Employers have found the polygraph to be
an invaluable tool for deterring workplace
crime and identifying security risks among
job applicants. It helps to protect the finan-
cial health of ? American business and the
health and safety of customers, employees
and the public; therefore, limiting its use is
not in the best interest of the American
public or business.
The polygraph has proven its worth in as-
sisting defense agencies in guarding nation-
al security; business should also have access
to it. Congress has repeatedly overwhelm-
ingly endorsed its use for this purpose.
On June 16, 1985, the House of Represent-
atives voted 331-71 in favor of an amend-
ment allowing the Department of Defense
to increase the polygraph screening of per-
sonnel with access to sensitive information.
On July 7, 1985, the Senate voted 94-5 to
agree to the conference report containing a
polygraph program.
On May it, 1987, the, House voted 345-44
for an 'amendment to the Department of
Defense Authorization bill, offered by Con-
gressman Bill Young of Florida, establish-
ing a permanent polygraph program for na-
tional defense agencies. On November 19,
1987, the Senate 'voted 89-6 to agree to the
conference report containing a permanent
polygraph program.
Current employee theft raises the cost of
goods to consumers by as much as 15 per-
cent and continues to escalate. The Drug
Enforcement Administration, which has en-
dorsed polygraph use in employee-screening
programs, estimates that one million doses
of drugs are stolen each year from drug re-
tailers, wholesalers and distributors. One
employer, Days Inn of America, testified at
a Congressional hearing during the 99th
Congress that the use of polygraph has
helped to reduce its annual losses from
more than $1 million to $115,000.
I want to repeat that last statement,
Mr. President.
One employer, Days Inn of America, testi-
fied at a Congressional hearing during the
99th Congress that the use of the polygraph
has helped to reduce its annual losses from
more than $1 million to $115,000.
Crime in America is a serious, pervasive
concern. Day care centers must be able to
pre-screen prospective employees to prevent
incidents of child abuse. Nursing homes
must know if their sick and often helpless
patients are at risk of death. Public utility
companies, chemical plants, airlines and
railroads are only a few examples of the in-
dustries that need to be able to screen pro-
spective employees to help avoid public dis-
asters.
The rights of employers to use the poly-
graph to protect their employees, their
assets and themselves must be preserved.
The Chamber respectfully urges you to
oppose S. 1904, the Polygraph Protection
Act of 1987. Enclosed you will find a list of
the business and trade associations who
oppose S. 1904.
Sincerely,
ALBERT D. BOURLAND.
Mr. President, the list which the
Chamber of Commerce has attached
opposing this bill is a most imposing
list. I would like for the Senators to?
listen to this list.
U.S Chamber of Commerce (Washington,
D.C.).
Alabama Hotel & Motel Association
(Montgomery, Alabama).
Alabama Retail Association (Montgomery,
Alabama).
American Hotel & Motel Association
(Washington, D.C.).
? American Polygraph Association (Alexan-
dria, Virginia).
American Rental Association (McLean,
Virginia).
American Road & Transportation Build-
ers Association (Washington, D.C.).
American Society for Industrial Security
(Arlington, Virginia).
American Supply Association (Chicago, Il-
linois).
American Trucking Association (Washing-
ton, D.C.).
APCOA, Inc. (A Member of the National
Parking Association)-(Cleveland, Ohio).
Association of Oilwell Servicing Contrac-
'tors (Dallas, Texas).
Automotive Parts & Accessories Associa-
tion (Lanham, Texas).
Automotive Wholesalers Association of
Tennessee (Nashville. Tennessee).
Bishop, Cook, Purcell & .Reynolds (Wash-
ington, D.C.).
Bowling Proprietors Association of South-
ern California (Burbank, California).
California Jewelers Association