TAIWAN ENABLING ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000100050009-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 30
• Document Creation Date: December 21, 2016
• Document Release Date: October 27, 2008
• Sequence Number: 9
• Publication Date: March 12, 1979
• Content Type: OPEN SOURCE

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S 2472 CONGRESSIONAL RECORD - SENATE
be opposed by a few die-bards who are still
fighting the Civil War.
Recently, at The White House observance
of Human Rights Day, Dec. 6, 1978, Presi-
dent Carter again called for Senate approval
of ratification. He said: "Eighty-three other
nations have ratified the Genocide Conven-
tion. The United States-despite the support
of every President since 1948-has not. In
international meetings of the United Na-
tions and elsewhere, and when I meet with
foreign leaders, we are often asked why. We
do not have an acceptable answer. I urge
the United States Senate to observe this
anniversary in the only appropriate way: by
ratifying the. Genocide Convention at the
earliest possible date".
My information is that the Foreign. Rela-
tions Committee will hold no further hear-
ings on the Genocide Treaty. Persumably the
Committee will report the treaty out favor-
ably again, as it did previously. However,
the Senate leadership has indicated it will
not put it on the calendar until it is as-
sured of the 60 votes necessary to impose
cloture, thus stopping a filibuster. Because
the matter has been dragging so long, most
senators are indifferent to it. Accordingly, it
is doubly important that members of the
Senate hear from citizens around the coun-
try. Members of this Commission are here in
a representative capacity. This means that
you represent some organization probably
having a national standing. If every member
of this Commission were to request the
national office of his/her organization to
have members around the country write to
their senators urging that the Genocide
Treaty be brought on for a vote on the
Senate floor, this could well produce the
desired result. It is amazing what a limited
number of letters from around the country
can accomplish.
Our failure to ratify these treaties ap-
proaches a national disgrace, and there would
be nothing gained by attempting to explain
away our non-action on any credible basis.
This applies with particular force to our
failure to ratify the treaty against Genocide,
which, unbelievable as it may be, has been
pending in the United States Senate since
1948.
Mr. PROXMIRE. I thank the distin-
guished majority leader for his generos-
ity, and I yield the floor.
Mr. ROBERT C. BYRD. Mr. President,
I yield back the remainder of my time.
ROUTINE MORNING BUSINESS
The ACTING PRESIDENT pro tem
pore. Under the previous order, there will
now be a period for the transaction of
routine morning business for not to ex-
ceed 15 minutes, with statements therein
limited to 5 minutes each.
Mr. ROBERT C. BYRD. Mr. President,
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tem-
pore. The clerk will call the roll..
The second assistant legislative clerk
proceeded to call the roll.
Mr. ROBERT C. BYRD. 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 ordered.
CONCLUSION OF MORNING
BUSINESS
The ACTING PRESIDENT pro tem-
pore. Is there further morning business?
If not, morning business is closed.
TAIWAN ENABLING ACT
The ACTING PRESIDENT pro tem-
'pore. Under the previous order, the Sen-
ate Will now resu- consider d
f th
o o
e
The legislative clerk read as follows:
A bill (S. 245) to promote the foreign pol-
icy of the United States through the main-
tenance of commercial, cultural, and other
relations with the people of Taiwan on an
unofficial basis, and for other purposes.
The Senate resumed the consideration
of the bill.
Mr. ROBERT C. BYRD. Mr. President,
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tem-
March 12, 1979
The property in question is located at
Twin Oaks, the former Republic of
China Embassy on Woodley Road in
Northwest Washington (including 19r/y
acres of land) ; the Chancery and the
military attache's office on Massachu-
setts Avenue. The combined value of the
property is about $3 minion.
The House Foreign Affairs 'Committee
has already taken this action.
The Senate Foreign Relations Com-
mittee considered the matter and decided
to let the courts decide the question of
ownership of diplomatic properties.
However, with all due respect for the
work of the committee, I see nothing
wrong and, in fact, I see a great deal
right, with leaving the property in the
Mr. ROBERT C. BYRD. I thank the.. hands of the people who have had it for,
Chair. I ask unanimous consent that the
time be charged equally to both sides.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
The clerk will call the roll.
The second assistant legislative clerk
proceeded to call the roll.
Mr. BOREN. 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 ordered.
AMENDMENT NO. 60
(Purpose: To amend section 111(a) of S. 245)
Mr. BOREN addressed the Chair.
The ACTING PRESIDENT pro tem-
pore. Who yields time? Does the Sena-
tor from Oklahoma wish to propose an
amendment?
Mr. BOREN. Yes, Mr. President, I have
an amendment that I have previously
sent to the desk.
The ACTING PRESIDENT pro tem-
pore. The clerk will state the amend-
ment.
The assistant legislative clerk read as
follows:
The Senator from Oklahoma (Mr. BOREN).
for himself, Mr. DOLE, Mr. HOLLnVGS, Mr.
HELMS, Mr. MORGAN, and Mr. BASH proposes
an amendment numbered 80:
On page 12, strike out-
Mr. BOREN. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The ACTING PRESIDENT pro teni-
pore. Without objection, it is so ordered.
The amendment is as follows:
On page 12, strike out lines 5 through 12,
and substitute:
SEC. 111. (a) For all purposes, including
actions in all courts in the United States.
recognition of the People's Republic of
China shall not affect the ownership of, or
other rights, or interests in, properties, tan-
gible and intangible, and other things of
value, owned, acquired by, or held on or prior
to December 31, 1978, or thereafter acquired
or earned by the people on Taiwan.
Mr. BOREN. Mr. President, this
amendment has a very simple purpose.
It would allow Taiwan to keep its diplo-
matic real property. in the United States.
The section as now written provides
that Taiwan can keep its foreign ex-
change assets, bank deposits, and prop-
erty, but it makes an. exception of diplo-
matic real property acquired prior to
October 1, 1949.
the last 30 years.
received by our friends and allies on Tai-
wan, there is no justification for adding
the indignity of summary eviction to the
list.
We are not dealing with an enemy, but
with a friend. Taiwan has consistently
supported this Nation , politically and
militarily. Taiwan is also our eighth
leading trading partner. We have an an-
nual bilateral trade of $7.2 billion.
Taiwan is one of the best cash customers
for our agricultural products.
It may be "normal" diplomatic proce- a
dure to transfer control of such property
when government's change, but there is
very little normality to this whole issue.
The State Department has argued that
the United States "acknowledges" but
does not necessarily agree with the posi-
tion that there is one China and that
Taiwan is a part of China. In addition,
our Government has chosen to leave am-
biguous the question of the Taiwanese
government's status with respect to in-
ternational law. There are in force 17
treaties and other agreements still in
existence which were negotiated with
the then government on mainland China
prior to 1949.
We are therefore not dealing with a
situation here in which one government
in a definite geographical area has re-
placed another which no longer has a
defacto ability to govern any, area. It is
not like the recent situation in Iran, for
example, where one regime has replaced
another from a factual point of view.
We are dealing with a friendly govern-
ment which is fact remains the effec-
tive government over a geographical area
known as Taiwan and 17 million people.
To allow Taiwan to retain its diplo-
matic property is small compensation to
an old and trusted ally. The passage of
this amendment would in a small way
be a symbolic gesture that -would indi-
cate to the rest of the world, who are
watching our handling of this matter,
that we mean what we say in professing
a strong desire to maintain future cul-
tural, economic and security ties to 17
million friends.
I urge the Senate to' adopt ,this
amendment. It is in the interest of this
country to do so as a gesture to our
friends on Taiwan. It is in our interest
to do so as a message to our allies around
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March 12, 1979
CONGRESSIONAL RECORD - SEkg.4Th
I had asked the Defense Department
to explain the rationale for increasing
the strategic airlift ' ogram at a cost
of about $13 billion. That efforts by my
Subcommittee on Prior ies and Econ-
omy in Government and by GAO ,were
completely frustrated by a Pentagon.
The Pentagon first denied he commit-
tee and the GAO access requested
documents. Subsequently, ,the a kind
of information concerning strat 'c air-
lift that had been discussed ope y was
classified on national security grow s.
Prior to 1977 Defense Depart ent
spokesman used statistics about air t
spokesmen told my subcommittee that
similar information was now considered
classified.
OVERSIGHT SYSTEM INEFFECTIVE
Most of us thought progress was made
in eliminating unnecessary classification
under the oversight system put into effect
in 1972. This turns out not to be the case.
Although I asked GAO to investigate
the problem of overclassification, its in-
quiry revealed that the systems employed
by the agencies that do most of the clas-
sifying is too slipshod and weak to learn
anything substantive about specific clas-
sification actions.
Agencies such as the Pentagon and the
CIA do not keep adequate records; do not
ii ii tain up-to-date inventories and do
not report accurately about'their clas-
sification actions.
EVIDENCE OF MASSIVE OVERCLASSIFICATION
There is now evidence of massive over-
classification of national security docu-
ments and flagrant noncompliance by the
Pentagon and other agencies with proce-
dures set up to prevent abuses of the
classification system.
According to GAO, oversight of the
Government's classification program has
been ineffective because the National
Security Council and the Interagency
Classification Review Committee did not
require agencies to comply with proce-
dures that would have provided complete
information on their classWcation ac-
tivities.
The program was established in 1972
by an Executive order of President Nixon
to prevent classification of Government
documents on national security grounds.
The purpose was to make information
about Government affairs more readily
available to the public, except for infor-
mation bearing directly on defense and
foreign relations.
PERVASIVE MISREPORTING
But there is more unnecessary classi-
fication and overclassification today than
ever before and there is pervasive mis-
reporting by Government agencies of the
facts.
The Pentagon reported 3.6 million
classifications actions in 1977. GAO esti-
mates the correct number at from 50 to
100 million.
Thy_qI.A,reported under 600.000 classi-
fication actions annually when the true
number was about 5,000,000.
NONCOMPLIANCE OF GOVERNMENT AGENCIES
The Pentagon and the,
CIA also did
not comply with, the regu~at1 ns con-
cerning classification abuses.
One of the great difficulties, Mr. Presi-
dent, is that almost anybody who is
cleared for high security matters, includ-
ing secretaries and clerks, is free to take
that stamp and classify material willy-
nilly. Of course, it is always easier to
classify material because . it not only
avoids any kind of possible mistake but
it also makes it possible to avoid criti-
cism.
Knowledge and understanding by the
press and by the public are matters that
should be debated.
The regulations prohibit unauthorized
classification, unnecessary exemptions
and other improper actions.
GAO found that in the 6-month period
riding December 31, 1977, the C-
Ag cy refused to comply with the reg-
ulat ons on grounds that there are no
pract'cal means to monitor all classifica-
tion it tions.
GA finds the agency's failure to col-
lect an report statistics on classification
abuses justified.
GAO ints out that most agencies do
report sta sties concerning abuses based
on inspecti s and reviews.
VIRTUALLY A ONE WITH A CLEARANCE CAN
CLASSIFY
A major real for the massive and
almost control) classification of gov-
ernment documenta, is that agencies are
classifiers to take classification actions.
Virtually anyone in Pentagon with
a security clearance can classify infor-
Relatively low level perso s, including
clerks and stenographers, ar allowed to
put security stamps on verinment
documents.
Overclassiflcation and the fa ure to
declassify promptly results in ons
of dollars of increased costs for exte ded
storage and protection of the mate 'al
and for government employees w o
periodically review the material to se
if it can be reclassified.
THE NEW SYSTEM IS LIKELY TO BE INEFFECTIVE
President Carter issued a new Execu-
tive order last year to replace the 1972
program.
But GAO concludes that the new sys-
tem does not provide solutions to the
oversight and monitoring problems in
the earlier system. The situation is Worse
than it ever was before that order was.
issued. Congress needs to legislate a solu-
tion to the problem, and I hope we do
that and do that 'this year.
MORE SUPPORT FOR THE GENO-
CIDE CONVENTION
Mr. PROXMIRE. Mr. President; con-
trary to what the rest of this body may
think, I am not the only person who
thinks the Senate ought to wake up from
its 30 years of indifference and move for
the immediate ratification of the Geno-
cide Convention. I recently received a
copy of an address given by Mr. Bruno
V. Bitker which goes right to the heart
of the issue. Mr. Bitker is a former chair-
man of the Governor's Commission of
the United Nations and has long been
active in the crusade for human rights.
Mr. President, I commend this article
to my colleagues and urge them to lend
their support for the immediate ratifica-
tion of this treaty. I ask unanimous con-
sent to have Mr. Bitker's article printed
in the RECORD.
There being no objection, the report
was ordered to be printed in the RECORD,
as follows:
REPORT OF BRUNO V. BITKER
It can be said with assurance that the ad-
age that it is an idea whose time has come
now applies to international human rights.
In the words of Dr. Zbiegniew Brezinski at
the recent White House Observance of the
30th anniversary of the Universal Declara-
tion of Human Rights, "human rights is the
genuine historical inevitability of our times".
Domestically the time had arrived with the
American Revolution, although it took a
civil war to more fully recognize the unique
philosophy set out in the Declaration of In-
dependence and the United States Bill of
Rights.
Internationally the sanctity of the indi-
vidual was recognized in the United Nations
Charter and become legally binding on all
the nations that have become parties to the
Charter. In the. United Nations this led to
the adoption in 1948 of the Universal Dec-
laration of Human Rights. That Declaration
was initially deemed a mere declaration (as
was our own Declaration of Independence)
and not a binding treaty. But in the ensu-
ing 30 years it has been cited frequently in
international documents as well as in con-
stitutions of newly created states and in
legislation of most member nations, includ-
ing the United States. It thus has become
the common law of the international com-
munity.
In addition the United Nations has adopted
a number of treaties on specific subjects cov-
ered in a more general way by the Universal
Declaration. These include the Convention
on Genocide, on Racial Discrimination, on
the Political Rights of Women, on Civil and
Political Rights and on Economic, Social and
Cultural Rights. In every case, the United
States was a leader within the United Nations
in drafting and securing adoption of these
treaties. Regretably, however, when it came
to signing on the dotted line, the United
States has a record that borders on the dis-
graceful in failing to ratify these treaties.
The most egregious example of our failure
o ratify various human rights treaties is
at on I
t
a
her
two
represe
Commissh
C. Marsha
the treaty to th U.S. Senate for its advice
and consent to i tification. It was assumed
that the Senate ould act routinely. But
much to everyone surprise, the states'
righters (principal) southern senators)
ing that the treaty wou breach sovereignty,
and was a back door met od to securing civil
rights within the United Cates. The Amer-
ican Bar Association supp rted the south-
erners and opposed ratificat ppn. However, in
1978, The Bar Association redtprsed its post-
Over the years the Senate FIRreign Rela-
tions Committee has conducted hearings on
the treaty and each time it reported it out
favorably. But whenever the Committees'
recommendation reached the Senate floor,
either an actual or threatened filibuster has
prevented a vote being taken. And now, 30
years later, the treaty is still in the deep
freeze in the Senate awaiting another chance
to be voted on, up or down. It continues to
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March 12, 1979 CONGRESSIONAL RECORD -SENATE
the world that we will not completely
forsake a friend in any situation.
Mr. STEWART assumed the chair.
Mr. MORGAN. Mr. President, will the
Senator yield?
Mr. BOREN. I yield to the Senator
from North Carolina.
Mr. MORGAN. Mr. President, I am a
cosponsor of this amendment with the
distinguished Senator from Oklahoma.
I hope that staff members around the
Senate Office Buildings who are moni-
toring the debate on the floor will take
the time to inform their Senators of the
importance of this amendment.
I think the Senator has very ably and
very well stated his position and the way
many of us feel. Taiwan has been a
long-time ally of this country. By the
resolution which is pending before the
Senate I think it is the intent of the Sen-
ate and the Congress that the United
States will continue, even if it is in a
quasiofficial way, to carry on relations
with Taiwan. .
Even common courtesy, Mr. President,
requires that we accord some respect to
the rights of the people of Taiwan.
I am reliably told that within just a
matter of 2 or 3 days after the recogni-
tion of mainland China the Taiwanese
were told they would have to vacate the
premises.
I am told reliably that it was just a
few days or a matter of a few days that
the members of the State Department
were out taking up the diplomatic pass-
ports, or whatever they have in this
country, which was entirely uncalled for.
Time will solve many of these problems.
I think if there is any branch of our
Government which is completely re-
moved from the people of this country
it is the State Department. Maybe if we
talked about requiring the Foreign Serv-
ice employees to take a little time off
and go back and live with the people for
a while, some of the difficulties that we
have might not occur.
I think it is only fair and right that
as long as we intend to carry on rela-
tions with Taiwan that we allow them
to hold the property that they have held
prior to the time of the recognition. I
am pleased to join with the Senator in
the sponsorship of this amendment.
Mr. HELMS. Mr. President, will the
Senator yield?
Mr. BOREN. I yield.
Mr. HELMS. Mr. President, I com-
mend the distinguished Senator for his
amendment. As he knows, I am a co-
sponsor of it. Indeed, I drafted a simi-
lar amendment. I am so glad that he has
stepped forward and has taken the lead-
ership in this matter. This is just simple
justice that the Senator proposes. It is
nothing more and nothing less.
The amendment would bring the Sen-
ate bill into conformity with the House
bill by providing that for the purposes of
U.S. court actions, the normalization of
relations between the United States and
the PRC would have no effect upon the
legal rights the ROC had in diplomatic
properties.
Is that about the size of it?
Mr. BOREN. The Senator is correct.
It is to let them keep the property they
have had all these years.
Mr. HELMS. Section 111 provides for
such protection for all other assets or
properties of the ROC or its citizens in
the United States. But the language spe-
cifically exempted "diplomatic real prop-
erties situated in the United States which
were acquired prior to October 1, 1949."
According to State Department repre-
sentatives testifying before Congress, the
question of diplomatic properties should
be left to court decisions. Nonetheless,
they indicated their own lack of.neutral-
ity in the matter by arguing that the two
buildings represent a "symbol of govern-
ment" and that they thought that Peking
had a "better claim" on them.
In effect, turning this particular de-
cision over to courts will amount to an
indirect manner of the PRC seizing the
properties. No other interpretation can
be placed on it. In other countries the
PRC has taken just such actions and ob-
viously only awaits the disposition of the
Taiwan legislation before attempting to
act.
Historically the properties have always
been identified with the Government of
the Republic of China on Taiwan. The
ROC acquired the properties in 1947
while the civil wax already raged in
China and thus, for all but 2 years, the
properties have been occupied by the
Government in Taipei.
The arbitrary cutoff date of 1949
should no more apply to diplomatic real
properties than to anything else acquired
earlier than 1949 by the ROC or its citi-
zens. An interjection of court action in
this one instance can set a dangerous
precedent for the PRC to move on other
ROC rights, as Stanford law professor
Victor Li testified before the Foreign Re-
lations Committee:
The PRC may consider the obtaining of
the state of Chinas diplomatic property an
important political and symbolic act. If the
executive or the courts transfer the property
to the PRC as the successor government, then
other ROC assets, such as the several billion
dollars in bank deposits may also be jeopard-
ized.
Technically this amendment would
only assert that the ROC had the legal
capacity to transfer the properties to
Friends of Free China last December and
not that they now own them. The State
Department even challenges the right of
the ROC to transfer the properties be-
fore January 1, 1979, when they still had
full diplomatic relations with the United
States.
The two properties do have tremen-
dous symbolic importance to the ROC
as the seat of their repersentation in
Washington for three decades. The abil-
ity of Peking, with congressional and
State Department acquiescence, to take
the properties would indicate a further
abandonment of Taiwan at a time when
ROC morale is already abysmally low.
Certainly it cannot be argued that the
failure to turn those properties over to
Peking will somehow endanger the nor-
malization process. Yet it could have se-
rious consequences to Taiwan that go
beyond our domestic law.
S 2473
In many other instances when one
government Is recognized in place of
another' government the new government
has been able to assert the rights and
take the assets of the previous govern-
ment. However, in this instance, the
United States is not recognizing Peking
as a successor government, since the
thrust of the entire bill is to protect ex-
isting rights of Taiwan and not transfer
them to the PRC. One government has
not displaced the other government,
since in reality both continue to exist as
viable international entities.
Now, Mr. President, there is a serious
flaw in the attempt of the committee bill
to use the date of October 1, 1949, as a
cutoff for real properties, even though
that is the official founding date of the
PRC. Yet many of the agreements which
the legislation retains in force also took
place with the ROC before 1949. Thus
the State Department attempted to
make a distinction between the period
before and after 1949, but only limit it
to , diplomatic real properties in the
United States.
Mr. President, I ask unanimous con-
sent that a list of agreements with Tai-
wan entered into before 1949 be printed
at this point in the RECORD.
There being no objection, the list of
agreements was ordered to be printed in
the RECORD, as follows:
AGREEMENTS WITH TAIWAN ENTERED INTO
BEFORE 1949
The following list of 14 agreements were
all entered into between the United States
and the Republic of China before 1949 when
the ROC government left the mainland for
Taiwan. All Of these agreements still remain
in force today and under the propose legis-
lation (Sec. 104) they Will remain in force
in the future.
The list indicates that the U.S. govern-
ment recognizes a legal continuity of the
government of the Republic of China ex-
tending before 1949. Thus, only on the mat-
ter of real diplomatic property is an attempt
made to create a distinction between the pe-
riod before and after 1949.
ECONOMIC AND TECHNICAL COOPERATION
1. Economic aid agreement, exchange of
notes, and exchange of aide memoire. Signed
at Nanking July 3, 1948 (aide memoire dated
July 27 and 28, 1948); entered into forces
July 3, 1948.
2. Agreement concerning the united States
relief assistance to the Chinese people, and
exchange of notes. Signed at Nanking Octo-
ber 27. 1947; entered into force October 27,
1947.
3. Agreement establishing a joint commis-
sion on rural reconstruction in China. Ex-
change of notes at Nanking August 5, 1948;
entered into force August 5, 1948.
POSTAL MATTERS
4. Parcel post convention. Signed at Pe-
king May 29, 1916, and at Washington July
11, 1916; entered into force August 1, 1916.
RELIEF SUPPLIES AND PACKAGES
5. Agreement relating to duty-free entry of
relief goods and relief packages and to the
defrayment of transportation charges on such
shipments. Exchange of notes at Nanking No-
vember 5 and 18, 1948; entered into force No-
vember 18, 1948.
6. Arrangement for the direct exchange of
certain Information regarding the traffic in
narcotic durgs. Exchanges of notes at Nan-
king March 12, June 21, July 28, and Aug-
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CONGRESSIONAL RECORD -SENATE March 12, 1979
CUSTOMS
7. Arrangement relating to reciprocal free-
entry privileges for consular officers of arti-
cles imported for their perso;ial use during
official residence. Exchange of notes at Wash-
ington September 29 and December 16, 1930;
entered into force December 16, 1930.
CLAIMS
S. Agreement relating to claims resulting
from activities of United States military.
forces in China. Exchange of notes at
Nanking October 13. 1947, and March 17,
1948; entered into force March 17, 1948.
EXTRATERRITORIALITY
9. Treaty for the relinquishment of extra-
territorial rights in China and the regulation
of related matters, and accompanying ex-
change of notes. Signed at Washington Jan-
uary 11, 1943; entered into force May 20, 1943.
LEND-LEASE
10. Preliminary agreement regarding prin-
ciples applying to mutual aid in the prosecu-
tion of the war against aggression. Signed at
Washington June 2, 1942; entered into force
June 2, 1942.
11. Agreement under section 3(c) of the
Lend-Lease Act. Signed at Washington June
28, 1946; entered into force June 28, 1946.
12. Agreement on the disposition of lend-
lease supplies in inventory or procurement
in the United States. Signed at Washington
June 14, 1946; operative September 2, 1945.
13. Treaty looking to the advancement of
the cause of general peace. Signed at Wash-
ington September 15, 1914; entered into force
October 22, 1915. Exchange of notes signed
May 11 and 19, 1916.
14. Treaty of Arbitration. Signed at Wash-
ington June 27, 1930; entered into force De-
cember 15, 1932.
Mr. HELMS. Mr. President, in con-
clusion, I commend my friend from Okla-
homa for his amendment. I do think that
regardless of any disposition by Senators
on any other aspect of this legislation,
his amendment is a matter of simple
equity and justice. I think the Senator
for yielding to me.
Mr. BOREN. Mr. President, I thank
both of the Senators from North Caro-
lina for their remarks. I think they are
absolutely correct; this is a very small
step that we can take to try to demon-
strate to an old and trusted friend that
they are not forgotten by this Congress
or by the people of this country. I think,
indeed, the people of this country would
feel strongly that Congress should take
this step. They recognize the fundamen-
tal moral commitment that we have to
those people, 17 million free people. I
appreciate very much the remarks that
have been made.
Mr. President, I also ask unanimous
consent that the Senator from Utah (Mr.
HATCH) be added, at his request, as a
cosponsor of this amendment.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. BOREN. Mr. President, reserving
the remainder of my time, I yield at this
time.
The PRESIDING OFFICER. The Sen-
ator from Idaho is recognized.
Mr. CHURCH. Mr. President, I cer-
tainly have no objection to the people
on Taiwan continuing to occupy the
Twin Oaks property if, as a matter of
law, it belongs to them. However, this
is the first time in my experience in this
body that the Senate has ever under-
taken to determine the ownership of
real property. I rather doubt that we
have the authority to do that. I am posi-
tive we lack the competence to do it. We
have courts for this purpose.
I had thought we were a Government
of laws, and that the question of owner-
ship of real property would be relegated
to the forum which, under the law, has
the competence to deal with it. If we
adopt the amendment offered, we shall
place Congress in the position of de-
claring that the title to certain real
property in this city belongs to the peo-
ple of Taiwan. If we do that it would be
approved, doubtless, by the constitutents
of our respective States. I am npt so cer-
tain that such a determination would
stand up in the courts.
The fact of the matter is that the title
to this property is contested. Under in-
ternational law, diplomatic real prop-
erty is the property of the state. The
accredited representatives of the state
are entitled to control that property. If,
on January 1, 1979, Twin Oaks and the
chancery were owned by the Republic
of China, international law would re-
quire that the People's Republic of China
succeed to the ownership of the property.
We can flout international law if we
choose. Yet I question the authority of
Congress to displace one owner of real
property for another, simply because we
side with one party or the other for
sentimental reasons.
The cause for the dispute, Mr. Presi-
dent, lies in the fact that, on January 1,
1979, the properties in question were
not owned by the Republic of China,
because they were transferred to a non-
profit group, the Friends of Free china,
in late December of 1978, and they
were transferred for a nominal con-
sideration. So the issue is joined. It is
one that Congress cannot competently
pass upon. The courts alone can really
determine who owns the property in
question. Thus my first objection to the
Senator's amendment is that it does
violence to international law, which we
should generally uphold and respect.
It would also get our new relationship
with the Peking Government off to a bad
start, for Congress will be' attempting
to declare one party the owner of real
property when the title is in dispute and
may be the subject of future litigation.
I think that there is a better way
that this question can be handled. It
was not the intention of the committee
to declare the People's Republic of China
the owner of this property. It was sim-
ply the intention of the people to respect
our courts, to try to observe the principle
that we are a government of law, and
that the proper forum for determining
title to real property is the courts.
So, on behalf of Mr. JAVITS and Mr.
KENNEDY, I send to the desk a substitute
amendment. This substitute amendment
would eliminate any ambiguity concern-
ing the purpose of the committee by stat-
ing that the property in question, its
ownership and occupancy, are matters
that should be determined in accordance
with our, laws by the courts. I send that
substitute to the desk and ask that it be
stated at this time.
The PRESIDING OFFICER. The
Chair reminds the Senator that an
amendment is not in order under the
unanimous-consent agreement until the
time on the first amendment has been
yielded back or used.
Mr. CHURCH. I thank the Chair. I
realize the time under the first amend-
ment has not expired. I shall not call up
my substitute amendment until the time
has been yielded back on both sides. I
am prepared, however, to yield back my
time if the Senator from Oklahoma is
prepared to do likewise.
Mr. BOREN. Mr. President, there were
others who wished to be heard. I think
before we go to the substitute, I should
like to defer for just a moment until I
have determined that before yielding
time back.
Mr. CHURCH. Very well. I withhold
the remainder of my time, Mr. President.
Mr. BOREN. Mr. President, I suggest
the absence of a quorum.
The PRESIDING OFFICER. The clerk
will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. HATCH. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Who yields time?
Mr. BOREN. Mr. President, I yield
such time as desired to the Senator from
Utah.
Mr. HATCH. I thank the distinguished
Senator from Oklahoma.
The PRESIDING OFFICER. The Sen-
ator from Utah may proceed.
Mr. HATCH. Mr. President, I would
like to be added as a cosponsor to the
amendment of the distinguished Sena-
tor from Oklahoma. I compliment him
for bringing this amendment to the
floor and pointing out to the Nation as
a whole that there may be an injustice
here that should not exist.
All the amendment says is that:
For all purposes, including actions in all
courts in the United States, recognition of
the People's Republic of China shall not af-
fect the ownership of, or other rights, or in-
terests in, properties, tangible and intangible,
and other things of value, Owned, acquired by,
or held on or prior to December 31, 1978, or
thereafter acquired or earned by the people
on Taiwan.
There is nothing there that says we
have to recognize anything, at least the
-way I read it; there is nothing there that
affects anything other than:
The ownership of, or other rights, or in-
terests in, properties, tangible and intangi-
ble, and other things of value, owned, ac-
quired by, or held on or prior to December
31, 1978.
I think it is a reasonable amendment.
I certainly join in cosponsorship thereof
because I believe that not only have we
kicked our friends in the teeth in this
matter when we did not have to and
when we could have recognized the peo-
ple on mainland China, but we have
added indignity on indignity in reject-
ing some amendments that have been
brought forth here on the floor of the
U.S. Senate as though the only way we
can have an inviolate bill is, of course,
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to take whatever the Senate Foreign Re-
lations Committee sends to the floor.
That is not precisely the way the U.S.
Senate was structured to work or is sup-
posed to work. Our job is, as Senators,
to do the very best we can, not only for
our constituencies, but for all the people
throughout the country and, of course,
for our friends throughout the areas in
this world.
One of the most long-term, valued
friendships we have had has been with
the people on the island of Taiwan. I
would like, since we probably will have
to recognize fully on the final vote
here the recognition of mainland
China, to at least recognize some of the
common courtesies to the people on
Taiwan, and also not to be so afraid of
amendments such as this because they
are not going to do any harm and they
might do a great deal of good.
As a matter of fact, I suspect that,
under the circumstances, almost any
gesture of friendship we make at this
point will do a great deal of good.
Many of us believe that had patience
and restraint been exercised, we could
have recognized both mainland China
and Taiwan and not have abrogated the
treaty obligations that we have had for
so many years.
I suspect that is true, and I have had
it on good authority from some of the
top people in international. affairs that
that is the case and that we did not
have to act in this particular way.
Nevertheless, we have under this ad-
ministration.
What the distinguished Senator from
Oklahoma would like is that we not
continue to rub salt in the wounds, but
that we do recognize some of the basic
rights of the people on Taiwan.
I certainly respect him in this en-
deavor and I compliment him for it.
If I read his amendment correctly, I
do not believe that the proposed sub-
stitute which will be offered at the con-
clusion of time restraints will add one
thing to it, but will diminish much
from it. Nevertheless, that substitute
will be added and we will have to see
what happens on the floor of the Senate.
I do, for the purposes of standing up
for the people on Taiwan, without caus-
ing problems with our newfound friends
on mainland China, support the amend-
ment of our distinguished colleague
from Oklahoma.
I thank the Chair.
Mr. BOREN. Mr. President, I thank
the Senator from Utah. I am proud to
have him as a cosponsor of this amend-
ment.
I wish to comment, Mr. President, on
some remarks made earlier by the Sena-
tor from Idaho. He has talked in terms
of legal precedents. He has talked in
terms of the fact that it is not usual for
the country that has no longer been
recognized, the government that has no
longer been recognized, to hold diplo-
matic property. But I would say there
is nothing very usual in this whole
situation. We are here dealing, really,
with an unprecedented situation.
We are dealing with a situation in
which, in fact, if not in theory, but in
fact, the government in question con-
tinues to be the effective government
over a geographical area known as
Taiwan. It continues to be the effective
government of 17 million people, 17 mil-
lion free people, who participate in their
own governmental affairs.
We are not here dealing with a situa-
tion in which one regime has physically
replaced another. We are dealing with a
situation which our own Government has
recognized as unique.
It must be unique to continue in force
17 executive agreements and treaties
with a nation which in theory we no
longer recognize as a full governmental
entity under international law.
So the precedents that might apply in
the normal situation do not apply here.
It is not the normal situation to set up
a commission and to give the representa-
tives of that commission diplomatic
standing, but we did that in the case of
the People's Republic of China before
we recognized them.
It is not the usual situation to estab-
lish a new commission to continue to
deal with the people on Taiwan, with
the Republic of China, but we are doing'
it.
So time and again, our own Govern-
ment, our own State Department, has
recognized this situation as unique, and
it is not sufficient, as the Senator from
Idaho has done, to merely point to the
precedents which might apply in a nor-
mal situation, far different from the one
that we are dealing with.
I also must differ with the Senator
respectfully when he says that this is
merely a sentimental gesture.
I think what we are dealing with here
goes far beyond the bounds of the senti-
mental. We are dealing with the attitude
of this Nation toward one of its allies,
toward a friend. We are dealing with the
situation where all around this world
those who have been our allies in the
past are carefully watching this coun-
try to see how well it keeps its commit-
ments.
I do not need to remind the Members
of this body of the serious situation in
the Middle East and the number of na-
tions there who are now watching care-
fully the attitude of this country toward
those with whom it has been allied.
The government on Taiwan, the Re-
public of China, never has done anything
to deserve mistreatment by the Govern-
ment of the United States. They have
been our friend. They have assisted us
militarily in Korea and elsewhere when
called upon. They have been our friend
in terms of trade and close economic
relationship. They have been an example
in Asia of the effectiveness of free enter-
prise and what a free economic system
can do.
We are here setting precedent, not
merely a matter of legal precedents of
the past. We are here setting policy. How
healthy it would be for us to state, as a
matter of policy, that while we are going
to move ahead with a relationship with
800 million people on the mainland, that
does not mean that we have to turn our
backs.on the people of Taiwan, who have
been our friends.
S 2475
It is time for this body to.send a mes-
sage to those around the world who are
watching us that we do not forget those
who have stayed with us in all situations
in the past.
Mr. President, at this time I yield to
the Senator from Arizona.
Mr. GOLDWATER. Mr. President, the
question of propriety enters into my
decision to say something on this sub-
ject, because I happen to be a member-
I believe I am the president-of - the
Friends of Free China, who acquired title
to this property before the first of the
year. I did not intend to enter into this
discussion because of the question of
propriety, and I am not certain whether
I will vote on it, because it might be con-
sidered 'a conflict of interest. Never-
theless, I think Congress should know
what brought this thing on.
The President totally disregarded the
wishes of Congress, which told him last
September, with four dissenting votes
out of the entire Congress, that he should
consult with the Senate or Congress prior
to any decision to abrogate-if that is the
term one wants to use-or end the de-
fense treaty with Taiwan. He did not do
this.
I was visiting at Fort Huachuca, about
170 miles to the southeast. of my home in
Scottsdale, Ariz.; and I was contacted
by the White House and told that the
President would call me when I had
flown back to central Arizona around 5
o'clock in the evening. Naturally, I was
kind of interested, because the present
White House does not make a habit of
calling me about anything.
When I returned home, I was told by
my wife that the Ambassador from Tai-
wan was in the State capital that day,
at Phoenix, to address a group of fellow
Chinese. Then I began to suspect some-
thing. He called me shortly thereafter
and told me, before the Secretary of De-
fense called me, about the breaking off of
relations with Taiwan.
If international law bears on this-
although I am not a lawyer, I have a
strong suspicion that it does-let us see
how it might apply in this case. I call
the attention of the Senator from Idaho
to this matter, because I feel that, re-
gardless of what we do with this amend-
ment or his amendment, we do not
obviate the fact that the courts can
decide either issue we choose to try. If
international law is correct, the recog-
nized Government of Taiwan at that
time owned the land we are talking
about; and, as the Government of China,
they had every right to do what they
wanted with that land.
Taiwan disposed of this land by title
to a group of us who have long been
associated with the Friends of Free
China. We went to the State Depart-
ment, and Assistant Secretary Chris-
topher told us that the Red Chinese were
going to move into that land and claim it.
We told him in no uncertain terms that,
if they did, they would have a lawsuit
on their hands; and I think one lawsuit
for the United States at one time over
one subject is probably enough.
We had hoped that nothing would
happen; and I have to say, Mr. Presi-
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dent, that nothing has happened. The
Red Chinese have retained their head-
quarters in the hotel they bought on
Connecticut Avenue, and they have made
no effort at all to go into the Twin Oaks
land or other properties formerly owned
by the recognized Government of China,
which at that time was Taiwan.
That is the background of this whole
thing. If the State Department wants to
push the Red Chinese into this prop-
erty, there will be a lawsuit.
All the amendment of the Senator
from Oklahoma does is to recognize the
status that existed when Taiwan was the'
Government of China. We are not argu-
ing about that now.
If the amendment of the Senator from
Idaho is adopted, it will not change the
situation one bit. We will go to court.
I do not care how many amendments
are put on it. We' have title to it, prop-
erly executed, and I think the courts will
rule in favor of the Friends of Free
China.
I just wanted to explain that as the
background. As I say, I do not know
whether I will vote on this, because I
feel that I do have a conflict of interest,
being one of the owners, with no inten-
tion in the world of ever doing anything
with this property but seeing it used for
purposes for which the former Govern-
ment of China wanted it used-mostly
the Taiwan people.
I yield to the Senator from Kansas, if
it is all right with the Senator from
Oklahoma.
Mr. DOLE. Mr. President, how much
time remains?
The PRESIDING OFFICER. Two sec-
onds remain on the proponent's amend-
ment.
The time has expired.
[Laughter.]
Mr. HELMS. Mr. President, I ask
unanimous consent that 5 minutes of my
time on another amendment be granted
to the Senator from Kansas.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. DOLE. Mr. President, 2 seconds
might have been enough to make the
point, but they slipped away quickly.
This amendment is designed to rectify
an omission in the present legislation
with respect to certain properties long
owned by the Republic of China and of
historic and symbolic interest to the peo-
ple on Taiwan..Twin Oaks and the em-
bassy property on Massachusetts Ave-
nue are identified in the minds of all
citizens of the Republic of China and
many Americans as well, as the physical
personification of the relationship and
friendship between our two countries.
This property belonged to the Republic
of China during such times of travail as
World War II, when the Americans.
fought side by side with the Chinese,
against a common foe.
There is no need for the gratuitous
insult of taking away this living symbol
from an entity and a people with whom
we plan to maintain full cultural and
economic relations, with whom we plan
to maintain all necessary legal and busi-
ness dealings short of full, diplomatic
ties, and with whose security we still
believe to be of grave concern to the
United States. This property has never
had any legal claim by the present gov-
ernment in Peking nor any predecessor
regimes, regardless of our present recog-
nition of its legal authority to rule on the
mainland.
The House version of this bill properly
refuses to do what the current version
of S. 245 allows. To attempt to take away
the "diplomatic real properties" would
undercut the very faith which this bill is
designed to retain in our dealings with
Taiwan.
It seems to me, after listening to the
debate and not having been piivy to
some of the discussions, that inasmuch
as last September we adopted an amend-
ment, by a vote of 94 to 40, which stated
that Congress should be consulted be-
fore anything was done that might af-
fect the future of Taiwan-in effect, that
is what it said-this amendment makes
a great deal of sense. I am happy to be
a cosponsor of this amendment with
the Senator from South Carolina, the
Senator from North Carolina, and the
Senator from Oklahoma.
We have heard all the discussion, the
debate, and the testimony as to how we
are going to maintain our friendship
with Taiwan. It seems to this Senator
that this property never has had any
legal claim by the present government
in Peking or any predecessor regimes,
regardless of our present recognition
of its legal authority to rule on the
mainland.
The Senator from Kansas under-
stands that the House version of this
bill refuses to do what S. 245 does, and
it seems to be that this amendment
should be adopted without any so-called
perfecting amendments by the Senator
from Idaho or anyone else. It is clear;
it is concise. It merely states the facts,
and I hope it will have the support of
the majority of my colleagues.
I appreciate the distinguished Sena-
for from North Carolina yielding time on
his amendment.
Mr. CHURCH. Mr. President, I think a
few more words of clarification are
needed.
All of us recognize the long period of
friendship and alliance between the
United States and .he people of Taiwan.
Indeed, this bill is addressed to that very
issue, and undertakes to safeguard our
continuing friendship and relations with
the people of Taiwan. The bill was care-
fully worked out in the committee so
that we not only could continue to main-
tain our commercial and cultural ties
with the people on Taiwan, but also that
we would give them a broad measure of
reassurance with respect to their future
security. That is what this bill is all
about.
Now, suddenly, the question about
Twin Oaks, the embassy property which
was acquired by the Government of
China back in 1945, has come up.
That property was acquired before the
Government of China had to flee the
mainland to Taiwan, before the main-
land Government at Peking replaced the
Chiang Kai-shek regime as the effective
Government of China.
We have recognized the Peking gov-
ernment as the successor government to
the Chiang Kai-shek regime. Under in-
ternational law this property would nor-
mally pass to the successor government.
If the amendment offered by the Sen-
ator from Oklahoma were to be adopted,
Congress, in effect, would be saying that
our recognition of the Peking govern-
ment may not be considered as affecting
the ownership of this property. In other
words, the adoption of this amendment
would be our declaration that Congress
disregards international law with re-
spect to this property.
The Senator from Arizona is quite
right when he says the issue of owner-
ship has now been placed in doubt be-
cause prior to our recognition of the
Peking government a conveyance was
made to the Friends of China. The valid-
ity of that conveyance would be an issue
in a court action. I have no reason per-
sonally to believe that it is not perfectly
valid, yet I am not competent to judge
that point, -and neither are the other
Members of the Senate.
It is not the proper function of Con-
gress to determine title to real property.
That is a function for the courts.
Mr. President, there are other reasons
why we should hesitate to pass this
amendment. Among them is the fact
that the U.S. Government has a claim
to 180 buildings on 51 tracts of real prop-
erty in 9 cities in China. These properties
were confiscated during and after the
Communist takeover in 1949.
The recent trip by our Secretary of the
Treasury, Mike Blumenthal, in which an
agreement was struck with the Peking
government relating to outstanding
American claims against China dealt
with private claims, not our own govern-
mental claims. And as we all know, a
rather favorable settlement was reached
with the Peking government in connec-
tion with those private claims.
But I must emphasize that our own
Government still retains claims against
the Peking government for the recovery
of very substantial amounts of real
property and buildings located thereon
in China, to wit, 180 buildings on 51
separate tracts of property.
The Chinese, in their turn, have cer-
tain claims for real property acquired by
the Chinese Government in the United
States prior to 1949. This property that
is located in many places in the United
States, and is not confined to Twin
Oaks.
So it is altogether reasonable to as-
sume that the two governments are go-
ing to get together and negotiate their
claims and counterclaims, and square
away this question between them. We
will complicate that negotiating process
unnecessarily. We could indeed prej-
udice our own claims with respect to
property located in China, the recovery
of which we now desire, if we pass this
amendment.
I see no good reason in connection with
a rational assessment of American in-
terests to enact this amendment. It will
complicate matters for us in connection
with our own claims. In any case it may
prove to be a futile act.
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Mr. GOLDWATER. Mr. President, will
the Senator yield for a question?
Mr. CHURCH. Yes; I am happy to
yield.
Mr. GOLDWATER. We would not be
involved in an argument with Peking.
It would.actually be an argument be-
tween the present owners of the land
and the State Department and probably
Peking, although Peking has shown so
far no desire to take the step that would
initiate the action. That is a serious
question, the fact that the ownership
now rests in a group called the Friends
of Free China. I think that any govern-
ment with residents in Washington has
the right to sell its property. Will the
Senator not agree with that?
Mr. CHURCH. Yes; I will agree.
Mr. GOLDWATER. Even understand-
ing the duress under which they op-
erated, we could take any government
around this world that is having pres-
sures on it at the present time and they
might sell their property here to a group
of Americans or a group of other people
and then if any argument came up with
the government that replaced that gov-
ernment-we might even take the Gov-
ernment of Iran as an example, although
they still own their property, but we
could substitute Iran for Taiwan and be
in the same fix-the argument would
then rest or bear between the owners of
the title and in this case the State De-
partment.
As I say, I have heard nothing from
Peking about wanting to move into -Twin
Oaks. I will repeat the purpose of our
having this land is not to acquire it for
our own purposes, as God knows, but to
make it available for the purposes that
this bill speaks so laudably of, maintain-
ing and encouraging the cultural, aca-
demic, et cetera, relations between Tai-
wan and the United States. And the
intent of the Friends of Free China is to
develop than land into such a place. I
wanted to just make it clear, and I am
sure it is clear in the Senator's mind, that
this is not an action any more between
two countries. It is an action between a
group of American citizens and the State
Department or the State Department
and Peking.
I thank the Senator for yielding.
Mr. CHURCH. I have no way of know-
ing whether the Peking government will
choose to sue in our country for recovery
of the Twin Oaks property. But if that
happens I am certain that the Peking
government, as well as the Friends of
China and quite possibly the State De-
partment, would be joined in the suit.
My only point is that determination of
title properly rests with the courts, and
one of the issues no doubt would be the
conditions that existed at the time the
transfer of the property was made. But
that is a question for the courts to decide,
not for Congress.
Now, one other point, Mr. President,
before we proceed. I am not at all cer-
tain, as I have said before, that it is
within the authority of Congress to pass
judgment on the title to real property. I
doubt it very much.
If the desire is, as stated by the dis-
tinguished Senator from Oklahoma, to
make certain that this property remains
in the hands of the Taiwanese authori-
ties, then Congress really ought to buy
it. We know we can do that. We ought to
buy it and turn it over to the Taiwanese.
As a matter of fact, I am told this was
the residence of Alexander Bell, the
inventor of the telephone. Maybe the
best way to resolve this question is to
reclaim it for the United States and
make it a shrine for one of our most
beloved inventors.
But to attempt to say by way of stat-
ute that it belongs to the Taiwanese or
to some other group, instead of to the
Peking Government, not only does vio-
lence to international law. It attempts
to place Congress in the status of the
courts, and could complicate our future
negotiations with the People's Republic
of China on many claims that we will be
asserting for the recovery of real prop-
erty in China which we will have need
for in the years to come.
For all these reasons I think this
amendment should be rejected.
Mr., BOREN. Mr. President, will the
Senator yield for a question?
Mr. CHURCH. Yes; I am happy to
yield.
Mr. BOREN. I wonder, as I understand
the argument of the Senator from Fdabo,
his argument is that this property would
pass to the People's Republic as the suc-
cessor government, which has been rec-
ognized by the United States, to the Re-
public of China.
Mr. CHURCH. Except for the faot that
a transfer of the property was attempted
prior to our recognition of the Peking
government, which raises a justiciable
issue.
Mr. BOREN. Yes; I understand. But
the basic argument, as I understand, is
this is a successor government, and un-
der international law it is the normal
way to proceed.
If that is true, why then under sec-
tion 104 and section 108 of the bill, un-
der the commentary as contained in. the
committee report, do we not make the
government of the People's Republic of
China the successor in terms of all in-
ternational agreements and treaties? We
specifically provide that, in fact, we con-
tinue to have these agreements and
treaties in force. I can think of no other
situation in which that is true. We sim-
ply do not say that we retain the treaties
and agreements with the Shah's govern-
ment now that we recognize the new gov-
ernment in Iran, for example. If they are
the successor government in terms of the
property, is it not true that we are rec-
ognizing them as the successor govern-
ment in terms of treaties and other
agreements? However, we continue these
treaties with Taiwan.
Mr. CHURCH. In answer to the Sena-
tor's question, when one government re-
places another in any country the suc-
cessor government may or may not
choose to honor the previous treaties.
Furthermore, the United States, for its
part, may or may not choose to honor
previous treaties with a successor gov-
ernment.
S2477
The purpose of the bill is to furnish
us with the vehicle by which we make
our choice. In this case we are choosing
to continue to honor the agreements we
entered into with what we formerly
recognized as the Republic of China on
Taiwan.
Mr. BOREN. Mr. President, will the
Senator yield further?
Mr. CHURCH. I yield.
Mr. BOREN. Is this not though a
rather unique situation in terms of in-
ternational law, where rather than say
to the successor government, "Do you
want to continue agreements on fur-
ther," we have firm agreements with the
people on Taiwan? So I am asking is this
not unique? If we opted for unique treat-
ment in terms of the agreements, why
can we not here opt for unique treatment
in terms of keeping the property with-
out, as the Senator said earlier, doing
violence to international law? It does not
say we are concerned with doing violence
to 'international law in terms of the
agreements. It seems to me it does not
do violence. It merely confirms the
friendship to continue the property in
this case.
Mr. CHURCH. Well, I find it difficult
to follow the Senator's argument. In the
first place, he is dealing with two dif-
ferent relationships. One is a contractual
relatiopship. As I said earlier, we can
elect in a case of this kind either to con-
firm our previous contracts with the gov-
erning authorities on Taiwan, or we can
abrogate them by virtue of our recogni-
tion of Peking for what it is in fact,
namely, the Government of China. By
this bill we choose to confirm our pre-
vious contractual arrangements with the
people on Taiwan. _
The question of ownership of real prop-
erty located in the United States, it seems
to me, is quite a different matter. I see
that the distinguished Senator from New
York is on his feet. He is a very able law-
yer, and I want to defer to him-but let
me simply reiterate that my principal
objection to the Senator's amendment is
that I think it does not serve the best
interests of our country, inasmuch as we
have some plans of our own that we want
to negotiate with China. This is a ques-
tion, it seems to me, that should be left
to the courts rather than be determined
by Congress.
Mr. JAVITS. Mr. President, so that the
debate may not be interrupted, as I would
like to discuss this matter for 5 or 10
minutes, I ask unanimous consent that
the time may be deemed expired, as only
we have the time, and that the substitute
amendment may now be submitted and
read by the clerk.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. GOLDWATER. Mr. President, a
parliamentary inquiry.
The PRESIDING OFFICER. The Sen-
ator will state it.
Mr. GOLDWATER. Does that sub-
stitute amendment carry a 1-hour time
limit?
The PRESIDING OFFICER. The Sen-
ator is correct.
The clerk will report.
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CONGRJESSIONAL RECORD- SIENATIE March 12, 1979
up AMENDMENT NO. 35
(Purpose; To describe further certain dip-
lomatic real properties in which the people
on Taiwan have interests, and for other
purposes)
The legislative clerk read as follows:
The Senator from Idaho (Mr. Cameo), for
himself, Mr. KLNNEDY, and Mr. JAvrrs, pro-
poses an unprinted amendment numbered 35
as a substitute for amendment No. 80 by Mr.
BOREN.
In lieu of the language proposed to be in-
serted by the proposed amendment insert the
following:
"SEC. . (a) For all purposes, including
actions in all courts in the United States,
recognition of the People's Republic of China
shall not affect the ownership of, or other
rights or interests in, properties, tangible
and intangible, and other things of value,
owned or held on December 31, 1978 or there-
after acquired or earned by the people on
Taiwan, except, however, diplomatic real
properties situated in the United States
which were acquired prior to October 1, 1949:
Provided, however, That this act shall not be
deemed to affect the right of any domestic or
foreign entity or government to ownership or
occupany of diplomatic real properties situ-
ated in the U.S. which were acquired prior to
October 1, 1949, or the jurisdiction of the
courts in the U.S. to adjudicate disputes
relating thereto."
Mr. JAVITS addressed the Chair.
Mr. HELMS. Mr. President, will the
Senator yield for a question?
Mr. JAVITS. Will the Chair let me
know when I have used 5 minutes?
The PRESIDING OFFICER. The
Chair will so advise the Senator.
Mr. HELMS. Mr. President, will the
Senator yield for a question?
Mr. JAVITS. I have not started yet,
but I will yield.
Mr. HELMS. Knowing the Senator
from New York as I do, and being aware
that he and the distinguished chairman
are on the same side as concerns the
amendment. I felt secure in assuring
some of the opponents of the Church
substitute that the Senator from New
York would yield time for opposition to
the substitute.
Mr. JAVITS. I certainly would. We do
not have to because the opposition is en-
titled to a half-hour, and if Senator
BOREN would like to have the opposition,
I am sure we will ask unanimous consent
to yield a half-hour to him.
Mr. HELMS. Does the Senator agree
that the time in opposition, then, be
yielded to Senator BOREN?
Mr. JAVITS. Yes.
Mr. HELMS. That answers the ques-
tion. The distinguished Senator is, as
always, most gracious.
Mr. JAVITS. Mr. President, I would
like first to answer the Senator's ques-
tion, because I think that gets us right on
track. I am speaking for myself, both as a
lawyer and a Senator.
This bill is a unilateral declaration by
the United States, and the Institute of
Taiwan in the United States may choose
to reject the U.S. offer to give it the
benefit of all the treaties which we'had
with the Republic of China when they
were recognized as the Republic of China.
It may reject it. That offer is unilateral.
We have no contract.
If the Institute accepts it, then there is
a contract. So we have a perfect right to
incorporate it by reference in this bill.
Without the bill, they have got nothing
except an offer, which they could write
us a letter and say they accept. But we
chose to offer it in this bill, and that is
all we are doing, in my opinion. There is
no privity of contract, and therefore the
argument that this should carry over to
the real property does not apply, because
we do not own the real property.
We have a right to make them an offer
about treaties, if you want to call them
treaties, but we have no right to make
an offer of real property we do not own.
The second point is this: I must say
that I understand and sympathize with
the proponents of the original amend-
ment. The Taiwanese are our friends,
and they have performed magnificently
in 30 years. They have developed the sec-
ond highest standard of living in Asia.
That is quite a feat for a people who
did not start with the industrial tech-
niques and knowledge of the Japanese,.
who have the first standard of living.
They have a good, tough military force,-
and they believe in free institutions,
even though they do not get to promote
them as yet, because of the way in which
that government was created and the
discipline it engendered because of the
dreams of Chiang Kai-shek that he
could one day take the mainland.
So there is no quarrel about it. There
is no doubt that they are our friends,
and we want to do everything in the
world we can for them.
But we have made a national deci-
sion, and let us not be kidded about it.
That national decision is that notwith-
standing the great things they have done
for us, and notwithstanding the fact
that for decades the Communist gov-
ernment on the mainland preached
hatred of the United States of America,
and that they shot our boys down in
Korea, and that they undoubtedly were
the backbone of a great deal of what
hurt our people in terms of 50,000 dead
in Vietnam, the fact is that we believe
that in our national interest we now
have to try to normalize relations with
them by recognizing them dip-
lomatically.
Once we make that decision, lots of
things flow from it. There is no avoiding
it. The Twin Oaks property is one of
those things. All the proponents of the
amendment are doing is looking back
with regret. Well, they have an absolute
right to. vote against this, and to do
everything they can to try to torpedo
the recognition of the People's Republic
of China, including this amendment, but
that is all they are doing, because the
fact is that it is international usage of
a very established character that where,
as ' in the United Nations, where the
People's Republic steps into the seat of
the Republic of China, and while Chiang
Kai-shek was alive we did not, do ' any-
thing about it-
The PRESIDING OFFICER (Mr.
JOHNSTON). The Senators 5 minutes
have expired.
Mr. JAVITS. May I have another 3
minutes?
Mr. CHURCH. I yield the Senator 3
additional minutes.
Mr. JAVITS. This was an entity which
we no longer recognize, but the title was
in that entity only because it was the
government we did recognize. I do not
know how the original title acquired in
1945 is inscribed, but probably it is in-
scribed in such a way that they can take.
the Republic of China, and transfer
from the group which is called the
Friends of China. But no matter what is
said here, under the Constitution of the United States, in a case we have had
very recently involving India, that could
easily be contested in the courts, and it
may be unconstitutional to strip what-.
ever entity owns the property of the
title.
So whatever we do by passing this
amendment is simply substituting a suit
by the State Department, with all the
exacerbation that would involve, we are
substituting a suit between our Govern-
ment and the Friends of China for a suit
between those who represent Taiwan
here, the Friends of China, and the Peo-
ple's Republic of China. In my judgment.
we are infinitely better off leaving that
litigation between the two parties in in-
terest, and the situation will then be, if
it is true-and. of course it may not be
true-that the People's Republic of
China has the right to. possession of this
real property, title to which was acquired
before October 1949, then has there been
a valid transfer? And there are various
doctrines in law and equity which relate
to the validity of that transfer. You
know, for example, L it made in the mid-
dle of the night, as one case says, to
enable a dictator to cash in the. property
and run away with the money? The
courts have held that invalid. That is not
quite this situation, but it is a matter of
a state of facts which the courts will
decide.
The real analogy Senator BOREN could
have made is, if it is true that this, has
to be decided in the courts, why is not
the same thing true about the billions
of dollars deposited in American banks,
which stand to the credit of the Republic
of China?
The reason that is not true is that we
have a legitimate right to posit our legis-
lation on the fact that after 30 years,
that is-
The PRESIDING OFFICER. The Sen-
ator's 3 minutes have expired.
Mr. JAVITS. May. I have just 1 more
minute? I yield myself 1 minute.
We have the right to posit our legisla-
tion on the fact that after 30 years, that
kind of property' is not likely to be the
property of other than the entity which
is the Republic of China that we have
described, and that therefore it Is prop-
erty that belongs to it, because it was not
property acquired before 1949, when this
split and revolution took place.
I believe there is a chance, a fair
chance, that having certified this title
in the legislation respecting property
which, at the best, can hardly be identi-
fied as pre- or post-1949, it will stand up.
But as to this property which is real
property, title to which was acquired in
1945, it seems to me there Is no question
as to the normal application of the rule
of law.
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March 12, 1979 CONGRESSIONAL RECORD -SENATE S 2479
The PRESIDING OFFICER. The Sen-
ator's 1 minute'has expired.
Mr. JAVITS. I yield myself 1 more
minute. As to the normal application of
the rule of law, which would be that the
successor government takes the property
unless there is some reason to the con-
trary, in this case the disposition of the
title.
So for all those reasons, I think all
we are doing is seeking trouble if we try
to decide this question here and now. in
the way. the original amendment pro-
poses. The way Senator CHURCH and I
have proposed is a way in which we do
not prejudice the rights of our friends,
just as we are protecting them in the
way of security and in many other ways,
just so that we do not make fools of our-
selves under the law.
So I hope Senators will support Sena-
tor CHURCH and me in our proposal.
, Mr. McCLURE. Mr. President, will the
Senator yield for a question?
Mr. JAVITS. We have half an hour. I
will gladly attempt to answer the ques-
tion.
Mr. McCLURE. Will the Senator from
Oklahoma yield me about 3 minutes to
propound a question to the Senator from
New York?
Mr. BOREN. I yield to the Senator.
Mr. McCLURE. I thank the Senator for
yielding, because both the Senator from
Idaho, the chairman of the committee,
and the Senator from New York have in-
dicated that it is the desire not to settle
the title issue in this legislation, to leave
that to the court. Yet I read the amend-
ment proposed by the two Senators, with
other cosponsors, as settling the title is-
sue. If the Senator will look the second
page of the amendment under what is
section A, it says: "For all purposes, in-
cluding actions in all courts in the United
States, recognition of the People's Re-
public of China shall not affect the own-
ership," and then there is some other
language, and the last two lines on what
will be shown on that sheet as lines 11
and 12 are, "except, however, diplomatic
real properties situated In the United
States which were acquired prior to Octo-
ber 1, 1949."
It seems to me a necessary reading of
that language has to be that if it is dip-
lomatic real property acquired prior to
October 1, 1949, recognition of the Peo-
ple's Republic of China shall affect the
ownership. It may not be the intention
of the authors of the amendment, but it
appears to me, Mr. President, that that is
the necessary construction of the lan-
guage which has been employed.
Mr. JAVITS. May I reply? I will yield
myself a minute to reply.
Mr. McCLURE. Mr. President, allow
me to yield back to the proponents of the
measure whatever time I have remaining.
Mr. JAVITS. The answer is that that
is academic now because we are, our-
selves, submitting an amendment which.
reads differently and does preserve the'
judicial rights.
Mr. McCLURE. Will the Senator
yield? I am reading from the amend-
ment which the Senator has offered.
Mr. JAVITS. No, the Senator is not.
The Senator is reading from the origi-
nal statute. The amendment we offered
says:
Provided, however, That this act shall not
be deemed to affect the right of any
foreign-
And so forth.
Mr. McCLURE. I am reading from the
Senator's amendment lines 11 and 12,
the last two lines on that amendment.
The PRESIDING OFFICER. Who is
yielding time?
Mr. JAVITS. I yield myself 1 minute,
Mr. President, from the proponents'
time.
The whole clause taken together, it
seems to me, makes it very clear that
there will be no prejudice to any liti-
gation. We will read it again. Certainly,
what the Senator describes as our in-
tention is obviously not our intention.
Mr. McCLURE. Will the Senator from
Oklahoma yield 1 additional minute?
Mr. BOREN. I yield.
Mr. McCLURE. I thank the Senator
from Oklahoma for yielding and I thank
the Senator from New York for his re-
sponse, but I assure the Senator I am
reading from the amendment at the
desk. That amendment, in its last two
lines, with lines 5 and 6, says, in effect:
For all purposes, Including actions in all
courts of the United States, recognition of
the People's Republic of China shall not
affect. diplomatic real properties situated in
the United States which were acquired prior
to October 1, 1949.
That may not be the intention of the
authors of the amendment, but that is
its necessary effect and can be construed
in no other manner.
Mr. JAVITS. Mr. President, I yield
myself another minute.
That is not the language we submitted.
The desk may have made some correc-
tion and I will have to get at that. But
here it is, right here.
Mr. McCLURE. It is identical.
Mr. JAVITS. I am sorry, but this is the
desk's version. We will look at it. What
is the use of arguing about It? There is
still time to change it.
Mr. McCLURE. You take this copy and
I will take that one.
The PRESIDING OFFICER. Who
yields time?
Mr. GOLDWATER. Will the Senator
from Oklahoma yield me a moment for a
question of the Senator from New York?
Mr. BOREN. I yield.
Mr. GOLDWATER. I would like to ask
the Senator from New York-
The PRESIDING OFFICER. Does the
Senator from Oklahoma yield?
Mr. BOREN. I yield to the Senator
from Arizona.
Mr. GOLDWATER. I would like to ask
the Senator from New York the ques-
tion that I asked the Senator from Idaho.
Even though the land we are talking
about was acquired in 1945, prior to the
establishment and recognition of the only
government of China, mainly on the Is-
land of Taiwan, and the people of Tai-
wan having taken over the government of
Taiwan, therefore, they took over, if in-
ternational law applies and I have to
assume it does, they took over the prop-
erty we are talking about, as a govern-
ment, is it not true that that government
has the right to dispose of that property
at any time they want to?
Mr. JAVITS. They have the right to
dispose of property in accordance with
law because, and I made it clear, I say to
Senator GOLDWATER, the law also pro-
vides for fraudulent transfer and other
legal defenses against the transfer. That
.
is why I feel we ought to leave it to the
courts.
Mr. GOLDWATER. If it were fraudu-
lent, I would agree 100 percent.
Mr. JAVITS. But that does not rely
on the Senator from Arizona.
Mr. GOLDWATER. I know that.
Mr. JAVITS. The fact is that the
Friends of China have received in the
greatest good faith the deed of transfer
and the courts may hold that the ones
who made the transfer had no business
to make it. I do not know that. But there
is law which supports that kind of agru-
able claim. I do not know that it will
stand up. I really do not know.
Mr. GOLDWATER. I admitted that the
transfer was probably made under du-
ress. But I also got the assurance from
the Senator from Idaho that a govern-
ment has the right, I think any govern-
ment has the right, to dispose of the
property of that government at any time
they care to. As the Senator says, being
a lawyer-and I am probably blessed be-
cause I am not-there may be some ques-
tion. I' would think that that should be
left to the court. But I have to agree
that on the language of both the Senator
from Idaho and the Senator from New
York I do not see how it changes the
original intent of the Senator from Okla-
homa. In fact,' it does the very thing that
the Senator from Idaho is accusing the
amendment of the Senator from Okla-
homa as doing, legislating something
that should be decided by the courts.
Mr. JAVITS. Mr. President, if I may
yield myself 2 minutes of our time, let us
get it perfectly straight. This amendment
now, as we sent it to the desk-and I will
ask Senator CHURCH to modify it-reads
as follows:
For all purposes, including actions in all
courts in the United States, recognition of
the People's Republic of China shall not af-
fect the ownership of, or other rights or in-
terests in, properties, tangible and intangible,
and other things of value, owned or held on
December 31, 1978, or thereafter acquired or
earned by the people on Taiwan, provided,
however, that this act shall not be deemed
to affect the right of any domestic or foreign
entity or government to ownership or occu-
pancy of diplomatic real properties situated
in the United States which were acquired
prior to October 1, 1949, or the jurisdiction
of the courts in the U.S. to adjudicate dis-
putes relating thereto.
That is the way it reads and we will
see that it does read that way. Whatever
the desk may have done with it, I am not
bound by it.
Mr. McCLURE. Will the Senator from
New York yield for a clarification?
Mr. JAVITS. Yes.
Mr. McCLURE. As I understand it now,
as read by the Senator from New York,
that would, in essence, strike the two
lines that I made reference to earlier and
substitute in lieu of them the language
which appears prior to it on the page the
way it is now at the desk?
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S 2480 WNGRJESSIONAL RIECO
Mr. JAVITS. Exactly. I am grateful to
the Senator. I never realized this was the
way they had it at the desk.
Mr. McCLURE. I thank the Senator.
Mr. HATCH. Will the Senator from
Oklahoma yield for afew minutes?
Mr. BOREN. I yield.
Mr. HATCH. Mr. President, I am con-
cerned about the clause in this section of
the bill, that the distinguished Senator
from New York just struck from the
amendment, which appears to me to be
aimed directly at the properties of the
Republic of China here in Washington
and at Twin Oaks. As I am sure my col-
leagues are aware, both of these prop-
erties were transferred to Friends of Free
China, Inc., a nonprofit organization, on
December 22, 1978. This action occurred
prior to the effective date of U.S. recogni-
tion of the People's Republic. of China on
January 1, 1979. This transaction took
place in accordance with the law of the
District of Columbia.
According to international law, a legal
government has the right and the power
to buy or sell its property as it sees fit
and such derision is not subject to the
review of other states. As I have stated
previously, this transaction took place on
the 22d of December, at which, time the
Republic of China was the- recognized
government of China. The question that
I must ask pertains to the this subject.
What right or what principal of interna-
tional law, or domestic law for that
matter, gives the State Department the
authority to question this transfer of
property within the United States?
Recognition of a foreign government
will not invalidate the acts done in the
United States by a previously recognized
government. This point is emphasized in
the case of Guaranty Trust Co. v. United
States, 304 U.S. 126 (1938), at which time
the U.S. Supreme Court said:
The one (i.e., recognition) operates only
to validate to a limited extent acts of a de-
facto government which by virtue of the rec-
ognition, has become a government de jure.
But it does not follow that recognition ren-
ders of no effect transactions here with a
prior government.... If those transactions,.
valid when entered into, were to be disre-
garded after the Later recognition of a succes-
sor government, recognition would be but an
idle ceremony, yielding. none of the advan-
tages of established diplomatic relations in
enabling business transactions to proceed,
and affording no protection to,pur own na-
tionals in carrying, them on. So far as we are
advised no court has sanctioned such a doc-
trine.
D - SIENATIE March 12, 1979
given retroactive effect and invalidate
the purported sale of the plane by the
ROC Government. In dismissing the case
and the PRC's claim to the airplane, Vis-
count Simon said for the court, the Ju-
dicial Committee of the Privy Council,
which is the supreme judicial review or-
gan for colonial litigations:
A government's policy in buying or selling
chattels which it owns is not subject to the
review of foreign tribunals, and whether its
action in this regard is against the interests
of those it is supposed to serve is a political
quetion. British courts cannot take it on
themselves to pronounce whether a foreign
government, recognized by H. M. government,
is acting contrary to the. interests by its
people, and a government is certainly not
a trustee in these matters in any legal
sense."
In yet another case chided by a
British court, Boguslawski v. Gdynia-
Ameryca'Linie (1950), 1 R.B. 167, af-
firmed, (1952) 2 All E.R. 470, it was held
that a union contract between the peti-
tioners and the Ministry of Industries
and Commerce of the Polish Govern-
ment-in-exile, in its capacity as the su-
preme manager of shipping by the Pol-
ish law of 1939, concluded in London on
July 3, 1945-that is, 3 days before Brit-
ish derecognition of that government-
was valid and enforceable before a Brit-
ish court.
Bringing the current situation more
into perspective, I cite the example of
the Canadian Government. The.Repub-
lic of China sold its Embassy property
in Ottawa, Canada, before the Canadian
recognition of the PRC and that trans-
fer was considered as valid. The Cana-
dian Foreign Ministry did not support
the PRC's claim, if any, to that property.
Therefore, Mr. President, as I have
stated, there is no legal basis for the De-
partment of State to support the PRC's
claim to the former ROC diplomatic
estate.
For this reason, I think that the bet-
ter of the two amendments is the
amendment of the distinguished Senator
from Oklahoma. The property 'that we
are speaking of here is valued at a few
million dollars. When I read of the large
amounts of dollars that- may well be
involved in the trade between the United
States and the PRC, I think this is rather
insignificant.
What I am suggesting is that, at least
in the opinion of a number of us, the
amendments of the distinguished Sen-
ator from Oklahoma is the superior
amendment and does recognize our
friends on Taiwan to a greater degree,
countries as,well. In the case of Civil Air I think, without doing violence to inter-
Transport, Inc. v. Central Air Transport national law that exists today and as
Corp., (1953) A.C. 70,,the British court have been defined by this country, Eng-
took a position similar to the U.S. court's land, Canada, and other international
position that I have stated before. That courts and tribunals, we ought to sup-
case dealt with airplanes flown by the port the amendment of the distin-
Republic of China Government em- guished Senator from Oklahoma and
ployees in October 1949, to Hong Kong, vote down the amendment the distin-
and sold by the ROC Government on De- guished Senator from Idaho.
cember 12, 1949, to two Americans, who By voting down the amendment of the
sold them to plaintiff. The British Gov- distinguished Senator from Idaho-
ernment recognized the ROC Govern- which, it seems to me, throws this thing
ment at the time in question but, from into limbo and does not protect our
January 5-6, 1950, recognized the P2.. friends on Taiwan and shows that we
as the Government of China. Defendant really are somewhat callous with regard
PRC Government agency claimed that to our feelings for the people on Taiwan
recognition by the British should be here on the floor of the Senate-I think
we will then have the opportunity to vote
for the amendment of the distinguished
Senator from Oklahoma. That, in my
opinion, would be a greater thing to do
and would create better feelings between
this Nation and the people on Taiwan
without doing violence to our new friends
on mainland China. I hope everybody
will vote down the Church amendment
and vote for the amendment of the dis-
tinguished Senator from Oklahoma
(Mr. BOREN).
Mr. JAVITS. Mr. President, I yield my-
self 3 minutes from the time of the pro-
ponents.
Mr. President, it seems to me that the
Senator from Utah has just made the
most eloquent argument for Senate
Church's amendment and mine. Cer-
tainly, this is a hotly converted legal
question in the United States, Great
Britain, and Canada. I shall furnish for
the RECORD a whole list of cases, includ-,
lug the very case cited, Guaranty Trust
against the United States, which indi-
cates that there can be defenses in such
cases.
That is all we are saying. If the Sen-
ator wishes to substitute the Senate of
the United States for the courts of the
United States, I do not know that we
have any such power; I do not believe
we do in a constitutional question, the
ownership of property, which is clearly
subject to this branch of the law. All we
are seeking to do is, without in any way
prejudicing the rights of any of the par-
ties to the dispute, not to get the State
Department to be the litigating party.
That is the whole essence of this argu-
ment that we just heard, that the State,
Department is maintaining, the State
Department is demanding, the State
Department is contending. It does noth-
ing of the kind. Under our amendment,
the parties who are in interest, the hold-
ers of the title and those who wish them
to hold that title and anyone who chal-
lenges that title, will be in court. That
will not be the United States and it will
not be the State Department. That is all
we are seeking to provide for.
I respectfully submit that this is the
most eloquent argument for the sub-
stitute amendment which we have sub-
mitted and that, if Members believe
that way, they should decidedly vote for
this amendment which we have sub-
mitted as a substitute.
Mr. BOREN. Mr. President, how much
time remains to opponents?
The PRESIDING OFFICER. The op-
ponents have 14 minutes, the proponents
have 17 minutes.
Mr. BOREN. Mr. President, I yield my-
self 5 minutes.
In reply to the arguments that have
just been made by the Senator from New
York, I have to say with all honesty that
I think the Senator from Utah earlier
established a very strong case that the
legal precedents are with those of. us
who are opposing the substitute. The
transfer, when it was made, was perfectly
legal under the laws of the United States
and finder every legal precedent in terms
of the right to convey property within
the boundaries of the United States. If
we are talking about doing violence to
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March 12, 1979 CONGRESSIONAL Rf8]ECORD - SENATE
the law, it would do violence to the law
to set aside this transaction.
I also point out that if we are talking
here about Congress and the Senate in-
jecting itself into the question of con-
veying or conferring title to property, the
bill as passed by the Senate Committee
on Foreign Relations does that itself by
confirming to the people of Taiwan the
other properties, other than diplomatic
properties, all of the rest of them, as
being their property. It makes no excep-
tion as to whether or not these other
properties were acquired prior to or after
1949.
The Senator from New York has made
it a point to say that since this property
was acquired prior to 1949, this diploma-
tic property, in the language of the bill
and the amendment, that we should
leave it up to the courts to decide who
should own it. Yet the committee itself
has conferred the other properties of the
people of Taiwan which were acquired
prior to 1949. No exception is made as
to whether or not these properties were
acquired prior to 1949.
In addition, as we have already seen
under international law, it may be usual
for one government to succeed to an-
other; yet we are very clearly, intention-
ally treating this usual situation in an
unusual way, a unique way, because' it
is a unique situation.
We are here dealing with a govern-
ment which retains de facto, if not de
jure, power to govern 17 million people
located on Taiwan, and rather than to
ask the People's Republic of China
whether or not they want to succeed to
our agreements entered into with the Re-
public of China, we have chosen through
use of the institute to continue our past
international agreements and treaties
with the Republic of China, with the
people on Taiwan, through the utiliza-
tion of the institute.
So I would submit that the Senator
from New York, quoting the other
actions taken by the committee and the
suggestions made to this body by the
committee, has himself made it clear
that it is a matter of choice when we
choose to confirm certain kinds of prop-
erty.to the people of Taiwan, and when
we. choose to confirm certain kinds of
international agreements, we do it, with-
out regard to the usual situation as it
affects international law or the domes-
tic law of this country.
According to domestic law, it is right
and proper for this Senate to confirm
the property and the previous convey-
ance by the people of Taiwan-I speak
of the diplomatic property.
More important, in terms of what is
right and fair and just, in the broader
sense, it is right and proper just to take
this action as a small gesture to a long-
time friend and trusted ally. In terms of
what is right and in the best interests of
the future relationship of the United
States with other allies around this
world, I submit it is in our national in-
terest that we take this step and any
other step that we can take to demon-
strate that we do not turn our backs on
those who have been our friends, that
we do not totally abrogate previous com-
mitments entered into.
I submit that the prestige of this Na-
tion is plunging all around the world,
and plunging in countries of strategic.
importance to this country, including
some nations in the Middle East which
have a vita] role in the maintenance of
our energy supplies. Our prestige is
plunging because people are asking, Is
the United States of America the kind
of nation that turns. its back on its
friends, that does not keep its commit-
ments, that runs for cover when trou-
ble arises, that will forget about past
friendship when a short-term economic
advantage, perhaps, is seen, by changing
relationships with the previous allies?
That is why our prestige is plunging.
That is why people cease to rely upon the
United States and its protective um-
brella.
I submit for all of these reasons we
should reject the substitute amendment,
that we should then pass the original
amendment and put the Senate on rec-
ord in favor of making this important
gesture to a free people on Taiwan.
Mr. President, at this time I yield 2
minutes to the Senator from North
Carolina.
Mr. MORGAN. Mr. President, I believe
that the Senator from Oklahoma has
eloquently made a case for his amend-
ment. But just for emphasis, let me say
again, as he did, that the bill itself, the
present section, is exactly as the amend-
ment that is offered by the Senator from
Oklahoma with the exception of deleting
the last sentence, and that section says:
For an purposes, including actions in all
courts in the United States, recognition of
the People's Republic of China shall not af-
fect the ownership of, or other rights, or in-
terests in, properties, tangible, and intangi-
ble, and other things -of value, owned,
acquired by, or held on or prior to December
31, 1978, or thereafter acquired or earned by
the people on Taiwan.
Then: "except, however, diplomatic
real properties situated in the United
States which were acquired prior to
October 1, 1949."
The amendment would simply make
the provisions of 111(a) applicable to all
of the property.
Therefore, Mr. President, I believe that
an up or down vote on the amendment of
the Senator from Oklahoma would be
appropriate. I, therefore, state that at
the expiration of all the time, I will move
to table the amendment of the Senator
from Idaho.
Mr. GOLDWATER. Will the Senator
yield me 1 minute to make a point that
keeps coming up?
Mr. BOREN. I am happy to yield to the
Senator.
Mr. GOLDWATER. Mr. President, we
keep hearing reference to December 31,
1978. I would remind my colleagues, the
transaction we are speaking of which
moved that real property from the
Republic 'of China to private hands oc-
curred before that.
So we are mistaken if we believe our
transaction took place after the People's
Republic of China had been recognized
by our President as the one China.
The property is owned by a nongovern-
mental agency, and that is what we are
talking about.
S2481
The PRESIDING OFFICER. Who
yields time?
Mr. GOLDWATER: Mr. President, a
parliamentary inquiry.
The PRESIDING OFFICER. The Sen-
ator will state it.
Mr. GOLDWATER. How much.time is
left on each side?
The PRESIDING OFFICER. The pro-
ponents have 14 minutes. The opponents
have 9 minutes.
Mr. GOLDWATER. Who would be the
proponents on this issue?
The PRESIDING OFFICER. The pro-
ponents of the amendment in the second
degree, the Senator from Ohio (Mr.
GLENN).
Mr. GLENN. Proponents are those who
propose the modification to Senator
BOREN's amendment.
Mr. GOLDWATER. I thank the Chair.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Sen-
ator from Ohio.
Mr. GLENN. Mr. President,.I yield my-
self such time as may be required.
TWIN OAKS AND OTHES DIPLOMATIC PROPERTY
Mr. President, it would be a mistake
for Congress to legislate the ownership of
Twin Oaks and the chancery.
Normally, under international law,
diplomatic real property is the property
of the State; the recognized representa-
tives of the State are entitled to exercise
the incidents of ownership. If Twin Oaks
and the chancery were today owned in
the name of the Republic of China in-
ternational law would require that they
be given to the People's Republic of
China.
In this case, however, there is a special
issue. The properties are not owned in
the name of the Republic of China be-
cause they were transferred to a non-
profit group, the Friends of Free China,
on December 22, 1978, for $10, as Senator
GOLDWATER has said, under duress. These
properties were transferred after the
President's announcement of December
15, 1978, and before recognition became
effective on January 1, 1979. The Depart-
ment of State says that these properties
should belong to the People's Republic
of China, but there is a unique and un-
precedented legal issue here that is for
the courts to decide: namely, Was the
transfer to the Friends of Free China
during the 2-week notice period in
December a valid transfer or can it be
set aside? That is not an issue for us to
resolve by legislation. It is an issue for
the courts to decide.
An amendment preventing the Peo-
ple's Republic of China from contesting
its rights to Twin Oaks and the chancery
could put us' in violation of our inter-
national obligations, and it would cer-
tainly be a sour note on which to begin
normalization.
The other property that we are deal-
ing with-bank accounts, foreign ex-
change deposits, and the like-is very
different.
First, it is the product of the economic
activity of the people on Taiwan over
the last 30 years; it would be un-
thinkable to take that property away
and give it to the People's Republic of
China.
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Second, the bank deposits do not have
the symbolic importance that an embassy
has as the embodiment of a state in a
foreign country.
The People's Republic of China has
agreed that we can maintain commercial
relations with the people on Taiwan.
Since normal banking relations are es-
sential to the conduct of commercial re-
lations, it makes sense to distinguish the
banking assets from the diplomatic prop-
erty.
Accordingly, I cannot support any
amendment which would deny the Peo-
ple's Republic of China a fair chance
to litigate whether the transfer of the
diplomatic properties to the Friends of
Free China was valid. Therefore, I in-
tend to support the amendment acknowl-
edging the court's right to decide.
Mr. President, I yield 5 minutes to
the Senator from Massachusetts.
Mr. KENNEDY. I thank the Senator
from Ohio for yielding.
Mr. President, I am pleased to co--
sponsor the amendment proposed by
Senator CHURCH. It makes clear that this
issue should be left to the courts, where
it belongs. It reduces the risk of politi-
cal misunderstanding. It deserves the
support of this body.
This amendment provides that the
ownership of Chinese diplomatic real
properties, "or other rights or interests
therein, may be determined by the
courts." Unlike the amendment of the
Senator from Oklahoma (Mr. BOREN) ,
it does not prejudge an issue that is
properly left to the courts.
It does not run the risk of under-
mining the important relations that our
Nation is developing with the People's
Republic of China.
Mr. President, Congress cannot and
should not abdicate its responsibility to
resolve issues of public policy. But this
is not such an issue: It does not. involve
a determination of public policy, but
the settlement of a dispute-a dispute,
moreover, Which centers upon unsettled
questions of fact and complex questions
of law.
These questions, I submit, are of pre-
cisely the type that courts were intended
to decide.
A few facts are clear. We know that the
properties in question were purchased
by the Chinese state in the 1940's-be-
fore the People's Republic came to
power-and we know that they were
transferred to the "Friends of Free
China" after President Carter an-
nounced that the United States would
recognize the People's Republic, before
the United States actually did so-and
for virtually no consideration.
What we do not know, however, is
whether that transfer is valid. What is
the organization called "the Friends of
Free China"?
What was its relationship to the ROC
Government? Was this really an arm's-
length transaction made in good faith?
Do principles of state succession apply-
would not the People's Republic have
succeeded to this property had it not been
sold? Did the representatives of the ROC
Government who conveyed it have a duty
to the Chinese state to use or dispose of
properties consistent with the interests
of that state? If so, does that duty apply
to a successor state? Was that duty
breached? If it was breached, were the
"Friends of Free China" on notice that
the ROC sellers lacked the capacity to sell
these properties? Is $10 adequate con-
sideration for a property valued at well
over a million dollars?
Were the "Friends of Free China" bona
fide purchasers? How does the law of the
District of Columbia affect these trans-
actions?
Mr. President, if the Senate is to ad-
dress this issue responsibly, these are
some of the question-and there are
many others-that require answers. Who
in this Chamber is prepared to provide
these answers? I am not. The Senator'
from Oklahoma and his cosponsors have
not. The Foreign Relations Committee
did not-it expressly avoided the whole
issue in this bill. And it did so for good
reason: Under our constitutional system,
it is most emphatically the province of
the judiciary to resolve disputes over the
ownership of property.
That is one of the principal reasons we
have courts. There are certain kinds of
questions that the judicial branch, insti-
tutionally, is far better suited to answer
than the legislative branch. And the
reason that the courts are charged with
answering those questions goes to the
heart of our system. The theory is that
.property disputes should be settled not
through a test of political influence, but
through the application of legal logic-
that a party should prevail, not because
he is better able to muster powerful po-
litical support, but because he is better
able to present powerful legal argu-
ments-and that those arguments are
best weighed and compared, not by a
partisan politician, but by an impartial
judge whose decision will depend upon
the way similar disputes were decided
previously. It is this time-honored prin-
ciple of. decision based upon precedent-
stare decisis-that makes ours a govern-
ment of laws, rather than men. If we as
a legislature decide arbitrarily, because
of the political influence of one of the
parties, to take this dispute from the
courts and to decide it ourselves, we
abandon that principle and we replace
the force of law with the force of lobbies.
Why should any Senator be afraid to
allow the courts to decide the issue on its
merits? I submit, Mr. President, that it
is not fear that the issue will be decided
unfairly.
And I submit that it is not fear that
the people on Taiwan or the "Friends of
Free China," will be discriminated
against. It must be a fear that, under
the law, the force of their case is not
strong enough to allow them to prevail
under the same legal precedents that
apply to all other litigants before our
courts. I do not believe that this is a
proper reason for depriving the courts of
their traditional role.
It is true, Mr. President, that certain
questions of first impression are pre-
sented by this issue. It is also true that
the bill does address the ownership of
other kinds of property. But the novelty
of a question, in and of itself, has never
been viewed as grounds for disqualifying
the courts-indeed, the courts are there
to resolve the novel and the unique
dispute.
This leads me to the other reason, Mr.
President for urging the adoption of our
substitute' amendment. It is that a polit-
ical move to withhold diplomatic real
property would represent an insult to
the Peking Government. It would com-
plicate our efforts to reclaim United
States real properties in China. I know
that there are those who argue that
we should not be swayed, in this body,
by the reactions o. foreign governments,
and that may at times be true. But
it is fair to ask how this Nation would
react if we were in the Chinese posi-
tion. How would those of us here in this
Chamber feel if a foreign legislature
voted to take our embassy-the highest
symbol of our country-and give it to
some other entity? We may not all view
the current dispute in those terms, but
it is certain that the Chinese do, and it
is equally certain that the adoption of
the Boren amendment would not add to,
and could subtract from, the friendship
and understanding that is just beginning
to take root between our two countries.
Mr. President, I believe that this issue
should be left to the -courts. The Senate
should not prejudice this issue. The Sen-
ate should not diminish our important
new relationship with the People's Re-
public of China.
I believe that the Senate is willing to
act as a responsible partner in shaping
a policy of friendship between the United
States and China, and I hope that our
substitute amendment will be adopted.
The PRESIDING OFFICER. Who
yields time?
Mr. CHURCH. Mr. President, I am pre-
pared to conclude the debate. I just want
to make one final plea.
I know the appeal that this amend-
ment has, but it could get us into a good
deal of mischief.
Suppose, for example, we adopted the
amendment as offered by the distin-
guished Senator from Oklahoma. We
would thus attempt, by legislative decree,
to determine the ownership of this prop-
erty. This would be a most unusual pro-
cedure and one that may indeed be
unique. It is also a procedure for which
we lack competence and, quite possibly,
authority.
Then suppose the court comes along,
even after the adoption of the amend-
ment, and decides that under the govern-
ing law, which it is not within the power
of Congress to set aside, the title for this
particular property belongs to the Peo-
ple's Republic of China.
Then what are we obliged to do? Is it
then incumbent upon us to compensate
Taiwan for the deprivation of the prop-
erty that we attempted by this amend-
ment to place in their hands? I think it
is unwise for - Congress to attempt to
usurp the function of the courts.
Moreover, if this amendment is adopt-
ed it could create serious difficulties for
us in our upcoming negotiations with
the People's Republic of China in our
own endeavor to recover more than 51
tracts of real estate in 'China-and an
even larger number of buildings-that we
wish to possess for purposes of carrying
on our own business with China, now
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CON( SSIONAIL RECORD - SENATE S 2483
that relations have;been normalized with
Peking.
For these several reasons, I think the
substitute amendment should be ap-
proved. It would place the question of
ownership of this particular property,
which now is a litigable issue, where it
belongs-in the courts of this country-
and would thus uphold the rule of law.
Mr. President, I am prepared to yield
back the remainder of my time.
Mr. HELMS. Mr. President. will the
Senator yield?
Mr. BOREN. I yield to the Senator
from North Carolina.
Mr. HELMS. I thank the Senator from
Oklahoma.
Mr. President, I find myself intrigued
by such tender solicitude for Red China.
All the concern that we are going to
preempt the courts of the United States
simply will not hold water.
I think the amendment of the Senator
from Oklahoma. for which the distin-
guished Senator from Idaho has offered
a substitute amendment, is an expression
by the Senate to our friends on Taiwan
that "There are some of us who are not
willing to sell you down the river." It is
an expression that we want to extend at
least some equity to the people on
Taiwan.
With all due respect to my friend from
Idaho, his amendment in the nature of a
substitute is a gutting amendment to
place us back on square one.
So, if Senators want to end a message
of friendship and respect to the people on
Taiwan, they will vote to table the
Church amendment. But if they want to
say, "We are going to continue to give
everything to Red China" then they will
vote for the Church amendment.
But in any case, Mr. President, this
Senate is not going to resolve this mat-
ter satisfactorily because it is impossible
to resolve it satisfactorily.
Simply said, the President sent a
scrambled egg up to the Senate and said,
"Unscramble it." It cannot be done.
I think that the unscrambling may
occur with a new President, perhaps one
who will take office in January 1981, who
would then renew diplomatic relations
with Taiwan again. But that remains to
be seen.
In the meantime the amendment of
the distinguished Senator from Okla-
homa, unfettered.by the proposed sub-
stitute amendment, 'is, in my judgment,
a course of honor for this Senate to take
and a manner of extending to our friends
on Taiwan a little hope and a little
comfort.
I commend the Senator from Okla-
homa and I hope that the Church
amendment will be defeated.
I thank the Senator.
Mr. BOREN. Mr. President, I yield my-
self sufficient time to complete the de-
bate.
I thank the Senator from North Caro-
line for his remarks.
I think we hive tried to make unduly
complicated today a matter that is very,
very simple and very, very straightfor-
ward.
The Senator from Massachusetts and
others, who have just spoken in support
of the substitute amendment, have been
splitting legal hairs.
It comes down to whether or not we
are going to allow the people on Taiwan
to keep their other property, their bank
accounts, and other forms of property.
We have not been told this is a matter
to be left to the courts. The committee
itself speaks to the point as a matter of
policy and says that this property will be
conferred to the people of Taiwan.
When we raise the question of inter-
national law and the status of 'the peo-
ple on Taiwan and the Republic of China
under international law, the committee
does not say we are going to follow all of
the precedents of international law. in
fact, on page 7 of the committee report
is stated:
The Administration has stated that it rec-
ognizes.the People's Republic of China (PRC)
as the 'sole legal government of China. It
has also acknowledged the Chinese position
that Taiwan is a part of China, but the
United States has not itself agreed to this
position. The bill submitted by the Admin-
istration takes no position on the status of
Taiwan under international law, .. .
Then it sets up a whole series of unique
relationships with the people of Taiwan,
including the provision of this act as
submitted by the committee to keep in
force all the legal agreements and trea-
ties that existed previously with the peo-
ple of Taiwan, many of them entered
into prior to 1949.
So I submit that the proponents of
this substitute have talked on both sides.
They have said, "We must not touch this
question because it is a matter of law,
it is a matter of precedents," and then
time and time again they themselves
have said, "No, it is a matter of policy,"
and they have acted as if it were a
matter of policy by the decisions they
themselves have written into this act.
We are certainly here dealing with a
unique situation. I hope in some respects
it is so unique that it is never repeated
again, that a friend and an ally of this
country would be treated as shabbily
as they have been treated, given only a
few hours advance notice in the middle
of the night that they would no longer
be recognized by the Government of the
United States, even though they had
without exception unfailingly been our
international friend.
This amendment, the substitute, it is
said does not take any position as to
whether or not the property will remain
in the hands or be placed in the hands
of the people of Taiwan or the People's.
Republic. I suggest that it is not totally
neutral because as a matter of general
legal interpretation if Congress takes
Positive action in regard to certain cate-
gories and does not take action in re-
gard. to others there is generally a pre-
sumption raised that an exception has
been made.
I think the fact that we are taking posi-
tive action in regard to certain kinds of
property but then choosing not to -take
positive action under this substitute
amendment on others will have some im-
pact and bearing on the courts.
I again suggest, just as we'have,not left
the question of existing international
agreements made prior to 1949 or after
1949, neither one, with the people of
Taiwan in doubt in this bill, just as we
have not left in doubt the title of the
bank deposits and other forms of prop-
erty, whether acquired prior to 1949 or
after 1949, there is no reason why this
Senate should not admit that this is a
policy question and we are here dealing
with a very simple question: Shall we
say to the People's Republic of China on
the mainland, "We are so anxious to
gain your favor on every point, even
though by recognizing you and estab-
lishing relations with you we have al-
ready conferred great benefit on you in
the international councils of state, po-
tentially great benefits in an economic
realm that might flow from future trade,
as a matter of policy we have to please
you by crossing every 't' and dotting
every'i' to your liking?"
Are we to -say to the people of the
world that as a matter of policy this
country should not even make one small
symbolic gesture to a trusted and long
time friend and ally?
When we talk about injecting morali-
ty into international relations, we talk
about the sensitivity of this country to
human rights, I suggest to the Mem-
bers of the Senate that, as a matter
of policy, there could be but one decision
in keeping with what all of us regard
as just and fair to a long-time friend
and ally, and that decision is to send
a small symbolic message. to the people
on Taiwan and to other allies around
the world whose confidence-
The PRESIDING OFFICER. All of the
time of the Senator from Oklahoma has
expired.
The Senator from Idaho has 1 minute
remaining.
Mr. JAVITS. Mr. President, I yield
myself 1 minute.
Mr. President, we have confirmed
bank deposits, money, and other prop-
erty which could conceivably be identi-
fied as belonging to the people on Tai-
wan through their earnings to the tune
of billions, and now the Senator says.
"Send them a small symbolic message."
We have sent them a big symbolic
message. We have pledged ourselves to
their security as well as these billions of
dollars in cash and bank deposits, as
well as establishing for them here com-
mercial relations, as well as giving them
arms sufficient for their defense.
I respectfully submit that all the
Senator is asking us to do is to look back
with him at the time before when we
should not have recognized the People's
Republic of China, and . that I do not
believe the Senate should go along with.
The PRESIDING OFFICER. All time
has expired.
Mr. MORGAN addressed the Chair.
The PRESIDING OFFICER. The
Senator from North Carolina.
Mr. MORGAN. Mr. President, I move
that the substitute amendment lie upon
the table.
Mr. HELMS. Yeas and nays, Mr. Presi-
dent,
The PRESIDING OFFICER. Is there
a sufficient second? There is a sufficient
second.
The yeas and nays were ordered.
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S 2484 CONGRESSIONAL RECORD-SENATE
The PRESIDING OFFICER. The
question is on agreeing to the motion to
lay on the table the substitute amend-
ment of the Senator from Idaho, as
modified.
On this question, the yeas and nays
have been ordered, and the clerk will
call the roll.
The assistant legislative clerk called
the roll.
(Mr. HARRY F. BYRD, JR., assumed
the chair.)
Mr. DECONCINI (After having voted
in the affirmative). Mr. President, on
this vote I have a pair with the Senator
from Delaware (Mr. BIDEN). If he were
present and voting, he would vote, "nay."
If I were at liberty to vote, I would vote,
"aye." Therefore, I withdraw my vote.
Mr. CRANSTON. I announce that the
Senator from Delaware (Mr. BIDEN), the
Senator from Florida (Mr. CHILES), the
Senator from Missouri ( Mr. EAGLETON),
the Senator from Alaska (Mr. GRAVEL),
the Senator from Hawaii (Mr.. MATSU-
NAGA), the Senator from South Dakota
(Mr. MCGOVERN), the Senator from Wis-
consin (Mr. NELSON), the Senator from
Connecticut (Mr. RIBICOFF), and the
Senator from Mississippi (Mr. STENNIS)
are necessarily absent.
I further announce that the Senator
from Rhode Island (Mr. PELL) is absent
on official business.
I further announce that, if present
and voting, the Senator from Rhode
Island (Mr. PELL) would vote "nay."
Mr. STEVENS. I announce that the
Senator from Colorado (Mr. ARMSTRONG),
the Senator from Oklahoma (Mr. BELL-
MON), and the Senator from Connecticut
(Mr. WEICKER) are necessarily absent.
The PRESIDING OFFICER. Have all
Senators voted?
The result was announced-yeas 49,
nays 36, as follows:
[Rollcall Vote No.
14 Leg.]
YEAS-49
Baker Hayakawa
Pryor
Bayh Heflin
Randolph
Bentsen Heinz
Sasser
Boren Helms
Schmitt
Boschwitz
Hollings
Schweiker
Bumpers
Humphrey
Simpson
Byrd,
Jepsen
Stafford
Harry F., Jr.
Kassebaum
Stevens
Cochran
Laxalt
Stewart
Cohen
Leahy
Stone
Danforth
Long
Talmadge
Dole
Lugar
Thurmond
Domenici
McClure
Tower
Ford
Morgan
Wallop
Garn
Nunn
Warner
Hatch
Pressler
Young
Hatfield
Proxmire
NAYS-36
Baucus
Glenn
Metzenbaum
Bradley
Hart
Moynihan
Burdick
Huddleston
Muskie
Byrd, Robert C. Inouye
Packwood
Cannon
Jackson
Percy
Chafee
Javits
Riegle
Church
Johnston
Roth
Cranston
Kennedy
Sarbanes
Culver
Levin.
Stevenson
Durenberger
Magnuson
Tsongas
Durkin
Mathias
Williams
Exon
Melcher
Zorinsky
ANSWERED "PRESENT"-1
Goldwater
PRESENT AND GIVING A LIVE PAIR, AS
PREVIOUSLY RECORDED-1
DeConcini, for.
NOT VOTING-13
Armstrong Gravel Ribicof
Bellmon Matsunaga Stennis
Biden McGovern Weicker
Chiles Nelson
Eagleton Pell
So the motion to lay on the table UP
amendment No. 35 was agreed to.
Mr. HELMS. Mr. President, I move to
reconsider the vote by which the motion
to lay on the table was agreed to.
Mr. BOREN. I move to lay that motion
on the table.
The motion to lay on the table was
agreed to.
The PRESIDING OFFICER. The ques-
tion now recurs on agreeing to the
amendment offered by the Senator from
Oklahoma (Mr. BOREN).
The amendment was agreed to.
Mr. HELMS. I move to reconsider
the vote by which the amendment was
agreed to.
Mr. CHURCH. I move to lay that mo-
tion on the table.
The motion to lay on the table was
agreed to.
Mr. HATCH. Mr. President-
The PRESIDING OFFICER. The Sen-
ate is not in order. The Senator will
suspend until the Senate is in order.
Business cannot be transacted until the
Senate is in order. Will Senators help
expedite the work of the Senate by tak-
ing their seats? Will Senators take their
seats so the work of the Senate can con-
tinue?
The Chair recognizes the Senator from
Utah (Mr. HATCH).
AMENDMENT NO. 98
(Purpose: To protect the trade of Taiwan
and the United States) '
Mr. HATCH. Mr. President, I call up
amendment No. 98 and ask for its im-
mediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.,
The assistant legislative clerk read as-
follows :
The Senator from Utah (Mr. HATCH)
proposes an amendment numbered 98:
On page 14, line 8, after "peaceful means"
insert the following: "Including discrimina-
tory trading practices, boycotts or embargoes,
and other similar measures".
Mr. HATCH. Mr. President, I yield my-
self such time as I need.
Mr. President, I rise to offer an amend-
ment that will clarify what may prove to
be a problem in the future. The whole
purpose of the amendment is to reenforce
the intent of the legislation before us and
to clarify its reference to a bill that was
passed by the Congress last year.
Last year-the Congress passed Public
Law 95-52, which amended the Export
Administration Act to cover the area of
boycotts by foreign nations of U.S. firms
in order to obtain what may be defined
as political objectives. At that time the
legislation was intended to cover the
Arab boycott, but I find that is equally
applicable in this situation. I am speak-
ing, of course, of title II of the Export
Administration Act. This legislation pro-
hibits Americans from participating in
or supporting a trade boycott initiated
by a foreign country against a nation
friendly to the United States.
March 12, 1979
Mr. President, I ask unanimous con-
sent that the language of title II be
printed in the RECORD at this point.
There being no objection, the language
of title 2 was ordered to be printed in the
RECORD, as follows:
TITLE II-FOREIGN BOYCOTTS
PROHIBITION ON COMPLIANCE WITH FOREIGN
BOYCOTTS
SEC. 201. (a) The Export Administration
Act of 1969 is amended by redesignating sec-
tion 4A as section 4B and by inserting after
section 4 the following new section:
"FOREIGN BOYCOTTS
"SEC. 4A. (a) (1) oFr the purpose of im-
plementing the policies set forth in section
3(5) (A) and (B), the President shall issue
rules and regulations prohibiting any United
States person, with respect to his activities
in the interstate or foreign commerce of the
United States, from taking or knowingly
agreeing. to take any of the following ac-
tions with intent to comply with, further,
or support any boycott fostered or imposed
by a foreign country against a country which
is friendly to the United States and which is
not itself the object of any form of boycott
pursuant to United States law or regulation:
"(A) Refusing, or requiring any other per-
son to refuse, to do business with or in the
boycotted country, with any business concern
organized under the laws of the boycotted
country, with any national or resident of the
boycotted country, or with any other person,
pursuant to an agreement with, a require-
ment of, or a request from or on behalf of
the boycotting country. The mere absence of
a business relationship with or in the boy-
cotted country, with any business concern
organized under the laws of the boycotted
country, with any national or resident of the
boycotted country, or with any other person,
does not indicate the existence of the intent
required to establish a violation of rules and
regulations issued to carry out this subpara-
graph.
"(B) Refusing, or requiring any other per-
son to refuse, to employ or otherwise discrim-
inating against any United States person on
the basis of race, religion, sex, or national
origin of that person or of any owner, officer,
director, or employee of such person.
"(C) Furnishing information with respect
to the race, religion, sex, or national origin
of any other United States person or of any
owner, officer, director, or employee of such
person.
"(D) Furnishing information about
whether any person has, has had, or pro-
poses to have any business relationship
(including a relationship by way of sale,
purchase, legal or commercial representation,
shipping or other transport, insurance,
investment, or supply) with or in the boy-
cotted country, with any business concern
organized under the laws of the boycotted
country, with any national or resident of the
boycotted country, or with any other person
which is known or believed to be restricted
from having any business relationship with
or in the boycotted country. Nothing in ti'
paragraph shall prohibit the furnishing of
normal business information in a com-
mercial context as defined by the Secretary
of Commerce.
"(E) Furnishing information about
whether any person is a member of, has
made contributions to, or is otherwise asso-
ciated with or involved in the activities of
any charitable or fraternal organization
which supports the boycotted country.
"(F) Paying, honoring, confirming, or
otherwise implementing a letter of credit
which contains any condition or requirement
compliance with-which is prohibited by rules
and regulations issued pursuant to this
paragraph, and no United States person shall,
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CONGRESSIONAL RECORD -SENATE S 2485
as a result of the application of this para-
graph, be obligated to pay or otherwise
honor or implement such letter of credit.
"(2) Rules and regulations issued pursu-
ant to paragraph (1) shall provide excep-
tions for-
"(A) complying or agreeing to comply
with requirements (I) prohibiting the
import of goods or services from the boy-
cotted country or goods produced or serv-
ices provided by any business concern orga-
nized under the laws of the boycotted coun-
try or by nationals or residents of the boy-
cotted country, or (ii) prohibiting the ship-
ment of goods to the boycotted country, on a
carrier of the boycotted country, or by a
route other than that prescribed by the boy-
cotting country or the recipient of the ship-
ment;
"(B) complying or agreeing to comply
with import and shipping document require-
ments with respect to the country of origin,
the name of the carrier and route of ship-
ment, the name of the supplier of the ship-
ment or the name of the provider of other
services, except that no information know-
ingly furnished or conveyed in response to
such requirements may be stated in negative,
blacklisting, or similar exclusionary terms
after the expiration of one year following the
date of enactment of the Export Adminis.
tration Amendments of 1977;
"(C) complying or agreeing to comply
with the unilateral selection by a boycotting
country, or national or resident thereof
(other than a United States person) of car-
riers, insurers, Suppliers of services within
the boycotting country or specific goods
which, in the normal course of business, are
identifiable by source when imported into
the boycotting country;
"(D) complying or agreeing to comply
with export requirements of the boycotting
country relating to shipments or transship-
ments of exports to the boycotted country,
to any business concern of or organized un-
der the laws of the boycotted country, or to
any national or resident of the boycotted
country;
"(E) compliance by an individual or agree-
ment by an individual to comply with the
immigration or passport requirements of any
country; and
"(F) compliance by a United States per-
son resident in a foreign country or agree-
ment by such person to comply with the
laws of that country with respect to his
activities exclusively therein, and such rules
and regulations may contain exceptions for
compliance with import laws of that country.
"(3) Rules and regulations issued pursu-
ant to paragraphs (2) (C) and (2) (F) shall
not provide exceptions from paragraphs (1)
(B) and (1)(C).
"(4) Nothing in this subsection may be
construed to supersede or limit the operation
of the antitrust or civil rights laws of the
United States.
"(5) Rules and regulations pursuant to
this subsection shall be issued not later
than 90 days after the date of enactment of
this section and shall be issued in final form
and become effective not later than 120 days
after they are first issued, except that (A)
rules and regulations prohibiting negative
certification may take effect not later than
one year after the date of enactment of this
section, and (B) a grace period shall be
provided for the application of the rules
and regulations issued pursuant to this sub-
section to actions taken pursuant to con-
tracts or other agreements in effect on or
before March 1, 1977. Such grace period shall
be two years after the date of enactment of
this section and may be extended for three
additional one-year periods in cases in which
good faith efforts are being made to amend
such contracts or agreements.
"(6) This Act shall apply to any trans-
action or activity undertaken with intent to
evade the provisions of this Act regardless
of whether such transaction or activity in-
volves the interstate or foreign commerce
of the United States.".
"(b) (1) In addition to the rules and regu-
lations issued pursuant to subsection (a)
of this section, rules and regulations issued
under section 4(b) of this Act shall imple-
ment the policies set forth in section 3(5).
"(2) Such rules and regulations shall re-
quire that any United States person receiving
a request for the furnishing of information,
the entering into or implementing of agree-
ments, or the taking of any other action
referred to in section 3 (5). shall report that
fact to the Secretary of Commerce, together
with such other information concerning such
request as the Secretary may require for
such action as he may deem appropriate for
carrying out the policies of that section.
Such person shall also report to the Secretary
of Commerce whether he intends to com-
ply and whether he has complied with
such request. Any report filed pursuant
to this paragraph after the date of enactment
of this section shall be made available
promptly for public inspection and copying,
except that information regarding the quan-
tity, description, and value of any articles,
materials, and supplies, including technical
data and other information, to which such
report relates may be kept confidential if
the Secretary determines that disclosure
thereof would place the United States person
involved at a competitive disadvantage. The
Secretary of Commerce shall periodically
transmit summaries of the information con-
tained in such reports to the Secretary of
State for such action as the Secretary of
State, In consultation with the Secretary of
Commerce, may deem appropriate for carry-
ing out the policies set forth in section 3(5)
of this Act.".
(b) Section 4(b) (1) of such Act is amend-
ed by striking out the next to the last sen-
tence.
(c) Section 7(c) of such Act is amended by
striking out "No" and inserting in lieu there-
of "Except as otherwise provided by the third
sentence of section 4A(b) (2) and by section
6(c) (2) (C) of this Act, no".
STATEMENT OF POLICY
SEC. 202. (a) Section 3(5) (A) of the Export
Administration Act of 1969 is amended by
inserting immediately after "United States"
the following: "or against any United States
person".
(b) Setcion 3(5) (B) of such Act is amend-
ed to read as follows: "(B) to encourage and,
in specified cases, to require United States
persons engaged in the export of articles,
materials, supplies, or information to refuse
to take actions, including furnishing infor-
mation or entering into or implementing
agreements, which have the effect of further-
ing or supporting the restrictive trade prac-
tices or boycotts fostered or imposed by any
foreign country against a country friendly
to the United States or against any United
States person,".
ENFORCEMENT
SEC. 203. (a) Section 6(c) of the Export
Administration Act of 1969 is amended-
(A) by redesignating such section as sec-
tion 6(c) (1); and
(B) by adding at the end thereof the fol-
lowing new paragraph;
"(2) (A) The authority of this Act to sus-
pend or revoke the authority of any United
States person to export articles, materials,
supplies, or technical data or other infor-
mation, from the United States, its terri-
tories or possessions, may be used with re-
spect to any violation of the rules and regu-
lations issued pursuant to section 4A(a) of
this Act.
"(B) Any administrative sanction (includ-
ing any civil penalty or any suspension or
revocation of authority to export) imposed
under this Act for a violation of the rules
and regulations issued pursuant to section
4A(a) of this Act may be imposed only after
notice and opportunity for an agency hear-
ing on the record in accordance with sec-
tions 554 throagh 557 of title 5, United States
Code.
"(C) Any charging letter or other docu-
ment initiating administrative proceedings
for the imposition of sanctions for violations
of the rules and regulations issued pursu-
ant to section 4A(a) of this Act shall be
made available for public inspection and
copying.".
(b) Section 8 of such Act is amended by
striking out "The" and inserting in lieu
thereof "Except as provided in section 6(c)
(2), the".
DEFINITIONS
SEC. 204. Section 11 of the Export Admin-
istration Act of 1969 is amended to read as
follows:
"DEFINITIONS
"SEC. 11. As used in this Act-
"(1) the term 'person' includes the singu-
lar and the plural and any individual, part-
nership, corporation, or other form of asso-
ciation, including any government or agen-
cy thereof; and
"(2) the term 'United States person'
means any United States resident or national
(other than an individual resident outside
the United States and employed by other
than a United States person), any domestic
concern (including any permanent.domestic
establishment of any foreign concern) and
any foreign subsidiary or affiliate (including
any permanent foreign establishment) of
any domestic concern which is controlled in
fact by such domestic concern, as deter-
mined under regulations of the President.".
PREEMPTION
SEC. 205. The amendments made by this
title and the rules and regulations issued
pursuant thereto shall preempt any law,
rule, or regulation of any of the several
States or the District of Columbia, and any
of the territories or possessions of the United
States, or of any governmental subdivision
thereof, which law, rule or regulation per-
tains to participation in, compliance with,
implementation of, or the furnishing of in-
formation regarding restrictive trade prac-
tices or boycotts fostered or imposed by for-
eign countries against other countries.
Amend the title so as to read: "A bill to
amend and extend the Export Administra-
tion Act of 1969."
Mr. HATCH. Mr. President, it is an
acknowledged fact that the people on
Taiwan are heavily dependent upon for-
eign trade. In 1978 Taiwan's worldwide
exports comprised 48 percent of its gross
national product. This was about $11 bil-
lion out of a $22 billion gross national
product. This reliance upon foreign trade
places the people of Taiwan in a very
precarious position. With the recognition
of the People's Republic of China by the
United States, it raises the question of
possible interference in that trade. The
amount of trade between the United
States and Taiwan is significant.- It may
well be jeopardized by Chinese attempts
to place economic pressure upon Ameri-
can businessmen who seek to open the
mainland market. This legislation before
us today has as one of its major purposes
to create the American Institute on Tai-
wan. The purpose of this Institute is to
promote the trade between the two par-
ties. In his announcement of the new
China policy on December 15. 1978, Pres-
ident Carter stated:
I have paid special attention to ensuring
that normalization of relations between the
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CONGRESSIONAL RECORD -SENATE March 12, 1979
United States and the Peoples Republic will
not jeopardize the well-being of the people
of Taiwan.
The people of the United States will main-
tain our current commercial, cultural and
other relations with Taiwan through nongov-
ernmental means.
This language makes it very clear that
the United States plans on a continuing
development of trade with Taiwan. How-
ever, this may not be in the best inter-
ests of the Peoples Republic of China and
they may wish to take actions that would
discourage this build up of trade.
Being more specific, the fear that I
have is that the potential danger of in-
terference by the PRC in the trade and
other economic relations that Taiwan
now has with other countries may become
a reality. If the PRC is permitted to
mount an effective campaign of economic
harrassment they will eventually be able
to economically suffocate Taiwan.
A classic example of this type of har-
rassment would be the pressure placed
upon Japan and Japanese businessmen.
In 1973 and early 1974 the Government
of Japan was under severe PRC pressure
to cut off air service between Taipei and
Tokyo. In 1974, while the air service was
allowed to continue. Taiwan's China Air-
line was compelled to use a Japanese
domestic airport rather than an interna-
tional airport in Tokyo. At the same time
subtle pressure was being applied to Jap-
anese businessmen who hoped to do busi-
ness with the PRC. It became known
that the continued development of trade
between Japan and Taiwan might endan-
ger future business dealings with the PRC
by those Japanese firms. It is obvious to
anyone in the business community what
the ramifications of such pressure would
have upon decisions involving trade rela-
tions between any firm wishing to deal
with both the Chinas.
Mr. President, this issue.arose during
the attempt by certain Arab nations to
impose a boycott on the nation of Israel.
At that time the problem was handled
in the Banking Committee of the Sen-
ate. Legislation was passed which ex-
tended the Export Administration Act to
cover problems that occur in this area.
Section 3(5) of the act sets forth U.S.
policy against foreign boycotts as fol-
lows:
It is the policy of the United States (A)
to oppose restrictive trade practices or boy-
cotts fostered or imposed by foreign coun-
tries against countries friendly to the United
States; (B) to encourage and request domes-
tic concerns engaged in . export . to
refuse to take any action, including the fur-
nishing of information or the signing of
agreements, which has the effect of further-
ing or supporting ... (such) ... restrictive
trade practices or boycotts ...
This section of the act was further
strengthened last year and I have had
that section entered into the record to
show my colleagues its impact.
Mr. President, it is because I feel that
some form of boycott might occur, be it
overt or covert, that I think this lan-
guage should be added to the bill to make
it perfectly clear that the United States
will not tolerate such intervention in our
own trade matters. We are committed
to the development of trade between the
United States and Taiwan and encour-
age such trade between Taiwan
and other nations. To do less would be
an abandonment of the economic system
that is modeled after the system that we
have developed in the United States.
I encourage my colleagues to support
this amendment.
I encourage my colleagues to support
this amendment again as a showing of
support, moral, ethical, and reasonable
support, for the people on Taiwan.
Mr. President, I ask for the yeas and
nays on my amendment.
The PRESIDING OFFICER. Is there
a sufficient second? There is a sufficient
second.
The yeas and nays were ordered.
Mr. HATCH. Mr. President, I reserve
the remainder of my time.
The PRESIDING OFFICER. Who
yields time?
Mr. GLENN. Mr. President, I yield my-
self such time as I may require.
Mr. President, I rise to oppose the
amendment by the distinguished sen-
ator from Utah.
When the Senator says in his amend-
ment that this would include discrim-
inatory trade practices I would submit
that practically every nation in the
world has discriminatory trade practices
of one type or another. We have quotas;
we have tariffs. Probably a discrimina-
tory trade practice could be defined as
anything short of most-favored nation
status.
To inject that into the very carefully
worked out wording of this section 114,
it seems to me, not only is unnecessary,
but changes the intent and meaning of
this section to a considerable degree.
I might ask the distinguished Senator
from Utah-if he will-turn to page 31 of
the committee report. In referring to this
particular section and the intent of it,
the report states:
Subsection (b)
The Committee made clear in its discus-
sion of subsection (b) (1) that the United
States was concerned with external threats
or coercion rather than with internal chal-
lenges'to the security or to the social or eco-
nomic system of the people on Taiwan. In
discussing the matter of possible coersio4,
the Committee indicated that the United
States would maintain its capacity to resist
not only direct force but indirect force as
well, such as a blockade or a boycott, that
would jeopardize the social or economic sys-
tem of the people on Taiwan. During the
hearings, several Senators emphasized the
applicability of the anti-boycott provisions
of the Export Administration Act to the
China-Taiwan context. Those provisions
make illegal compliance by U.S. citizens or
corporations with economic boycotts against
Taiwan.
Mr. President, I think that pretty well
spells out the intent of the committee. It
indicates that the section here provides
for boycott application. It points out also
the applicability of the antiboycott pro-
visions of already existing law, the Ex-
port Administration Act, and that it
would apply in this China-Taiwan con-
text.
Mr. HATCH. Will the Senator yield
for a question?
Mr. GLENN. I am glad to yield.
Mr. HATCH. During the debate on this
question with Senator HARRY F. BYRD,
the distinguished Senator from Ohio
happened to be managing the bill or was
on the floor at that time. The Senator
from Ohio stated: "The Senator has
quoted repeatedly that particular part
of the report today." This was with re-
gard to the Byrd amendment that was
withdrawn last week.
Senator GLENN, at the time, said:
The Senator has quoted repeatedly that
particular part of the report today. I can
only say that he is well aware that these
hearings and the reports that follow do not
have the force of law behind them nor are
they anything but expressions of opinions.
In fact, sometimes there are errors. I was
surprised when I read that particular part,
because I think it overstates the situation
and should not have been there.
I call to the attention of the Senator
from Ohio that that is precisely why I
am requesting this amendment, because
the reports are not law. I think it is im-
portant that we recognize through this
amendment that those reports are not
law and thus, through this amendment,
make it law. I think it is a fair thing to
do for the people on Taiwan. I hope the
Senator will reply to that.
Mr. GLENN. I reply to the Senator
that if he will read subsection (b) (1), he
will see it applies to all the things he is
trying to do. It says:
(b) In order to achieve the objectives of
this section-
(1) the United States will maintain its
capacity to resist any resort to force or other
forms of coercion that would jeopardize the
security, or the social or economic system, of
the people on Taiwan;
I do not see how we can be any more
explicit, any more definitive, than that
language. That language was very care-
fully worked out in committee. We went
over and over it, had much debate on
that particular item, with a view toward
covering exactly the situation and ex-
actly the intent that the Senator from
Utah has expressed as his reason for
submitting the amendment to the bill.
I think the Senator's point has already
been covered.
Mr. HATCH. Where was the Senator
reading from?
Mr. GLENN. The bill itself, page 14,
subsection (b) and (1) under it, lines 13
through 17, page 14.
(b) In order to achieve the objectives of
this section-
(1) the United States will maintain its
capacity to resist any resort to force or other
forms of coercion that would' jeopardize the
security, or the social or economic system, of
the people on Taiwan;
It seems to me that that really spells
out in very good and well-stated detail
the fact that we would oppose any moves
or boycotts or other forms of coercion,
as we say, completely openly, "or other
forms of coercion that would jeopardize
the security, or the social or economic
system, of the people on Taiwan."
Mr., HATCH. Will the Senator yield
again for a comment?
Mr. GLENN. Yes.
Mr. HATCH. The reason we want to
put this amendment in, and I submit,
if the Senator is in agreement, the
amendment is basically there. All we
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want to do is make it more explicit in North Carolina on his right before he
paragraph (3), page 14, at line 8. What wished to put this in because there are
we would do is insert after "peaceful several billion dollars worth a year of
means" the words "including discrimi- textiles that come off the island of Tai-
natory trading practices, boycotts or em- wan.
bargoes and other similar measures." If we say that there are to be no dis-
The language in (b) (1) is not clear. In cririnatory trade practices, it means we
fact, in my opinion, it is ambiguous. We have no quotas, no tariffs, issued against
would solve the problem, I say, and I the Taiwan position, or anyone else.
suggest that the manager of the bill I presume it would mean we dump all
ought to accept this language. Taiwan's textile output on its own in-
Mr. CHURCH. Mr. President, this dustry in this country, and we could not
language is addressed to.the wrong sec- stand against that.
tion of the bill, in my judgment. Subpara- I would say, in August 1978, agree-
graph (3), beginning on line 7 of page ment was reached on curbing textile ex-
14, is a statement having to do with the ports from Taiwan. This is an agreement
policy of the United States. It reads: that, apparently, would go down the
To consider any effort to resolve the Tai- drain.
wan issue by other than peaceful means a The format was the same as earlier
threat to the peace and security of the West- agreements restricting footwear and
ern Pacific area and of grave concern to the color televisions. Then, in December
United States;" 1978, a bilateral trade agreement was
This section deals with the underlying concluded that is expected to balance
and continuing concern of the United Taiwan's MFN benefits. This was neces-
States that the Taiwan question not be sary since Taiwan does not participate
resolved by resort to arms. It says that in the multilateral trade negotiations.
if mainland China were to attack Tai- So it seems to me this is even more
wan, such an action would constitute a hazardous to American industry and
threat to the peace and security of the business and, in particular, those States
Western Pacific area and be of grave that deal heavily with textile matters
concern to the United States. and whose livelihood depends on that
Now, that is the subject matter of this than I had first thought when I read the
particular paragraph. If we were to in- Senator's amendment.
clude the words .suggested by the Senator I thank the distinguished Senator
from Utah, we would in effect be saying from Idaho for yielding.
that any discriminatory trade practice Mr. HATCH. Will the Senator yield?
that might be adopted by mainland Mr. CHURCH. Yes, for a question.
China with reference to its own trade Mr. HATCH. Yes.
with Taiwan would constitute a threat Mr. President, I would agree that this
to the peace and security of the Western particular amendment would change
Pacific area. those types of trade agreements. On the
That goes very, very far. The language other hand, I think it does satisfy in this
goes even farther, and I cannot imagine section because we are talking about the
language so imprecise as the words only real form of Taiwan economic
"other similar measures." Other similar existence. We are saying in this partic-
measures to what? If you take the pre- ular amendment that after "peaceful
vious words, you get "discriminatory means," we would insert "including dis-
trading practices, boycotts or embargoes criminatory trading practices, boycotts
or other similar measures." That includes or embargoes, and other similar
a whole host of possible actions quite be- measures."
yond our imagining. Are we to say that I believe the Senator from Ohio was
such actions, whatever they may be, are wrong on his particular assertion. How-
going to constitute a threat to the peace ever, I think the Senator from Idaho.
and security of the Western Pacific area? made some telling points. I think he is
W. President, we engage in discrimina- correct that this may be the wrong sec-
tory trade practices. We enage in embar?- tion to put this in and, because of the
goes. threat to the peace and security of the
Mr. GLENN. Will the Senator Yield? Western Pacific area and grave concern
Mr. CHURCH. I shall be happy to yield to the United States, I can see why some
in just 1 second. . people would want that in there.
To suggest that anything mainland But I have to admit that the amend-
China might do, even if it takes the form ment would be more appropriate at a
of actions that we. ourselves sometimes different place in the particular bill.
take, constitutes a threat to the peace of Mr. CHURCH. Would the Senator be
the western Pacific area goes further good enough in the light of his comment
than anyone would want to go, bearing to withdraw the amendment at this time
in mind the fundamental necessity to without prejudice?
protect American options and to preserve Mr. HATCH. Yes.
American interests in that part of the Mr. President, I ask unanimous con-
world. ' sent that the amendment be immediately
This amendment makes no sense. withdrawn.
I yield. The PRESIDING OFFICER. Is there
Mr. GLENN. I thank the Senator. objection?
Mr. President, I was going to amplify The Chair hears none.
about discriminatory trade practices. Without objection, it is so ordered.
I submit that the Senator from Utah, Who yields time? _
with all good intent, might be well ad- The Senator from North Carolina (Mr.
vised to check with the Senator from HELMS).
S 2487
AMENDMENT NO. 74
(Purpose: To amend the Taiwan Enabling
Act to provide further for the security of
Taiwan.)
Mr. HELMS. Mr. President, I have an
amendment at the desk, No. 74, which I
call up and ask that it be stated.
The PRESIDING OFFICER.
amendment will be stated.
The assistant legislative clerk read as
follows:
The Senator from North Carolina (Mr.
HELMS) proposes an amendment numbered
74.
Mr. HELMS. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment is as, follows:
On page 14, line 10, strike out "and".
On page 14, line 12, strike out the period
and insert in lieu thereof a semicolon and
"and".
On page 14, between lines 12 and 13, insert
the following:
"(5) to continue contacts by each military
service of the Armed Forces of the United
States with the corresponding military serv-
ice of the Armed Forces of the people on
Taiwan.".
Mr. HELMS. Mr. President, I yield my-
self such time as I may require.
Mr. President, in his testimony to the
Committee on Foreign Relations in re-
sponse to an inquiry by Senator STONE,
General Jones, chairman of the Joint
Chiefs, indicated that while the military
could live with a relationship with the
military forces of the people on Taiwan
on a basis other than service to service,
obviously, or it seemed obvious to the
Senator from North Carolina, General
Jones, would prefer otherwise.
Mr. President, with this amendment all
the Senator from North Carolina seeks
to do is to continue service-to-service
contacts between the military people of
the United States and the military of the
people on Taiwan.
I do not want the President to cut off
that channel of communication; and
that, in effect, is all this amendment is
saying. In no way is the Senator from
North Carolina attempting to confer an
official contact so as to give the people
on Taiwan a status that is not contem-
plated in this bill.
I would welcome any comment by the
distinguished Senator from Idaho.
Mr. CHURCH. Mr. President, if I un-
derstand the Senator correctly, there is
nothing in this bill that would prevent
the use of American military personnel
in connection with the performance of a
contract relating to arms that might be
negotiated between the American Insti-
tute and the Taiwanese Institute.
In other words, it would seem to me
that implementing such a contract could
appropriately require the use of civilian
experts or military experts, as the case
might be.
Mr. HELMS. Mr. Presdent, I think the
legislative history based on the state-
ment by the distinguished Senator from
Idaho is satisfactory. I see no purpose
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CONGRESSIONAL RECORD - SENATE March 12, 1979
pursuing the amendment. Therefore, I
withdraw it.
The PRESIDING OFFICER. The
amendment has been withdrawn.
Who yields time?
The Senator from North Carolina.
AMENDMENT NO. 78
Purpose: To amend the Taiwan Enabling Act
to provide further for the security of
Taiwan
Mr. HELMS. Mr. President, I have
amendment No. 78 at the desk and I call
it up and ask that it be stated.
The PRESIDING OFFICER. The
amendment will be stated.
The assistant legislative clerk read as
follows:
The Senator from North Carolina (Mr.
HELMS) proposes an amendment numbered
78:
On page 14, line 20, insert after "defen-
sive character" a comma and the following:
"including all-weather, fighters, antisub-
marine warfare weaponry, and antiship mis-
siles".
Mr. HELMS. Mr. President, I have
again discussed with the distinguished
Senator from Idaho and others the intent
of this amendment.
I want to make this clear, Mr. Presi-
dent. I have been very encouraged with
the work in committee done by the dis-
tinguished Senator from Idaho and the
distinguished Senator from New York,
the chairman and ranking member, in
connection with the legislation now
pending.
My primary concern relating to this
particular amendment is to assure that
Taiwan's legitimate defense needs are
met, that the military status quo in
the Taiwan Straits is maintained and
that Taiwan has an adequate deterrent
capability.
In order to assure that such needs are
met, this Senator believes that the bare
minimum of Taiwan's defensive weap-
onry needs must include advanced
all-weather fighters, antiship missiles,
and advanced antisubmarine warfare
weaponry.
I do not purport that this is an all-
inclusive list, nor does it name specific
weapons systems. That should be up to
the President, in consultation with the
people on Taiwan.
Moreover, Mr. President, the Senator
from North Carolina cannot go into a
great deal of detail, because, as the able
Senator from Idaho knows, this matter
was discussed in executive session with
General Jones. I do not want to risk, by
inadvertence, appearing to state his
position.
As to this amendment, I simply want
to let the President and the PRC and the
people on Taiwan know just what the
Senate means when it says that we will
assist the people on Taiwan to main-
tain a sufficient self-defense capability
through the provision of arms of a de-
fensive nature, and I stress the word
"defensive." These are the arms of a
defensive nature about which I am
speaking.
No Senator wants to bear the burden
of having forced an unwilling Taiwan
into an act of desperation in joining the
nuclear club or alinement with the So-
viet Union, but that is a real risk if we
make a mistake in the Senate. We all
bear potential responsibility for that if
we do not give Taiwan the legitimate
and reasonable assurances that Taiwan
needs.
This in no way implies that the For-
eign Relations Committee has not gone
a very long way in attempting to do
just that. It is simply a matter that we
need to go a little further, in the judg-
ment of the Senator from North Caro-
lina, and say to the President, with all
due respect to him and his constitutional
authority and duty, that we want the
President to know that these weapons
systems are the bare minimum of what
we feel will allow Taiwan to provide for
its own self-defense.
After all, many references have been
made in this Chamber-and in the For-
eign Relations Committee, for that mat-
ter-concerning the President's failure
to consult adequately with Congress on
the process of what is called normaliza-
tion. In all candor, the President did not
seek the counsel of the Senate. Thus, I
think we are in the position of making,
or being forced to make, some changes in
the legislation submitted by the admin-
istration.
I do not want, and I do not think we
really can afford, another conflict with
the President on this matter. All I seek
to do is to make our position clear from
the outset.
I will be happy to have the comments
of the distinguished Senator from Idaho.
Mr. CHURCH. First, Mr. President, I
thank the distinguished Senator from
North Carolina for his expression of con-
cern relating to the future security needs
of Taiwan. It is one that I share with
him.
The operative words of the statute
before us are as follows:
The United States will assist the people on
Taiwan to maintain a sufficient self-defense
capability through the provision of arms
of a defensive character.
First, during the coming year arms
already in the pipeline destined for Tai-
wan have been characterized by the
government there as adequate for Its
defense requirements. So under the ar-
rangement that the President has made
with Peking, there will be no further
sale of arms during the coming year. It
is clear that the arms already in the
pipeline will suffice.
Looking beyond the coming year, the
United States has reserved-the Presi-
dent, himself, in his arrangement with
Peking has reserved-our right to rein-
state the sale of defensive weapons to the
people on Taiwan. The Senate committee
went a step further by adding the word
"sufficient." I think that the sentence I
have read is not susceptible to any mis-
interpretation. It says:
The United States will assist the people on
Taiwan to-maintain a sufficient self-defense
capability through the provision of arms of
a defensive character.
I am sure that the able Senator from
North Carolina will agree that we must
reserve to our Government the right to
determine what is sufficient. But the
kinds of weapons to which he has re-
ferred-all-Weather fighters, antisub-
marine missiles, and antiship missiles-
all three of these categories include
weapons that are designed to be defen-
sive in character and therefore would be
appropriate for our consideration in de-
termining what constitutes sufficient
weapons for the defense of Taiwan.
I agree with the Senator that as long
as this is clear, and I think our colloquy
has made it clear, it would be unwise to
attempt to actually designate given
weapons in the statute itself. We want to
retain for ourselves the necessary lati-
tude to make our own determination
with respect to what best serves this ob-
jective-namely, a sufficient defense ca-
pability for Taiwan.
Mr. HELMS. I believe that all three of
us-the Senator from New York, the Sen-
ator from Idaho, and the Senator from
North Carolina-agree on this point, and
I want to make it crystal clear for the
record.
Mr. JAVITS. Mr. President, will the
Senator yield?
Mr. HELMS. I yield.
Mr. JAVITS. "A sufficient self-defense
capability," it seems to me, must include
all-weather fighters, antisubmarine war-
fare weaponry, and antiship missiles.
These are defensive weapons. So I can-
not see any question about that.
Mr. HELMS. Mr. President, I thank
the Senator from New York and the Sen-
ator from Idaho.
I believe it is clear that the weapons
I have mentioned are agreed to be a bare
minimum. With that legislative history
having been made, my purpose has been
accomplished, and I withdraw the
amendment.
The PRESIDING OFFICER. Amend-
ment No. 78 is withdrawn by the Senator
from North Carolina.
Who yields time?
AMENDMENT NO. 98 (AS MODIFIED)
(Purpose: To protect the trade of Taiwan
and the United States)
Mr. HATCH. Mr. President, I send to
the desk a modification of my original
amendment and ask for its immediate
consideration. .
The PRESIDING OFFICER. The
amendment will be stated.
The assistant legislative clerk read as
follows:
The Senator from Utah (Mr. HATCH)
proposes an amendment numbered 98,
as modified:
On page 14, line 8, after "peaceful means"
Insert the following: "including boycotts or
embargoes".
The PRESIDING OFFICER. The
Chair notes that inasmuch as the yeas
and nays have been ordered, unanimous
consent is required to modify the amend-
ment.
Mr. HATCH. I ask unanimous consent
that such modification take place.
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and it
is so ordered.
Mr. HATCH. I also ask unanimous
consent that the order for the yeas and
nays be vitiated.
The PRESIDING OFFICER. Is there
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CONGRESSIONAL RECORD- SENATE
objection? The Chair hears none, and it
is so ordered.
Mr. HATCH. Mr. President, it is my
understanding that the managers of the
bill are willing to accept this language as
it has been revised, because it now will
fit within the section we discussed before.
I see no further reason for us to debate.
Mr. CHURCH. Mr. President, as I un-
derstand the amendment as revised, the
words "discriminatory trading practices"
as well as the words "and other similar
measures" have been stricken.
Mr. HATCH. That is correct.
Mr. CHURCH. So that if the amend-
ment were accepted, subsection (3), be-
ginning on line 7 of page 14, would read
as follows:
to consider any effort to resolve the Taiwan
issue by other than peaceful means, includ-
ing boycotts or embargoes, a threat to the
peace and security of the Western Pacific
area and. of grave concern to the United
States.
Mr. HATCH. That is correct.
Mr. CHURCH. Mr. President, we have
no objection to, inserting-
Mr. JAVITS addressed the Chair.
Mr. CHURCH. I am sorry. I spoke too
soon. I first defer to the Senator from
New York.
Mr. JAVITS. If the Senator from Ida-
ho has no objection, it is all right.
Mr. CHURCH. I defer to the Senator
from New York, and then I will speak
my piece.
Mr. JAVITS. Mr. President, the
amendment is satisfactory to me, but I
wish to ask the Senator from Utah a
question.
I would not wish the amendment to be
construed as limiting the effect of the
words of lines 15 and 16 which read "to
resist any resort to force or other forms
of coercion that would jeopardize the se-
curity, or the social or economic system,
of the people on Taiwan;"
Mr. HATCH. I do not believe those
words will limit the effect of that pro-
vision.
Mr. JAVITS. The Senator does not be-
lieve these words will limit it?
Mr. HATCH. I do not believe they will.
Mr. JAVITS. That is very important
to me because there may be, other forms
of coercion.
Mr. HATCH. I agree.
Mr. JAVITS. All right. I thank the
Senator.
That is satisfactory.
Mr. HATCH. All right.
Mr. CHURCH. Mr. President, I have
no objection to the amendment as
modified.
Mr. DOLE. Mr. President, the purpose
of the amendment offered by the Sena-
tor from Utah and which I cosponsored
is to amend section 114, which is the
key section stating U.S. policies and as-
surances for Taiwan. It is of vital im-
portance that threats to Taiwan of eco-
nomic coercion such as boycotts or em-
bargoes designed to harm the cultural
and economic life of the people on Tai-
wan should also be of "grave concern"
to the United States. Our own business
and trading. interests would be gravely
affected by any attempt on the part of
the PRC to organize and carry out an
economic threat against Taiwan.
5248
The matter of airline services is an the bill about either commercial or cul-
example of pressures that can be placed tural relations. Indeed, it is hard to
on countries wishing to do business with imagine what the "other relations" re-
Taiwan as well as the PRC. Japan en- ferred to might be.
countered heavy pressure in this regard In fact, if you examine the bill care-
at the time of normalization of relations fully, it obviously was drafted by diplo-
with the PRC. It is only too clear that mats thinking only in terms of tradi-
the United States will have to be espe- tional diplomatic activity. The Institute
cially vigilant on matters of this nature was conceived strictly as an entity to
and should introduce language about function as a surrogate diplomatic mis-
"boycotts or embargoes." sion. The phrase "commercial, cultural,
Another matter of relevance here. is and other relations" is really a kind of
the already announced policy by Peking code-word that says one thing on the
to try to expel Taiwan from the World surface, but in reality denotes something
Bank, the Asian Development Bank, and quite different.
the International Monetary Fund. Given Unfortunately, the ambivalent legal
the size of the United States commit- status of our new relationship with the
ment to such entities, and given the de- people on Taiwan has resulted in the
gree of Taiwan's cooperation with and necessity to do something rather more
financial dependence on their services, specific than the Department of State
such a move could prove very seriously had in mind. The committee adopted a
damaging to the very well-being of the number of amendments pinpointing spe-
people on Taiwan which the bill is de- cific, practical problems involved in
signed to protect. conducting the new relationship-prob-
Mr. HATCH. Mr. President, I ask loins which the State Department sim-
unanimous consent that Senator Dole ply had refused to face. These amend-
be added as a cosponsor. ments made the Institute more viable
The PRESIDING OFFICER. Without than it had been in the State Depart-
objection, it is so ordered. ment version.
Does the Senator yield back his time The State Department adopted as its
Mr. HATCH. I yield back my time. vehicle the concept of a non-profit cor-
Mr. CHURCH. I yield back the re- poration, which would perform diplo-
mainder of my time. matic work on contract. I am concerned,
Mr. HATCH. I move adoption of the however, that the diplomats, not being
amendment. familiar with the world of business and
The PRESIDING OFFICER (Mr. commercial contracts, were completely
HEFLIN). The question is on agreeing to confused about such work-a-day matters.
the amendment as modified of the Sena- When you are used to Government pro-
tor from Utah. curement all your life, you have very
The amendment was agreed to. little appreciation of how the real world
Mr. HATCH. Mr. President, I move to lives. The State Department's idea of
reconsider the vote by which the amend- how a corporation operates has as much
ment was agreed to. relationship to reality as Marie Antoi-
Mr. JAVITS. I move to lay that motion nette's dairy barn.
on the table. Now the Foreign Relations Committee
The motion to lay on the table was worked very hard on this problem, as on
agreed to. others. But there were so many changes
The PRESIDING OFFICER. The Sen-
ator from North Carolina. in the administration bill, that it was
? m
ill
was reported and printed as a whole. I
(MODIFICATION TO AMENDMENT NO. 81) have, therefore, a number of perfecting
Mr. HELMS. Mr. President, I send to amendments that are not meant as criti-
the desk a modified version of amend- cisms of the committee's work so much as
ment No. 81 and ask that it be stated. just taking a second look at what the
The PRESIDING OFFICER. The committee wrought. I know that the dis-
amendment will be stated. tinguished chairman will consider them
The legislative clerk read as follows: in that light.
The Senator from North Carolina (Mr. Now I first want to draw attention to
HELMS) proposes an unprinted amendment section 109, which says:
numbered 36. Whenever the President or any depart-
Mr. HELMS. Mr. President, I ask ment or agency of the United States Govern-
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment is as follows:
On page 10, line 12, after "Taiwan," insert
the following: "including, but not limited to,
the performance of services for the United
States through contracts with commercial
entities in Taiwan,".
Mr. HELMS. Mr. President, the pur-
pose of this bill is "to promote the for-
eign policy of the United States through
the maintenance of commercial, cultu-
ral, and other relations with the people
on Taiwan'on an unofficial basis, and for
other purposes." It is ver astonishing,
Mr. President, that there is very little in
ment is authorized or required by or pur-
suant to United States law to render or
provide to, or receive or accept from, the
people on Taiwan, any performance, commu-
nication, assurance, undertaking, or other
action, such action shall, in the manner and
to the extent directed by the President, be
rendered or provided to, or received or ac-
cepted from, an instrumentality established
by the people on Taiwan.
Mr. President, what does this language
say, in short? It says that whenever the
U.S. Government acquires services on
Taiwan, the institute has to contract
with the parallel instrumentality set up
by the Government of the Republic of
China. I know why this was put in. The
legal minds of the State Department
were anxious to provide a cutout, a
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S 2490 CONGRESSIONAL RECORD -SENATE
laundry, so to speak, to clean up any ac-
tions that might smack of government-to
government relationship. Their horror of
a government-to-government relation-
ship burned so bright in their minds that
they completely forgot the real world-
that is to say, there will be many times
when the relationship will be directly
with the real people on Taiwan, as dis-
tinct from the code word "people on
Taiwan" dreamed up by the diplomats.
In other words, the Institute may have
to deal directly with the people in the
real world. It may want to make com-
mercial contracts for services. It may
want to paint walls, rent cars, buy food,
hire plumbers. Nowhere is there any au-
thority in this bill for the Institute to
make such contracts. All it says is that
when the President or a Government
agency wants to make contracts for
services, the contracts must be made
through the institute, which, in turn,
must contract through the correspond-
ing ROC instrumentality.
This is fine if it is a question of visas
or consular services; it is ridiculous if we
have a question of commercial services,
which bear no taint of government-to-
government contacts anyway.
Moreover, section 109 must be read in
conjunction with section 106. Section 106
says that programs conducted by the
President with respect to the people on
Taiwan shall be conducted by or through
the Institute. In other words, anything
that the President or a Government
agency wants to do on Taiwan must be
done through the Institute in 106, while
in 109 any services must be procured
through the Institute and through the
corresponding ROC instrumentality.
I might also point out that anything
that the institute does on Taiwan will be
done through U.S. Government funds.
Thus any action of the Institute is an
action of the President or a U.S. Govern-
ment agency, and it must be done
through the ROC instrumentality. Even
if it wants to buy a cup of coffee, it must'
be done through the ROC instrumen-
tality.
Now, I will admit, there is a clause
which might be construed as helping this
dilemma. It says these actions shall be
done "in the manner and to the extent
directed by the President." According to.
the committee report, this Is supposed to
give the President "maximum flexibility."
If that is so, then It gives him the flexi-
bility to set aside the very authority the
bill is supposed to be giving him.
I think that it is important, therefore,
to clarify the authority that the institute
has, and through the Institute, the Presi-
dent, to deal directly with commercial
entities In Taiwan. Such an authority
would be entirely -consistent with the
intent and spirit of the bill. It would
clarify the President's authority, and
give government agencies the power to
contract for services with commercial
entities in Taiwan.
In order to accomplish this, I intend
to offer an amendment to section 105,
where the basic authority for the Insti-
tute is laid down. On page 10, line 12,
after the ennumeration of the actions
authorized to be conducted, my amend-
ment would add the phrase, "including
but not limited to the performance of
services for the United States through
contracts with commercial entities in
Taiwan."
Mr. President, I believe that the dis-
tinguished managers of the bill are pre-
pared to accept this amendment as mod
ified.
Mr. President, I suggest the absence of
a quorum to be charged to my time.
The PRESIDING OFFICER. The clerk
will call the roll.
The second assistant legislative clerk
proceeded to call the roll.
Mr. CHURCH. Mr. President, I ask
unanimous consent that the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. CHURCH. Mr. President, as I read
the amendment, which has been modified
by the insertion of four additional words,
"But not limited to," and place that mod-
ified amendment in its intended place
in the text of the bill, section 105 would
read as follows. And I ask the Senator
from North Carolina to attend me so
there may be no misunderstanding:
Whenever authorized or required by or pur-
suant to United States law to conduct or
carry out programs, transactions, or other re-
lations with respect to a foreign country, na-
tion, state, government, or similar entity, the
President or any department or agency of the
U.S. Government is authorized to conduct
and carry out such programs, transactions,
and other relations with respect to the people
on Taiwan, .. .
And then his words would follow. The
words of the amendment " * 0 includ-
ing, but not limited to, the performance
of services for the United States through
contracts with commercial entities in
Taiwan. * ? ?"
And then it would read, "~ * ? in ac-
cordance with applicable laws of the
United States."
Is that correct?
Mr. HELMS. The distinguished.Senator
is correct.
Mr. CHURCH. Mr. President, I have
conferred with the ranking Republican
member of the committee. He has no
objection to the insertion of this addi-
tional language in section 105. I have
no objection to it. Therefore, the man-
agers of the bill are willing to accept the
amendment.
The PRESIDING OFFICER. The ques-
tion is on agreeing to the amendment
as modified of the Senator from North
Carolina.
The amendment was agreed to.
Mr. HELMS. Mr. President, I move to
reconsider the vote by which the amend-
ment was agreed to.
Mr. CHURCH. I move to lay that mo-
tion on the table.
The motion to lay on the table was
agreed to.
Mr. HELMS. I thank the Chair and I
thank the distinguished Senator from
Idaho.
'UP AMENDMENT NO. 37
(Purpose: To make clear the term "people
on Taiwan" includes nongovernmental
commercial activities to meet the purposes
of the act regarding maintenance of "com-
mercial" relations)
Mr. HELMS. Mr. President, I send
to the desk an unprinted amendment.
March ' 12, 1979
which I understand the chairman has
examined and I ask that it be stated.
The PRESIDING OFFICER. The
amendment will be stated. -
The legislative clerk read as follows:
The Senator from North Carolina (Mr.
HELMS) proposes an unprinted amendment
numbered 37.
Mr. HELMS. Mr. President, ' I ask
unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so. ordered.
The amendment is as follows:
On page 8, line 24, insert the following af-
ter "it" insert "or organizations and entities
subject to the laws of Taiwan.".
Mr. HELMS. Mr. President, this
amendment, section 101, on page 8, line
24, grows out of my previous amend-
ment, the grant of authority to deal with
commercial entities. It would make clear
that the term "people on Taiwan" in-
cludes nongovernmental commercial ac-
tivities to meet the purposes of the act
regarding maintenance of "commercial"
relations..
It would add the phrase "or organiza-
tions and entities subject to the laws of
Taiwan" to the definition of "people cn
Taiwan."
It is just as simple as that.
Mr. JAVITS. Mr. President, will the
Senator yield to me?'
Mr. HELMS. I am happy to yield to
the distinguished Senator.
Mr. JAVITS. This, again, is simply as
to form. Will the Senator and his staff
direct their attention to page 9, line 9,
that reads "? * * and other entities
formed under the law applied on Tai-
wan, * * s"? It seems to me, again, to
avoid legal questions as to why we used
different language, it might be well to
use'in both places the same language.
After "it" insert "or organizations and
other entities formed under the law ap-
plied on Taiwan." '
It simply is a question of consistent
style so no one says, "Why did you say
this in one place and not In another?"
Mr. HELMS. I am delighted to accept
the Senator's suggestion.
Mr. JAVITS. If the Senator will revise
the amendment accordingly it is quite
acceptable to me.
Mr. HELMS. I thank the Senator.
Mr. President, since it will just take
one stroke of the pen, I modify the
amendment.
I again thank the Senator from New
York.
The PRESIDING OFFICER (Mr.
BAucus). Will the Senator please restate
his modification.
Mr. JAVITS. If I may read it.
Mr. HELMS. Mr. President, on my
time, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk
will call the roll.
The second assistant legislative clerk
proceeded to call the roll.
Mr. HELMS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. HELMS. Mr. President, I ask that
the clerk read the amendment as modi-
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CONGRESSIONAL RECORD - SENATE S 2491
fled so that I can be certain it meets the
approval of the distinguished managers
of the bill.
The PRESIDING OFFICER. The clerk
will read the amendment.
The second assistant legislative clerk
read as follows:
On page 8, line 24, insert the following
after "it" insert "or the organizations and
other entities formed under the law applied
on Taiwan".
Mr. JAVITS. Mr. President, will the
Senator yield?
Mr. HELMS. Yes.
Mr. JAVITS. That amendment is quite
satisfactory to me under that wording.
Mr. CHURCH. Mr. President, the
amendment is also acceptable to me. I
ask its approval by the Senate.
The PRESIDING OFFICER. Do the
Senators yield back their time?
Mr. CHURCH. I yield back my time.
Mr. HELMS. I yield back my time.
The PRESIDING OFFICER. All time
having been yielded back, the question
now is on agreeing to the amendment,
as modified.
The amendment, as modified, was.
agreed to.
Mr. HELMS. Mr. President, I move to
reconsider the vote by which the amend-
ment, as modified, was agreed to.
Mr. JAVITS. I move to lay that motion
on the table.
The motion to lay on the table was
agreed to.
AMENDMENT NO. 91
(Purpose: To ensure that the Institute has
adequate personnel and facilites to
strengthen and expand commercial and
cultural ties between the people of the
United States and all the people of Tai-
wan.)
Mr. HELMS. Mr. President, I call up
my amendment No. 91 which is at the
desk 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
91:
On page 11, delete lines 4 through 8, and
substitute the following:
SEC. 107. In carrying out its activities, as
described in this Act, the institute shall take
all appropriate steps to ensure it has ade-
quate personnel and facilities to accomplish
such purposes, including the capability to
strengthen and expand the commercial and
cultural ties between the people of the
United States and all the people of Taiwan
and to promote full human rights for all
the people of Taiwan.
Mr. HELMS. Mr. President, I am dis-
turbed at reports I have heard that the
organizers of the Institute are planning
to cut back on the staff which will be
available to perform the necessary serv-
ices for the people on Taiwan and Amer-
ican citizens and entities visiting or
working in Taiwan. I have heard that
the staff will number no more than 50
in Taiwan and only 7, including secre-
tarial assistance, in Washington, D.C.
Now I am not an advocate of inflated
bureaucracies or of overstaffing. But I
grow suspicious when the only effort to
cut back bureaucracy is when there is
an attempt to downgrade our relation-
ship with Taiwan, even though our com-
mercial and private relationship is rap-
idly increasing. This looks more like a
political move, than an economy move,
and it could seriously hamper the main-
tenance of commercial, 'cultural, and
other relations with the people on Tai-
wan. It will also hurt American invest-
ment and Americans visiting and work-
ing on Taiwan.
Moreover, there is a serious doubt
whether the State Department can sup-
ply enough retired diplomats who have
the necessary experience with running
a corporation to run it efficiently and
prudently. It is an entirely 'different
thing to run a corporation than it is to
run a Government agency. I think that
it is difficult to believe that a staff of
seven, including secretarial assistance,
can provide the necessary accounting
and fiscal control for an operation that
may be spending as much as $5 million
per year.
Finally, if the primary purpose of the
Institute, as stated in the title of the
bill, is to provide commercial relations, it
is difficult to?believe that the State De-
partment can provide the necessary ex-
pertise in this vital area. The Depart-
ment has not been know for aggressive-
ness in this area in the past.
There is doubt, therefore, that the In-
stitute will have the necessary person-
nel to accomplish the purposes of this
bill. I am therefore proposing to add a
short clause to section 107, which would
say that in carrying out its activities as
described in the act, the Institute shall
take all appropriate steps "to ensure it
has adequate personnel and facilities to
accomplish such purposes, including the
capability" to strengthen and expand the
ties between the people of the United
States and all the people on Taiwan.
Now I realize that section 107 was orig-
inally set up to promote human rights.
but since it talks about strengthening
and expanding the ties between our two
peoples, it appears to be an appropriate
place to insert my language.
Mr. President, it is my understanding
that the distinguished. managers of the
bill, Mr. CHURCH and Mr. JAVITS, have
examined this amendment and are will-
ing to accept it.
The PRESIDING OFFICER (Mr. HEF-
LIN). Who yields time?
Mr. HELMS. Mr. President, while the
distinguished managers of the bill are
studying it, I suggest the absence of a
quorum with the time charged to me.
The PRESIDING OFFICER. The clerk
will call the roll.
The second assistant legislative clerk
proceeded to call the roll.
Mr. HELMS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. HELMS. Mr. President. I wish to
modify my amendment by striking the
language of the amendment and insert-
ing the following language:
On page 11, line 8, strike the period, and
add a comma followed by the words "and to
provide adequate personnel and facilities to
accomplish the purposes of this section."
I send that modification to the desk.
The PRESIDING OFFICER. The
Senator has a right to modify his.
amendment. The amendment is so modi-
fied.
The amendment, as modified, is as fol-
lows:
On page 11, line 8, strike the period and
insert the following: ", and to provide ade-
quate personnel and facilities to accomplish
the purposes of this section."
Mr. HELMS. Mr. President, with 'the
modification in place, I believe the
amendment is satisfactory to the man-
agers of the bill, and I am prepared to
yield back the. remainder of my time.
Mr. JAVITS. Mr. President, that
modification is satisfactory to me.
Mr. CHURCH. Mr. President, I have
no objection to the modification, it now
being appended to the original language
of section 107 as the concluding phrase.
In such form, I find the amendment ac-
ceptable, and I yield back the remain-
der of my time.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment (No. 91), as modified, of the Sen-
ator from North Carolina.
The amendment, as modified, was
agreed to.
Mr. HELMS. I move to reconsider the
vote by which the amendment was
agreed to.
Mr. JAVITS. I move to lay that mo-
tion on the table.
The motion to lay on the table was
agreed to.
AMENDMENT NO. 85-
(Purpose: To authorize the Institute to assist
or protect the persons and property of
citizens or entities of United States na-
tionality in Taiwan)
Mr. HELMS. Mr. President, I call up
my amendment No. 85, and ask for its
consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk read as follows:
The Senator from North Carolina (Mr.
HELMS) proposes an amendment numbered
85:
On page 20, after line 2-
Mr. HELMS. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment is as follows:
On page 20, after line 2, insert the fol-
lowing paragraph:
"(4) to perform any other duties in keep-
ing with the purposes of this Act and oth-
erwise authorized by law which assist or
protect the persons and property of citizens
.or entities of United States nationality.".
Mr. HELMS. Mr. President, I note
once again that the purpose of this act is
to promote the foreign policy of the
United States through the maintenance
of commercial, cultural, and other rela-
tions with the people on Taiwan. But
nowhere in the act is there any language
providing assurances to Americans al-
ready in Taiwan or who have invest-
ments there that the Institute will, as is
the case of U.S. embassies in other coun-
tries, serve and act to represent them.
This after all, is one of the purposes of
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S 2492 CONGRESSIONAL RIEC?
foreign representation which is some-
times ignored by the representatives of
our Government who tend to forget or
sometimes cannot be bothered to per-
form as public servants of the people, as
well as the Government, of the United
States.
It is clear, of course, that U.S. embas-
sies are supposed to assist U.S. citizens
and U.S. investments abroad. But the In-
stitute Is a new creation. It does not carry
the obligations of custom and law usu-
ally borne by our embassies. I believe
that it is necessary to add a paragraph
in section 206(a)-the section listing
the duties of Institute employees-"to
perform any other duties in keeping
with the purposes of this act and other-
wise authorized by law which assist or
protect the persons and property of citi-
zens or entities of U.S. nationality."
Mr. President, that Is the purpose of
the amendment. I believe that the Sena-
tor from Idaho has studied this amend-
ment, and may be willing to accept it..
Mr. CHURCH. Mr. President, I wonder
if the Senator would consider modify-
ing his amendment, simply for purposes
of grammatical clarity, by adding a semi-
colon after the word "seamen" on line
2 of page 20, and then the word "and".
Mr. HELMS. If the Senator will with-
hold for a moment, until I find the ap-
propriate line.
Mr. CHURCH. Mr. President, in order
that we may execute a slight modifica-
tion which will make the amendment
acceptable, I suggest the absence of a
quorum and ask that it be taken from
my time.
The PRESIDING OFFICER. The
clerk will call the roll.
The second assistant legislative clerk
proceeded to call the roll.
Mr. HELMS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered. ,
Mr. HELMS. Mr. President, I send a
modification to the desk. I will state it
so that it will appear in the RECORD. On
page 19, at the end of line 25, strike
"and". On page 20, line 2, after the word
"seamen" strike the period, insert a
semicolon, insert the word "and" and
then pick up the remainder of the
amendment. I send the modification to
the desk.
The PRESIDING OFFICER. The Sen-
ator has the right to make the modifica-
tion.
The amendment, as modified is as
follows:
On page 19, at the end of line 25, strike-
"and".
On page 20, line 2, strike the period and
insert a semi-colon and -the word "and".
On page 20, after line 2, insert the follow-
ing paragraph:
"(4) to perform any other duties in keep-
ing with the purposes of this Act and other-
wise authorized by law which assist or pro-
tect the persons and property of citizens or
entities of United States nationality.".
Mr. CHURCH. Mr. President, I have
conferred with the Senator from New
York (Mr. JAVITS). He is willing to ac-
cept the amendment as modified, and I
am also willing to accept it. I think It
D - SENATE March 12, 1979
now reads properly, listing seriatim the
duties to be performed by the Institute.
So I am happy to accept the amend-
ment. I think it adds to the bill, and con-
stitutes a duty that should be performed
by the Institute.
Mr. HELMS. I thank my able colleague.
Mr. CHURCH. Therefore, I am willing
to relinquish the remainder of my time,
and I call for a vote.
Mr. HELMS. Mr. President, I yield
back the remainder of my time.
The PRESIDING OFFICER. All time
having been yielded back, the question is
on agreeing to the amendment, as modi-
fled. (Putting the question.)
The amendment, as modified, was
agreed to.
Mr. HELMS. Mr. President, I move to
reconsider the vote by which the amend-
ment, as modified, was agreed to.
Mr. JAVITS. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
agreed to.
AMENDMENT NO. 83
(Purpose: To place direct responsibility upon
the Institute to carry out the purposes of
this Act).
Mr. HELMS. Mr. President, I send
another amendment to the desk, my final
amendment, and ask for its immediate
consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk read as follows:
The Senator from North Carolina (Mr.
HELMS) proposes an amendment numbered
83:
On page 21, line 16, at the end of the para-
graph add the following sentence: "Such
action shall not, however, relieve the Insti-
tute of the responsibilities placed upon it by
this Act.".
Mr. HELMS. Mr. President, I note with
satisfaction that section 304 provides for
a certain degree of accountability to
Congress for the President's directives to
the Institute. However, I am concerned
that a mere reporting function is in-
sufficient, and that in the future it might
be construed as relieving the Institute of
the responsibility which Congress has
placed upon it. The mere'reporting func-
tion,.it seems to the Senator from North
Carolina, is not sufficient. I think it
would be very helpful to have some
definite language indicating that the re-
sponsibilities imposed by Congress are
not relieved merely by the reporting
function.
That is the purpose of the amend-
ment. I believe once again the distin-
guished managers of the bill have ex-
amined it and may wish to approve it.
Mr. CHURCH. Mr. President, first of
all, I commend the Senator from North
Carolina for his diligence. As a new
member of the committee, he attended
the hearings and participated in the
markup of the bill, and he has carefully
scrutinized it since the markup. I believe
these amendments have been helpful,
and commend him for them.
As I understand this amendment now
offered, it would add to section 304 in
the following manner:
The President is authorized to prescribe
such rules and regulations as he may deem
appropriate to carry out the purposes of this
act. Such rules and regulations shall be
transmitted promptly to the Committee on
Foreign Relations of the Senate and the
Speaker of the House of Representatives.
Such action shall not, however, relieve the
Institute of the responsibilities placed upon
it by this Act.
Mr. President, I have no objection to
this amendment, and I am informed by
the ranking Republican member of the
committee (Mr. JAVrrs) that he has no
objection. I am prepared to yield back
the remainder of my time.
Mr. HELMS. Mr. President, I thank
the distinguished chairman of the com-
mittee. I yield back the remainder of my
time.
The PRESIDING OFFICER. All time
having been yielded back, the question is
on agreeing to the amendment. (Putting
the question.)
The amendment was agreed to.
Mr. HELMS. Mr. President, I move to
reconsider the vote by which the amend-
ment was agreed to.
Mr. CHURCH. Mr. President, I move
to lay that motion on the table.
The motion to lay on the table was
agreed to.
The PRESIDING OFFICER. The Sen-
ator from Mississippi.
UP AMENDMENT NO. 38
(Subsequently numbered Amendment No.
99)
(Purpose: To permit individuals represent-
ing the people on Taiwan to be admitted
to the Senate diplomatic gallery)
Mr. COCHRAN. Mr. President, I call
up my amendment at the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk read as follows :
The Senator from Mississippi (Mr. CocH-
RAN) proposes an unprinted amendment
numbered 38.
On page 13, line 15, before "The" insert
..(a),
On page 13, after line 24, insert the follow-
ing:
(b) In exercising its duty under paragraph
2 of rule XXXIV of the Standing Rules of
the Senate, the Committee on Rules and Ad-
ministration of the Senate shall issue regu-
lations providing that the head and first
secretary of the instrumentality referred to
in section 109, and their.families and suites,
shall be admitted to the gallery In the Sen-
ate chamber set apart for the- use of the
diplomatic corps. This subsection is enacted
as an exercise of the rule-making power of
the Senate.
Mr. COCHRAN. Mr. President, the cur-
rent section 113 as it exists now relates to
an authorization of the President to ex-
tend to the instrumentality established
by the people on Taiwan and the appro-
priate members thereof such immunities
and privileges as are compatitle with
missions of other foreign countries.
I think it is in keeping with the senti-
ment of section 113 and the authoriza-
tion that the Senate extends to the Presi-
dent that the Senate itself should extend
this courtesy and the opportunity to have
the privileges of the diplomatic corps
gallery to those who are identified in the
amendment I have offered. I would hope
that the distinguished chairman of the
Foreign Relations Committee and the
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March 12, 1979 CONGRESSIONAL RECORD -SENATE S 2493
managers of the bill before us could ac- even be. placed in the position of initiat- we are concerned about the nongovern-
cept the amendment. ing policy and acts which will affect mental character of the Institute, we also
Mr. CHURCH. Mr. President, I am in- U.S. strategic interests. It seems to me have to look at the appropriations and
formed by the Parliamentarian that in- that for that reason the Senate ought everything else that might affect the In-
asmuch as this proposal would amend the to have the right to confirm the person stitute. All the Senator from Kansas sug-
Rules of the Senate it is subject to a point appointed as Director. gests is that we have the right to confirm
of order. If that point of order were sus- This amendment creates such an offi- the director.
tanned it would have to lie over for a day cial avenue and safeguards the principles i do not know any objection to the
before the Senate could properly consider of advise and consent set forth in the amendment, but I withhold the remain-
it. Constitution. der of my time.
This is the first time I have seen the Again, the Senator from Kansas wants Mr. CHURCH. Mr. President, reluctant
dment. I am not prepared to ac- to make it very clear that I do not intend as I am to say so, there are serious objec-
amen
ame d e pending some ac - to upset the balance which my dis- tions to the amendment. It does great
cept it at this . a time, possible pending some of tinguished colleagues on the Senate violence to the bill.
quirt' into the
the amendment as it relates to official been able Committee to on work out. Rntmyintent I agree with the able Senator from
recognition of representatives of this destroy the . It is not o Kansas that Congress should continue to
institute, and to the possible effect the upon wour normalization aunderstanding with the exercise oversight. The committee went
amendment would have upon the Ameri- upon which hic the great pains to see to it that we would
relation- to be in a position to do so. Congressional
can commitment to officially recognize gain mainland potentially I from feel a we strong have much
a
only one Chinese Government; namely, ship with Peking. oversight over the operation and man-
the Peking government. The language I propose in this amend- agement of the Institute created by this
Rather than to raise a point of order ment does not raise the quality of our bill is assured by other provisions of the
at this time and force the matter to lay relations with Taiwan one iota. This is bill. Appropriations for the Institute
over until tomorrow, I wonder if the perhaps unfortunate, but let me say would have to be authorized on an annual
Senator would be willing to withdraw the again it is not my intention to wreck the basis, so Congress continues in effective
amendment at this time so I may make understanding which has been labor- control. The Comptroller General will
these inquiries. If at the appropriate time lously worked out. My only concern here have access to the books and record of
tomorrow he wishes to call up his amend- is with the constitutional responsibility the Institute, so that its proceedings will
ment again, I certainly would not raise of the Senate. It seems to me that the be constantly under the supervision of
a point of 'order. bill as it now stands is asking the Senate the executive branch. The Institute will
Mr. COCHRAN. Mr. President, in to abrogate-to terminate, rather-some also operate under a contract with the
view of the representation of the distin- of that responsibility which we in the Department of State, whose senior offi-
guished chairman, I will withdraw the Senate now have to act as a watchdog cers are appointed by the President with
amendment at this time with the inten- and a safeguard for U.S. interests in the the advice and consent of the Senate.
tion of bringing it before the Senate foreign policy area. Mr. President, the Committee on
tomorrow. I ask permission to with- The relationship we are implementing Foreign Relations fully considered this
draw the amendment at this time. I with Taipei is unprecedented. Let us not issue in order to meet concerns expressed
thank the distinguished chairman. abdicate our duty to oversee the actions by members of the committee. The Secre-
The PRESIDING OFFICER. The of the executive department in this one, tary of State has assured the chairman
Senator has the right to withdraw the small matter, for a short term and per- that, he will inform the committtee of
amendment. hags transitory political expediency. prospective appointments of the Insti-
Mr. CHURCH. I thank the Senator Once the director of this institute is ap- tute's trustees and officers, and will un-
for his cooperation. pointed he will be technically unfettered dertake to resolve any reservations the
The PRESIDING OFFICER. The to act as he pleases. It is necessary for committee may express. A copy of the
Senator from Kansas. us to have an opportunity to judge the Secretary's letter to this effect, dated
UP AMENDMENT NO. 39 worthiness of this unofficial official, who February 23, 1979, addressed to me as
(Subsequently numbered amendment will have such unprecedented power. the chairman, sets forth the State De-
No. 100) To those who say that senate confir- partment's position. I ask unanimous
(Purpose: To provide for the appointment mation of the director would destroy the consent fed that tthe he teRECORD of that letter may
of a Director to head the American Insti- non-governmental character of the in-be pri in .
tute in Taiwan) stitute, I ask how can the Secretary of There being no objection, the letter
Mr. DOLE. Mr. President, I send an State, acting for the President, have the was ordered to be printed in the RECORD,
amendment to the desk and ask for its sole authority to appoint this individual as follows:
immediate consideration. without giving an air of officiality to the WASHINGTON, D.C.,
The PRESIDING OFFICER. The Proceedings? How can the Congress pro- February 23,1979.
amendment will be stated. vide all the funds for this institute with- Hon. FRANK CHURCH,
Out making it seem that there is some Chairman, Committee on Foreign Relations,
The legislative clerk read as follows : small, degree of government interest and U.S. Senate.
The senator from Kansas (Mr. DOZE) involvement? The administration and DEAR MR. CHAIRMAN: As you know, under
proposes an unprinted amendment num- the articles of incorporation and bylaws of
bered so. the committee have satisfied themselves the American Institute in Taiwan, the Sec-
On page 11, between lines 3 and 4, insert on this score and have written the defi- retary of state appoints and removes the
the following: nitions to comply with their conclusions. trustees of the Institute.
(c) The Institute shall be headed by a There is, however, a larger definition Because the Institute is not an agency or
Director, who shall be appointed by the we must satisfy also. By this I mean the instrumentality of the Government, and be-
President, by and with the advice and con- primary obligation the constitution im- cause its trustees are not officers of the
sent of the Senate and who shall hold such poses on us. This amendment only ad- United States, it would not be appropriate
appointment for a period of not to exceed dresses that one problem, the obligation for the Senate to advise and consent to the
two years. appointment of trustees or officers. However,
for the Senate to advise and consent to the names of prospective trustees and officers
Mr. DOLE. Mr. President, the amend- certain actions by the executive depart- will be forwarded to the Foreign Relations
ment I have sent to the desk I believe is ment. I do not believe it is in the best Committee. If the Committee expresses res-
very concise and easily understood, interest of the United States to make this ervations about a prospective trustee or offi-
though perhaps controversial. I am not accommodation to suit the requirements cer, we will undertake to discuss and resolve
certain if the floor managers would of the Communist regime in Peking. I the matter fully with the Committee before
be willing to accept the amendment. It urge the Senate to reject the precedent proceeding.
concerns the question of congressional this would cause, by giving favorable This arrangement will enable the Insti-
oversi ht. consideration to this amendment. tute to retain its character as a private cor-
g poration and enable the Senate to partici-
There is no doubt about it. The Ameri- Let me reemphasize that I applaud the pate in the selection of trustees in an appro-
can Institute on Taiwan will be carrying chairman and I applaud the members of priate manner.
out U.S. foreign policy and on rare oc- the committee for working out a very Sincerely,
casions the Director of the Institute may delicate balance. It seems to me that if CYRUS VANCE.
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Mr. CHURCH. Mr. President, what are
the objections to the amendment offered
by the Senator from Kansas? They are
several and they are of prime impor-
tance.
If the Senate were to approve this
amendment, it would be an act incon-
sistent with normalization of our rela-
tions with Peking. Our ability to have
diplomatic relations with the People's
Republic of China, and simultaneously
to maintain commercial, cultural, and
other relations with the people on Tai-
wan depends upon the latter relationship
being conducted on an unofficial basis.
The American Institute on Taiwan,
under the terms of this bill, is created
under the District of Columbia nonprofit
corporation law as a private organization
precisely to avoid the appearance of of-
ficility that the adoption of the pending
amendment would create. Appointment
of a Director of the American Institute
in Taiwan through the procedures spec-
ified in the Constitution-that is to say,
appointment by the President by and
with the advice and consent of the Sen-
ate-would connote an official status,
which Is precisely what we seek to avoid
in this legislation. morrow, and maybe it will be a voice vote
I do not know the purpose of the Sena .t\tomorrow, but then I will have the right
tor in offering this amendment. He says to ask for the yeas and nays.
that he acknowledges that American In-
terests are advanced by recognizing
Peking. If that is so, why offer an amend-
ment which goes to the very heart of
what we are trying to do? Why is this
such a delicate matter? Not because pri-
marily Peking insists on making it so,
but because both Peking and Taipei
continue to claim to be the government
of China. Furthermore, Taipei ackknowl-
edges that Taiwan is part of China, and
that there is but one China.
_ Since both governments take that posi-
Mr. DOLE. Mr. President, will the Sen-
ator yield?
Mr. CHURCH. Mr. President, I reserve
the remainder of my time.
Mr. DOLE. Mr. President, I thank my
distinguished colleague.
As the Senator from Kansas has indi-
cated, I do not want to upset the balance.
I commend the chairman and the dis-
tinguished Senator from New York and
others who have tried to forgo the proper
balance, and who have in most areas. It
seems to me that because of this delicate
relationship we could perform just this
one small function and preserve our con-
stitutional right to advise and consent
with reference to the director.
Mr. President, it is a very easily under-
stood amendment. I do not want to take
any other further time of the Senate. I
would be willing to vote, and I ask if
the Senator from Idaho might want to
vote now, or-
Mr. CHURCH. Voice vote?
Mr. DOLE. I have not looked at the
attendance. I might-
Mr. CHURCH. Voice vote or go over
Mr. DOLE. Why not go over until to-
I might say to the distinguished major-
ity leader that I am perfectly willing for
the vote to go over or do it now. But
I think they would prefer, in the event
there may be a rollcall, to have it come
tomorrow. It is certainly satisfactory to
this Senator.
Mr. CHURCH. A voice vote right now?
Mr. DOLE. I understand. I appreciate
that.
[Laughter.]
Mr. DOLE. I did that in Indianapolis
on Saturday.
tion, then we can recognize one or the Mr. ROBERT C. BYRD. Mr. President,
other, but we cannot recognize both. If it I ask unanimous consent that the
is, as the Senator from Kansas says, amendment by Mr. DOLE be temporarily
obviously in the American interest to set aside with the understanding that it
recognize the government that is actually will be the pending question before the
in charge, then it follows that our rela- Senate on tomorrow when the Senate
tions with the other government must resumes consideration of the Taiwan En-
be conducted on an unofficial basis. That abling Act.
is the basis of the bill. Mr. DOLE. As far as the Senator from
I hope the Senate will not start to tam- Kansas, the' debate is finished, I yield
per with the essential purpose of the bill back to the remainder of my time.
by adopting the am endment offered to I just want to reserve the right to ask
the Senator from Kansas. If we make offi- for the yeas and nays tomorrow, if I
cials of this corporation, which is estab- - make that request.
lished under the laws of the District of Mr. ROBERT C. BYRD. The Senator
Columbia as a private organization, mak- will have that right.
ing them appointable by the President Mr. DOLE. All right.
subject to Senate confirmation, we lift The PRESIDING OFFICER. The
them to official status, for this is the con- Chair notes that on tomorrow-to any
stitutional method by which we appoint specific time?
members of the Cabinet, chiefs of our Mr. ROBERT C. BYRD. It will be the
own executive agencies, ambassadors to pending question on tomorrow.
foreign lands, and justices to the Su- The PRESIDING OFFICER. It will be
preme Court. the pending question on tomorrow.
This is the constitutional formula for Mr. ROBERT C. BYRD. Yes, when the
appointing and confirming to office offi- Senate resumes.
cials of the Government of the United Mr. DOLE. Mr. President, I think the
States. Therefore, the adoption of this Senator from Kansas might just reserve
amendment would be inconsistent with 5 minutes of my time in the event the
the major objective sought to be served distinguished Senator from Idaho con-
by the bill. jures up some good argument against
I hope that when this matter comes the amendment.
to a vote tomorrow the Senate will reject Mr. CHURCH. I reserved the remainder
this amendment. It could do serious in- of mine.
jury to the bill. Mr. President, I am surprised my argu-
ment has not already persuaded the Sen-
ator from Kansas to withdraw his
amendment-However, if he wants to re-
serve 5 more minutes I will reserve the
same, and then we can proceed to a vote.
Mr. ROBERT C. BYRD. Mr. President,
with the amendment set aside temporar-
ily, if there is any other amendment
which any Senator wishes to call up,
it would be a good time to do it now,
with the understanding that on tomor-
row the pending question when the Sen-
ate resumes consideration of the Taiwan
Enabling Act will be the further con-
sideration of the amendment by Mr.
DOLE.
The PRESIDING OFFICER. The Sen-
ator from New Hampshire.
UP AMENDMENT NO. 40
Mr. HUMPHREY. Mr. President, I
send to the desk an imprinted amend-
ment and asked that it be stated.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk read as follows :
The Senator from New Hampshire (Mr.
HUMPHREY) proposes an unprinted amend-
ment numbered 40:
On page 22 following line 23, insert the
following new section:
THE PURPOSE IS TO REQUIRE
"SEC. 403. The President shall notify the
Chairman of the Senate Committee on For-
eign Relations and the Speaker of the House
of Representatives thirty days prior to the
issuance to the People's Republic of China
of any license required under Section 38 of
the Arms Export Control Act."
Mr. ROBERT C. BYRD. Mr. President,
will the Senator yield?
Mr. HUMPHREY. Yes.
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that it may be
in order to order the yeas. and nays at
this time on the amendment by Mr. DOLE.
Mr. CHURCH. Mr. President, reserv-
ing the right to object, it had been my
intention to make a motion to table the
amendment, but I would not want to
agree to a unanimous-consent agree-
ment that would foreclose my motion.
Mr. ROBERT C. BYRD. That would
not foreclose the Senator.
Mr. CHURCH. Very well.
Mr. DOLE. Mr. President, I ask for
the yeas and nays on the amendment.
The PRESIDING OFFICER. Is there
a sufficient second? There is a sufficient
second. -
The yeas and nays were ordered.
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that it may
be in order at this time to order the
yeas and nays on a motion to table the
amendment by Mr. DOLE in the event
such a motion is made, which Mr.
CHURCH says he intends to make.
The PRESIDING OFFICER. Is there
objection?
Without objection, it is so ordered.
Mr. CHURCH. Mr. President, I ask
for the yeas and nays on the motion to
able.
The PRESIDING OFFICER. Is there
a sufficient second? There is a sufficient
second.
The yeas and nays were ordered.
Mr. ROBERT C. BYRD. I thank the
Senator for yielding.
Mr. HUMPHREY. Mr. President, the
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purpose of my amendment is to require
the President to notify the chairman of
the Senate Committee on Foreign Rela-
tions and the Speaker of the House of
Representatives 30 days prior to the is-
suance to the People's Republic of China
of any license required under section 38
of the Arms Export Control Act.
Serious thought apparently is being
given in some Government and business
circles to selling defense-related tech-
nology and even weapon systems to the
People's Republic of China. I am heart-
ened, however, by President Carter's
statement of January 26, that he does
not plan to enhance the military capa-
bility of the PRC.
Mr. President, I ask unanimous con-
sent to have President Carter's state-
ment printed in the RECORD.
There being no objection, the state-
ment was ordered to be printed in the
RECORD as follows:
QvESTION. Mr. President, in regard to Mr.
Brezhnev's warning to the West against the
sale of sophisticated arms to China, as I
understand it, the United States is not plan-
ning to make any such sales. West Germany
says it will sell only to its allies, but the
attitude is very different in Paris and Lon-
don. Question is, what is the U.S. attitude
towards sale of such weapons by its allies
and, secondly, what, if anything, are we do-
ing in support of that attitude?
The PRESIDENT. We have responded very
clearly to President Brezhnev who contacted
me directly about these sales. We will not
sell weapons to either China or Russia. Sec-
ondly, our allies are independent, soveriegn
nations and they would resent any intru-
sion by us into their weapons sales policies.
We have a very clear understanding among
ourselves, particularly Germany, Great
Britain and France and the United States.
We discussed this at some depth at Guade-
loupe. Our publicly expressed and privately
expressed advice to the other nations is that
the sale of any weapons should be restricted
to defensive weapons, and, of course, Pres-
ident Giscard d'estaing, Prime Minister
Callaghan, Chancellor Schmidt would de-
cide with their advisors on what is or is not
a defensive weapons sale.
The Soviets need not be concerned about
this, in my opinion. They have expressed
their opinion to the foreign leaders as well
as to myself. And I think my response was,
basically cast in the posture of reassurance
to the Soviets. We certainly have no inten-
tion to sell weapons to the Soviet Union or
China.
The technologically advanced equipment,
computers and so forth, would have to be
assessed on the basis of each individual
item and whether it could contribute in a
substantial way to the enhancement of the
military capabilities of both the Soviet
Union and China. And, in general, we will
apply the same restraints of that kind of
sale to both countries.
Mr. HUMPHREY. Mr. President, I re-
mind my distinguished colleagues that
Mr. Carter's statement concerning arms
sales policies toward the PRC was con-
siderably more forthright than that of
William Cooper, Under Secretary of
State for Economic Affairs. Mr. Cooper,
in testimony before the Senate Banking
Committee, would not give assurance
that the administration would not sell
strategic commodities or weapon systems
the PRC. All he would say and I quote,
"We will try to maintain a balance in
our relations with China and the Soviet
Union and what that means in practice
at the moment is that we will not sell
military equipment to either country,
either China or the Soviet Union."
Whom are we to believe? Are we not
planning to sell weapons to the PRC or
are we not planning -to sell them for the
moment? Over the last decade, the
United States-largely due to Congress
concern and foresight-has become more
sophisticated in monitoring the transfer
of U.S. technology and weapon systems
overseas.
The President, however, is given a
great deal of flexibility in dealing with
arms sales to the PRC. Loopholes in the
present laws are summarized in a paper
which I ask unanimous consent to have
printed in the RECORD.
There being no objection, the material
was ordered to be printed in the RECORD,
as follows:
LOOPHOLES IN PRESENT LEGISLATION GOVERN-
ING TRANSFER OF GOODS AND TECHNOLOGY
WITH POSSIBLE MILITARY USES
1. Sec. (4) of the Export Administration
Act of 1969 states that "in administering ex-
port controls for national security purposes
... United States policy toward individual
countries shall not be determined exclusively
on the basis of a country's communist or non-
communist status but shall take into account
such factors as the country's present and
potential relationship to countries friendly
or hostile to the United States, its ability and
willingness to control re-transfers of United
States exports in accordance with United
States policy and such other factors as the
President may deem appropriate." Thus, un-
der the Export Administration Act the trans-
fer of defense related technology to the
PRC is theoretically possible.
2. The*Arms Export Control Act does not
place absolute constraints on the transfer of
weapons to communist nations. All that is
said is that it is "the sense of Congress that
sales and guarantees ... shall not be ap-
proved where they would have the effect of
arming military dictators who are denying
the growth of fundamental rights or social
progress to their own people. Provided, that
the President may wave this limitation when
he determines it would be important to the
security of the United States, and promptly
so reports to the Speaker of the House of
Representatives and the Committee on For-
eign Relations in the Senate."
3. The Foreign Assistance Act of 1961
prohibits military assistance "to any com-
munist country" but even here the President
is given some flexibility to waive restrictions
if he finds and promptly reports to Congress
that (1) "such assistance is vital to the
security of the United States; (2) that the
recipient country is not controlled by the
international communist conspiracy and (3)
such assistance will further promote its in-
dependence of the recipient country from
international communism." I would have a
difficult time agreeing with the President
that these provisions could be met by the
PRC but one finds strange arguments ad-
vanced in some academic circles at least that
there is no such thing as an international
communist movement, and that Peking is an
independent actor and that furnishing aid
would enhance Peking's independence from
the Soviets.
Mr. HUMPHREY. Mr. President, many
will ask why we need to make law what
the President has said he will not do;
that is, sell weapons to the PRC. These
reasons come to mind. Not only do regu-
lations presently in force give the Presi-
dent great leeway concerning possible
S 2495
arms sales to the PRC, the President in
my opinion, at least, has proven to be
anything but consistent in foreign af-
fairs. Taiwan is a poignant case in point.
The President promised not to abandon
Taiwan and then proceeded to do just
that without consulting with the ROC
or with the U.S. Congress. Might he not
change his mind abruptly about arms
sales to the PRC?
Lastly, arms sales to the PRC are being
discussed in the press and elsewhere.
China's shopping list for U.S. weapons
promises to be a long one. According to
the New York Times of March 9, China
is very interested in buying U.S. war-
planes, particularly the Lockheed C-130
military transport and the Lockheed
P-3C antisubmarine patrol plane. Pe-
king is also interested in some of the ad-
vanced electronic equipment produced by
McDonnell Douglas. I also understand
they are interested in purchasing high-
technology hydrofoil turbines that now
propel our U.S. Navy hydrofoil missile
combatants.
Is it fair to place serious restraints on
arms sales to a good and loyal ally of
more than 30 years while at the same
time, contemplating selling arms and de-
fense related technology to the PRC-
Taiwan's bitter and sworn enemy?
The administration, in fact, has
agreed-only reluctantly-to supply Tai-
wan after 1979 with "selected defense
weaponry on a restricted basis." Several
witnesses before the Foreign Relations
Committee including Vice Admiral Sny-
der, former head of Taiwan Defense
Command, expressed concern that vital
weapons that Taiwan really needs have
been withheld from them for political
reasons. At present, Taiwan's Navy
which consists of World War II vintage
destroyers would be no match for the
PRC's patrol boats and modern destroy-
ers which are armed with Styx ship-to-
ship missiles or the PRC's submarines.
These subs may be primitive by Western
standards but the PRC has twice the
number of attack subs that the United
States has in the entire western Pacific.
The PRC's surface and submarine force
would permit China to sever Taiwan's
sea lines of communication relatively
quickly. I point out that Taiwan's forces
were never designed to act alone but in
concert with U.S. forces under the pro-
vision of the Mutual Defense Treaty.
Mr. President, if the past several weeks
have proven anything, it is that Peking
government is quite willing to destabilize
Asia just to prove a political point; that
is, it will not be pushed around by Viet-
nam. Not only did Peking commit thous-
ands of troops and kill.thousands of peo-
ple just to give Vietnam a slap in the
face; Peking's action against Vietnam
endangered the peace throughout south-
east Asia, and suggested that the Peo-
ple's Republic of China will not hang
back from attacking Taiwan if it thinks
it can get away with it. Yet, even after
China's demonstration of contempt for
world opinion, there are those in our
country who would provide the People's
Republic of China with military equip-
ment.
It is time, that the United States
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GONG SXONAL RECORD -SENATE March 12, 1979
stopped hastily committing itself to pro-
grams or agreements just for the sake of
having successful negotiations. This is
basically how the administration ap-
proached Taiwan and the Senate has
worked diligently over the past 2 months
to pick up the pieces to insure Taiwan
some measure of security and interna-
tional standing. I fear, that given our
zeal to be liked by the Communists, we
will begin selling defense materiel to the
PRC despite the obvious long-term pit-
falls of doing so.
In the future, it is conceivable that the
PRC and the United States may be ad-
versaries. The Chinese Communists
themselves view the new relationship
with the United States as a temporary
phenomenon designed in the short term
to gain advantages vis-a-vis the U.S.S.R.
To quote my colleague Senator HELMS,
as he expressed himself in the Foreign
Relations Committee report,
The Old Chinese strategy, playing the near
barbarian (the USSR) off against the far bar-
barian (the United States) continues to hold
sway in the minds of Peking's strategists. At
the some time, given Communist ideology
whether it be the Soviet or Chinese-brand
detente or peaceful coexistence, is no more
than a guise to gain the strength to tackle
capitalism, i.e., the West and our way of life.
It is time that the American people
exerted less effort to "being liked," less
time bending over backward to insure
successful negotiations with former en-
emies, and exerted more effort toward
being respected. The administration's
hasty and shameful abandonment of Tai-
wan cost the United States dearly in re-
spect and credibility. Turning around
and selling arms to Taiwan's enemy will
-further erode our worldwide respect and
credibility.
This amendment will insure that we,
as a Nation, that we, as a legislative
body, are given clear warning that the
United States may be embarking on a
course of action that could have danger-
ous consequences 5 to 10, or even 20 years
down the road. Basically, my misgivings
about selling defense technology to the
PRC boil down to two basic questions:
Should we create another military su-
perpower that our grandchildren may
have to confront? Will they appreciate
our efforts to make China even more
powerful than it otherwise would have
been? Absolutely not.
Mr. HELMS. Mr. President, will the
Senator yield?
Mr. HUMPHREY. I yield.
Mr. HELMS. Mr. President, I com-
mend the distinguished Senator from
New Hampshire on this amendment and
for the other fine work he has done with
respect to this legislation. 1 wonder
whether he would give me the privilege
of cosponsoring the amendment.
Mr. HUMPHREY. Yes.
Mr. HELMS. Mr. President, I ask
unanimous consent that my name be
added as a cosponsor of the amendment.
The PRESIDING OFFICER (Mr.
NUNN). Without objection, it is so
ordered.
Mr. McCLURE. Mr. President, will the
Senator yield?
Mr. HUMPHREY. I yield.
Mr. McCLURE. Mr. President, I join.
my friend and colleague from North Mr. JAVITS. I move to lay that mo-
Carolina, and I ask unanimous consent tion on the table.
that my name be added as a cosponsor The motion to lay on the table was
of the amendment. agreed to.
The PRESIDING OFFICER. Without UP AMENDMENT No. 41
objection, it is so ordered. (Subsequently numbered amendment No.
Mr. McCLURE. Mr. President, I com- 101)
mend the Senator from New Hampshire Mr. HUMPHREY addressed the Chair.
for the very lucid statement he has Mr. JAVITS. Does the Senator have
made. I appreciate the constructive work another amendment?
he has done on this measure. Mr. HUMPHREY Yes.
Mr. HUMPHREY. Mr. President, I ask The PRESIDING OFFICER. The Een-
unanimous consent that the name of the ator from New Hampshire is recognized.
Senator from Utah (Mr. HATCH) be added Mr HrrrnMPH Ev M
-
r
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. ZORINSKY. Mr.. President, I also
commend the Senator from New Hamp-
shire for his forthrightness and his as-
tuteness in suggesting this amendment-
that the President shall notify the chair-
man of the Senate Committee on Foreign
Relations and the Speaker of the House
of Representatives 30 days prior to the
issuance to the People's Republic of
China any license required under section
38 of the Arms Export Control Act. The
committee will accept this amendment.
In addition, I note that on January 26,
1979, the President stated that we will
not sell weapons to either China or Rus-
sia; and the committee, after hearings,
will consider supporting the President on
this issue.
Mr. President, I again state-that the
Foreign Relations Committee will accept
this change in the form of this amend-
ment.
The PRESIDING OFFICER. Do Sena-
tors yield back their time?
Mr. ZORINSKY. I yield back the re-
mainder of my time.
Mr. GOLDWATER. Mr. President, will
the Senator yield?
Mr. HUMPHREY. I yield.
Mr. GOLDWATER. Mr. President, I
compliment the Senator. In his-first ef-
fort on the floor, he has had a meaning-
ful amendment adopted, one that can
put a little more muscle in this piece of
legislation which came to us so sadly
lacking in strength. Thanks to people
like this young man, we have added a
little strength to it.
Mr. HUMPHREY. I thank the Senator
from Arizona for his kind comments.
Mr. JAVITS. Mr. President, I join in
accepting the amendment. I understand
that it applies to the munitions list, as it
is called.
Under the circumstances as I see them
today, I see no particular prejudice to
the United States or to our national in-
terests in this required notice period.
I thank my colleague for his work, as
others have, on this amendment.
Mr. HUMPHREY. I thank the Senator
from New York.
The PRESIDING OFFICER. Is all time
yielded back?
Mr. HUMPHREY. I yield back the re-
send to the desk an unprinted amend-
ment and ask that it be stated.
The PRESIDING OFFICER. The
amendment will be stated.
The assistant legislative clerk read as
follows:-
The Senator from New Hampshire (Mr.
HUMEHREY) proposes an unprinted amend-
ment numbered 41:
On page 23 after "section 601", and before
"this Act shall have taken effect on January
1, 1979" insert the following:
"Contingent upon the President of the
'United States securing written assurances
from the Peoples Republic of China that the
Peoples Republic of China will not under-
take military operations of any nature
against the people of Taiwan."
Mr. HUMPHREY. Mr. President, the
amendment I have sent to the desk is a
very simple amendment. It is clear-cut.
It makes the effective date of the treaty,
January 1 of this year, contingent upon
the President securing from the People's
Republic of China written assurances
that the People's Republic of China will
not engage in military aggression against
the Republic of China on Taiwan.
Mr. President,- as we all know, the
President of the United States chose to
ignore the request of the U.S. Senate that
he consult with this body before drasti-
cally altering the relations between this
country and the Republic of China. He
chose to ignore the request embodied in
the International Security Assistance Act
passed by this body last July by a vote of
94to0.
Had he consulted with this body, Mr.
President, I believe that he would have
been asked to obtain the assurances
which this amendment seeks to obtain,
but he did not consult with this body. To
make matters worse, it has come out dur-
ing the hearings of the Foreign Relations
Committee that his people in Peking did
not bother even to ask for such assur-
ances-did not bother even to ask.
I can hardly believe that.
Mr. Woodcock when asked why he did
not broach that question replied that he
thought it might create a roadblock in
the involvement of relations between the
United States and the"PRC.
So the upshot, Mr. President, is that we
are terminating , the mutual defense
treaty as of the end of this year and we
mainder of my time. are replacing it with a vaguely worded
The PRESIDING OFFICER. The ques- security section of S. 245, a section which
delib-
tion is on agreeing to the amendment. erate way, wa was worded vaguely a delib-
a
ay, while we are e not even provid-
The agreement was agreed to. ing the Republic of China assurances
Mr. ZORINSKY. I move to reconsider that the PRC has peaceful intents toward
the vote by which the amendment was that island nation.
agreed to. Mr. President, the handling of this
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CONGRESSIONAL RECORD ? SENATE S 2497
matter by the President is shocking. I am
shocked that he failed to press the Peo-
ple's Republic of China for assurances of
this nature and it is time to rectify it. I
ask my colleagues to rectify it by voting
for my amendment which will make the
effective date of this treaty contingent
upon the President's securing such writ-
ten assurances, and that is the simple
purpose of my amendment, Mr. Presi-
dent. It is very clear. It is very . easy to
understand. It is very simple.
The PRESIDING OFFICER. Who
yields time?
Mr. JAVITS. Mr. President, we have
not even seen this amendment.
I suggest the absence of a quorum so
we may get some copies.
The PRESIDING OFFICER. The clerk
will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. JAVITS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. JAVITS. Mr. President, the dis-
position of Members tonight, and this
goes for Members who may be with or
may not be with the Senator, is to not
have any rollcall votes on amendments.
We have already put two over, and if
the Senator insists on going ahead with
his amendment, we will simply have to
debate it for a while, which I do not
think is going to promote the case for
him or promote the case for the bill.
My strong suggestion to the Senator is
that we agree that his amendment shall
be called up after the amendment to-
morrow that Senator DOLE already has
priority for and then, of course, the
Senator can have his rollcall or what-
ever he wishes.
But it does not seem to work tonight
for a lot of Members on both sides. So
if that is agreeable I will ask unanimous
consent reserving all the Senator's
rights.
Mr. HUMPHREY. Yes, as long as my
rights are reserved I shall be happy to
work in that fashion.
Mr. JAVITS. Mr. President, I ask
unanimous consent that the amend-
ment offered by the Senator may follow
for consideration the amendment which
Senator DOLE by unanimous consent is
to bring up when this bill becomes the
pending business tomorrow and all time
utilized on this amendment tonight may
not count against the 1 hour time limit
on the amendment when it is called up.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. JAVITS. I thank my colleague.
Mr. President, I suggest the absence
of a quorum.
The PRESIDING OFFICER. The
clerk will call 'the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. BOSCHWITZ. Mr. President, I
ask unanimous consent- that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. BOSCHWITZ. Mr. President, I
ask unanimous consent that I may be
permitted to make a statement not in
regard to the matter at hand.
The PRESIDING OFFICER. Who
yields time?
Mr. BOSCHWITZ. Mr. President, last
Thursday on March 8, 1979, the Senate
agreed-
The PRESIDING OFFICER. The Sen-
ator must have time yielded.
Who yields time?
Mr. JAVITS. I do not know. " Do we
have any time on the bill?
The PRESIDING OFFICER. Five
hours equally divided.
Mr. JAVITS. I yield the Senator 10
minutes.
Mr. BOSCHWITZ.-It shall take me
about 1 minute. .
ANNOUNCEMENT OF POSITION ON
VOTE-SENATE RESOLUTION 93
Mr. BOSCHWITZ. Mr. President, last
Thursday, on March 8, 1979, the Senate
agreed by voice vote to defer implemen-
tation on the honorarium limit in rule
SLIV to January 1, 1983.
At this point, let the record show.
that I would have voted against Senate
Resolution 93 had there been a rollcall
vote.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk
will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. ROBERT C. BYRD. Mr. Presi-
dent, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
ROUTINE MORNING BUSINESS
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that there now
be a period for the transaction of rou-
tine morning business with Senators
permitted to speak therein up to 5 min-
utes each and that the period not extend
beyond 30 minutes.
The PRESIDING OFFICER. Without
objection, it is so ordered.
THE CLINICAL LABORATORY IM-
PROVEMENT ACT OF 1979
Mr. KENNEDY. Mr. President, I am
pleased to join my good friend and dis-
tinguished colleague Senator JAVITS in
sponsoring the Clinical Laboratory Im-
provement Act of 1979. This bill is sub-
stantially similar to the bill that unani-
mously passed the Senate in the 94th
Congress.
The clinical laboratory industry now
costs.the American people over $12 bil-
lion a year. By 1980; approximately 9 bil-
lion clinical laboratory tests will be con-
ducted annually at a cost of about $15
billion to the American people. Because
the work of clinical laboratories is so
integrally connected with the case of
patients, without high quality labora-
tory services America's health care sys-
tem is in jeopardy.
While the Clinical Laboratory Im-
provement Act of 1967 resulted in im-
proved quality of laboratory perform-
ance, the law covered only the large in-
terstate laboratories, less than 10 per-
cent of all laboratories throughout the.
country. The American people have had
to depend upon a variety of other sources
including States government, individual
laboratories, and individual practition-
ers to assure the quality and reliability
of laboratory work. This patchwork sys-
tem of regulation- has not adequately
served either the doctor or his patient.
Reports of clinical laboratory inepti-
tude appear much too frequently. We
have learned of a distressing litany.
Many laboratories, for example, have
never been inspected, dirty and broken
laboratory equipment is being used by
inexperienced technicians, reagents are
unlabeled and outdated, and patient
specimens are being tested with used and
unwashed pipettes:
During hearings held in the last Con-
gress before my Health Subcommittee,
we learned that although high volume
laboratories may be more proficient than
smaller laboratories-such as those
found in doctors' offices and medicare
certified laboratories-the level of qual-
ity was still undesirable. For example,
7.6 percent of the interstate laboratory
determinations, 16.5 percent of labora-
tory tests prepared by other large lab-
oratories, and 26 percent of the sample
lab work done in medicare reimbursed
labs were incorrect. Almost 1 out of 5
microbiological determinations, then,
are inadequate. This is poor medical
care and it is expensive medical care.
It should no longer be tolerated.
The American health care consumer
often finds it impossible to' evaluate and
judge the quality of laboratory testing
which he receives. He has no influence on
his physican's choice of laboratory; nor
has he any indication of relative costs.
Tests which cost $10 'in one lab cost $45
in another. It is true that lower charges
may be attributed to automation, but
even among the larger, automated labs
there are incredible price variations.
In addition, there is growing evidence
of fraud and abuse within the clinical
laboratory field particularly in connec-
tion with the medicaid program.
The Clinical Laboratory Improvement
Act of 1979 is designed to improve the
quality of laboratory performance by re-
quiring all laboratories to comply with
national standards designed to assure ac-
curate and reliable testing. And the bill
allows us to achieve this result without
creating a new Federal bureaucracy.
The program is meshed into the exist-
ing medicare certification program which
is staffed and administered by State per-
sonnel in every State. The bill also has
cost savings provisions by amending
medicare to discourage unwarranted
markups of bills for laboratory services
and to place reasonable limitations on
payments to hospital-based pathologists.
This legislation will help in our con-
'tinuing battle to insure quality health
care and stabilize health care costs, a
-fact that has been recognized by the Sen-
ate twice before in passing similar legis-
lation in the 94th and 95th Congresses.
I join with Senator JAVrrs in asking my
colleagues to once'again favorably con-
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S 2498
sider this vital legislation when it is be-
fore you.
SENATOR MILTON YOUNG'S CON-
TINUOUS SERVICE IN THE SENATE
FOR 34 YEARS
Mr. PRESSLER. Mr. President, I wish
to pay tribute to Senator MILTON R.
YOUNG who, 34 years ago today, was ap-
pointed to this body and has served con-
tinuously since. He has served with great
distinction here. In our part of the coun-
try, South and North Dakota, he is cer-
tainly one of the most respected veteran
leaders in our area. '
I have looked to him for leadership on
several occasions, particularly in matters
that pertain to water, agriculture, and
appropriations. The latter are commit-
tees on which he has served as ranking
member.
I wanted to call the Members' atten-
tion to the fact that it was 34 years ago
today that he was first appointed to this
body and he has served continuously
since. I certainly commend him on that.
Senator YOUNG in 1968 received the
highest percentage of vote of any Re-
publican Senator In the Nation. He has
never lost an election. Coming from a
farm myself, I am happy to note that he
was actively engaged in farming until he
became a U.S. Senator. His career is an
inspiration' to us younger Members.
North Dakota and the Nation can be
very proud and gretPfi l for his service.
THE LATEST WORD ON IRS VERSUS
PRIVATE SCHOOLS
Mr. HATCH. Mr. President, the re-
cently republished IRS regulations re-
garding the tax-exempt status of private,
religious schools do not correct the fund-
amental flaw inherent in these regula-
tions. The IRS claims the revised version
restricts the scope of the regulations.
Nevertheless, they predicate their actions
on the assumption that the majority.of
American private schools are discrimina-
tory.
In other words, should a private or
religous school fall into the category of
being a "reviewable" school, it is accord-
ing to the IRS, prima facie discrimina-
tory, and subject to losing its tax exemp-
tion.
Upon examining the newly proposed
regulations, one comes to the conclusion
that our Internal Revenue Service has
taken upon itself the responsibility for
implementing an aggressive affirmative
action policy. Yet, it is a policy which IRS
Commissioner Jerome Kurtz has said:
"We have almost no specific guidance."
In reading these regulations and con-
sidering the Commissioner's statement,
one can almost hear Mr. Justice
Blackmun in his dissent in Alexander v.
American United, Inc., 94 S. Ct. 2065
(1974), in which he warned of the poten-
tial for abuse of power vested in the IRS:
There appears to be little to circumscribe
the almost unfettered power of the Commis-
sioner. This may very well be so long as one
subscribes to the particular brand of social
policy the Commissioner happens to be ad-
vocating at the time ... but applications of
our tax laws should not operate in so fickle a
CONGRESSIONAL RECORD -SENATE March 12, 1979
fashion. Surely, social policy in the first in-
stance is a matter for legislative concern.
I agree with W. Justice Blackmun.
Social policy is a matter for legislative
concern and it is an affront to the Con-
gress of the United States to have an ad-
ministrative agency attempt to set social
policy. Legally and politically, an agency
such as the IRS is restricted in its rule-
making authority. It is restricted to mak-
ing "procedural" decisions, but not "sub-
stantive" policy decisions-an area
which is reserved by the Constitution's
article Ito Congress.
When the IRS first released its "pri-
vate school" regulations, responsibilities
in the Congress over such regulations
were not consulted. And yet, these reg-
ulations give the individual IRS agent
incredible subjective authority to deter-
mine the guilt or innocence of a private
or religious school.
For example, I quote the following
statement taken from the proposed
regulations:
The schools will be considered to have a
racially non-discriminatory policy as to stu-
dents if the school can show that It has
undertaken actions or programs reasonably.
designed to attract minority students on a
continuing basis.
I call your attention to the word "rea-
sonably." It is -a code word-the buzz
word which gives the IRS broad, sweep-
ing and open-ended power to evaluate
the evidence a private or religious school
may submit in its own "defense." Such
a blank check goes beyond the authority
granted to the Internal Revenue Serv-
ice. This authority is limited to the areas
of taxation and the collection of rev-
enues, not in the admission, recruitment
and employment policies of private and
religious schools.
Furthermore, the numerical quotas
set forth in these regulations are in
direct contradiction to the Supreme
Court's decision in Bakke against Board
of Regents (1978). That decision struck
down numerical quota systems similar
to the one proposed in these regulationg.
These IRS regulations raise serious ques-
tions about constitutional propriety.
Since the original issuance of these
regulations, the IRS has taken for
granted that any school under these
rules which is classified reviewable is, in
fact, discriminatory. It must be inferred
that the IRS believes such schools 'to
be prima facie discriminatory solely be-
cause, subsequent to their establishment
or expansion, these schools had "insig-
nificant minority enrollments."
Given a total absence of allegations
of specific discrimination, a school's in-
substantial minority enrollment could'
be accounted for reasons other than an
intent to discriminate.
For example, it could be due to factors
like tuition cost, lack of special programs
available in public schools, an inconven-
ient location, religious objections, and
other factors that are not in the least re-
lated to intended discriminatory con-
duct.
A pivotal factor in this brief commen-
that it is not, and, that it was never in-
tended to be construed as one. Rather,
tax-exemptions have been the tools by
which government has been prevented
and restrained from taxing, refrained
from destroying institutions which must
be free from governmental intervention.
Never has Chief Justice John Marshall's
maxim been more appropriate.
The power to tax involves the power to
destroy.
Finally, there is the issue of the "open
door." I have already alluded to it in my
statements about the broad and ? sweep-
ing power such regulations grant the
IRS. But the real danger is the precedent
set and the encouragement given to the
IRS by these regulations to encroach-
ment on the activities and rights of
religious schools and churches. If the
IRS gains control over the Nation's
religious schools through its power to
tax, it is presuming to make substantive
policy. It is presuming to do the legisla-
tive job reserved for Congress. It is folly
to assume IRS employees are capable
legislators or experts in the areas of re-
ligion, sociology, and racial questions,
and Yet by their regulatory behavior they
presume to be. And the risk this poses
to the freedom of American private
schools today, will become the danger
jeopardizing church organizations and
religious groups tomorrow. Freedom of
worship and religious practice is pro-
tected by the first amendment, but this
becomes meaningless when it is the Fed-
eral Government through the IRS which
determines who can and who cannot
practice or organize through the power
.to tax.
Since the beginning of this, the 96th
Congress, I have introduced two bills in-
tended to address the problems posed in
IRS versus private schools, S. 103
(The Save Our Schools Act) and S. 449
(The Charitable Organizations Preserva-
tion Act). I am privileged to have the
support of many colleagues who have
cosponsored either or both pieces of leg-
islation. I am especially thankful,
though, to my friend, the senior Senator
from Virginia (Mr. HARRY F. BYRD, JR.)
who has decided to hold hearings on this
subject in the Senate Finance Commit-
tee's Subcommittee on Taxation, which
he chairs. These April hearings, however,
will deal with more than IRS versus pri-
vate schools. In the most fundamental
sense, by the nature of the subject to be
considered, they will deal with the res-
toration of the Congress role to set sub-
stantive policy. We must never again
allow this legislative power to be taken
from us. We must never again allow
those who for the best of reasons would
commit the worst of constitutional of-
fenses, by removing the power of govern-
ment from those who were elected to
wield it. The power to legislate is a power
of Congress. Every schoolchild learns
this civic lesson early on, but now it is
our responsibility to remind those who
may have forgotten it.
tary on the proposed regulations is COMMUNICATIONS
whether or not a tax-exemption is, in The PRESIDING OFFICER laid
fact, a form of Federal subsidy. I believe before the Senate the following com-
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CONGRESSIONAL RECORD -SENATE
The PRESIDING OFFICER. If there
be no further morning business, morning
business is closed.
TAIWAN ENABLING ACT
The Senate continued with the con-
sideration of S. 245.
UP AMENDMENT NO. 42
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The Sen-
ator from Massachusetts.
Mr. KENNEDY. Mr. President, I send
tin amendment to the desk.
The PRESIDING OFFICER. The clerk
will-report.
The assistant legislative clerk read as
follows:
The Senator from Massachusetts (Mr.
KENNEDY), for himself and Mr. CRANSTON
proposes an unprinted amendment num-
bered 42:
On page 14, line 22, insert ", or the social
or economic system" after "the security".
Mr. KENNEDY. Mr. President, is there
a time limitation for amendments?
The PRESIDING OFFICER. One hour
equally divided.
Mr. KENNEDY. I yield myself what-
ever time I shall need.
Mr. President, I welcome and support
the committee's careful and thorough
work on S. 245, the Taiwan Enabling Act.
It is a tribute t othe leadership of Sen-
ator CHURCH and Senator JAVITS and to
their colleagues on the committee.
In particular, I welcome the Incorpo-
ration by the committee of section 114,
designed to help insure the future secu-
rity of the people on Taiwan. This sec-
tion reflects the full substance of the
Taiwan security resolution (S.J. Res. 31)
introduced by 30 Senators, including
Senator CRANSTON and myself, as well as
by Congressman WOLFF and 106 Mem-
bers of the House. We welcome its in-
corporation in the bill.
I would ask the chairman, my distin-
guished friend from Idaho, whether a
small, perfecting change would be ac-
ceptable in paragraph b (3) of section 114.
This paragraph is based on section 2 of
the joint resolution introduced by Sen-
ator CRANSTON and myself, to wit: On
page 14, line 22, we would direct the
President to inform the Congress
promptly of any threat not. only to the
"security" of Taiwan, but also to the
"social or economic system of Taiwan."
This change would require the Presi-
dent to report on the same military,
economic, and social factors in which we
have stated the interest of the United
States in paragraph b (1) . Senator CRAN-
,
.
.
.
ETON and I believe, and hope Senator, to reconsider the vote by which the
CHURCH and the committee would agree,
that the reporting requirement should
encompass the full scope of our future
interests in Taiwan.
Mr. JAVITS. Mr. President, will the
Senator yield?
Mr. KENNEDY. I yield.
Mr. JAVITS. Mr. President, this is an
excellent suggestion. I was consulted
about it and advised this approach, and
I am pleased that Senator Kennedy has
chosen to go that way. The amendment
is entirely acceptable to me.
Mr. CHURCH. Well, Mr. President,
while I do not claim to be a Leonardo da
Vinci, I had thought that the commit-
tee's diligence had enabled us to bring
to the floor the legislative equivalent of
a Mona Lisa. I am startled to find so
many artists with paintbrush in hand
who have come to the floor to alter this
little coloration or that.
Now, I have no objection to adding
these two or three words to the final par-
agraph, if the Senator feels compelled
to offer them. Section 114 of the bill
presently reads, in subparagraph (3) on
page 14:
The President is directed to inform the
Congress promptly of any threat to the se-
curity of Taiwan and any danger to the in-
terests of the United States arising there-
from;
I understand the Senator would like
to add, after the word "security" on line
22, two -additional words?
Mr. KENNEDY. The Senator is cor-
rect. On line 22 on page 14, to add the
words "or the social or economic system"
of Taiwan, in conformance with the same
words on lines 16 and 17, which state our
opposition to jeopardizing ."the' security,
for the social and economic system, of
the people on Taiwan." Then, paragraph
(3) says, "The President is directed to
inform the Congress promptly of any
threat to the security of Taiwan," and
there is no mention of the social and
economic -factors.
The reason I bring it up, Mr. President,
is that at many points section 114 basic-
ally tracks the language of our original
resolution (S.J. Res. 31). I agree that it
is not a matter of grave importance, but
I think we should, in directing the Presi-
dent to report to Congress, use the same
words as those used in the statement of
our poli:y. It seems to me that this would
be both a conforming amendment and of.
some value and use.
Mr. CHURCH. Mr. President, the Sen-
ator makes a good case, and I have no
objection to the amendment. Therefore,
I am prepared to yield back the
remainder of my time, and urge the
Senate to adopt the amendment.
The PRESIDING OFFICER. Does the
Senator from Massachusetts yield back
his time?
Mr. KENNEDY. I yield back the
remainder of my time.
The PRESIDING OFFICER. All re-
maining time having been yielded back,
the question is on agreeing to the'amend-
merit of the Senator from Massachusetts
(Mr. KENNEDY).
amendment was agreed to.
Mr. JAVITS. I move to lay that motion
on the table.
The motion to lay on the table was
agreed to.
The amendment was agreed to.
I move
President
Mr
CHURCH
Mr
UTINE MORNING BUSINESS
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that there now
be a period for the transaction of routine
morning business of not to exceed 10
minutes, with Senators permitted to
S 2565
speak therein for not to exceed 5 min-
utes each.
The PRESIDING OFFICER. Without
objection, it is so ordered.
NUCLEAR REPROCESSING
Mr. THURMOND. Mr. President, an
interesting article on the merits or de-
merits of nuclear reprocessing appeared
in the December 1978 issue of the Elec-
tric Power Research Institute Journal.
It is authored by Carolyn Heising, pres-
ently engaged in postdoctoral research
at the Massachusetts Institute of Tech-
nology who carefully examines the pros
and cons of nuclear reprocessing.
The conclusion is most interesting. Dr.
Heising finds, after comparing nine cur-
rently available routes to weapons ma-
terial, that the commercial reprocessing
route is relatively unattractive. She esti-
mates there is only a 3-percent likeli-
hood that a nonweapons state would,
choose this route over some other.
Mr. President, I have been urging the
administration to pursue a more progres-
sive policy in the nuclear energy field.
We cannot afford to bypass the opportu-
nities offered in this area. The President
needs to lead the Nation in a commit-
ment to nuclear energy and, at the very
least, to the light water reactor. To do
otherwise will greatly weaken us in the
energy scarce days ahead.
Mr. President, I ask unanimous con-
sent that this article by Dr. Heising be
printed in the RECORD.
There being no objection, the article
was ordered to be printed in the RECORD,
as follows:
THE REPROCESSING DECISION
(By Carolyn D. Heising)
Decision makers charged with formulating
energy policy are confronted with some of the
most complex, uncertain, and controversial
issues of our time3, particularly in the nu-
clear power area. In the United States, legis-
lators must decide whether or not to permit
the nuclear power industry to commercialize
reprocessing technology that would separate
out and recycle plutonium and unused ura-
nium from the spent fuel. The decision mak-
ers must weigh not only the economic impli-
cations of closing the fuel cycle but also the
risks to society that attend the introduction
of such a technology. These risks must be
compared with those associated with leaving
the fuel cycle open.
The reprocessing decision is difficult for
legislators because the potential conse-
quences could be very positive or very nega-
tive and because the decision is not easily
resolved in the customary legislative process.
The charged atmosphere of the adversary po-
litical process leads only to greater confusion
as advocates present ever more heated argu-
ments. Therefore, an analysis that treats the
decision from a logical, quantative perspec-
tive could be of considerable value to the in-
terested decision maker.
Bayehian decision analysis was used to ex-
amine -reprocessing costs associated with
risks and economic benefits. This method is
well established and has been used to ana-
lyze many, uncertain decision situations (1).
Examples include applications in the NASA
space program and in personal decisions,
such as deciding whether or not to undergo
a medical operation. The method is unique
because it permits a probabilistic description
of important events that must be taken into
account in coming to policy conclusions on
reprocessing spent fuel, such as uranium
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supply and price, electricity demand, and the
number of nuclear power plants needed to
meet demand.
In decision analysis, important policy
questions are modeled as event trees, each
branch of which represents a future possible
path the United States might follow.
Smaller tributaries branching off from the
main paths indicate possible futures with
respect to economic prices, supply availabili-
ties, and other uncertain parameters. Once
the event tree is constructed, it becomes the
analyst's task to assign probabilities to each
branch. When probabilities have been esti-
mated, the tree is folded back into a smaller
tree with fewer branches until the expected
values for each principal option have been
completed. This done, the best decision be-
comes clear: the option exhibiting the larg-
est positive expected value. Finally, the sen-
sitivity of the outcome to the probability
estimates is tested by using new sets of esti-
mates to.recalculate the expected values.
THREE PATHS
With respect to the reprocessing decision,
three options or paths are available for the
United States to follow. These Include the
permit,, delay, and prohibit paths. If the
United States follows the permit path, the
nuclear fuel cycle can be closed in the near
future, which would allow uranium and
plutonium to be recycled and help to con-
serve precious resources. To follow the delay
path means the next administration will
face the same decision at a later date, while
spent fuel continues to mount at reactor
sites across the country. The prohibit path
would outlaw reprocessing and plutonium
as a reactor fuel and would leave the coun-
try with no recouse but to throw away its
spent fuel without the benefit of recycle.
This would be cccompliched by building
temporary repositories for spent fuel as-
semblies, followed by permanent disposal in
geologic formations.
The choice of which path the United
States should follow depends on which can
be expected to produce the greatest benefit
to society. These benefits need not be only
economic: they can also be measured in
terms of risk reduction, cleaner air, or im-
proved public health. To assess differences
in benefits between options, it is necessary
to identify the potential benefits of each
option along with its (risks. Once identified.
these can be quanitfied and compared.
QUANTIFYING BENEFITS
The major economic benefit 'associated
with reprocessing is the potential reduction
in the consumer's electricity bill. The
reprocessing decision can have an effect on
electricity bills in two ways: by affecting
fuel costs in the current generation of nu-
clear power plants (LWRs) and by affecting
the future of advanced nuclear power sys-
tems. principally the breeder reactor
(LAIPBR). Engineering-economic computer
models were designed to compute the po-
tential differences in these effects Implied
by the three decision options of permit,
delay, and prohibit. Because prohibition of
reprocessing effectively eliminates the
breeder, this option exhibited the largest
cost penalty. The delay option was found to
be the second most costly since delays in
breeder commercialization result, and more
expensive fuel must be used in the. current
generation of reactors. The permit option
was found to be most economic because re-
cycling and use of the breeder could start
sooner, thereby conserving the more acces-
sible (thus cheaper) uranium ore. It was
found that the permit path would save the
American consumer over $2.5 billion a year
(at a 6% discount rate) in reduced elec-
tricity bills compared with the delay alter-
native.
TECHNOLOGICAL RISKS %
Technological risks are associated with all
three decision options. Basically, there are
three distinct categories of risk that are-im-
portant-in the nuclear fuel cycle:
Health, environmental, and safety risks
Nuclear theft and sabotage
Nuclear weapons proliferation risks
Examples of the first category include occu-
pational exposure to routine radiation emis-
sion and public consequences of accidents
in fuel-cycle facilities. Safeguard risks, the
second category, refer to acts that hypothet-
ically might be directed against the fuel
cycle by disgruntled employees and/or ter-
rorist groups. These Include disturbances at
site locations, initiation of accidents by ex-
plosives, or theft of nuclear material. The
third category, nuclear proliferation risk, re-
fers to an illegal diversion of nuclear mate-
rial from a facility by a national government
bent on building crude nuclear explosives.
Each of these categories of risk was exam-
ined and quantified for the decision options
of permit (closed cycle), delay, and prohibit
(open cycle).
HEALTH, ENVIRONMENT, AND SAFETY RISKS
The nuclear fuel cycle poses some measure
of risk to the environment and to the health
and safety of persons employed at or living
near fuel cycle facilities. A review of recent
studies indicated that while all three risks
are small, the health risks outweigh the risks
associated with safety. The major component
of the health risk was routine occupational
exposure to low-level radiation" It was found
that the health risk to society was on the
order of $6,000 to $80,000 a gigawatt-year
and that the difference between open and
closed cycles was. negligible. In fact, closing
the fuel cycle would lead to improvements
in public health as a result of reduced ura-
nium mining and milling (2).
NUCLEAR SAFEGUARDS RISK
A safeguards assessment method was de-
veloped to compare the differences in social
costs between the open and closed cycles for
nuclear theft and sabotage. Facilities repre-
senting both cycles were examined for three
categories of events: those that precede the
act (e.g.. access to technical information,
organizing the attack), those that consti-
tute the act (e.g., entry, overcoming secu-
rity), and those that follow the act (e.g.,
dispersal of toxins, processing materials for
explosives). Using the best available infor-
mation on safeguard system reliability, fa-
cility layout, and the requirements for a
successful intrusion, these events were as-
signed probabilities and arrayed sequentially
Into event trees to determine expected values.
It was found that the closed cycle repre-
sents the greater risk. However, the increase
in the cost to society was found to be only
on the order of $250,000 a year (at a 6% dis-
count rate), or about half a cent per family.
Comparing this figure with the calculated
benefits. of a closed cycle ($2.5 billion per
year) yields a benefit-cost ratio of 10,000
to 1.
NUCLEAR PROLIFERATION RISK
The third major area of social concern for
which the open and closed cycles should be
compared is the risk of nuclear proliferation.
The analysis presumed that if the value to
society from closing the nuclear fuel cycle
($2.5 billion a year) exceeded the expected
cost of increased nuclear proliferation under
closed-cycle conditions, then it would be in
the best interests of the United States to'
permit reprocessing. Getting to the expected
cost required many assumptions, but mathe .
matically it was obtained by multiplying
the amount the United States would be
willing to spend to thwart proliferation (vp)
by the increased Likelihood of proliferation
under closed-cycle conditions (a).
March 12, 19,79
To elaborate, the value of nonprolifera-
tion (vp) Is interpreted as the dollar amount
the United States would be willing to pay
per year to prevent a future event of pro-
liferation from occurring. In short, the
value vp can be interpreted as an annual
premium for insurance against the spread of
nuclear weapons. And this value, in turn,
depends'on how society views the effects of
proliferation, since they can be construed
as either good or bad.
Some experts claim the probability ce-
nuclear war decreases as the number of
countries with atom bombs increases and
point to such potential good effects as global
equalization of wealth and a more lasting
peace. Other experts think proliferation will
have little effect on the world one way or
the other. They believe nl#tions will have
adequate time to adjust to the emergence of
new weapons states and point to past-events
of proliferation as evidence of such accom-
modation (e.g., reaction to Tndia's emereence
as a weapons state). However, the predomi-
nant opinion is that proliferation will result
in regional nuclear war, possibly leading to
an all-out nuclear confrontation between
the superpowers. Therefore, from this view-
point, the United States should be willing
to pay substantial sums of money to help
prevent future proliferation events.
Adopting this perspective and examining
United States response to past events of pro-
liferation, a nominal value of nonprolifera-
tion of $12 billion a year was considered an
accurate reflection of how much the United
States would be willing to pay. This figure
corresponds to an annual 10 percent increase
in the U.S. defense budget, or roughly $240 a
year for a family of four.
Turning to the likelihood of proliferation,
or more specifically, the difference in prolif-
eration. likelihood between closed and
open fuel cycles (0), several questions must
be asked. First, what influence does the
United States-have on decisions of nonweap-
ons states to 'deploy reprocessing? And sec-
ond, if a nonweapons state decides to pro-
ceed, does the existence of commercial re-
processing plants in that country affect the
likelihood that it will be successful in con-
structing its first nuclear bomb? To answer
these questions, alternative routes to nuclear
material by a nonweapons state must be
rated and compared with the commercial
power plant reprocessor (3-6).
A nonweapons state's decision on which
route to take will depend on several consid-
erations, including weapons attainable from
the material flow, the cost of each route, the
number of technical people required to oper-
ate the technology, the level of support in-
dustry required, and the capability for
clandestine operation to prevent other coun-
tries from applying sanctions. The quality of
the material is also very important. All these
considerations must be weighed by decision
makers in the nonweapons state.
After comparing some nine currently avail-
able routes to weapons material, it was found
that the commercial power reactor-com-
mercial reprocessor route is comparatively
unp,ttractive to a nonweapons state, Specif-
ically, given access to such a route, It is esti-
mated that there is only a 3 percent likeli-
hood that a nonweapons state would choose
this route over some other (7). Therefore, by I'
closing the nuclear fuel cycle, the United
States would incur, at most, only a 3 percent
greater chance of proliferation than if it de-v
cides to prohibit or delay reprocessing.
In summary, allowing nuclear fuel reproc-
essing to go forward in the United States can
be expected to increase the costs to society
by a maximum $360 million a year (o X
vp = (0.03) ($12 x 108) = $360 X 108/yr.l.
This is approximately one-seventh of the ex-
pected benefit (reduced electricity bills) to
Approved For Release 2008/10/27: CIA-RDP85-00003R000100050009-3