[Congressional Record Volume 157, Number 181 (Tuesday, November 29, 2011)]
[Senate]
[Pages S7943-S7956]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 1867, which the clerk will
report.
The legislative clerk read as follows:
A bill (S. 1867) to authorize appropriations for fiscal
year 2012 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other
purposes.
Pending:
Levin/McCain amendment No. 1092, to bolster the detection
and avoidance of counterfeit electronic parts.
Paul/Gillibrand amendment No. 1064, to repeal the
Authorization for Use of Military Force Against Iraq
Resolution of 2002.
Merkley amendment No. 1174, to express the sense of
Congress regarding the expedited transition of responsibility
for military and security operations in Afghanistan to the
Government of Afghanistan.
Feinstein amendment No. 1125, to clarify the applicability
of requirements for military custody with respect to
detainees.
Feinstein amendment No. 1126, to limit the authority of
Armed Forces to detain citizens of the United States under
section 1031.
Udall (CO) amendment No. 1107, to revise the provisions
relating to detainee matters.
Landrieu/Snowe amendment No. 1115, to reauthorize and
improve the SBIR and STTR programs, and for other purposes.
Franken amendment No. 1197, to require contractors to make
timely payments to subcontractors that are small business
concerns.
Cardin/Mikulski amendment No. 1073, to prohibit expansion
or operation of the District of Columbia National Guard Youth
Challenge Program in Anne Arundel County, MD.
Begich amendment No. 1114, to amend title 10, United States
Code, to authorize space-available travel on military
aircraft for members of the Reserve components, a member or
former member of a Reserve component who is eligible for
retired pay but for age, widows and widowers of retired
members, and dependents.
Begich amendment No. 1149, to authorize a land conveyance
and exchange at Joint Base Elmendorf-Richardson, Alaska.
Shaheen amendment No. 1120, to exclude cases in which
pregnancy is the result of an act of rape or incest from the
prohibition on funding of abortions by the Department of
Defense.
Collins amendment No. 1105, to make permanent the
requirement for certifications relating to the transfer of
detainees at U.S. Naval Station Guantanamo Bay, Cuba, to
foreign countries and other foreign entities.
Collins amendment No. 1155, to authorize educational
assistance under the Armed Forces Health Professions
Scholarship Program for pursuit of advanced degrees in
physical therapy and occupational therapy.
Collins amendment No. 1158, to clarify the permanence of
the prohibition on transfers of recidivist detainees at U.S.
Naval Station Guantanamo Bay, Cuba, to foreign countries and
entities.
Collins/Shaheen amendment No. 1180, relating to man-
portable air-defense systems originating from Libya.
Inhofe amendment No. 1094, to include the Department of
Commerce in contract authority using competitive procedures
but excluding particular sources for establishing certain
research and development capabilities.
Inhofe amendment No. 1095, to express the sense of the
Senate on the importance of addressing deficiencies in mental
health counseling.
Inhofe amendment No. 1096, to express the sense of the
Senate on treatment options for members of the Armed Forces
and veterans for traumatic brain injury and post-traumatic
stress disorder.
Inhofe amendment No. 1097, to eliminate gaps and
redundancies between the over 200 programs within the
Department of Defense that address psychological health and
traumatic brain injury.
Inhofe amendment No. 1098, to require a report on the
impact of foreign boycotts on the defense industrial base.
Inhofe amendment No. 1099, to express the sense of Congress
that the Secretary of Defense should implement the
recommendations of the Comptroller General of the United
States regarding prevention, abatement, and data collection
to address hearing injuries and hearing loss among members of
the Armed Forces.
Inhofe amendment No. 1100, to extend to products and
services from Latvia existing temporary authority to procure
certain products and services from countries along a major
route of supply to Afghanistan.
Inhofe amendment No. 1101, to strike section 156, relating
to a transfer of Air Force C-12 aircraft to the Army.
Inhofe amendment No. 1102, to require a report on the
feasibility of using unmanned aerial systems to perform
airborne inspection of navigational aids in foreign airspace.
Inhofe amendment No. 1093, to require the detention at U.S.
Naval Station Guantanamo Bay, Cuba, of high-value enemy
combatants who will be detained long-term.
Casey amendment No. 1215, to require a certification on
efforts by the Government of Pakistan to implement a strategy
to counterimprovised explosive devices.
Casey amendment No. 1139, to require contractors to notify
small business concerns that have been included in offers
relating to contracts let by Federal agencies.
McCain (for Cornyn) amendment No. 1200, to provide Taiwan
with critically needed U.S.-built multirole fighter aircraft
to strengthen its self-defense capability against the
increasing military threat from China.
McCain (for Ayotte) amendment No. 1066, to modify the
Financial Improvement and Audit Readiness Plan to provide
that a complete and validated full statement of budget
resources is ready by not later than September 30, 2014.
McCain (for Ayotte) modified amendment No. 1067, to require
notification of Congress with respect to the initial custody
and further disposition of members of al-Qaida and affiliated
entities.
McCain (for Ayotte) amendment No. 1068, to authorize lawful
interrogation methods in addition to those authorized by the
Army Field Manual for the collection of foreign intelligence
information through interrogations.
McCain (for Brown (MA)/Boozman) amendment No. 1119, to
protect the child custody rights of members of the Armed
Forces deployed in support of a contingency operation.
McCain (for Brown (MA)) amendment No. 1090, to provide that
the basic allowance for housing in effect for a member of the
National Guard is not reduced when the member transitions
between Active Duty and full-time National Guard duty without
a break in Active service.
McCain (for Brown (MA)) amendment No. 1089, to require
certain disclosures from postsecondary institutions that
participate in tuition assistance programs of the Department
of Defense.
McCain (for Wicker) amendment No. 1056, to provide for the
freedom of conscience of military chaplains with respect to
the performance of marriages.
McCain (for Wicker) amendment No. 1116, to improve the
transition of members of the Armed Forces with experience in
the operation of certain motor vehicles into careers
operating commercial motor vehicles in the private sector.
Udall (NM) amendment No. 1153, to include ultralight
vehicles in the definition of aircraft for purposes of the
aviation smuggling provisions of the Tariff Act of 1930.
Udall (NM) amendment No. 1154, to direct the Secretary of
Veterans Affairs to establish an open burn pit registry to
ensure that members of the Armed Forces who may have been
exposed to toxic chemicals and fumes caused by open burn pits
while deployed to Afghanistan or Iraq receive information
regarding such exposure.
Udall (NM)/Schumer amendment No. 1202, to clarify the
application of the provisions of the Buy American Act to the
procurement of photovoltaic devices by the Department of
Defense.
McCain (for Corker) amendment No. 1171, to prohibit funding
for any unit of a security force of Pakistan if there is
credible evidence that the unit maintains connections with an
organization known to conduct terrorist activities against
the United States or U.S. allies.
McCain (for Corker) amendment No. 1172, to require a report
outlining a plan to end reimbursements from the Coalition
Support Fund to the Government of Pakistan for operations
conducted in support of Operation Enduring Freedom.
McCain (for Corker) amendment No. 1173, to express the
sense of the Senate on the North Atlantic Treaty
Organization.
Levin (for Bingaman) amendment No. 1117, to provide for
national security benefits for White Sands Missile Range and
Fort Bliss.
Levin (for Gillibrand/Portman) amendment No. 1187, to
expedite the hiring authority for the defense information
technology/cyber workforce.
Levin (for Gillibrand/Blunt) amendment No. 1211, to
authorize the Secretary of Defense to provide assistance to
State National Guards to provide counseling and reintegration
services for members of Reserve components of the Armed
Forces ordered to Active
[[Page S7944]]
Duty in support of a contingency operation, members returning
from such Active Duty, veterans of the Armed Forces, and
their families.
Merkley amendment No. 1239, to expand the Marine Gunnery
Sergeant John David Fry Scholarship to include spouses of
members of the Armed Forces who die in the line of duty.
Merkley amendment No. 1256, to require a plan for the
expedited transition of responsibility for military and
security operations in Afghanistan to the Government of
Afghanistan.
Merkley amendment No. 1257, to require a plan for the
expedited transition of responsibility for military and
security operations in Afghanistan to the Government of
Afghanistan.
Merkley amendment No. 1258, to require the timely
identification of qualified census tracts for purposes of the
HUBZone Program.
Leahy amendment No. 1087, to improve the provisions
relating to the treatment of certain sensitive national
security information under the Freedom of Information Act.
Leahy/Grassley amendment No. 1186, to provide the
Department of Justice necessary tools to fight fraud by
reforming the working capital fund.
Wyden/Merkley amendment No. 1160, to provide for the
closure of Umatilla Army Chemical Depot, Oregon.
Wyden amendment No. 1253, to provide for the retention of
members of the Reserve components on Active Duty for a period
of 45 days following an extended deployment in contingency
operations or homeland defense missions to support their
reintegration into civilian life.
Ayotte (for Graham) amendment No. 1179, to specify the
number of judge advocates of the Air Force in the regular
grade of brigadier general.
Ayotte (for McCain) modified amendment No. 1230, to modify
the annual adjustment in enrollment fees for TRICARE Prime.
Ayotte (for Heller/Kirk) amendment No. 1137, to provide for
the recognition of Jerusalem as the capital of Israel and the
relocation to Jerusalem of the U.S. Embassy in Israel.
Ayotte (for Heller) amendment No. 1138, to provide for the
exhumation and transfer of remains of deceased members of the
Armed Forces buried in Tripoli, Libya.
Ayotte (for McCain) amendment No. 1247, to restrict the
authority of the Secretary of Defense to develop public
infrastructure on Guam until certain conditions related to
Guam realignment have been met.
Ayotte (for McCain) amendment No. 1246, to establish a
commission to study the U.S. force posture in East Asia and
the Pacific region.
Ayotte (for McCain) amendment No. 1229, to provide for
greater cyber security collaboration between the Department
of Defense and the Department of Homeland Security.
Ayotte (for McCain/Ayotte) amendment No. 1249, to limit the
use of cost-type contracts by the Department of Defense for
major defense acquisition programs.
Ayotte (for McCain) amendment No. 1220, to require
Comptroller General of the United States reports on the
Department of Defense implementation of justification and
approval requirements for certain sole-source contracts.
Ayotte (for McCain/Ayotte) amendment No. 1132, to require a
plan to ensure audit readiness of statements of budgetary
resources.
Ayotte (for McCain) amendment No. 1248, to expand the
authority for the overhaul and repair of vessels to the
United States, Guam, and the Commonwealth of the Northern
Mariana Islands.
Ayotte (for McCain) amendment No. 1250, to require the
Secretary of Defense to submit a report on the probationary
period in the development of the short takeoff, vertical
landing variant of the Joint Strike Fighter.
Ayotte (for McCain) amendment No. 1118, to modify the
availability of surcharges collected by commissary stores.
Sessions amendment No. 1182, to prohibit the permanent
stationing of more than two Army brigade combat teams within
the geographic boundaries of the U.S. European Command.
Sessions amendment No. 1183, to require the maintenance of
a triad of strategic nuclear delivery systems.
Sessions amendment No. 1184, to limit any reduction in the
number of surface combatants of the Navy below 313 vessels.
Sessions amendment No. 1185, to require a report on a
missile defense site on the east coast of the United States.
Sessions amendment No. 1274, to clarify the disposition
under the law of war of persons detained by the Armed Forces
of the United States pursuant to the Authorization for Use of
Military Force.
Levin (for Reed) amendment No. 1146, to provide for the
participation of military technicians (dual status) in the
study on the termination of military technician as a distinct
personnel management category.
Levin (for Reed) amendment No. 1147, to prohibit the
repayment of enlistment or related bonuses by certain
individuals who become employed as military technicians (dual
status) while already a member of a Reserve component.
Levin (for Reed) amendment No. 1148, to provide rights of
grievance, arbitration, appeal, and review beyond the
adjutant general for military technicians.
Levin (for Reed) amendment No. 1204, to authorize a pilot
program on enhancements of Department of Defense efforts on
mental health in the National Guard and Reserves through
community partnerships.
Levin (for Reed) amendment No. 1294, to enhance consumer
credit protections for members of the Armed Forces and their
dependents.
Levin amendment No. 1293, to authorize the transfer of
certain high-speed ferries to the Navy.
Levin (for Boxer) amendment No. 1206, to implement
commonsense controls on the taxpayer-funded salaries of
defense contractors.
Chambliss amendment No. 1304, to require a report on the
reorganization of the Air Force Materiel Command.
Levin (for Brown (OH)) amendment No. 1259, to link domestic
manufacturers to defense supply chain opportunities.
Levin (for Brown (OH)) amendment No. 1260, to strike 846,
relating to a waiver of ``Buy American'' requirements for
procurement of components otherwise producible overseas with
specialty metal not produced in the United States.
Levin (for Brown (OH)) amendment No. 1261, to extend
treatment of base closure areas as HUBZones for purposes of
the Small Business Act.
Levin (for Brown (OH)) amendment No. 1262, to clarify the
meaning of ``produced'' for purposes of limitations on the
procurement by the Department of Defense of specialty metals
within the United States.
Levin (for Brown (OH)) amendment No. 1263, to authorize the
conveyance of the John Kunkel Army Reserve Center, Warren,
OH.
Levin (for Leahy) amendment No. 1080, to clarify the
applicability of requirements for military custody with
respect to detainees.
Levin (for Wyden) amendment No. 1296, to require reports on
the use of indemnification agreements in Department of
Defense contracts.
Levin (for Pryor) amendment No. 1151, to authorize a death
gratuity and related benefits for Reserves who die during an
authorized stay at their residence during or between
successive days of inactive-duty training.
Levin (for Pryor) amendment No. 1152, to recognize the
service in the Reserve components of the Armed Forces of
certain persons by honoring them with status as veterans
under law.
Levin (for Nelson (FL)) amendment No. 1209, to repeal the
requirement for reduction of survivor annuities under the
Survivor Benefit Plan by veterans' dependency and indemnity
compensation.
Levin (for Nelson (FL)) amendment No. 1210, to require an
assessment of the advisability of stationing additional DDG-
51 class destroyers at Naval Station Mayport, Florida.
Levin (for Nelson (FL)) amendment No. 1236, to require a
report on the effects of changing flag officer positions
within the Air Force Materiel Command.
Levin (for Nelson (FL)) amendment No. 1255, to require an
epidemiological study on the health of military personnel
exposed to burn pit emissions at Joint Base Balad.
Ayotte (for McCain) amendment No. 1281, to require a plan
for normalizing defense cooperation with the Republic of
Georgia.
Ayotte (for Blunt/Gillibrand) amendment No. 1133, to
provide for employment and reemployment rights for certain
individuals ordered to full-time National Guard duty.
Ayotte (for Blunt) amendment No. 1134, to require a report
on the policies and practices of the Navy for naming vessels
of the Navy.
Ayotte (for Murkowski) amendment No. 1286, to require a
Department of Defense inspector general report on theft of
computer tapes containing protected information on covered
beneficiaries under the TRICARE program.
Ayotte (for Murkowski) amendment No. 1287, to provide
limitations on the retirement of C-23 aircraft.
Ayotte (for Rubio) amendment No. 1290, to strike the
national security waiver authority in section 1032, relating
to requirements for military custody.
Ayotte (for Rubio) amendment No. 1291, to strike the
national security waiver authority in section 1033, relating
to requirements for certifications relating to transfer of
detainees at U.S. Naval Station Guantanamo Bay, Cuba, to
foreign countries and entities.
Levin (for Menendez/Kirk) amendment No. 1414, to require
the imposition of sanctions with respect to the financial
sector of Iran, including the Central Bank of Iran.
The ACTING PRESIDENT pro tempore. The Senator from Michigan is
recognized.
Mr. LEVIN. Mr. President, I ask unanimous consent that the time
between now and 12:15 be equally divided between myself, working with
Senator McCain in opposition to the Udall amendment, and controlled by
Senator Udall.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. LEVIN. I understand there is a pending UC that Senator Udall is
to be recognized.
The ACTING PRESIDENT pro tempore. Yes. Under the previous order, the
Senator from Colorado is recognized.
Amendment No. 1107
Mr. UDALL of Colorado. Mr. President, I rise this morning to speak in
[[Page S7945]]
favor of amendment 1107. First, let me say that I know how hard
Chairman Levin and Ranking Member McCain have worked to craft a Defense
Authorization Act to provide our Armed Forces with the equipment,
services, and support they need to keep us safe. I also thank my
colleagues from the Armed Services Committee, a number of whom I see on
the floor this morning, for their diligence and dedication to this
important work.
With that, let me turn to the amendment itself. I want to start by
thanking the cosponsors of the amendment. They include the chairwoman
of the Intelligence Committee, Senator Feinstein; the chairman of the
Judiciary Committee, Senator Leahy; and Senator Webb, a former
Secretary of the Navy, someone whom I think we all respect when it
comes to national security issues.
I also point out that this amendment is bipartisan. Senator Rand Paul
joined as a cosponsor this morning and gave a very compelling floor
speech a few minutes ago. Senators Wyden and Durbin have also recently
cosponsored it. I recognize their leadership as well.
Let me turn to the amendment itself. A growing number of our
colleagues have strong concerns about the detainee provisions in this
bill. At the heart of our concern is the concern that we have not taken
enough time to listen to our counterterrorism community and have not
heeded the warnings of the Secretary of Defense, Director of National
Intelligence, and the Director of the FBI, who all oppose these
provisions. Equally concerning, we have not had a single hearing on the
detainee matters to fully understand the implications of our actions.
My amendment would take out these provisions and give us in the
Congress an opportunity to take a hard look at the needs of our
counterterrorism professionals and respond in a measured way that
reflects the input of those who are actually fighting our
enemies. Specifically, the amendment would require that our Defense
intelligence and law enforcement agencies report to Congress with
recommendations for any additional authorities or flexibility they need
in order to detain and prosecute terrorists. My amendment would then
ask for hearings to be held so we can fully understand the views of
relevant national security experts.
In other words, I am saying let's ask our dedicated men and women who
are actually fighting to protect Americans what they actually need to
keep us safe. This is a marked departure, in my opinion, from the
current language in the bill, which was developed without hearings, and
seeks to make changes to the law that our national security
professionals do not want and even oppose, as I pointed out.
Like other challenging issues we face here in the Senate, we should
identify the problem, hold hearings, gather input from those affected
by our actions, and then seek to find the most prudent solution.
Instead, we have language in the bill, which, while well intended--of
that there is no doubt--was developed behind closed doors and is being
moved rather quickly through our Congress. The Secretary of Defense is
warning us we may be making mistakes that will hurt our capacity to
fight terrorism at home and abroad. The Director of National
Intelligence is telling us this language will create more problems than
it solves. The Director of the FBI is telling Congress these provisions
will erect hurdles that will make it more difficult for our law
enforcement officials to collaborate in their effort to protect
American citizens. And the President's national security staff is
recommending a veto of the entire Defense authorization bill if these
provisions remain in the bill.
With this full spectrum of highly respected officials and top
counterterrorism professionals warning Congress not to pass these
provisions, we are being asked to reject their advice and pass them
anyway--again, without any hearings or further deliberation. I don't
know what others think, but I don't think this is what the people of
Colorado expect us to do, and it is not how I envision the Senate
operating.
The provisions would dramatically change broad counterterrorism
efforts by requiring law enforcement officials to step aside and ask
the Department of Defense to take on a new role they are not fully
equipped for and do not want. And by taking away the flexible
decisionmaking capacity of our national security team, by forcing the
military to now act as police, judge, and jailer, these provisions
could effectively rebuild walls between our military law enforcement
and intelligence communities that we have spent a decade tearing down.
The provisions that are in the bill--to me and many others--appear to
require the DOD to shift significant resources away from their mission
to serve on all fronts all over the world. This has real consequences,
because we have limited resources and limited manpower. Again, I want
to say that I don't think we would lose anything by taking a little
more time to discuss and debate these provisions, but we could do real
harm to our national security efforts by allowing this language to
pass, and that is exactly what our highest ranking national security
officers are warning us against doing.
You will note I am speaking in the broadest terms here, but I did
want to speak to one particular area of concern, to give viewers and my
colleagues a sense of what we face.
The provisions authorize the indefinite military detention of
American citizens who are suspected of involvement in terrorism--even
those captured here in our own country, in the United States--which I
think should concern each and every one of us. These provisions could
well represent an unprecedented threat to our constitutional liberties.
Let me explain why I think that is the case.
Look, I agree if an American citizen joins al-Qaida and takes up arms
against the United States that person should be subject to the same
process as any other enemy combatant. But what is not clear is what we
do with someone arrested in his home because of suspected terrorist
ties. These detainee provisions would authorize that person's
indefinite detention, but it misses a critical point. How do we know a
citizen has committed these crimes unless they are tried and convicted?
Do we want to open the door to domestic military police powers and
possibly deny U.S. citizens their due process rights? If we do, I think
that is at least something that is worthy of a hearing, and the
American people should be made aware of the changes that will be
forthcoming in the way we approach civil liberties. But since our
counterterrorism officials are telling us these provisions are a
mistake, I am not willing to both potentially limit our fight against
terrorism and simultaneously threaten the constitutional freedoms
Americans hold dear.
As I begin my remarks, I hope I have projected my belief we have a
solemn obligation to pass the National Defense Authorization Act, but
we also have a solemn obligation to make sure those who are fighting
the war on terror have the best, most flexible, most powerful tools
possible. To be perfectly frank, I am worried these provisions will
disrupt our ability to combat terrorism and inject untested legal
ambiguity into our military's operations and detention practices.
We will hear some of our colleagues tell us not to worry because the
detainee provisions are designed not to hurt our counterterrorism
efforts. We all know the best laid plans can have unintended
consequences. While I am sure the drafters of this language intended
the provisions to be interpreted in a way that does not cause problems,
the counterterrorism community disagrees and has outlined some very
serious real world concerns. Stating in the language there will not be
any adverse effects on national security doesn't make it so. These are
not just words in a proposed law. And those who will be chartered to
actually carry out these provisions are urging us to reject them.
Shouldn't we listen to their serious concerns? Shouldn't we think twice
about passing these provisions?
I have not received a single phone call from a counterterrorism
expert, a professional in the field, or a senior military official
urging us to pass these provisions. We have heard a wide range of
concerns expressed about the unintended consequences of enacting these
detainee provisions but not a single voice outside of Congress telling
us this will help us protect Americans or make us safer.
In addition to our national security team, which is urging us to
oppose these provisions, other important voices are also asking us to
stop, to slow down, and to consider them more
[[Page S7946]]
thoroughly. The American Bar Association, the ACLU, the International
Red Cross, the American Legion, and a number of other groups have also
expressed a wide range of serious concerns.
Again, I want to underline, although the language was crafted with
the best of intentions, there are simply too many questions about the
unintended consequences of these provisions to allow them to move
forward without further input from national security experts through
holding hearings and engaging in further debate.
I am privileged to be a member of the Armed Services Committee. I am
truly honored. As I have implied, and I want to be explicit, I
understand the importance of this bill. I understand what it does for
our military, which is why, in sum, what I am going to propose with my
amendment is that we pass the NDAA without these troubling provisions
but with a mechanism by which we can consider in depth what is proposed
and, at a later date, include any applicable changes in the law. It is
not only the right thing to do policywise, it may very well protect
this bill from a veto. The clearest path toward giving our men and
women in uniform the tools they need is to pass this amendment and then
send a clean National Defense Authorization Act to the President.
In the Statement of Administration Policy, the President says the
following--and I should again mention in the Statement of
Administration Policy there is a recommendation the President veto the
bill.
We have spent 10 years since September 11, 2001, breaking
down the walls between intelligence, military and law
enforcement professionals; Congress should not now rebuild
those walls and unnecessarily make the job of preventing
terrorist attacks more difficult.
These are striking words. They should give us all pause as we face
what seems to be a bit of a rush to pass these untested and legally
controversial restrictions on our ability to prosecute terrorists.
I want to begin to close, and in so doing I urge my colleagues to
think about the precedent we would set by passing these provisions. We
are being told these detainee provisions are so important we must pass
them right away, without a hearing or further deliberation. However,
the Secretary of Defense, at the same time, along with the Director of
National Intelligence and the Director of the FBI, are all urging us to
reject the provisions and take a closer look. Do we want to neglect the
advice of our trusted national security professionals? I can't think of
another instance where we would rebuff those who are chartered with
keeping us safe.
If we in the Congress want to constrain the military and give our
servicemembers new responsibilities, as these provisions would do, I
believe we should listen to what the Secretary of Defense has had to
say about it. Secretary Panetta is strongly opposed to these changes,
and I think we all know before he held the job he has now, Secretary of
Defense Panetta was the Director of the CIA. He knows very well the
threats facing our country, and he knows we cannot afford to make any
mistakes when it comes to keeping our citizens safe. We have to be
right every time. The bad guys only have to be right once.
This is a debate we need to have. It is a healthy debate. But we
ought to be armed with all the facts and expertise before we move
forward. The least we can do is take our time, be diligent, and hear
from those who will be affected by these new and significant changes in
how we interrogate and prosecute terrorists. As I have said before, it
concerns me we would tell our national security leadership--a
bipartisan national security leadership, by the way--that we will not
listen to them and that Congress knows better than they do. It doesn't
strike me that is the best way to secure and protect the American
people.
That is why I filed amendment No. 1107. I think my amendment is a
commonsense alternative that will protect our constitutional principles
and beliefs while continuing to keep our Nation safe. The amendment has
a clear aim, which is to ensure we follow a thorough process and hear
all views before rushing forward with new laws that could be harmful to
our national security. It is straightforward, it is common sense, and I
urge my colleagues to support the amendment.
Mr. President, I thank you for your attention, and I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from Michigan.
Mr. LEVIN. Mr. President, we have approximately a half hour on each
side. I am wondering how much time Senator Graham needs?
Mr. GRAHAM. Ten minutes. Is that too much? Five minutes.
Mr. LEVIN. Could you do 5 minutes?
Mr. GRAHAM. Seven?
Mr. LEVIN. We have, I think, seven speakers on this side.
Mr. GRAHAM. I will try to be quick.
Mr. LEVIN. Can you try to do 8 minutes?
Mr. GRAHAM. I will try to do it as quickly as I can.
Mr. LEVIN. I yield 8 minutes.
Mr. McCAIN. I object. We have had a long time from the sponsor of the
amendment, the chief proponent; we are going to have 10 minutes from
the Senator of Illinois. So I yield to the Senator from South Carolina
10 minutes.
Mr. LEVIN. The Senator from Arizona will control, if this is all
right with the Senator, half of our time. Will that be all right?
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. GRAHAM. If the Chair will let me know when 5 minutes has passed,
because there are a lot of voices to be heard on this issue, and I want
them to be heard. I am just one.
The ACTING PRESIDENT pro tempore. The Chair will so advise.
Mr. GRAHAM. Let me start with my good friend from Colorado. I respect
the Senator; I know his concerns. I don't agree.
I can remember being told by the Bush administration: We don't need
the Detainee Treatment Act. Everybody said we didn't need it, but they
were wrong. I remember being told by the Vice President's office during
the Bush administration: It is OK to take classified evidence, show it
to the jury, the finder of fact, and not share it with the accused, but
you can share it with his lawyer.
How would you like an American soldier tried in a foreign land, where
they are sitting there in the chair wondering what the jury is talking
about and can't even comment to their own lawyer about the allegations
against them?
I have been down this road with administrations and we worked in a
bipartisan fashion to change some things the Bush administration wanted
to do and I am glad we did it. We are working in a bipartisan fashion
to change some things this administration is doing, and I hope we are
successful, because if we fail, we are all going to be worse for it.
Here are the facts: Under this provision of mandatory military
custody, for someone captured in the United States, if they are an
American citizen, that provision does not apply to them. But here is
the law of the land right now: If they are an American citizen
suspected of joining al-Qaida, being a member of al-Qaida, they can be
held as an enemy combatant.
The Padilla case in South Carolina, where the man was held 5 years as
an enemy combatant, went to the Fourth Circuit Court of Appeals, and
here is what that court said: You can interrogate that person in an
intelligence-gathering situation. The only thing you have to do is
provide them a lawyer for their habeas appeal review.
So here are the due process rights: If our intelligence community or
military believe an American citizen is suspected of being a member of
al-Qaida, the law of the land the way it is today, an American citizen
can be held as an enemy combatant and questioned about what role they
play in helping al-Qaida, and they do get due process. Everybody held
as an enemy here, at Guantanamo Bay, captured in the United States,
goes before the Federal judge, and the government has to prove, by a
preponderance of the evidence, that the person is, in fact, an enemy
combatant. There is due process. We don't hold someone and say: Good
luck. They have to go before a judge--a Federal court--and prove their
case as the government.
[[Page S7947]]
Here is the question for the country. Is it OK to hold, under
military control, an American citizen who is suspected of helping al-
Qaida? You had better believe it is OK.
My good friend from Colorado said this repeals the Posse Comitatus
Act. The Posse Comitatus Act is a prohibition on our military being
used for law enforcement functions, and it goes back to reconstruction.
This is the central difference between us. I don't believe fighting
al-Qaida is a law enforcement function. I believe our military should
be deeply involved in fighting these guys at home and abroad. The idea
of somehow allowing our military to hold someone captured in the United
States is a repeal of the Posse Comitatus Act, you would have to
conclude that you view that as a law enforcement function, where the
military has no reason or right to be there. That is the big difference
between us. I don't want to criminalize the war.
To Senator Levin, thank you for helping us this time around craft a
bipartisan solution to a very real problem. The enemy is all over the
world and here at home. When people take up arms against the United
States and are captured within the United States, why should we not be
able to use our military and intelligence community to question that
person as to what they know about enemy activity? The only way we can
do that is hold them in military custody, and this provision can be
waived. It doesn't apply to American citizens. But the idea that an
American citizen helping al-Qaida doesn't get due process is a lie.
They go before a Federal court and the government has to prove they are
part of al-Qaida.
Let me ask this to my colleagues on the other side. What if the judge
agrees with the military or the intelligence community making the case?
Are you going to require us to shut down the intelligence-gathering
process, read them their rights, and put them in Federal court? That is
exactly what you want, and that will destroy our ability to make us
safe. If an American citizen is held by the intelligence community or
the military and a Federal judge agrees they were, in fact, a part of
the enemy force, that American citizen should be interrogated to find
out what they know about the enemy, in a lawful way, and you should not
require this country to criminalize what is an act of war against the
people of the United States. They should not be read their Miranda
rights. They should not be given a lawyer. They should be held humanely
in military custody and interrogated about why they joined al-Qaida and
what they were going to do to all of us. So this provision not only is
necessary to deal with real-world events; it is written in the most
flexible way possible.
To this administration, the reason we are on the floor today is it
was your idea to take Khalid Shaikh Mohammed and put him in New York
City and give him the rights of an American citizen and criminalize the
war by taking the mastermind of 9/11 and making it a crime and not an
act of war.
The ACTING PRESIDENT pro tempore. The Senator has spoken for 5
minutes.
Mr. GRAHAM. Thank you. I will wrap up.
To Senator Levin and Senator McCain, what they are accusing the
Senators of doing is not true. They are codifying a process that will
allow us to intelligently and rationally deal with people who are part
of al-Qaida, not political dissidents.
If someone doesn't like President Obama, we are not going to arrest
them. I am getting phone calls about that. That is a bunch of garbage.
A person can say anything they want about the President or me, they
just can't join al-Qaida and expect to be treated as if it were a
common crime. When someone joins al-Qaida, they haven't joined the
Mafia. They are not joining a gang. They are joining people who are
bent on our destruction, and they are a military threat. If you don't
believe they are a military threat, vote for Senator Udall. If you
believe al-Qaida represents a threat to us at home and abroad, give our
intelligence and military agencies statutory guidance and authority to
do things that need to be clear rather than uncertain.
We are 10 years into this war. Congress needs to speak. This is your
chance to speak. I am speaking today. Here is what I am saying to my
colleagues on the other side and to the world at large: If you join al-
Qaida, you suffer the consequences of being killed or captured. If you
are an American citizen and you betray your country, you are going to
be held in military custody and you are going to be questioned about
what you know. You are not going to be given a lawyer if our national
security interests dictate that you not be given a lawyer and go into
the criminal justice system because we are not fighting a crime, we are
fighting a war.
There is more due process in this bill than at any other time in any
other war. I am proud of the work product. There are checks and
balances in this bill that we have been working on for 10 years. The
mandatory provisions do not apply to American citizens. They can be
waived if they impede in an investigation. We are trying to provide
tools and clarity that have been missing for 10 years. This is your
chance to speak on the central issue 10 years after the attacks of 9/
11. Are we at war or are we fighting a crime? I believe we are at war,
and the due process rights associated with war are in abundance and
beyond anything ever known in any other war.
What this amendment does is it destroys the central concept that we
are trying to present to the body and to the country; that we are
facing an enemy--and not a common criminal organization--that will do
anything and everything possible to destroy our way of life. Let's give
our law enforcement and military community the clarity they have been
seeking and I think now they will have.
To the administration, with all due respect, you have engaged in one
episode after another to run away from the fact that we are fighting a
war and not a crime. When the Bush administration tried to pass
policies that undercut our ability to fight this war and maintain our
values, I pushed back. I am not asking any more of the people on the
other side than I ask of myself. When the Bush administration asked me,
and others, to do things that I thought undercut our values, I said no.
Now we have an opportunity to tell this administration we respect their
input, but what we are trying to do needs to be done, not for just this
time but for the future.
Ladies and gentlemen, either we are going to fight this war to win it
and to keep us safe or we are going to lose the concept that there is a
difference between taking up arms against the United States and being a
common criminal.
In conclusion, Khalid Shaikh Mohammed and all those who buy into what
he is selling present a threat to us far different than any common
criminal, and our laws should reflect that.
Senators Levin and McCain have created a legal system for the first
time in 10 years that recognizes we are fighting a war within our
values. I hope we get a strong bipartisan vote for the tools in this
bill.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, how much time do we have
remaining?
The ACTING PRESIDENT pro tempore. The Senator has 15\1/2\ minutes.
Mr. UDALL of Colorado. Before I recognize Senator Durbin for 8
minutes, I just wish to respond to my friend, the Senator from South
Carolina.
Mr. McCAIN. Mr. President, how much time is on this side?
The ACTING PRESIDENT pro tempore. There is 5 minutes remaining.
Mr. UDALL of Colorado. The Senator from South Carolina is broadly
admired in the Senate. If I am ever in court, I want him to be my
lawyer.
I would point out, however, that what I am proposing wouldn't destroy
the system we have in place--a system, by the way, that has resulted in
the convictions of numerous terrorists with life sentences. What I am
asking is to listen to those who are on the frontlines who are fighting
against terrorists and terrorism who have said they have concerns about
this new proposal and would like a greater amount of time to vet it and
consider it.
I yield 8 minutes to the Senator from Illinois.
The ACTING PRESIDENT pro tempore. The Senator from Illinois.
[[Page S7948]]
Mr. DURBIN. Mr. President, I have the greatest respect for Senator
Carl Levin and Senator John McCain. They have done an extraordinary job
on the Defense authorization bill. I would say, by and large, this bill
would not have engendered the controversy that brings us to the floor
today but for this provision, because it is a critically important
provision which has drawn the attention not just of those in the
military community--which they, of course, would expect in a Defense
authorization bill--but also the attention of those in the intelligence
community and the law enforcement community across the United States,
as well as the President of the United States.
The provision which they include in this bill is a substantial and
dramatic departure in American law when it comes to fighting terrorism.
I salute Senator Udall for bringing it to the attention of the
committee and now to the floor; that before we take this step forward,
we should reflect and pass the Udall amendment which calls for the
necessary agencies of government--law enforcement, intelligence, and
military--to reflect on the impact of this decision, not just on the
impact of America's security but on America's commitment to
constitutional principles. This is a fundamental issue which is being
raised, and it should be considered ever so seriously. We need to ask
ourselves, 10 years after 9/11, why are we prepared to engage in a
rewrite of the laws on fighting terrorism?
Thank God we meet in this Chamber today with no repeat of 9/11.
Through President George Bush and President Barack Obama, America has
been safe. Yes, there are people who threaten us, and they always will,
but we have risen to that challenge with the best military in the
world, with effective law enforcement, and without giving away our
basic values and principles as Americans.
Take a look at the provision in this bill which Senator Udall is
addressing. Who opposes this provision? I will tell you who opposes it.
Secretary of Defense Leon Panetta, who passed out of this Chamber with
a 100-to-0 vote of confidence in his leadership, has told us don't do
this; this is a mistake in this provision.
Secondly, the law enforcement community, from Attorney General Eric
Holder to the Director of the Federal Bureau of Investigation, has told
us it is a mistake to pass this measure, to limit our ability to fight
terrorism. And the intelligence community as well; the Director of
National Intelligence tells us this is a mistake.
Is it any wonder Senator Udall comes to the floor and others join him
from both sides of the aisle saying, before we make this serious change
in policy in America, ask ourselves: Have we considered the impact this
will have on our Nation's security, our ability to interrogate
witnesses, and our commitment to constitutional principles?
When I take a look at the letter that was sent to us by the Director
of the Federal Bureau of Investigation, Robert Mueller, I have to
reflect on the fact that Director Mueller was appointed by President
George W. Bush and reappointed by President Barack Obama. I respect him
very much. He has warned this Senate: Do not pass this provision in the
Defense authorization bill. It may adversely impact ``our ability to
continue ongoing international terrorism investigation.''
If this provision had been offered by a Democrat under Republican
George W. Bush, the critics would have come to the floor and said: How
could you possibly tie the hands of the President when he is trying to
keep America safe?
The Director of the Federal Bureau of Investigation has made it clear
the passage of this provision in this bill will limit the flexibility
of the administration to combat terrorism. It will create uncertainty
for law enforcement, intelligence, and defense officials regarding how
they handle suspected terrorists and raise serious constitutional
concerns. Listen, all those things are worthy of debate were it not for
the record that for 10 years America has been safe. It has been safe
because of a Republican President and a Democratic President using the
forces at hand to keep us safe. If we were coming here with some record
of failure when it comes to keeping America safe, it is one thing, but
we have a record of positive success. This notion that there is no way
to keep America safe without military tribunals and commissions defies
logic and defies experience.
Since 9/11, over 300 suspected terrorists have been successfully
prosecuted in article III criminal courts in America. Yes, they have
been read the Miranda rights, and, yes, they have been prosecuted and
sent to prison, the most recent being the Underwear Bomber, who pled
guilty just weeks ago in the article III criminal courts. During this
same period of time, when it comes to military commissions and
tribunals, how many alleged terrorists have been convicted? Six. The
score, my friends, if you are paying attention, is 300 to 6. President
Bush and President Obama used our article III criminal courts
effectively to keep America safe, and in those instances where they
felt military tribunals could do it best, they turned to them with some
success.
I might add, to those who want to just change the law again when it
comes to military tribunals, this is the third try. Twice we have tried
to write the language on military tribunals and commissions. It has
been sent ultimately across the street to the Supreme Court and
rejected. They told us to start over. Do we want to risk that again? Do
we want to jeopardize the prosecution of an alleged terrorist because
we want to test out a new legal and constitutional theory? I hope not.
I ask unanimous consent to have printed in the Record the letter from
the Director of the FBI.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, DC, November 28, 2011.
Hon. Carl Levin,
Chairman, Committee on Armed Services,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am writing to express concerns
regarding the impact of certain aspects of the current
version of Section 1032 of the National Defense Authorization
Act for Fiscal Year 2012. Because the proposed legislation
applies to certain persons detained in the United States, the
legislation may adversely impact our ability to continue
ongoing international terrorism investigations before or
after arrest, derive intelligence from those investigations,
and may raise extraneous issues in any future prosecution of
a person covered by Section 1032.
The legislation as currently proposed raises two principal
concerns. First, by establishing a presumption of military
detention for covered individuals within the United States,
the legislation introduces a substantial element of
uncertainty as to what procedures are to be followed in the
course of a terrorism investigation in the United States.
Even before the decision to arrest is made, the question of
whether a Secretary of Defense waiver is necessary for the
investigation to proceed will inject uncertainty as to the
appropriate course for further investigation up to and beyond
the moment when the determination is made that there is
probable cause for an arrest.
Section 1032 may be read to divest the FBI and other
domestic law enforcement agencies of jurisdiction to continue
to investigate those persons who are known to fall within the
mandatory strictures of section 1032, absent the Secretary's
waiver. The legislation may call into question the FBI's
continued use or scope of its criminal investigative or
national security authorities in further investigation of the
subject. The legislation may restrict the FBI from using the
grand jury to gather records relating to the covered person's
communication or financial records, or to subpoena witnesses
having information on the matter. Absent a statutory basis
for further domestic investigation, Section 1032 may be
interpreted by the courts as foreclosing the FBI from
conducting any further investigation of the covered
individual or his associates.
Second, the legislation as currently drafted will inhibit
our ability to convince covered arrestees to cooperate
immediately, and provide critical intelligence. The
legislation introduces a substantial element of uncertainty
as to what procedures are to be followed at perhaps the most
critical time in the development of an investigation against
a covered person. Over the past decade we have had numerous
arrestees, several of whom would arguably have been covered
by the statute, who have provided important intelligence
immediately after they have been arrested, and in some
instances for days and weeks thereafter. In the context of
the arrest, they have been persuaded that it was in their
best interests to provide essential information while the
information was current and useful to the arresting
authorities.
Nonetheless, at this crucial juncture, in order for the
arresting agents to proceed to obtain the desired
cooperation, the statute requires that a waiver be obtained
from the Secretary of Defense, in consultation with the
Secretary of State and the Director of National Intelligence,
with certification by the Secretary to Congress that the
waiver was in the national security interests of the United
States. The proposed statute acknowledges that this is a
significant point in
[[Page S7949]]
an ongoing investigation. It provides that surveillance and
intelligence gathering on the arrestee's associates should
not be interrupted. Likewise, the statute provides that an
ongoing interrogation session should not be interrupted.
These limited exceptions, however, fail to recognize the
reality of a counterterrorism investigation. Building rapport
with, and convincing a covered individual to cooperate once
arrested, is a delicate and time sensitive skill that
transcends any one interrogation session. It requires
coordination with other aspects of the investigation.
Coordination with the prosecutor's office is also often an
essential component of obtaining a defendant's cooperation.
To halt this process while the Secretary of Defense
undertakes the mandated consultation, and the required.
certification is drafted and provided to Congress, would set
back our efforts to develop intelligence from the subject.
We appreciate that Congress has sought to address our
concerns in the latest version of the bill, but believe that
the legislation as currently drafted remains problematic for
the reasons set forth above. We respectfully ask that you
take into account these concerns as Congress continues to
consider Section 1032.
Sincerely,
Robert S. Mueller III,
Director.
Mr. DURBIN. Let me also say that section 1031 of this bill is one
that definitely needs to be changed, if not eliminated. It will, for
the first time in the history of the United States of America,
authorize the indefinite detention of American citizens in the United
States. I have spoken to the chairman of the committee, who said he is
open to language that would try to protect us from that outcome. But
the language as written in the bill, unfortunately, will allow for the
indefinite detention of American citizens for the first time. The
administration takes this seriously. We should too. They have said they
will veto the bill without changes in this particular provision.
I hope we will step back and look at a record of success in keeping
America safe and not try to reinvent our Constitution on the floor of
the Senate. I believe we ought to give to every President, Democratic
and Republican, all of the tools and all of the weapons they need to
keep America safe. Tying their hands may give us some satisfaction on
the floor of the Senate for a moment, but it won't keep America safe.
I reserve the remainder of my time.
I yield the floor.
The PRESIDING OFFICER (Mr. Merkley). The Senator from Michigan.
Mr. LEVIN. Mr. President, I yield myself 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. There have been so many misstatements and facts that have
been made, it is hard to keep up with them. Let me just take the last
statement the Senator from Illinois made about changing military
tribunal law. There is no change in military tribunal law whatsoever
made in this bill. I am going to address the other misstatements that
have been made by my friends and colleagues, but that was the most
recent, so I just want to take on that one first.
In terms of constitutional provisions, the ultimate authority on the
Constitution of the United States is the Supreme Court of the United
States. Here is what they have said in the Hamdi case about the issue
both of our friends have raised about American citizens being subject
to the law of war.
A citizen--the Supreme Court said this in 2004--no less than an alien
can be part of supporting forces hostile to the United States and
engaged in armed conflict against the United States. Such a citizen--
referring to an American citizen--if released, would pose the same
threat of returning to the front during the ongoing conflict. And here
is the bottom line for the Supreme Court. If we just take this one line
out of this whole debate, it would be a breath of fresh air to cut
through some of the words that have been used here this morning--one
line. ``There is no bar to this Nation's holding one of its own
citizens as an enemy combatant.'' That is not me, that is not Senator
Graham, and that is not Senator McCain. That is the Supreme Court of
the United States recently. ``There is no bar to this Nation's holding
one of its own citizens as an enemy combatant.''
Mr. GRAHAM. Would the Senator yield for a question?
Mr. LEVIN. I would rather not at this point.
There are a number of sections in this bill. My dear friend Senator
Udall says ``these sections'' as though there are a whole bunch of
sections that are at issue. There is really only one section that is at
issue here, and that is section 1032, and that is the so-called
mandatory detention section which has a waiver in it.
Section 1031 was written and approved by the administration. Section
1031, which my friend from Illinois has just said is an abomination,
was written and approved by the administration. Now, section 1031 is
the authority section. This authorizes. It doesn't mandate anything
with the waiver; section 1032 does. Section 1031--and now I am going to
use the words in the administration's own so-called SAP, or Statement
of Administration Policy. This is what the administration says about
section 1031: The authorities codified in this section already exist.
So they don't think it is necessary--1031--but they don't object to it.
Those are their words--the authorities in 1031 already exist. They do.
What this does is incorporate already existing authorities from section
1031--unnecessary in the view of the administration, yes, but they
helped write it and they approved it. We made changes in it.
We have made so many changes in this language to satisfy the
administration, I think it all comes down to one section: 1032. Section
1032 is the issue, not all of the sections, by the way, that would be
stricken by the Udall amendment. The Udall amendment would strike all
the sections, but it really comes down to section 1032.
In 1032 is the so-called mandatory provision, which, by the way, does
not apply to American citizens. I better say that again. Senator Graham
said it, but let me say it again. The most controversial provision--
probably the only one in this bill--is section 1032. Section 1032 says:
The requirement to detain a person in military custody under this
section does not extend to the citizens of the United States. I guess
that is the second thing I would like for colleagues to take away from
what I say, is that section--and Senator Graham said the same thing.
Section 1032--the mandatory section that has the waiver in it--does
not, by its own words, apply to citizens of the United States. It has a
waiver provision in it to make this flexible.
The way in which 1032 operates is it says that if it is determined
that a person is a member of al-Qaida, then that person will be held in
military detention. They are at war with us, folks. Al-Qaida is at war
with us. They brought that war to our shores. This is not just a
foreign war. They brought that war to our shores on 9/11. They are at
war with us. The Supreme Court said--and I will read these words
again--that there is no bar to this Nation holding one of its own
citizens as an enemy combatant. They brought this war to us, and if it
is determined that even an American citizen is a member of al-Qaida,
then you can apply the law of war, according to the Supreme Court. That
is not according to the Armed Services Committee, our bill, or any one
of us; that is the Supreme Court speaking.
Who determines it? We say, to give the administration the flexibility
that they want, the administration makes that determination. The
procedures to make that determination--who writes those procedures? We
don't write them. Explicitly, the executive branch writes those
procedures. Can those procedures interfere with an ongoing
interrogation or investigation? No. By our own language, it says they
shall not interfere with interrogation or intelligence gathering. That
is all in here. The only way this could interfere with an operation of
the executive branch is if they themselves decided to interfere in
their own operation. They are explicitly given the authority to write
the procedures.
I think we ought to debate about what is in the bill, and what is in
the bill is very different from what our colleagues who support the
Udall amendment have described. Yes, we are at war, and, yes, we should
codify how we handle detention, and this is an effort to do that. And
as the administration itself says, we are not changing anything here in
terms of section 1031. We are simply codifying existing law.
The issue really relates to 1032, and that is what we ought to
debate.
[[Page S7950]]
Should somebody--when it has been determined by procedures adopted by
the executive branch--who has been determined to be a member of an
enemy force who has come to this Nation or is in this Nation to attack
us as a member of a foreign enemy, should that person be treated
according to the laws of war? The answer is yes. But should flexibility
be in here so the administration can provide a waiver even in that
case? Yes.
Finally, as far as civilian trials, I happen to agree with my friend
from Illinois, and he is a dear friend of mine. Civilian trials work.
There is nothing in this provision that says civilian trials won't be
used even if it is determined that somebody is a member of al-Qaida.
Not only doesn't it prevent civilian trials from being used, we
explicitly provide that civilian trials are available in all cases. It
is written right in here. I happen to like civilian trials a lot. I
participated in a lot of them, and they are very appropriate, and we
have a good record. In the case the Senator from Illinois mentioned,
that case was a Michigan case. I know a lot about that case. It was the
right way to go. I prefer civilian trials in many, many cases. This
bill does not say we are going to be using military commissions in lieu
of civilian trials. That is a decision we leave where it belongs--in
the executive branch.
But we do one thing in this bill in section 1031 that needs to be
said. We are at war with al-Qaida, and people determined to be part of
al-Qaida should be treated as people who are at war with us. But even
with that statement, we give the administration a waiver. That is how
much flexibility we give to the executive branch.
Mr. President, how much time have I used?
The PRESIDING OFFICER. The Senator has 3\1/2\ minutes remaining.
Mr. LEVIN. I yield the floor.
Mr. McCAIN. Mr. President, how much time remains on both sides?
The PRESIDING OFFICER. The Senator from Arizona has just over 5
minutes. The Senator from Colorado has 8 minutes.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, I want to clarify for the
record before I recognize Senator Webb for 5 minutes that some here
have claimed that the Supreme Court's Hamdi decision upheld the
indefinite detention of U.S. citizens captured in the United States.
It did no such thing. Hamdi was captured in Afghanistan, not the
United States. Justice O'Connor, the author of the opinion, was very
careful to say that the Hamdi decision was limited to ``individuals who
fought against the United States in Afghanistan as part of the
Taliban.'' I think that is important to be included in the Record.
I yield to Senator Webb for 5 minutes.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WEBB. Mr. President, I would like to say that I believe the
Senator from Colorado has a good point. I say that as someone who is a
strong supporter of military commissions, who in many cases has aligned
himself with my good friend the Senator from South Carolina and Senator
McCain as well on these issues. To me, this is not a jurisdictional
issue, and it is not an issue about whether we should be holding people
under military commissions under the right cases or under military
detention under the right cases.
My difficulty and the reason I support what Senator Udall is doing is
in the statutory language itself. I say this as someone who spent a
number of years drafting this kind of legislation as a committee
counsel. I have gone back over the last 2 days again and again, reading
these sections against each other--1031 and 1032 particularly--and I am
very concerned about how this language would be interpreted, not in the
here and now, as we see the stability we have brought to our country
since 9/11, but what if something were to happen and we would be under
more of a sense of national emergency and this language would be
interpreted for broader action.
The reason I have this concern is we are talking here about the
conditions under which our military would be sent into action inside
our own borders. In that type of situation, we need to be very clear
and we must very narrowly define how they would be used and, quite
frankly, if they should be used at all inside our borders. I think that
is the concern we are hearing from people such as the Director of the
FBI and the Secretary of Defense.
I am also very concerned about the notion of the protection of our
own citizens and our legal residents from military action inside our
own country. I think these protections should be very clearly stated.
There is a lot of vagueness in this language.
What the Senator from Colorado is proposing is that we clarify these
concepts--that we take this provision out and clarify the concepts.
Protections are in place in our country. We are not leaving our country
vulnerable. In fact, I think we are going to make it a much more
healthy legal system if we do clarify these provisions.
That is the reason I am here on the floor to support what Senator
Udall is saying. I know the emotion and the energy Senator Levin has
put into this, and I respect him greatly. I happen to believe we need
to do a better job of clarifying our language.
I spent 16 years, on and off, writing in Hollywood. One of the things
that came to me when I was comparing these sections is that this is
kind of the danger we get in when we get to the fourth or the fifth
screenwriter involved in a story. We want to fix one thing and we are
not fixing the whole thing.
I greatly respect the legitimacy of the effort that is put into this.
But when we read section 1031 against section 1032, there are questions
about what would happen to American citizens under an emergency. Let's
take, for instance, what happened in this country after Hurricane
Katrina. It is not a direct parallel, but we can see the extremes
people went to under a feeling of emergency and vulnerability. We had
people who were deputized as U.S. marshals in New Orleans, and we could
see them on CNN putting rifles inside people's cars, stopping them on
the street, going into people's houses, making a decision--which later
was rescinded--that they were going to take people's guns away from
them. The vagueness in a lot of this language will not guarantee
against these types of conduct on a larger scale if a situation were
more difficult and dangerous than it is today.
Section 1031, which Senator Levin mentioned, may be clear to the
administration but it is not that clear to me, when they talk about a
covered person. This isn't simply al-Qaida, depending on how one wants
to interpret it, in a time of national emergency. It is a person who is
a part of or who substantially supported al-Qaida, the Taliban, or
associated forces that are engaged in hostilities against the United
States or its coalition partners, including any person who has
committed a belligerent act. We might be able to agree to what that
means here on the Senate floor today, but we don't know how that might
be interpreted in a time of national emergency. I am not predicting
that it will; I am saying we should have the certainty that it will
not.
The PRESIDING OFFICER. The Senator has consumed 5 minutes.
Mr. WEBB. OK. Similar concerns also revolve around the definitions in
terms of the applicability of U.S. citizens and lawful resident aliens
when we go to the words ``requirement does not extend.'' What about an
option? These are the types of concerns I have. We should have language
that very clearly makes everyone understand the conditions under which
we would be using the U.S. military inside the borders of the United
States.
I yield the floor.
Mr. LEAHY. Mr. President, the Udall-Webb-Leahy-Feinstein-Durbin-Paul-
Wyden amendment would remove the very troubling detention subtitle from
the National Defense Authorization Act for Fiscal Year 2012. I am a
cosponsor of this amendment because I believe the detention subtitle is
deeply flawed. We should hear from the Pentagon and other agencies
about what they believe to be the appropriate role of the Armed Forces
in detaining and prosecuting terrorism suspects. Unfortunately, the
language in the bill before us blatantly disregards the concerns of
these agencies.
Contrary to statements by the bill's authors, the current version of
the detention subtitle, considered by the Senate Armed Services
Committee, SASC
[[Page S7951]]
on November 15, contains virtually all of the same concerns as the
earlier version of the bill. The changes made by SASC do not correct
the problems that have been raised by the administration.
Since the SASC marked up the new version, we have received several
letters from the administration in opposition to the new language.
Secretary Panetta, Director of National Intelligence Clapper, and FBI
Director Mueller, have all written to Senate leaders in opposition of
the language. That means this language is opposed by each of the
agencies whose officers in the field will be directly affected by it.
Just yesterday, Director Mueller wrote that the ``legislation
introduces a substantial element of uncertainty'' into terrorism
investigations. Secretary Panetta wrote that the legislation ``may
needlessly complicate efforts by frontline law enforcement
professionals to collect critical intelligence.'' Director Clapper
wrote that ``the various detention provisions . . . would introduce
unnecessary rigidity'' into investigations. And we have a Statement of
Administration Policy raising very strong objections to some of these
provisions. I ask unanimous consent to place these letters and the
Statement of Administration Policy in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Secretary of Defense,
Defense Pentagon,
Washington, DC, Nov. 15, 2011.
The Hon. Carl Levin,
Chairman, Committee on Armed Services, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: I write to express the Department of
Defense's principal concerns with the latest version of
detainee-related language you are considering including in
the National Defense Authorization Act (NDAA) for Fiscal Year
2012. We understand the Senate Armed Services Committee is
planning to consider this language later today.
We greatly appreciate your willingness to listen to the
concerns expressed by our national security professionals on
the version of the NDAA bill reported by the Senate Armed
Services Committee in June. I am convinced we all want the
same result--flexibility for our national security
professionals in the field to detain, interrogate, and
prosecute suspected terrorists. The Department has
substantial concerns, however, about the revised text, which
my staff has just received within the last few hours.
Section 1032. We recognize your efforts to address some of
our objections to section 1032. However, it continues to be
the case that any advantages to the Department of Defense in
particular and our national security in general in section
1032 of requiring that certain individuals be held by the
military are, at best, unclear. This provision restrains the
Executive Branch's options to utilize, in a swift and
flexible fashion, all the counterterrorism tools that are now
legally available.
Moreover, the failure of the revised text to clarify that
section 1032 applies to individuals captured abroad, as we
have urged, may needlessly complicate efforts by frontline
law enforcement professionals to collect critical
intelligence concerning operations and activities within the
United States.
Next, the revised language adds a new qualifier to
``associated force''--``that acts in coordination with or
pursuant to the direction of al-Qaeda.'' In our view, this
new language unnecessarily complicates our ability to
interpret and implement this section.
Further, the new version of section 1032 makes it more
apparent that there is an intent to extend the certification
requirements of section 1033 to those covered by section 1032
that we may want to transfer to a third country. In other
words, the certification requirement that currently applies
only to Guantanamo detainees would permanently extend to a
whole new category of future captures. This imposes a whole
new restraint on the flexibility we need to continue to
pursue our counterterrorism efforts.
Section 1033. We are troubled that section 1033 remains
essentially unchanged from the prior draft, and that none of
the Administration's concerns or suggestions for this
provision have been adopted. We appreciate that revised
section 1033 removes language that would have made these
restrictions permanent, and instead extended them through
Fiscal Year 2012 only. As a practical matter, however,
limiting the duration of the restrictions to the next fiscal
year only will have little impact if Congress simply
continues to insert these restrictions into legislation on an
annual basis without ever revisiting the substance of the
legislation. As national security officials in this
Department and elsewhere have explained, transfer
restrictions such as those outlined in section 1033 are
largely unworkable and pose unnecessary obstacles to
transfers that would advance our national security interests.
Section 1035. Finally, section 1035 shifts to the
Department of Defense responsibility for what has previously
been a consensus-driven interagency process that was informed
by the advice and views of counterterrorism professionals
from across the Government. We see no compelling reason--and
certainly none has been expressed in our discussions to
date--to upset a collaborative, interagency approach that has
served our national security so well over the past few years.
I hope we can reach agreement on these important national
security issues, and, as always, my staff is available to
work with the Committee on these and other matters.
Sincerely,
Leon E. Panetta.
____
Director of
National Intelligence,
Washington, DC.
Hon. Dianne Feinstein,
Chairman, Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Dear Madam Chairman: I am writing in response to your
letter requesting my views on the effect that the detention
provisions in the National Defense Authorization Act for
Fiscal Year 2012 could have on the ability of the
Intelligence Community to gather counterterrorism
information. In my view, some of these provisions could limit
the effectiveness of our intelligence and law enforcement
professionals at a time when we need the utmost flexibility
to defend the nation from terrorist threats. The Executive
Branch should have maximum flexibility in these areas,
consistent with our law and values, rather than face
limitations on our options to acquire intelligence
information. As stated in the November 17, 2011, Statement of
Administration Policy for S. 1867, ``[a]ny bill that
challenges or constrains the President's critical authorities
to collect intelligence, incapacitate dangerous terrorists,
and protect the nation would prompt the President's senior
advisers to recommend a veto.''
Our principal objective upon the capture of a potential
terrorist is to obtain intelligence information and to
prevent future attacks, yet the provision that mandates
military custody for a certain class of terrorism suspects
could restrict the ability of our nation's intelligence
professionals to acquire valuable intelligence and prevent
future terrorist attacks. The best method for securing vital
intelligence from suspected terrorists varies depending on
the facts and circumstances of each case. In the years since
September 11, 2001, the Intelligence Community has worked
successfully with our military and law enforcement partners
to gather vital intelligence in a wide variety of
circumstances at home and abroad and I am concerned that some
of these provisions will make it more difficult to continue
to have these successes in the future.
Taken together, the various detention provisions, even with
the proposed waivers, would introduce unnecessary rigidity at
a time when our intelligence, military, and law enforcement
professionals are working more closely than ever to defend
our nation effectively and quickly from terrorist attacks.
These limitations could deny our nation the ability to
respond flexibly and appropriately to unfolding events--
including the capture of terrorism suspects--and restrict a
process that currently encourages intelligence collection
through the preservation of all lawful avenues of detention
and interrogation.
Our intelligence professionals are best served when they
have the greatest flexibility to collect intelligence from
suspected terrorists. I am concerned that the detention
provisions in the National Defense Authorization Act could
reduce this flexibility.
Sincerely,
James R. Clapper.
____
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, DC, November 28, 2011.
Hon. Carl Levin,
Chairman, Committee on Armed Services, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: I am writing to express concerns
regarding the impact of certain aspects of the current
version of Section 1032 of the National Defense Authorization
Act for Fiscal Year 2012. Because the proposed legislation
applies to certain persons detained in the United States, the
legislation may adversely impact our ability to continue
ongoing international terrorism investigations before or
after arrest, derive intelligence from those investigations,
and may raise extraneous issues in any future prosecution of
a person covered by Section 1032.
The legislation as currently proposed raises two principal
concerns. First, by establishing a presumption of military
detention for covered individuals within the United States,
the legislation introduces a substantial element of
uncertainty as to what procedures are to be followed in the
course of a terrorism investigation in the United States.
Even before the decision to arrest is made, the question of
whether a Secretary of Defense waiver is necessary for the
investigation to proceed will inject uncertainty as to the
appropriate course for further investigation up to and beyond
the moment when the determination is made that there is
probable cause for an arrest.
Section 1032 may be read to divest the FBI and other
domestic law enforcement agencies of jurisdiction to continue
to investigate those persons who are known to fall within the
mandatory strictures of section 1032, absent the Secretary's
waiver. The legislation may call into question the FBI's
continued use or scope of its criminal investigative or
national security authorities in
[[Page S7952]]
further investigation of the subject. The legislation may
restrict the FBI from using the grand jury to gather records
relating to the covered person's communication or financial
records, or to subpoena witnesses having information on the
matter. Absent a statutory basis for further domestic
investigation, Section 1032 may be interpreted by the courts
as foreclosing the FBI from conducting any further
investigation of the covered individual or his associates.
Second, the legislation as currently drafted will inhibit
our ability to convince covered arrestees to cooperate
immediately, and provide critical intelligence. The
legislation introduces a substantial element of uncertainty
as to what procedures are to be followed at perhaps the most
critical time in the development of an investigation against
a covered person. Over the past decade we have had numerous
arrestees, several of whom would arguably have been covered
by the statute, who have provided important intelligence
immediately after they have been arrested, and in some
instances for days and weeks thereafter. In the context of
the arrest, they have been persuaded that it was in their
best interests to provide essential information while the
information was current and useful to the arresting
authorities.
Nonetheless, at this crucial juncture, in order for the
arresting agents to proceed to obtain the desired
cooperation, the statute requires that a waiver be obtained
from the Secretary of Defense, in consultation with the
Secretary of State and the Director of National Intelligence,
with certification by the Secretary to Congress that the
waiver was in the national security interests of the United
States. The proposed statute acknowledges that this is a
significant point in an ongoing investigation. It provides
that surveillance and intelligence gathering on the
arrestee's associates should not be interrupted. Likewise,
the statute provides that an ongoing interrogation session
should not be interrupted.
These limited exceptions, however, fail to recognize the
reality of a counterterrorism investigation. Building rapport
with, and convincing a covered individual to cooperate once
arrested, is a delicate and time sensitive skill that
transcends any one interrogation session. It requires
coordination with other aspects of the investigation.
Coordination with the prosecutor's office is also often an
essential component of obtaining a defendant's cooperation.
To halt this process while the Secretary of Defense
undertakes the mandated consultation, and the required.
certification is drafted and provided to Congress, would set
back our efforts to develop intelligence from the subject.
We appreciate that Congress has sought to address our
concerns in the latest version of the bill, but believe that
the legislation as currently drafted remains problematic for
the reasons set forth above. We respectfully ask that you
take into account these concerns as Congress continues to
consider Section 1032.
Sincerely,
Robert S. Mueller III,
Director.
____
Statement of Administration Policy
S. 1867--National Defense Authorization Act for FY 2012
(Sen. Levin, D-MI, Nov. 17, 2011)
The Administration supports Senate passage of S. 1867, the
National Defense Authorization Act for Fiscal Year (FY) 2012.
The Administration appreciates the Senate Armed Services
Committee's continued support of our national defense,
including its support for both the base budget and for
overseas contingency operations and for most of the
Administration's initiatives to control spiraling health
costs of the Department of Defense (DoD).
The Administration appreciates the support of the Committee
for authorities that assist the ability of the warfighter to
operate in unconventional and irregular warfare, authorities
that are important to field commanders, such as the
Commanders' Emergency Response Program, Global Train and
Equip Authority, and other programs that provide commanders
with the resources and flexibility to counter unconventional
threats or support contingency or stability operations. The
Administration looks forward to reviewing a classified annex
and working with the Congress to address any concerns on
classified programs as the legislative process moves forward.
While there are many areas of agreement with the Committee,
the Administration would have serious concerns with
provisions that would: (1) constrain the ability of the Armed
Forces to carry out their missions; (2) impede the Secretary
of Defense's ability to make and implement decisions that
eliminate unnecessary overhead or programs to ensure scarce
resources are directed to the highest priorities for the
warfighter; or (3) depart from the decisions reflected in the
President's FY 2012 Budget Request. The Administration looks
forward to working with the Congress to address these and
other concerns, a number of which are outlined in more detail
below.
Detainee Matters: The Administration objects to and has
serious legal and policy concerns about many of the detainee
provisions in the bill. In their current form, some of these
provisions disrupt the Executive branch's ability to enforce
the law and impose unwise and unwarranted restrictions on the
U.S. Government's ability to aggressively combat
international terrorism; other provisions inject legal
uncertainty and ambiguity that may only complicate the
military's operations and detention practices.
Section 1031 attempts to expressly codify the detention
authority that exists under the Authorization for Use of
Military Force (Public Law 107-40) (the ``AUMF''). The
authorities granted by the AUMF, including the detention
authority, are essential to our ability to protect the
American people from the threat posed by al-Qa'ida and its
associated forces, and have enabled us to confront the full
range of threats this country faces from those organizations
and individuals. Because the authorities codified in this
section already exist, the Administration does not believe
codification is necessary and poses some risk. After a decade
of settled jurisprudence on detention authority, Congress
must be careful not to open a whole new series of legal
questions that will distract from our efforts to protect the
country. While the current language minimizes many of those
risks, future legislative action must ensure that the
codification in statute of express military detention
authority does not carry unintended consequences that could
compromise our ability to protect the American people.
The Administration strongly objects to the military custody
provision of section 1032, which would appear to mandate
military custody for a certain class of terrorism suspects.
This unnecessary, untested, and legally controversial
restriction of the President's authority to defend the Nation
from terrorist threats would tie the hands of our
intelligence and law enforcement professionals. Moreover,
applying this military custody requirement to individuals
inside the United States, as some Members of Congress have
suggested is their intention, would raise serious and
unsettled legal questions and would be inconsistent with the
fundamental American principle that our military does not
patrol our streets. We have spent ten years since September
11, 2001, breaking down the walls between intelligence,
military, and law enforcement professionals; Congress should
not now rebuild those walls and unnecessarily make the job of
preventing terrorist attacks more difficult. Specifically,
the provision would limit the flexibility of our national
security professionals to choose, based on the evidence and
the facts and circumstances of each case, which tool for
incapacitating dangerous terrorists best serves our national
security interests. The waiver provision fails to address
these concerns, particularly in time-sensitive operations in
which law enforcement personnel have traditionally played the
leading role. These problems are all the more acute because
the section defines the category of individuals who would be
subject to mandatory military custody by substituting new and
untested legislative criteria for the criteria the Executive
and Judicial branches are currently using for detention under
the AUMF in both habeas litigation and military operations.
Such confusion threatens our ability to act swiftly and
decisively to capture, detain, and interrogate terrorism
suspects, and could disrupt the collection of vital
intelligence about threats to the American people.
Rather than fix the fundamental defects of section 1032 or
remove it entirely, as the Administration and the chairs of
several congressional committees with jurisdiction over these
matters have advocated, the revised text merely directs the
President to develop procedures to ensure the myriad problems
that would result from such a requirement do not come to
fruition. Requiring the President to devise such procedures
concedes the substantial risks created by mandating military
custody, without providing an adequate solution. As a result,
it is likely that implementing such procedures would inject
significant confusion into counterterrorism operations.
The certification and waiver, required by section 1033
before a detainee may be transferred from Guantanamo Bay to a
foreign country, continue to hinder the Executive branch's
ability to exercise its military, national security, and
foreign relations activities. While these provisions may be
intended to be somewhat less restrictive than the analogous
provisions in current law, they continue to pose unnecessary
obstacles, effectively blocking transfers that would advance
our national security interests, and would, in certain
circumstances, violate constitutional separation of powers
principles. The Executive branch must have the flexibility to
act swiftly in conducting negotiations with foreign countries
regarding the circumstances of detainee transfers. Section
1034's ban on the use of funds to construct or modify a
detention facility in the United States is an unwise
intrusion on the military's ability to transfer its detainees
as operational needs dictate. Section 1035 conflicts with the
consensus-based interagency approach to detainee reviews
required under Executive Order No. 13567, which establishes
procedures to ensure that periodic review decisions are
informed by the most comprehensive information and the
considered views of all relevant agencies. Section 1036,
in addition to imposing onerous requirements, conflicts
with procedures for detainee reviews in the field that
have been developed based on many years of experience by
military officers and the Department of Defense. In short,
the matters addressed in these provisions are already well
regulated by existing procedures and have traditionally
been left to the discretion of the Executive branch.
[[Page S7953]]
Broadly speaking, the detention provisions in this bill
micromanage the work of our experienced counterterrorism
professionals, including our military commanders,
intelligence professionals, seasoned counterterrorism
prosecutors, or other operatives in the field. These
professionals have successfully led a Government-wide effort
to disrupt, dismantle, and defeat al-Qa'ida and its
affiliates and adherents over two consecutive
Administrations. The Administration believes strongly that it
would be a mistake for Congress to overrule or limit the
tactical flexibility of our Nation's counterterrorism
professionals.
Any bill that challenges or constrains the President's
critical authorities to collect intelligence, incapacitate
dangerous terrorists, and protect the Nation would prompt the
President's senior advisers to recommend a veto.
Joint Strike Fighter Aircraft (JSF): The Administration
also appreciates the Committee's inclusion in the bill of a
prohibition on using funds authorized by S. 1867 to be used
for the development of the F136 JSF alternate engine. As the
Administration has stated, continued development of the F136
engine is an unnecessary diversion of scarce resources.
Medium Extended Air Defense Systems (MEADS): The
Administration appreciates the Committee's support for the
Department's air and missile defense programs; however, it
strongly objects to the lack of authorization of
appropriations for continued development of the MEADS
program. This lack of authorization could trigger unilateral
withdrawal by the United States from the MEADS Memorandum of
Understanding (MOU) with Germany and Italy, which could
further lead to a DoD obligation to pay all contract costs--a
scenario that would likely exceed the cost of satisfying
DoD's commitment under the MOU. Further, this lack of
authorization could also call into question DoD's ability to
honor its financial commitments in other binding cooperative
MOUs and have adverse consequences for other international
cooperative programs.
Overseas Construction Funding for Guam and Bahrain: The
Administration has serious concerns with the limitation on
execution of the United States and Government of Japan funds
to implement the realignment of United States Marine Forces
from Okinawa to Guam. The bill would unnecessarily restrict
the ability and flexibility of the President to execute our
foreign and defense policies with our ally, Japan. The
Administration also has concerns over the lack of
authorization of appropriations for military construction
projects in Guam and Bahrain. Deferring or eliminating these
projects could send the unintended message that the United
States does not stand by its allies or its agreements.
Provisions Authorizing Activities with Partner Nations: The
Administration appreciates the support of the Committee to
improve capabilities of other nations to support
counterterrorism efforts and other U.S. interests, and urges
the inclusion of DoD's requested proposals, which balance
U.S. national security and broader foreign policy interests.
The Administration would prefer only an annual extension of
the support to foreign nation counter-drug activities
authority in line with its request. While the inclusion of
section 1207 (Global Security Contingency Fund) is welcome,
several provisions may affect Executive branch agility in the
implementation of this authority. Section 1204 (relating to
Yemen) would require a 60-day notify and wait period not only
for Yemen, but for all other countries as well, which would
impose an excessive delay and seriously impede the Executive
branch's ability to respond to emerging requirements.
Unrequested Authorization Increases: Although not the only
examples in S. 1867, the Administration notes and objects to
the addition of $240 million and $200 million, respectively,
in unrequested authorization for unneeded upgrades to M-1
Abrams tanks and Rapid Innovation Program research and
development in this fiscally constrained environment. The
Administration believes the amounts appropriated in FY 2011
and requested in FY 2012 fully fund DoD's requirements in
these areas.
Advance Appropriations for Acquisition: The Administration
objects to section 131, which would provide only incremental
funding--undermining stability and cost discipline--rather
than the advance appropriations that the Administration
requested for the procurement of Advanced Extremely High
Frequency satellites and certain classified programs.
Authority to Extend Deadline for Completion of a Limited
Number of Base Closure and Realignment (BRAC)
Recommendations: The Administration requests inclusion of its
proposed authority for the Secretary or Deputy Secretary of
Defense to extend the 2005 BRAC implementation deadline for
up to ten (10) recommendations for a period of no more than
one year in order to ensure no disruption to the full and
complete implementation of each of these recommendations, as
well as continuity of operations. Section 2904 of the Defense
Base Closure and Realignment Act imposes on DoD a legal
obligation to close and realign all installations so
recommended by the BRAC Commission to the President and to
complete all such closures and realignments no later than
September 15, 2011. DoD has a handful of recommendations with
schedules that complete implementation close to the statutory
deadline.
TRICARE Providers: The Administration is currently
undertaking a review with relevant agencies, including the
Departments of Defense, Labor, and Justice, to clarify the
responsibility of health care providers under civil and
workers' rights laws. The Administration therefore objects to
section 702, which categorically excludes TRICARE network
providers from being considered subcontractors for purposes
of the Federal Acquisition Regulation or any other law.
Troops to Teachers Program: The Administration urges the
Senate's support for the transfer of the Troops to Teachers
Program to DoD in FY 2012, as reflected in the President's
Budget and DoD's legislative proposal to amend the Elementary
and Secondary Education Act of 1965 and Title 10 of the U.S.
Code in lieu of section 1048. The move to Defense will help
ensure that this important program supporting members of the
military as teachers is retained and provide better oversight
of 6 program outcomes by simplifying and streamlining program
management. The Administration looks forward to keeping the
Congress abreast of this transfer, to ensure it runs smoothly
and has no adverse impact on program enrollees.
Constitutional concerns: A number of the bill's provisions
raise additional constitutional concerns, such as sections
233 and 1241, which could intrude on the President's
constitutional authority to maintain the confidentiality of
sensitive diplomatic communications. The Administration looks
forward to working with the Congress to address these and
other concerns.
Mr. LEAHY. So, contrary to what the bill sponsors claim, they have
not incorporated the administration's requests, and the current
language does not remove the risk of impeding intelligence
investigations or prosecutions of terrorist suspects.
As currently written, the language in this bill would authorize the
military to indefinitely detain individuals--including U.S. citizens--
without charge or trial. I am fundamentally opposed to indefinite
detention, and certainly when the detainee is a U.S. citizen held
without charge. It contradicts the most basic principles of law that I
subscribed to when I was a prosecutor, and it severely weakens our
credibility when we criticize other governments for engaging in similar
conduct.
I fought against the Bush administration policies that left us in the
situation we face now, with indefinite detention being the de facto
administration policy, and I strongly opposed President Obama's
Executive order on detention when it was announced last March because
it contemplated, if not outright endorsed, indefinite detention.
I am also deeply troubled by the mandatory military detention
requirements included in this bill, which I believe dangerously
undermine our national security. In the fight against al-Qaida and
other terrorist threats, we should be giving our intelligence,
military, and law enforcement professionals all the tools they need--
not limiting those tools. But limiting them is exactly what this bill
does. Secretary Panetta has stated unequivocally that ``[t]his
provision restrains the Executive Branch's options to utilize, in a
swift and flexible fashion, all the counterterrorism tools that are now
legally available.'' Requiring terrorism suspects to be held only in
military custody, and limiting the available options in the field, is
unwise and unnecessary.
The language in the detention subtitle of this bill is the product of
a process that has lacked transparency from the start. These measures
directly affect law enforcement, detention, and terrorism matters that
have traditionally been subject to the jurisdiction of the Senate
Judiciary Committee and the Senate Select Committee on Intelligence,
but neither committee was consulted about these provisions in July when
the bill was first marked up, or earlier this month when it was
modified.
The administration proposed revisions to significantly improve the
detention provisions. However, rather than negotiate with the
administration in good faith, the Armed Services Committee drafted a
new version of the language behind closed doors and claimed that it had
solved all of the issues raised by the administration. It is obvious
from the letters we have received that this is not the case.
I can see no reason why these provisions were rushed through the
Committee without the input of the Defense Department and Federal
intelligence and law enforcement agencies that will be directly
affected if this language is enacted.
We must allow a thorough review to determine the legal and practical
consequences that these changes will have
[[Page S7954]]
on future counterterrorism and national security operations to ensure
they are not hindered. That is what the Udall amendment does. I urge
all Senators to support this amendment.
Ms. COLLINS. Mr. President, it is imperative that American citizens
detained on U.S. soil be entitled to every protection guaranteed by the
Constitution. I am concerned, therefore, that not all of the detainee
provisions in the bill provide explicit exemptions for U.S. citizens
who might be detained in the United States.
Had the amendment been more narrowly tailored to address that
concern, I would support it. However, I unfortunately cannot support
the amendment as a whole because it is too sweeping and would eliminate
provisions that are important to preserve because they undoubtedly make
our country safer. For instance, if this amendment were to pass, the
Administration would be free to transfer detainees to countries where
there are confirmed cases of detainees who have been released returning
to fight against the United States. In addition, the amendment would
eliminate a provision that would prevent foreign fighters captured
overseas from taking advantage of the very constitutional rights I want
to ensure for American citizens.
Mr. LEVIN. Mr. President, how much time is remaining?
The PRESIDING OFFICER. The Senator from Michigan has 4 minutes
remaining.
The Senator from Arizona.
Mr. McCAIN. Mr. President, I ask unanimous consent to yield 2 minutes
to the Senator from New Hampshire, followed by time from Senator Levin
for the Senator from Connecticut, and then what time I have remaining
for the Senator from Georgia.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from New Hampshire.
Ms. AYOTTE. Mr. President, first of all, I wish to thank Chairman
Levin and Ranking Member McCain and remind everyone that this
particular amendment addressing detainee provisions passed
overwhelmingly on a bipartisan basis in the Armed Services Committee.
The reason we addressed this issue was because we heard witness after
witness in a series of months before the Armed Services Committee from
our Department of Defense tell us--for example, when I asked the
commander of Africa Command, saying he needs some lawyerly help on how
to answer what to do with a member of al-Qaida who is captured in
Africa. This is an area that cried out for clarification, and that is
the genesis of this amendment, which is a very important amendment.
Briefly, two issues. No. 1, the arguments that have been raised about
section 1031, including the statement of authority, this is a red
herring. This provision was drafted, as Senator Levin said very
clearly, based upon what the administration wanted, and also codifies
existing law on what the statement authority is in terms of the fact
that we are at war with al-Qaida. If people want to disagree with that,
that is certainly a policy discussion we can have. But we were attacked
on our soil on 9/11, and this codifies the fact that we are at war with
members of al-Qaida.
Section 1032 is the military custody provision. Let's be clear on
what it does and what it does not do. No. 1, it is very clear on who it
applies to. It only applies to members of al-Qaida or an associated
force who are planning or carrying out an attack or attempted attack
against the United States or its coalition partners. It does not apply
to American citizens. We are only saying that if a person is a member
of al-Qaida and they want to attack the United States, we are going to
hold them in military custody. Why? I prosecuted cases in the criminal
system. We don't want to have to----
The PRESIDING OFFICER. The Senator's time has expired.
Ms. AYOTTE. We don't ever want to have to read a terrorist their
right to remain silent. That is the issue here.
Thank you, Mr. President. I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I yield 3 minutes to the Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair, and I thank my friend, the chairman
of the Armed Services Committee. I rise respectfully to oppose the
amendment the Senator from Colorado has offered, though in some measure
I thank him for offering it because this has been an important and good
debate.
My own position, stated briefly, is this: As Senator Levin has said,
we are a nation at war. As such we were attacked on 9/11. We adopted in
this Chamber the authorization for military force. That is about as
close to a declaration of war as we have done since the Second World
War. The comparison is exact because what happened to us on 9/11 was in
some ways even worse than what happened in December of 1941 when we
were attacked at Pearl Harbor.
A nation at war that seizes those who have declared themselves to be
part of enemy forces and have attempted to attack the American people,
or America, should be treated as enemy combatants, as prisoners of war,
according to the law of war. To me, that is a matter of principle.
Regardless of what statistics one can cite about how well prosecutions
have gone in article III courts, that is, to me, not ultimately the
point. If we are at war, the people who are fighting against us ought
to be treated as prisoners of war.
In fact, we are without a policy now, as Senator Ayotte said. The
main reason I oppose what Senator Udall is proposing is that he would
remove the sections of the current bill that create a policy and send
us back to where we are now, where our forces in the field don't know
what to do if they capture a member of al-Qaida.
If I had my way, the provisions in this proposal on detainees would
not have the waivers the President has. It would simply say, if you are
apprehended--if you are a foreign member of al-Qaida, and you are
captured planning or executing attacks against Americans or our allies
in this war, you are put in military custody and you are tried in a
military tribunal. This is not the law of the jungle; this is according
to American law. These are the same courts in which American soldiers
are tried when charges are brought against them, and, of course, we
accept and abide by all of the provisions of the Geneva Conventions.
But that was not the will of the Armed Services Committee. The Armed
Services Committee, in a good, reasonable, bipartisan compromise, has
created a system here where the default position--the initial position
is to transfer these enemy combatants to military custody. It is a good
compromise. It is the kind of compromise that----
The PRESIDING OFFICER. The Senator's 3 minutes has expired.
Mr. LIEBERMAN.--doesn't happen around here enough. I didn't get
everything I wanted out of it, but it is a lot better than the status
quo. Therefore, I support the language in the bill and oppose the Udall
amendment.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I rise to urge my colleagues to oppose
the Udall amendment, which would eliminate the bipartisan detainee
provision that the chairman, the ranking member, and committee members
worked so hard to craft. These provisions are necessary to provide some
certainty for our intelligence professionals in how our government will
handle terrorist detainees and how long detainees can be questioned for
intelligence-gathering purposes.
We have heard quite a lot over the past few days from administration
officials about how our intelligence and law enforcement professionals
need flexibility. In fact, Director of National Intelligence Clapper
wrote to the Intelligence Committee arguing for flexibility and
stressing the need for a process that, as he said, ``encourages
intelligence collection through the preservation of all lawful avenues
of detention and interrogation.'' With that, I agree wholeheartedly.
The problem with the status quo, however, is that the administration
refuses to use all of its lawful avenues of detention and interrogation
available to it, choosing instead only to use one, and that is article
III courts.
For nearly 3 years, Members of Congress have pressed the
administration to establish an effective and unambiguous long-term
detention policy, but they have refused. The intent behind these
bipartisan provisions is simple:
[[Page S7955]]
We must hold detainees for as long as it takes to gather information
our intelligence and law enforcement professionals need to take down
terror networks and to stop attacks.
Frankly, the best place, in my opinion, for this is Guantanamo Bay,
But when it comes to Gitmo, the administration is no longer concerned
about ``flexibility.'' Instead, we hear that Guantanamo is ``off the
table.''
In fact, in a hearing, when I asked the current Secretary of Defense,
prior to the SEAL Team 6 takedown of Osama bin Laden: If you captured
him, what would you do with him, he quizzically looked back and said:
Well, I guess we would send him to Guantanamo. Well, we know that would
not have happened had we not taken him down.
This is unfortunate because intelligence and law enforcement
professionals, including some at high levels in the administration,
acknowledge privately that what hampers intelligence collection from
detainees is the administration's unwillingness to take new detainees
to Guantanamo for questioning. When our operators overseas are unsure
about where they would hold captured detainees, it causes delay,
sometimes missed opportunities, and sometimes capture operations become
kill operations.
We cannot afford this kind of uncertainty and the Udall amendment
simply kicks the can down the road with a report about a problem we
already understand. The time to act is now.
Without Guantanamo, long-term military detention elsewhere is the
next best option and is the appropriate option for terrorists with whom
we are at war. The detainee provisions in the Defense Authorization Act
will ensure that the administration uses all of the detention options
it says it wants, not just article III courts, and offer the
flexibility the administration says it needs. I urge my colleagues to
oppose the Udall amendment and give our intelligence professionals and
military operators some certainty as they fight the war on terror.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. CHAMBLISS. Mr. President, I urge a ``no'' vote on the Udall
amendment.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I would like to thank all of my colleagues
who have engaged in a very important debate.
I would also like to say to my friend from Michigan, the chairman, I
have observed him for many years debate various issues on the floor of
the Senate and in the Armed Services Committee. I have never seen him
more eloquent than I have observed in his statements today and
throughout this debate. I also appreciate the fact that there are many
in his conference who do not agree with the position taken by the
chairman, and I especially am admiring of that.
I yield.
Mr. LEVIN. How much time is remaining, Mr. President?
The PRESIDING OFFICER. The Senator from Michigan has 45 seconds. The
Senator from Colorado has 1 minute.
Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator
from Colorado be allowed----
Mr. LEVIN. He only needs 2 minutes.
Mr. McCAIN. Two minutes, at least.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Such time as he may need.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, I thank, again, the ranking
member and the chairman of the Armed Services Committee for their hard
work.
I want to close with a couple points. I want to, in the interest of
clarifying the record, point out, on the heels of the chairman's
comments about the Statement of Administration Policy, when it comes to
section 1031, the full statement reads:
Because the authorities codified in this section already
exist, the Administration does not believe codification is
necessary and poses some risk. After a decade of settled
jurisprudence on detention authority, Congress must be
careful not to open a whole new series of legal questions
that will distract from our efforts to protect the country.
Second, there are questions that continue to be raised. I want to
mention section 1033. The chairman said it is only section 1032 that is
the focus of our attention, but there have been questions raised about
section 1033. There is language in section 1033 that makes it clear
that--we think it makes it clear that there is a provision that
requires any receiving country is taking actions ``to ensure that the
[detainee] cannot engage . . . in any terrorist activity.'' This is if
we are releasing or transferring somebody who is detained.
I was in Afghanistan recently, at Bagram prison. We have 20,000
detainees there. There are some who believe section 1033 would restrict
us from releasing those prisoners at Bagram as we begin to draw down
our efforts in Afghanistan. That is just one of the many questions that
are asked.
Finally, I listened to the passion that my friend from South Carolina
Senator Graham exhibited on the Senate floor. We are all in this
together. We are going to prevail. The bad guys in the world are not
going to win. We do have, however--and this is what makes our country
strong--different points of view on how we prosecute this war. I
believe the intent of what is being suggested in these provisions is
well and good and at the highest level. But there are many people we
trust and respect--including the FBI Director, the Secretary of
Defense, the Secretary of Homeland Security--who believe what will
happen, if we interpret the language, will not actually reflect our
intent.
Therefore, let's set this aside, pass the NDA, send it to the
President, and take the next 90 days to hold hearings and thoroughly
vet what is in this set of provisions. I will be the first person to
come to the floor if all of those individuals and our own experts tell
us this is the right way to proceed, to say: Let's put this into the
law.
But let's not rush to take these steps. We have something that is
working. We have over 300 terrorists who have been prosecuted through
our civil system who are in jail, many of them for life sentences,
sentences that will outlast their lifespans. Let's not fix something
that is not broken until we really understand what the consequences
are.
I thank, again, my colleagues on the Senate Armed Services Committee.
This has been a helpful and important debate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, let me also thank our friend from Colorado
for his contributions to the committee. He is a valuable member of our
committee, and he is no less valuable because he is offering an
amendment with which I happen to disagree.
Two quick factual points. One is, the language the Senator mentioned
from section 1033 is exactly the same language as was in last year's
bill and is in current law. The only difference is we have given
greater flexibility this year to the President by making it waiveable.
So our language is more flexible than the current law.
Finally, in terms of the Hamdi case, the Senator is correct. I
believe it was Senator Udall who said this was an American citizen who
was captured in Afghanistan. That is true. But the Supreme Court, in
Hamdi, relied on the Quirin case--which was an American citizen
captured on Long Island and--quoted that case with approval when
saying:
There is no bar to this Nation's holding one of its own
citizens as an enemy combatant.
That was the Quirin language--an American citizen captured on Long
Island.
Mr. President, if I have any time left, I will yield it and yield the
floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, the pending amendment is the Udall
amendment.
Am I correct, I ask the chairman, in that we would intend, depending
on--there are several things that have to be resolved--but we would
intend to have this vote at around 2:15 p.m., if things work out? Is
that correct?
Mr. LEVIN. I wonder if Senator Udall also heard that. I believe, and
I think it is the intention of all of us, that we vote on this as soon
as possible after 2:15.
I yield the floor.
Mr. McCAIN. I suggest the absence of a quorum.
[[Page S7956]]
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. McCAIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 1230 and 1281, as Modified
Mr. McCAIN. Mr. President, I ask unanimous consent that the pending
McCain amendments Nos. 1230 and 1281 be modified with the changes at
the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments, as modified, are as follows:
AMENDMENT NO. 1230, AS MODIFIED
On page 220, strike line 13 and all that follows through
page 221, line 6, and insert the following:
``(c) Annual Adjustment in Enrollment Fee.--(1) Whenever
after September 30, 2012, and before October 1, 2013, the
Secretary of Defense increases the retired pay of members and
former members of the armed forces pursuant to section 1401a
of this title, the Secretary shall increase the amount of the
fee payable for enrollment in TRICARE Prime by an amount
equal to the percentage of such fee payable on the day before
the date of the increase of such fee that is equal to the
percentage increase in such retired pay. In determining the
amount of the increase in such retired pay for purposes of
this subparagraph, the Secretary shall use the amount
computed pursuant to section 1401a(b)(2) of this title.
``(2) Effective as of October 1, 2013, the Secretary shall
increase the amount of the fee payable for enrollment in
TRICARE Prime on an annual basis by a percentage equal to the
percentage of the most recent annual increase in the National
Health Expenditures per capita, as published by the Secretary
of Health and Human Services.
``(3) Any increase under this subsection in the fee payable
for enrollment shall be effective as of January 1 following
the date on which such increase is made.
``(4) The Secretary shall publish in the Federal Register
the amount of the fee payable for enrollment in TRICARE Prime
whenever increased pursuant to this subsection.''.
(b) Clarification of Application for 2013.--For purposes of
determining the enrollment fees for TRICARE Prime for 2013
under subsection (c)(1) of section 1097a of title 10, United
States Code (as added by subsection (a)), the amount of the
enrollment fee in effect during 2012 shall be deemed to be
the following:
(1) $260 for individual enrollment.
(2) $520 for family enrollment.
AMENDMENT NO. 1281, AS MODIFIED
At the end of subtitle C of title XII, add the following:
SEC. 1243. DEFENSE COOPERATION WITH REPUBLIC OF GEORGIA.
(a) Plan for Normalization.--Not later than 90 days after
the date of the enactment of this Act, the President shall
develop and submit to the congressional defense committees
and the Committee on Foreign Relations of the Senate and the
Committee on Foreign Affairs of the House of Representatives
a plan for the normalization of United States defense
cooperation with the Republic of Georgia, including the sale
of defensive arms.
(b) Objectives.--The plan required under subsection (a)
shall address the following objectives:
(1) To establish a normalized defense cooperation
relationship between the United States and the Republic of
Georgia, taking into consideration the progress of the
Government of the Republic of Georgia on democratic and
economic reforms and the capacity of the Georgian armed
forces.
(2) To support the Government of the Republic of Georgia in
providing for the defense of its government, people, and
sovereign territory, consistent with the continuing
commitment of the Government of the Republic of Georgia to
its nonuse-of-force pledge and consistent with Article 51 of
the Charter of the United Nations.
(3) To provide for the sale by the United States of defense
articles and services in support of the efforts of the
Government of the Republic of Georgia to provide for its own
self-defense consistent with paragraphs (1) and (2).
(4) To continue to enhance the ability of the Government of
the Republic of Georgia to participate in coalition
operations and meet NATO partnership goals.
(5) To encourage NATO member and candidate countries to
restore and enhance their sales of defensive articles and
services to the Republic of Georgia as part of a broader NATO
effort to deepen its defense relationship and cooperation
with the Republic of Georgia.
(6) To ensure maximum transparency in the United States-
Georgia defense relationship.
(c) Included Information.--The plan required under
subsection (a) shall include the following information:
(1) A needs-based assessment, or an update to an existing
needs-based assessment, of the defense requirements of the
Republic of Georgia, which shall be prepared by the
Department of Defense.
(2) A description of each of the requests by the Government
of the Republic of Georgia for purchase of defense articles
and services during the two-year period ending on the date of
the report.
(3) A summary of the defense needs asserted by the
Government of the Republic of Georgia as justification for
its requests for defensive arms purchases.
(4) A description of the action taken on any defensive arms
sale request by the Government of the Republic of Georgia and
an explanation for such action.
(d) Form.--The plan required under subsection (a) shall be
submitted in unclassified form, but may contain a classified
annex.
____________________
[Congressional Record Volume 157, Number 181 (Tuesday, November 29, 2011)]
[Senate]
[Pages S7956-S7987]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012--Continued
The PRESIDING OFFICER. In my capacity as a Senator from Virginia, I
suggest the absence of a quorum.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. 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. LEVIN. I ask unanimous consent there be 2 minutes of debate,
equally divided, prior to a vote in relation to the Udall of Colorado
amendment No. 1107; that upon the use or yielding back of time, the
Senate proceed to vote in relation to the amendment, with no amendments
in order prior to the vote.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Colorado.
Amendment No. 1107
Mr. UDALL of Colorado. Mr. President, this amendment strikes
controversial detainee provisions that have been inserted in the
National Defense Authorization Act. It would require that the Defense
intelligence and law enforcement agencies report to Congress with
recommendations for any additional authorities they need in order to
detain and prosecute terrorists. The amendment would then ask for
hearings to be held so we can fully understand the opposition to these
provisions by our national security experts--bipartisan opposition, I
might add--and hopefully avoid a veto of the Defense authorization
bill.
In short, we are ignoring the advice and the input of the Director of
the FBI, the Director of our intelligence community, the Attorney
General of the United States, the Secretary of Defense, and the White
House, who are all saying there are significant concerns with these
provisions; that we ought to move slowly.
We have been successful in prosecuting over 300 terrorists through
our civil justice system. Let's not fix what isn't broken until we
fully understand the ramifications.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I yield 30 seconds to Senator Graham.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, section 1031 is a congressional statement
of authority of already existing law. It reaffirms the fact this body
believes al-Qaida and affiliated groups are a military threat to the
United States and they can be held under the law of war indefinitely to
make sure we find out what they are up to; and they can be questioned
in a humane manner consistent with the law of war.
Section 1032 says if you are captured on the homeland, you will be
held in military custody so we can gather intelligence. That provision
can be waived if it interferes with the investigation.
These are needed changes. These are changes that reaffirm what is
already in law.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Michigan.
Mr. LEVIN. Mr. President, the Supreme Court has recently ruled--this
is the Supreme Court talking:
There is no bar to this Nation's holding one of its own
citizens as an enemy combatant. A citizen, no less than an
alien, can be
[[Page S7957]]
part of the supporting forces hostile to the United States,
and such a citizen, if released, would pose the same threat
of returning to the front during the ongoing conflict.
That is the Supreme Court's statement. We can and must deal with an
al-Qaida threat. We can do it properly. The administration helped to
draft almost all of this bill. The provisions which would be struck----
The PRESIDING OFFICER. The Senator's time has expired.
Mr. LEVIN. Are provisions which even the administration has helped to
draft. So I would hope we would deal with the al-Qaida threat in an
appropriate way, in a bipartisan way. The committee voted
overwhelmingly for this language.
I yield the remainder of my time.
Mr. McCAIN. I ask for the yeas and nays.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. How much time do I have remaining?
The PRESIDING OFFICER. Three seconds.
Mr. UDALL of Colorado. The Director of the FBI, the Secretary of
Defense, the Attorney General, and the Director of Intelligence have
all said let's go slow.
Pass the Udall amendment.
The PRESIDING OFFICER. All time has expired.
The question is on agreeing to the amendment.
Is there a sufficient second? There appears to be a sufficient
second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) is
necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Alaska (Ms. Murkowski).
The PRESIDING OFFICER. (Mr. Franken). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 38, nays 60, as follows:
[Rollcall Vote No. 210 Leg.]
YEAS--38
Akaka
Baucus
Bennet
Bingaman
Blumenthal
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Coons
Durbin
Feinstein
Franken
Gillibrand
Harkin
Johnson (SD)
Kerry
Kirk
Klobuchar
Lautenberg
Leahy
Menendez
Merkley
Mikulski
Murray
Nelson (FL)
Paul
Reid
Rockefeller
Sanders
Schumer
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Wyden
NAYS--60
Alexander
Ayotte
Barrasso
Blunt
Boozman
Brown (MA)
Burr
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Corker
Cornyn
Crapo
DeMint
Enzi
Graham
Grassley
Hagan
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (WI)
Kohl
Kyl
Landrieu
Lee
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Moran
Nelson (NE)
Portman
Pryor
Reed
Risch
Roberts
Rubio
Sessions
Shaheen
Shelby
Snowe
Stabenow
Thune
Toomey
Vitter
Whitehouse
Wicker
NOT VOTING--2
Begich
Murkowski
The amendment (No. 1107) was rejected.
change of vote
Mr. MENENDEZ. Mr. President, on rollcall vote 210, I voted ``nay.''
It was my intention to vote ``yea.'' Therefore, I ask unanimous consent
that I be permitted to change my vote since it will not affect the
outcome.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
(The foregoing tally has been changed to reflect the above order.)
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. McCAIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, if I could have Senator McCain's attention
as well, what we are trying to do next is to move to two amendments, if
we can. Both are next on the pending list. One is the Paul amendment
No. 1064, repeal the authorization for use of military force against
Iraq. The second one is not directly after his but follows after two
Feinstein amendments. Senator Feinstein told me she could not be here
early this afternoon. I told her if hers could be made part of a
unanimous consent agreement, that could come later because this
afternoon we have other things we can do. So the second amendment on
this list is another nongermane amendment by Senator Landrieu, No.
1115, relative to small business research grants.
What we are trying to do is work out a unanimous consent agreement.
There will be 60-vote thresholds on those two amendments. Neither one
of them, I believe, is germane. As part of that agreement, we would
also next move to approximately 40 cleared amendments which we would
then ask be passed as cleared. That would all be part of a unanimous
consent agreement we are currently drafting.
So I want to alert our colleagues----
Mr. McCAIN. For the benefit of our colleagues, could I add also the
agreement of a half hour time limit on the Paul amendment? He would
agree to that. I am sure Senator Landrieu would agree to a short time
agreement on her amendment.
Mr. LEVIN. I am sure she told me that would be OK. When we prepare
our unanimous consent agreement, we will doublecheck that.
So that is where we stand. We hope in the next few minutes to be able
to bring to the body a unanimous consent agreement. In the meantime,
unless there is someone else who seeks recognition, I would note the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. 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. COBURN. I have cleared with Senator Levin to be able to speak
about a topic but not offer an amendment. I understand we are working
on a unanimous consent agreement. I do have an amendment that at the
appropriate time hopefully will be able to be brought up, but I wish to
discuss it now. I think it is a way for us to save $1.1 billion over
the next 5 years in the Defense Department, give children of on-base
military schools a better education, help the local school districts
through Impact Aid by $12,000 per student per year, and actually do
what we are intending to do in terms of education.
We have 64 schools right now on 18 military bases within the United
States. There are 26,000 students taught by 2,300 teachers. That is 1
teacher for every 11 students. The average cost per student per year is
$51,000 in a military school--$51,000. That is 250 percent higher than
the highest cost district anywhere in the United States--2\1/2\ times.
This amendment says let's use local schools, let's help local schools
through these military bases, and let's give an exemption if we need
to, if it is not available. If we were to do that, three positive
things would happen. The first one is probably a better education.
According to the teachers, conditions are so bad that some of the
educators at base schools envy the civilian public schools off base,
which admittedly have their own challenges. ``Some of the new schools
in town make our schools look like a prison,'' said David Primer, who
uses a trailer as a classroom to teach students German at Marine Corps
headquarters in Quantico, VA. In other words, what they are looking at,
what they are doing, and for the cost of it, the value can be higher.
That is No. 1.
Second, it will help the local school districts because they will not
only get Impact Aid, but they will be given up to $12,000 per year per
student off a military base.
Then, finally, third, it will, over the next 5 years, save $220
million a year out of the military's budget that they would not be
spending. That is after the $12,000 and the Impact Aid. So it is a way
to save $1.1 billion and give a better education with better facilities
to the children of our military service bases, these 26,000 students at
16 military installations. It is a win-win-win.
My hope is we will be able to call up this amendment and make it
pending in the future.
[[Page S7958]]
I thank the Chair.
I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. 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. INHOFE. Mr. President, I had a number of amendments that I was
just going to discuss, unless the chairman is planning to speak.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. It is fine, if my colleague wishes to discuss amendments
without attempting to offer any amendments.
Mr. INHOFE. No, that is not my intention. I just want the chance to
talk about them.
Mr. LEVIN. I appreciate that. If I could ask my friend about how long
he needs?
Mr. INHOFE. Until the chairman is ready to speak.
Mr. LEVIN. That sounds good.
Mr. INHOFE. Mr. President, there are a number of amendments I think
will probably not come up, but they should. We talked about this some
time ago.
The Federal Aviation Administration has come up with a change for
their SUB-S nonscheduled carriers that is going to make them comply
with certain of the wage and hour--the crew rest requirements. Here is
the problem we have. About 95 percent of the passengers who go into--
this is our troops--Afghanistan today are carried by nonscheduled
airlines as opposed to military and about 40 percent of the cargo that
is going in.
Now, the problem we have is, with the 15-hour restriction on crew
rest, they are unable to bring them in, leave them there, and then go
back to their point of origin--someplace in Germany--without exceeding
that 15-hour limitation. The only choice they would have is to leave
them in Afghanistan, which they cannot do because that is a war zone.
So I want to have a way of working this out. We want to pursue this
because the carriers understand what the problem is. These are the
nonscheduled carriers. So it is something I think is very significant,
and we need to be addressing it.
Another issue is, JIEDDO is the group that is the Joint Improvised
Explosive Device Defeat Organization. They have done great work in
their technology in stopping the various technologies over there, the
IEDs that have been killing and causing damage to our troops and to our
allies. The problem we have is it is set up just for Iraq and
Afghanistan. When everything is through in Iraq and Afghanistan, that
might put them in a position where they would cease to exist, and yet
the technology and what they are doing right now is useful in the
United States even though it is not designed by the legislation to do
that. I believe this is something that can be corrected.
Another area that needs to be addressed--and I have some ideas, and
this is one I would like to get in the queue; it is not pending at this
time, so there is a little bit of a problem there, but it might be
something that could be addressed in conference--is the military bases
should be able to benefit from the production of domestic energy and
resources on those bases.
In the case of the McAlester depot, they could horizontally drill and
come out with some pretty good royalties that would otherwise go to the
general fund or go to the State of Oklahoma. It is kind of divided in
that way. Well, the problem is there is a cost that is incurred by the
military operation. We need to have something that is going to allow
them to receive the benefits of the production that takes place under
the military installations through horizontal drilling.
I think everyone is for doing this. But the problem is, it could be
scored in that if we took all of the existing production, then that
would be money that would not otherwise go to our general fund. So what
I would propose is to have this in the form of an amendment, and then
change it to say: Any operation from this point forward--that money,
those royalties, could go back to the military base because what we all
agree on is we do not want our bases to have to foot the bill for these
things that are taking place.
I have an amendment, No. 1101, that would stop the transfer of the
MC-12W ISR aircraft from the Air Force to the Army. I think it is
something that is pretty significant. We are talking about intelligence
and reconnaissance. The MC-12W is a King Air or a C-12. Right now it is
under the jurisdiction of the Air Force, and this bill would change it
from the Air Force to the Army. Well, neither the Air Force nor the
Army wants to make that change, and there ought to be a way to support
that.
There are several other amendments that will be coming forward that
will be offered. One I feel very strongly about has to do with the sale
of the F-16C/D models to Taiwan.
Then, lastly--and I feel very strongly about this--back in 2007, we
changed the commands to create AFRICOM. AFRICOM, prior to this time,
was part of three commands: Central Command, Pacific Command, and
European Command. Well, it is so significant in terms of national
security, in terms of our economy and the activity that is going on
there right now.
For example, ever since 9/11, we have been working with the Africans
to help develop in Africa our programs--our 1206 programs, our train-
and-equip programs. More recently, we have been involved in the LRA
issue in poor countries in Africa.
Well, there is an effort now--almost any Member I guess would feel
the same way--to take that command that is now in Stuttgart, Germany,
and put it in Texas or Florida or someplace in the United States. I
think that would be something that would inure to the benefit maybe of
a Member, a Senator, but, on the other hand, it creates certain
problems.
When the African Command came into effect--and I think that is one of
the few issues that I, probably, am more familiar with than most other
Members--the obvious place would have been to have that command located
in Africa itself. My choice at that time was Ethiopia. I think there is
a lot of jurisdiction for that. But they said because of the political
problem--if we go back historically in Africa, and we look at the
colonialism, there is this thing embedded back in the minds of people
in Africa, thinking that having a command, a U.S. command located in
Africa, it might revert back to some of the colonial days. That is the
concern people had.
So, anyway, I thought it would have been better to have it in Africa
itself. But because of this--and, by the way, I have talked to many of
the Presidents of countries over there--President Kikwete in Tanzania
and President Kagame in Rwanda and President Kabila in the Congo, and
several of the others--and they say: Yes, you are right. It would be
better to have that command located somewhere in Africa, but we have
the political problem with the people who would think that is a move
back toward colonialism. So it is a complicated problem.
However, I do believe all of the generals pretty much believe that
AFRICOM should remain where it is. At least Stuttgart is in the same
time zone. It is easier to transport people and equipment back and
forth. So I would support defeating any of the amendments that would
change that situation.
With that, Mr. President, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. KIRK. 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. KIRK. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Mr. FRANKEN. 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. FRANKEN. Mr. President, I have filed two amendments that I will
offer at some time, and I will talk about them now.
I am strongly opposed to the detention provisions in the Defense bill
before us. I am disappointed that Senator Udall's amendment did not
pass. Taken together, sections 1031 and 1032 would fundamentally alter
how we investigate, arrest, and detain individuals suspected of
terrorism.
Before I get into the details of why I oppose these detainee
provisions, I think it is important to recognize that September 11
irrevocably and unalterably changed our lives. I was in Minnesota on
that terrible day. A number of Minnesotans died in the towers, in the
air, and at the Pentagon. In New York, in the months following the
attacks, I attended the funerals of brave firefighters and law
enforcement officers who sacrificed their lives to help rescue folks
from the towers. I cannot shake those images from my mind, and I am
guessing, like many of you, I will never be able to erase the horrors
of September 11 from my mind.
September 11 reminded us that we are vulnerable and that we are
fighting an unusual enemy. It forced us to reassess our approach to
counterterrorism, and it forced us to redouble our efforts to track
down the people who aim to do us harm. But it is exactly in these
difficult moments, in these periods of war when our country is under
attack, that we must be doubly vigilant about projecting what makes us
Americans.
The Founders who drafted our Constitution and Bill of Rights were
careful to draft a Constitution of limited powers--one that would
protect Americans' freedom and liberty at all times, both in war and in
peace.
Today, as we contemplate fundamentally altering the criminal justice
system our Founders developed in order to create a military detention
system--a system that would permit the indefinite detention of U.S.
citizens and lawful residents of the United States for acts committed
in the United States--I think it is important to pause and remember
some of the mistakes this country has made when we have been fearful of
enemy attack.
Most notably, we made a grave and indefensible mistake during World
War II when President Roosevelt ordered the incarceration of more than
110,000 people of Japanese origin, as well as approximately 11,000
German Americans and 3,000 Italian Americans. There is a memorial right
across the street from the Capitol that should remind us all of this
terrible mistake.
In 1971, President Richard Nixon signed into law the Nondetention Act
to make sure the U.S. Government would never again subject any
Americans to the unnecessary and unjustifiable imprisonment that so
many Japanese Americans, German Americans, and Italian Americans had to
endure.
It wasn't until 1988--46 years after the internment--that President
Reagan signed the Civil Liberties Act, that the government formally
acknowledged and apologized for the grave injustice that was done to
citizens and permanent residents of Japanese ancestry.
These were dark periods in American history, and it is easy standing
here today to think that is all behind us, that it is a distant memory.
But I fear that the detention provisions in this bill forget the
lessons we learned from the mistakes we made when we interned thousands
of innocent Japanese, Germans, and Italians or when we destroyed the
lives of supposed Communist sympathizers with nary a shred of evidence
of guilt.
In the weeks following September 11, the Justice Department made
extraordinary use of its powers to arrest and detain individuals. We
arrested hundreds of people for alleged immigration violations and
dozens more under a material witness statute. None of these individuals
were charged with a crime. All of this happened without the military
detention scheme envisioned in this bill. This was also a mistake and
one that should not be repeated.
But if we pass the Defense authorization bill with section 1031,
Congress
[[Page S7961]]
will, according to the arguments that were made on the floor last week,
for the first time in 60 years, authorize the indefinite detention of
U.S. citizens without charge or trial. This would be the first time
Congress has deviated from President Nixon's Nondetention Act. What we
are talking about is that Americans could be subjected to life
imprisonment--think about that for just a moment--life imprisonment
without ever being charged, tried, or convicted of a crime, without
ever having an opportunity to prove your innocence to a judge and a
jury of your peers, and without the government ever having to prove
your guilt beyond a reasonable doubt. I believe that denigrates the
very foundation of this country. It denigrates the Bill of Rights and
what our Founders intended when they created a civilian, nonmilitary
justice system for trying and punishing people for crimes committed on
U.S. soil. Our Founders were fearful of the military, and they
purposely created a system of checks and balances to ensure that we did
not become a country under military rule. If this bill passes, the
Supreme Court should find these detention provisions unconstitutional.
Let's put that aside for now and focus on what we are currently doing
right to fight terrorism. We are doing a heck of a lot of great things
when it comes to national security. I think we actually need to
remember that, and we need to remember that we are winning the fight
against terrorists without trampling on our constitutional rights.
Just last May, under the tremendous leadership of President Obama and
Secretary Panetta, head of the CIA, we hunted down and killed Osama bin
Laden. A few days ago, the Washington Post reported that the al-Qaida
core has contracted and weakened since then, and its leadership ranks
have been reduced to two members. To be sure, that does not mean that
al-Qaida is no longer a threat, particularly coming from groups outside
the core, but it is a remarkable achievement. Our current
counterterrorism strategy is not broken. Indeed, just the opposite is
true. We are winning the war against al-Qaida. There is no indication--
none--that we need to fundamentally alter our approach to locating
terrorists here or overseas.
Under Director Mueller's leadership, the FBI has turned itself inside
out, and over the last 10 years, since September 11, it has become an
intelligence-gathering counterterrorism machine. I can't say I have
always agreed with 100 percent of the FBI's tactics, and there are
times when I worry they may be overstepping, but make no mistake, if
our goal is hunting down the bad guys, the FBI knows what they are
doing. There is no reason to think we need to change course and create
an entirely new system that would completely supplant the resources and
expertise of the FBI.
For those who would argue that we need to shift these people out of
our civilian criminal justice system and away from article III courts
and into a military system, I have to ask why. Where is the sign that
we have a problem that needs fixing? There is no reason to think we
need to create an entirely different framework for a problem we have
been dealing with for centuries. This enemy is not so different that we
need to upend our criminal justice system.
I think this is a solution in search of a problem. There is no need
to go down this path. We should be focused on doing what is best for
this Nation and what is best for protecting Americans. We should be
working together on this, not coming up with additional ways to divide
and polarize this country. That is why, when the Secretary of Defense,
the Director of National Intelligence, and the Director of the FBI
express serious concerns about these provisions and when the
President's top counterterrorism adviser, John Brennan, complains that
these provisions will make it even harder for them to locate and detain
terrorists in the United States and overseas, we should probably listen
to them.
Section 1031 runs the risk of authorizing the indefinite detention
without trial of Americans. Section 1032 is unnecessary and complicates
our counterterrorism policy. They are bad policy.
In short, these provisions should not be passed. They are not well-
considered terrorism policy, and they would authorize poorly understood
and deeply troubling policies. That is why I have put forward
amendments that would strike each of these two sections. That is why I
cosponsored Senator Mark Udall's amendment, the cousin of our Presiding
Officer. That is why I cosponsored his amendment, and I would be happy
to cosponsor amendments from our Presiding Officer as well, but that is
why I cosponsored Senator Mark Udall's amendment that would have sent
these matters back to the administration and the relevant committees of
Congress for the full consideration, discussion, and debate they
deserve. Our national security and our freedom require nothing less.
I thank the Chair, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 1125 and 1126
Mrs. FEINSTEIN. Mr. President, if I understand the procedure, it is
now appropriate for me to speak on my pending amendments. I will not
offer my two amendments for a vote now, but I would like to take the
opportunity to speak about them at this time. I trust that is in order.
The PRESIDING OFFICER. The Senator is recognized.
Mrs. FEINSTEIN. Mr. President, I rise to express my continued
opposition to the detention provisions in the Defense authorization
bill.
I was on the Intelligence Committee prior to 9/11, and I have watched
the transition since that time. I have watched America--to use a
phrase--get its act together, and I am proud of where this country
stands at this time with the procedures, the interrogation techniques,
the custody issues, and the prosecutions that have been successful in
the last 10 years. In my judgment, this country is safer now than we
were before 9/11.
Before the recess, I laid out my views on why the detainee provisions
in the Armed Services bill were detrimental to national security
because they reduce the President's flexibility to make decisions on
how best to detain and potentially interrogate and prosecute suspected
terrorists. Today, I would like to speak to the two amendments I have
filed, and I will describe them in a moment.
Let me also reference two letters in opposition to the detention
provisions in the underlying bill: one written to me from the Director
of National Intelligence, James Clapper, and the second written
yesterday to Chairman Levin from Bob Mueller, the Director of the FBI.
These letters are in addition to the Statement of Administrative
Policy, which includes a veto threat to the detention provisions and
the letter from the Secretary of Defense, Leon Panetta, both of which
were inserted into the Record before the recess.
So I note that the provisions in the bill we are considering are
opposed by the White House, by the Secretary of Defense, the Director
of National Intelligence, and the Director of the FBI. These top
national security officials are all concerned that the bill reduces the
administration's flexibility to combat terrorism, both at home and
abroad, and I would agree with that.
I will ask at the appropriate time for a vote on amendment No. 1125,
which will limit mandatory military custody to terrorists captured
outside the United States. This is a very simple amendment that only
adds one word, ``abroad,'' to section 1032 of the underlying bill.
Currently, this bill creates a presumption that members or parts of
al-Qaida or ``associated forces'' will be held in the military
detention system, and I disagree with that approach. I believe the
President should have the flexibility to hold captured terrorists in
the military or the criminal justice systems, and the decision of which
system to use should be made based on the individual facts and evidence
of each case.
Putting aside that general view, I am very concerned that creating a
presumption for military custody--which this bill does--and requiring a
cumbersome waiver process will jeopardize counterterrorism cases and
intelligence gathering. This concern is not
[[Page S7962]]
only mine, it has been raised by the White House, by Secretary Panetta,
and very directly by Director Mueller in his letter.
So my amendment would clarify the situation and remove the confusion
and delay that I believe this bill will cause. My amendment will make
clear that under section 1032 of this bill the U.S. Armed Forces are
only required to hold a suspected terrorist in military custody when
that individual is captured abroad. All that amendment does is add that
one word, ``abroad,'' to make clear that the military will not be
roaming our streets looking for suspected terrorists. My amendment does
not remove the President's ability to use the option of military
detention or prosecution inside the United States.
My amendment makes clear that inside the United States there is no
presumption for military custody. Inside the United States, a Customs
agent or local law enforcement officer could follow his or her standard
process and turn a suspected terrorist over to the FBI for handling
without having to worry about whether a waiver may apply or whether it
is required.
The FBI has changed. There are 56 field offices, there is a national
security branch, and it is staffed with thousands of agents inside the
United States. The FBI is well equipped to handle a terrorist inside
the United States, but the Department of Defense is not. Listen to what
Director Mueller wrote. He notes, and I quote:
The legislation introduces a substantial element of
uncertainty as to what procedures are to be followed at
perhaps the most critical time in the development of an
investigation. . . .
Now, I understand that the chairman and ranking member of the Armed
Services Committee have included a waiver and have required that the
administration issue procedures to lay out how the mandatory military
custody provision will be carried out. But the administration is
telling us, with a unanimous voice from all its senior counterterrorism
officials, that this provision is harmful and unnecessary. But we say
Congress knows better. I don't believe we do know better, and I think
not to listen to those who are really responsible to carry out these
missions in what is a very difficult field today, based on a careful
assessment of national security, is a mistake.
The administration has threatened to veto this bill and said it
``strongly objects to the military custody provision of section 1032''
in its official Statement of Administration Policy because it would,
and I quote, ``tie the hands of our intelligence and law enforcement
professionals.'' So here are the experts saying: Don't do this, it will
tie our hands; and here is the political branch saying: We know better.
If something had gone wrong, if there had been mistakes, if there
hadn't been over 400 cases tried successfully in civilian Federal
criminal courts in the last 10 years and 6 cases and a muffed history
of military prosecution in these cases, I might agree. But the march is
on here in Congress: militarize this thing from stem to stern. And I
disagree with that. When something isn't broke, don't fix it.
Mr. President, there are rapid reaction teams part of the HIG--or
High-Value Interrogation Group--who can deploy on a moment's notice,
who can rapidly assess a suspect, who can carry out a proper and
effective interrogation, and the executive branch then has an
opportunity to decide whether the facts and the evidence really are
best suited for a Federal criminal prosecution in Article III courts,
or the facts and the evidence are really best suited for a military
commission prosecution.
This flexibility is what we are taking away from the executive branch
under the provisions in this bill. It was well practiced during the
Bush Presidency, and it has been well practiced by the Obama
Presidency. Virtually every national security professional connected to
the handling of terrorists and the intelligence obtained from them says
to change it would be a mistake. So I believe the amendment I am
offering--limiting mandatory military custody to detainees outside the
United States--is a major improvement to the underlying bill. It
removes the uncertainty that will occur if military custody is required
for detainees captured inside the United States.
Frankly, I would prefer that the provision--section 1032--be struck
in its entirety, as I don't believe we should be creating a presumption
of military custody over the law enforcement route. That is not what
this country is about. There is the posse comitatus law on the books.
The military isn't supposed be roaming the streets of the United
States. But if there is going to be this type of provision, it should
at least do no harm to our ability to detain, interrogate, and
prosecute terrorists. So I ask for my colleagues' support on this
amendment.
While I am on the Senate floor, I would like to speak briefly to the
second amendment I have filed and on which I also seek a vote, since
the Udall amendment has failed; that is, amendment No. 1126, which
would prohibit U.S. citizens from being held in indefinite detention
without trial or charge.
As Members know, section 1031 of the underlying bill updates and
restates the authorization for the use of military force that was
passed on September 18, 2001, 10 years ago, 1 week after the attacks of
9/11. The provision updates the authority to detain terrorists who seek
to harm the United States, an authority that I believe is consistent
with the laws of armed conflict. However, I strongly believe that the
U.S. Government should not have the ability to lock away its citizens
for years, and perhaps decades, without charging them and providing a
heightened level of due process. We shouldn't pick up citizens and
incarcerate them for 10 or 15 or 20 years or until hostilities end--and
no one knows when they will end--without giving them due process of
law.
So my amendment simply adds the following language to section 1031 of
the underlying bill:
The authority described in this section for the Armed
Forces of the United States to detain a person does not
include the authority to detain a citizen of the United
States without trial until the end of hostilities.
It is hard for me to understand how any Member of this body wouldn't
vote for this amendment because, without it, Congress is essentially
authorizing the indefinite imprisonment of American citizens without
charge or trial.
As I said on the Senate floor previously, 40 years ago Congress
passed the Non-Detention Act of 1971 that expressed the will of
Congress and the President that America would never repeat the
Japanese-American internment experience--something that I witnessed as
a child up close and personal--and would never subject any other
American to indefinite detention without charge or trial. In the 40
years since President Richard Nixon signed the Non-Detention Act into
law, Congress has never made an exception to it.
A key issue in this bill is that this is the Congress making an
explicit exception that has never been made before by the Congress, and
what we are saying is, it is OK to detain an American citizen without
trial, ad infinitum. I don't think it is. I don't think that is what
our Constitution is all about. Yet the provision in this bill would do
just that.
I ask unanimous consent to have printed in the Record a column
published yesterday in the San Jose Mercury News of California from
Floyd Mori.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From MercuryNews.com, Nov. 27, 2011]
S. Floyd Mori: Internment Specter Raises Ugly Head in Forgetful U.S.
Senate
(By S. Floyd Mori)
The oldest generation of Japanese-Americans, those whose
earliest memories were of their lives and families being
upended by internment without charge or trial in
concentration camps during World War II, at least take
comfort in the hope that America is now committed to never
inflicting that experience on any other group of Americans or
immigrants. But our trust in that commitment is being shaken
by a bill poised to go to the Senate floor that could once
again authorize indefinite detention without charge of
American citizens and others now living peacefully in our
country.
We have reason to believe in the commitment of Americans to
say never again to indefinite detention. In 1988, the Civil
Liberties Act officially declared that the Japanese-American
internment had been a ``grave injustice'' that had been
``carried out without adequate security reasons.'' In other
words, the indefinite detention of Japanese-Americans during
World War II was not only wrong, but unnecessary.
[[Page S7963]]
A bill on the Senate floor raises the question of whether
the Senate has forgotten our history. S. 1253, the National
Defense Authorization Act, has a provision in it,
unfortunately drafted by Sens. Carl Levin, D-Mich., and John
McCain, R-Ariz., that would let any U.S. president use the
military to arrest and imprison without charge or trial
anyone suspected of having any relationship with a terrorist
organization. Although Sen. Dianne Feinstein, D-Calif., and
more than a dozen of her colleagues are bravely calling for a
halt to a damaging bill, they face significant opposition.
The troubling provision, Section 1031, would let the
military lock up both Americans and noncitizens in the 50
states. There would be no charges, no trial, no proof beyond
a reasonable doubt. All that would be required would be
suspicion.
Although the details of the indefinite detentions of
Japanese-Americans during World War II and the proposed
indefinite detentions of terrorism suspects may differ, the
principle remains the same: Indefinite detentions based on
fear-driven and unlawfully substantiated national security
grounds, where individuals are neither duly charged nor
fairly tried, violate the essence of U.S. law and the most
fundamental values upon which this country was built.
As the measures to indefinitely detain Japanese-Americans
during World War II have been deemed a colossal wrong, the
same should be true of modern indefinite detention of
terrorism suspects. Our criminal justice system is more than
equipped to ensure justice and security in terrorism cases,
and we certainly should not design new systems to resurrect
and codify tragic and illegitimate policies of the past.
As our history shows, acting on fear in these situations
can lead to unnecessary and unfruitful sacrifices of the most
basic of American values. In the 10 years since the 9/11
attacks, Congress has shown admirable restraint in not
enacting indefinite detention without charge or trial
legislation. Now with the president seeking to end the
current wars, the Senate must avoid repeating the mistakes of
the past and protect American values before they are
compromised. We cannot let fear overshadow our commitment to
our most basic American values.
The Senate can show that it has not forgotten the lessons
of the Japanese-American internment. It should pass an
amendment that has been offered by Sen. Mark Udall, D-Colo.,
that would remove Section 1031 from the act. This Senate
should not stain that great body by bringing to the floor any
detention provision that would surely be looked upon with
shame and regret by future generations.
Mrs. FEINSTEIN. I know Mr. Mori well. He is the national executive
director of the Japanese American Citizens League, which is the oldest
and largest Asian-American civil rights organization in the United
States. The Japanese American Citizens League--or JACL as we would
say--has been an active voice on the wrongful internment of Japanese
Americans during World War II, and I believe it is worth listening to
what they have observed from that painful history.
The administration has threatened to veto this bill and said the
following in its official Statement of Administration Policy:
After a decade of settled jurisprudence on detention
authority, Congress must be careful not to open a whole
series of legal questions that will distract from our efforts
to protect the country.
Yet by allowing the military to detain U.S. citizens indefinitely,
Congress would be opening a great number of serious legal questions, in
my judgment.
This amendment would restore the language that was in an earlier
version of this bill that would have established a similar ban on the
indefinite detention of U.S. citizens. It is also consistent with the
way we have conducted the war on terror over the past 10 years. In
cases where the United States has detained American citizens, including
John Walker Lindh and Jose Padilla, they have eventually been
transitioned from indefinite detention to the criminal justice system,
and both have been convicted and are serving long prison sentences.
John Walker Lindh pleaded guilty to terrorism charges and was given a
20-year sentence, and Jose Padilla was convicted of terrorism
conspiracy and sentenced to a 17-year prison sentence.
So I believe this amendment is consistent with past practice and with
traditional U.S. values of due process. We are not a nation that locks
up its citizens without charge, prosecution, and conviction. My
amendment reflects that view, I believe in that view, and I hope this
body does as well. So I urge its adoption.
Mr. President, in conclusion, I ask my colleagues' support on these
two amendments because I believe they will improve the legislation.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Durbin). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Montana.
Mr. TESTER. 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. TESTER. Thank you, Mr. President. It is good to see the Senator
in the chair.
I rise to speak on amendment No. 1145. I cannot call up this
amendment at this point in time, but hopefully at some time during this
debate we can deal with this issue of foreign base closures, which is
what amendment No. 1145 does.
I have offered--along with my colleague from Texas, Senator
Hutchison--to establish an overseas basing commission. We are joined on
this amendment by Senators Conrad, Wyden, and Sanders.
This commission would be charged with saving taxpayer money by
identifying and reevaluating our overseas military base structure and
investments. It is not a new discussion. This has been done before. In
Washington, colleagues from both sides of the aisle have long advocated
for issues similar to this one.
In Montana, Senator Mike Mansfield--a personal hero of mine and one
of the truest statesmen of this body--advocated fiercely throughout his
public service for a more commonsense approach to our overseas military
commitment. Senator Mansfield's approach balanced our national security
interests and decisions with decisions and investments that made sense
fiscally. The time could not be more appropriate to renew this call.
Given our budget outlook, we have a responsibility to exhaustively look
for savings across our government. We need to be smart and we need to
work together.
It makes a lot of sense to me that cutting overseas military
construction projects that have minimal negative impacts on our
national security and military readiness is the right idea. We know
there is a significant higher cost associated with maintaining
facilities and forces overseas, particularly in Europe, than here in
the United States. We also know we need a more complete picture of the
cost, the benefits, and the savings associated with overseas basing as
we make tough budgetary decisions. Given our military's advanced
capabilities, it is time for some responsible decisions about how to
best secure our country while saving American taxpayers every penny we
possibly can.
As Montana families examine their bottom line and as the country
works to cut spending, it is past time to give our outdated military
bases and installations a closer look. An overseas basing commission
would independently address these issues firsthand and ensure that
military construction spending and operational maintenance spending
match our capabilities and our national security strategy.
As we move forward, I hope we will do so in the spirit of Senator
Mansfield by working together and by making commonsense decisions that
keep us both safe and spend our taxpayer dollars more wisely.
As I said when I opened these remarks, I think this is a no-brainer.
We need to take a step back, look at the money we are spending on
overseas bases, make sure we are getting the best bang for the buck and
make sure it meets our national security needs. With a lot of these
post-World War II installations, they can be shut down, we can save
some money, and it is a win-win situation for everybody.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. 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. LEVIN. Mr. President, I was listening in the cloakroom to Senator
Tester's comments about his amendment, and I wish to tell everyone how
[[Page S7964]]
right on point he is. I am focusing on overseas bases and the need to
close some of those bases. We have another Defense bill coming up
fairly soon, if we cannot get something done on this bill--and I hope
we can--whether it is the sense of the Senate or otherwise to put our
focus there, because we need to reduce our presence particularly in
those bases, I believe, in Europe, where we simply no longer need those
bases and cannot afford to maintain them. But whether we can get a
commission done is a different issue because that could actually slow
down the process, to appoint a BRAC-type commission.
I just wished to comment while he was still on the floor that I
believe he is right. He is focused on that which is critically
important for not just the Armed Services Committee but for this Senate
to look at, which is to look at the huge number of overseas facilities
we have and the fact that there are many we no longer need and we have
to look there for some significant savings. I just wished to commend
the Senator from Montana.
The PRESIDING OFFICER. The Senator from Montana.
Mr. TESTER. Mr. President, I thank Chairman Levin for his comments.
As we look for opportunities to save money, as we look for
opportunities to focus in on the war on terror, I think our time has
come to take a hard look at our overseas basing and do what, quite
frankly, will enhance our opportunities to fight the war on terror
while saving the taxpayers dollars over the short term and the long
haul.
I thank Chairman Levin for his comments.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. ISAKSON. Mr. President, I wish to address the Senate as if in
morning business for up to 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Amendment No. 1064
Mr. PAUL. Mr. President, I rise in support of bringing the Iraq war
to a formal end. President Obama has ordered troops home by January 1.
We should rejoice at the conclusion of the war. No matter whether one
favored the Iraq war or not, there is a glimmer of hope for democracy
to now exist in the Middle East in Iraq.
War is a hellish business and never to be desired. As the famous POW
and war hero John McCain once said: ``War is wretched beyond
description, and only a fool or a fraud could sentimentalize its cruel
reality.''
This vote is more than symbolism. This vote is about the separation
of powers. It is about whether Congress should have the power to
declare war. The Constitution vested that power in Congress, and it was
very important. Our Founding Fathers did not want all the power to
gravitate to the Executive. They feared very much a King, and so they
limited the power of the Executive.
When Franklin walked out of the Constitutional Convention, a woman
asked him: What have you brought us? Was it going to be a republic, a
democracy, a monarchy?
He said: A republic, if you can keep it.
In order to keep a republic, we have to have checks and balances. But
we have to obey the rule of law.
Madison wrote:
The Constitution supposes, what the History of all
Governments demonstrates, that the Executive is the branch of
power most interested in war, and most prone to it. The
Constitution has, therefore, with studied care, vested the
[power] to declare war in [Congress].
When we authorize the war in Iraq, we give the President the power to
go to war, and the Constitution gives the power to the President to
execute the war. All the infinite decisions that are made in war--most
of them are made by the executive branch. But the power to declare war
is Congress's. This division was given to make there be a division of
powers, a separation of powers, to allow there to be a reluctance to go
to war.
We have this vote now to try to reclaim the authority.
If we do not reclaim the authority to declare war or to authorize
war, it will mean our kids or our grandkids or our great-grandkids
could be sent to a war in Iraq with no debate, with no vote of
Congress. We have been at war for nearly 10 years in Iraq. We are
coming home. And we should rejoice at the war's end. But we need to
reclaim that authority. If we leave an open-ended authority out there
that says to the President--or any President; not this particular
President, it could be any President--if we leave that authority out
there, we basically abdicate our duty, we abdicate the role of
Congress. There are supposed to be checks and balances between Congress
and the President.
So what I am asking is that Congress today reclaim the authority to
declare war and at the same time we celebrate that this is an end to
something that no one should desire.
As Senator McCain has pointed out, as many have pointed out, Dwight
Eisenhower pointed out the same thing: If you want to know the hellish
of war, talk to someone who has been to war.
But that is why this power is too important to be given to one person
and to be left in the hands of one person--a President of either party.
So the vote today will be about reclaiming that authority, reclaiming
the authority of Congress to declare war. I would recommend that we
have a vote and that the vote today be in favor of deauthorizing the
war in Iraq.
It is not just I who have pointed this out. The first President of
the United States wrote:
The Constitution vests the power of declaring war in
Congress; therefore, no offensive expedition of importance
can be undertaken until after they shall have deliberated
upon the subject and authorized such a measure.
This has been recognized by Presidents from the beginning of the
history
[[Page S7969]]
of our country. The problem is that if we do not give it up, that power
is left out there, and it is a power lost to Congress.
Frank Chodorov wrote:
All wars come to an end, at least temporarily. But the
authority acquired by the states hangs on; political power
never abdicates.
This is a time to reclaim that power. It is an important
constitutional question. I hope those Senators will consider this
seriously and consider a vote to reclaim the authority to declare war.
I reserve the reminder of my time and temporarily yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I would like to first of all thank the
Senator from Kentucky for quoting me. It is always a very pleasant
experience as long as it is something that one would admire. On several
occasions, I have been quoted in ways that I wish I had observed what
my old friend Congressman Morris Udall used to say is the politician's
prayer: May the words that I utter today be tender and sweet because
tomorrow I may have to eat them. So I want to thank the Senator from
Kentucky for his kind words.
I also want to praise the Senator from Kentucky, who is a person who
has come here with a firm conviction that he not only has principles
but he intends to act on those principles in as impactful a way as
possible and represent the people of Kentucky in a very activist
fashion. He has my admiration. However, I would rise in opposition to
the amendment.
I would like to read from a letter that was sent to the chairman and
to me from the Chairman of the Joint Chiefs of Staff and the Secretary
of Defense.
This week, as you consider the National Defense
Authorization Act, the Department of Defense would like to
respond to your request for views on the amendment offered by
Senator Paul which would repeal the Authorization for the Use
of Military Force in Iraq. U.S. Forces are now in the final
stages of coming home by the end of 2011. We are moving to a
new phase in the relationship between our two countries and
equal partnership based on mutual interests and mutual
respect.
While amendment No. 1064 echoes the President's policy, we
cannot support the amendment as drafted. Outright and
complete repeal of the AUMF-I, which is the Authorization for
the Use of Military Force in Iraq, withdraws all
Congressional support for any limited windup activities
normally associated with ending a war. Thank you very much
for your continued efforts.
The Department of Defense sent over an unclassified response that was
approved by several members of the Pentagon. It says: Although we are
implementing the U.S.-Iraqi security agreement in full and pulling out
all of our forces by the end of the year, we still have a limited
number of DOD personnel under the Chief of Mission Authority to staff
the Office of Security Cooperation-Iraq. Because there may be elements
that would choose this time of transition to attempt to do harm to
these personnel, it is essential that the Department of Defense retain
the authority and flexibility to respond to such threats. The AUMF-I
provides these authorities. The administration has worked closely with
Congress in circumstances where it has been necessary to rely on the
AUMF, and it would continue to do so should the need arise.
In other words, and unfortunately, Iraq remains a dangerous place. We
will have the largest contingent of Americans as part of the embassy
there as we withdraw our combat troops. Some 16,000 Americans will man
our embassy and consulates in Iraq, and unfortunately there are great
signs of instability in Iraq. Al-Sadr has said that any remaining
American troops will be a target. The Iranians continue to encourage
attacks on Americans. There are significant divisions within the
country which are beginning to widen, such as Sunni-Shia, the area
around Kirkuk, increasing Iranian influence in the country.
I will refrain from addressing the deep concerns I had before the
agreement to completely withdraw took place. I will leave that out of
this discussion because I feel the decision that was clearly made not
to keep a residual force in the country, which was made by this
administration and which is the subject for debate on another day, has
placed the remaining Americans in significant jeopardy. As I say, that
is 16,000 Americans to carry out the postwar commitments we have made
to Iraq to help them rebuild their country after many years of war and
bloodshed.
I certainly understand the aim of the Senator from Kentucky. The
President campaigned for President of the United States committing to
withdraw all of our troops from Iraq. He is now achieving that goal.
But I think it would be very serious to revoke all authority that we
might have in order to respond to possible unrest and disruption within
the country that might require the presence, at least on some level or
another, of American troops to safeguard those 16,000 Americans who
will be remaining in Iraq when our troops withdraw. So I argue that the
amendment be defeated.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I, too, will oppose the Paul amendment for
the repeal of the authorization for the use of military force in Iraq
for a number of reasons, but I think mainly there are just too many
unknown, uncertain consequences of repealing this authority, including
the need to protect our troops. I am unwilling to take this risk during
the critical transition period and not knowing precisely what will
happen after that transition either.
By the way, I take this position as someone who opposed the use of
military force in Iraq to begin with. Back in October 2002 when
Congress voted on the authorization to use military force in Iraq, I
did not support it. I thought it was a mistake to do that and offered
an alternative resolution that would have authorized the use of force
if the United Nations Security Council supported that use of force. So
I take a position here opposing the repeal of the authorization
although I opposed the authorization itself in the first instance. It
is an unusual position to be in. I want to explain why it is that I
oppose the repeal of this authorization.
First, the drawdown appears to be on track to be completed by
December 31, but there can always be unforeseen circumstances that
could delay that date. There is no provision in this bill for the
possibility of an extension or a modification of that date. I would be
reluctant to see it modified or extended. I must say that I do not want
to preclude the possibility by ending something in advance--ending an
authorization in advance of circumstances arising that might require
for days, weeks, months the extension or modification of the current
decision to withdraw our forces by December 31.
Second, we simply do not know the consequences of repealing the
authorization. Let me give a few examples. What about ongoing lawsuits
in U.S. courts arising from actions by U.S. personnel that were
authorized under this authorization for the use of military force?
Would repeal of the authorization for the use of force have an effect?
It is unknown to me. I don't know how many lawsuits there are. But what
is the impact on this? That is something which surely we should want to
know.
By the way, we authorized the use of force in the first gulf war. We
did not repeal that authorization. Technically, that authorization
continues. It has done no harm that I can see.
Third, the Paul amendment raises issues for our detention authority
in Iraq. This is not an abstract concern. Currently, the administration
is in the process of deciding how to deal with one high-value detainee
in U.S. custody whose name is Ali Mussa Daqduq. He is suspected of
having organized a 2007 kidnapping in Iraq that resulted in the deaths
of five U.S. servicemembers. He is also tied to Hezbollah.
The United States is relying on the authority of the AUMF--the
authorization for the use of military force in Iraq--to continue to
detain Daqduq. U.S. officials are still in discussions with the
Government of Iraq over the ultimate disposition of Daqduq, including
possibly releasing him to U.S. custody either in Iraq or somewhere
else.
Repeal of the AUMF could limit the administration's options for
dealing with Daqduq after January of 2012. Would it limit those
options? We don't know.
Should we pass something as dramatic as a repeal of an authorization
at this time without knowing what the consequences are in the real
world to our interests? I don't think we can
[[Page S7970]]
take that chance, so I would oppose the amendment of the Senator from
Kentucky.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I would like to rise in support of the
statements made by Senators McCain and Levin.
I do not have that good a feeling about Iraq, quite frankly. I am not
very confident at all that the worst is behind us. I am hopeful that we
can withdraw our troops and that nothing bad will happen in Iraq, but,
as Senator Levin just described, the implications of repealing the
authorization to use military force are wide, varied, and uncertain.
What do you get by repealing this? You can go back home and say you
did something that--I do not know what you get. I mean, I really do
not. I do not know what we gain as a nation by taking the contingencies
of using military force off the table as we try to wind down.
I just don't see the upside, quite frankly. I know the reality of
what our troops face and why the Department of Defense would want to
continue to have this authorization until we get Iraq behind us. At the
end of the day, 4,400 people plus have lost their lives, thousands have
been wounded and maimed--not counting the Iraqis who have lost their
lives and have been wounded and maimed trying to create order out of
chaos.
As we move forward as a body, I don't see the upside to those who are
doing the fighting and who have to deal with complications of this
long, protracted war by us repealing the authorization at a time when
it may be necessary to have it in place. If there is any doubt in your
mind about what Senators Levin and McCain say and what the Department
of Defense says about the need for this to be continued, I ask you to
give the benefit of the doubt to the DOD. You don't have to; I just
think it is a wise thing to do because what we gain by repealing it--I
am not sure what that is in any real sense.
By having the authorization in place for a while longer, I understand
how that could help those who are fighting in Iraq and the follow-on
needs that come as we transition. I ask the body to be cautious, and if
you have any doubt that Senator McCain's or Senator Levin's concerns
are real, I think now is the time to defer to the Department of Defense
and give them the tools they need to finish the operations in Iraq.
I will close with this one thought. The vacuum created by the fact
that we will not have any troops in 2012 can be filled in a very bad
way if we don't watch it. The Kurd-Arab problem could wind up in open
warfare. The Iranian influence in Iraq is growing as we speak. We do
have troops and civilian personnel in the country, and we will have a
lot next year. I think out of an abundance of caution we ought to leave
the tools in place that the Department of Defense says they need to
finish this out.
I urge my colleagues to err on the side of giving the Department of
Defense the authorization they need to protect those who will be left
behind.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. PAUL. It disappoints me that President Obama opposes a formal end
to the Iraq war, but it doesn't surprise me. As a candidate, he was
outspoken against the war and for ending the war: He will be bringing
the troops home. But this vote in this debate is not necessarily just
about bringing the troops home. This is a debate over power. The
executive branch wants to keep the unlimited power to commit troops to
war. This is about who holds the power.
The Founding Fathers intended that Congress should hold the power.
This vote is about whether we will continue to abdicate that power and
give up that power to the Executive. That allows for no checks and
balances. We need to have checks and balances. It is what our Founding
Fathers intended.
With regard to defending ourselves, there is authorization for the
President to always defend the Nation using force. There is
authorization for every embassy around the world to defend the embassy.
That is why we have soldiers there. We have agreements with the host
country that the host military is supposed to support the embassy. If
that fails, we have our own soldiers. We have these agreements around
the world. There is nothing that says we cannot use force. This says we
are reclaiming the power to declare war, and we will not have another
war with hundreds of thousands of troops without a debate. Should not
the public and Congress debate it before we commit troops to war?
This war is coming to a close. I suggest that we should be proud of
it. I hope people will support this amendment.
I yield to the Senator from Oregon.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I rise to support Senator Paul's
amendment to revoke war authority. We have heard on the floor that the
consequences of revoking authority are vague and uncertain. Indeed, my
team has been seeking a reply from the Department of Defense as to
whether there were any conditions we should be alerted to or whether
this would create a problem. At the last minute, we appear to have a
memo--which has not come to my office--that says there are possible
complications.
Well, let's be clear. The executive branch never wants to hand back
authority it has been granted. It always wants to retain maximum
flexibility. But as my colleague has pointed out, this is an issue of
constitutional authority. We had a constitutional discussion about
authorizing action in Iraq and, certainly contrary to my opinion, this
body supported that action. But now the President is bringing this war
to an end.
Doesn't it make sense, then, that we end the authority that went with
this war and call a formal end to this battle? The issue has been
raised that there might be something that happens in the future. Isn't
that true for every country on this planet, that something might happen
in the future? Something might happen in Somalia or in Yemen or in any
nation in the world. Indeed, under the War Powers Act, the President
has the ability to respond immediately. He doesn't need to come to this
body for 60 days. So there is extensive flexibility that would go with
Iraq just as it goes with every other country, in addition to the
authority that has been granted to pursue al-Qaida and associated
forces around the world.
When, if not now, should we revoke this authority? Do we say that
once granted, at any point in the future the administration can go back
to war without the authorization of this body? It is time for us to
reclaim the authority of Congress. Should the circumstances arise that
the President feels the need to go back into a war mode versus many of
the other uses of force that are already authorized under other
provisions, then he would have 60 days. He could come back to this body
and say: These are the changed circumstances. Under the Constitution,
will you grant the power to renew or create a new force of war in that
country? Then we can hold that debate in a responsible manner.
But this open-ended commitment under these circumstances doesn't make
sense. Congress has yielded its authority under the Constitution far
too often to the executive branch. So many times this body has failed
to do its fair share under our constitutional framework.
This amendment before us today makes sense in the context of a
withdrawal of troops and provides plenty of flexibility to undertake
any security issues that might arise in the future. For that reason, I
urge my colleagues to support the Paul amendment.
The PRESIDING OFFICER. Who yields time?
Mr. PAUL. Mr. President, is it appropriate to call for the yeas and
nays at this point?
The PRESIDING OFFICER. It is.
Mr. PAUL. 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.
The PRESIDING OFFICER. The Senator from Kentucky has 4 minutes
remaining.
Mr. PAUL. I will yield back my time.
The PRESIDING OFFICER. The Senator from Louisiana is recognized.
Ms. LANDRIEU. Mr. President, under the previous order, I think we
were going to debate both amendments and
[[Page S7971]]
vote in a few moments. That is what I understood.
The PRESIDING OFFICER. The Senator is correct.
Mr. McCAIN. How long will the Senator take?
Ms. LANDRIEU. Up to 10 minutes.
Mr. McCAIN. All right.
[...]
Amendment No. 1064
The PRESIDING OFFICER. Who yields time?
Mr. McCAIN. Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. All time is yielded back.
Under the previous order, the question is on agreeing to amendment
No. 1064 offered by the Senator from Kentucky, Mr. Paul.
The yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) and
the Senator from New Hampshire (Mrs. Shaheen) are necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Alaska (Ms. Murkowski).
The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 30, nays 67, as follows:
The result was announced--yeas 30, nays 67, as follows:
[Rollcall Vote No. 211 Leg.]
YEAS--30
Baucus
Bingaman
Boxer
Brown (OH)
Cantwell
Cardin
DeMint
Durbin
Feinstein
Franken
Gillibrand
Harkin
Heller
Klobuchar
Lautenberg
Leahy
Manchin
McCaskill
Menendez
Merkley
Murray
Nelson (NE)
Paul
Rockefeller
Sanders
Snowe
Tester
Udall (CO)
Udall (NM)
Wyden
NAYS--67
Akaka
Alexander
Ayotte
Barrasso
Bennet
Blumenthal
Blunt
Boozman
Brown (MA)
Burr
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
Enzi
Graham
Grassley
Hagan
Hatch
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Kohl
Kyl
Landrieu
Lee
Levin
Lieberman
Lugar
McCain
McConnell
Mikulski
Moran
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Roberts
Rubio
Schumer
Sessions
Shelby
Stabenow
Thune
Toomey
Vitter
Warner
Webb
Whitehouse
Wicker
NOT VOTING--3
Begich
Murkowski
Shaheen
The PRESIDING OFFICER (Mr. Bennet). On this vote the yeas are 30; the
nays are 67. Under the previous order requiring 60 votes for the
adoption of this amendment, the amendment is rejected.
[[Page S7983]]
The majority leader.
Mr. REID. This will be the last vote of this evening. Tomorrow we
will have a vote around 11 a.m. on cloture on this bill, and we will
work with the managers to see how they are going to work through the
germane amendments.
[...]
[Congressional Record Volume 157, Number 182 (Wednesday, November 30, 2011)]
[Senate]
[Pages S8012-S8054]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 1867, which the clerk will
report.
The legislative clerk read as follows:
A bill (S. 1867) to authorize appropriations for fiscal
year 2012 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other
purposes.
Pending:
Merkley amendment No. 1174, to express the sense of
Congress regarding the expedited transition of responsibility
for military and security operations in Afghanistan to the
Government of Afghanistan.
Feinstein amendment No. 1125, to clarify the applicability
of requirements for military custody with respect to
detainees.
Feinstein amendment No. 1126, to limit the authority of
Armed Forces to detain citizens of the United States under
section 1031.
Franken amendment No. 1197, to require contractors to make
timely payments to subcontractors that are small business
concerns.
Cardin/Mikulski amendment No. 1073, to prohibit expansion
or operation of the District of Columbia National Guard Youth
Challenge Program in Anne Arundel County, MD.
Begich amendment No. 1114, to amend title 10, United States
Code, to authorize space-available travel on military
aircraft for members of the reserve components, a member or
former member of a reserve component who is eligible for
retired pay but for age, widows and widowers of retired
members, and dependents.
Begich amendment No. 1149, to authorize a land conveyance
and exchange at Joint Base Elmendorf Richardson, Alaska.
Shaheen amendment No. 1120, to exclude cases in which
pregnancy is the result of an act of rape or incest from the
prohibition on funding of abortions by the Department of
Defense.
Collins amendment No. 1105, to make permanent the
requirement for certifications relating to the transfer of
detainees at United States Naval Station, Guantanamo Bay,
Cuba, to foreign countries and other foreign entities.
Collins amendment No. 1155, to authorize educational
assistance under the Armed Forces Health Professions
Scholarship Program for pursuit of advanced degrees in
physical therapy and occupational therapy.
Collins amendment No. 1158, to clarify the permanence of
the prohibition on transfers of recidivist detainees at
United States Naval Station, Guantanamo Bay, Cuba, to foreign
countries and entities.
Collins/Shaheen amendment No. 1180, relating to man-
portable air-defense systems originating from Libya.
Inhofe amendment No. 1094, to include the Department of
Commerce in contract authority using competitive procedures
but excluding particular sources for establishing certain
research and development capabilities.
Inhofe amendment No. 1095, to express the sense of the
Senate on the importance of addressing deficiencies in mental
health counseling.
Inhofe amendment No. 1096, to express the sense of the
Senate on treatment options for members of the Armed Forces
and veterans for traumatic brain injury and posttraumatic
stress disorder.
Inhofe amendment No. 1097, to eliminate gaps and
redundancies between the over 200
[[Page S8013]]
programs within the Department of Defense that address
psychological health and traumatic brain injury.
Inhofe amendment No. 1098, to require a report on the
impact of foreign boycotts on the defense industrial base.
Inhofe amendment No. 1099, to express the sense of Congress
that the Secretary of Defense should implement the
recommendations of the Comptroller General of the United
States regarding prevention, abatement, and data collection
to address hearing injuries and hearing loss among members of
the Armed Forces.
Inhofe amendment No. 1100, to extend to products and
services from Latvia existing temporary authority to procure
certain products and services from countries along a major
route of supply to Afghanistan.
Inhofe amendment No. 1101, to strike section 156, relating
to a transfer of Air Force C-12 aircraft to the Army.
Inhofe amendment No. 1102, to require a report on the
feasibility of using unmanned aerial systems to perform
airborne inspection of navigational aids in foreign airspace.
Inhofe amendment No. 1093, to require the detention at
United States Naval Station, Guantanamo Bay, Cuba, of high-
value enemy combatants who will be detained long term.
Casey amendment No. 1215, to require a certification on
efforts by the Government of Pakistan to implement a strategy
to counter improvised explosive devices.
Casey amendment No. 1139, to require contractors to notify
small business concerns that have been included in offers
relating to contracts let by Federal agencies.
McCain (for Cornyn) amendment No. 1200, to provide Taiwan
with critically needed United States-built multirole fighter
aircraft to strengthen its self-defense capability against
the increasing military threat from China.
McCain (for Ayotte) amendment No. 1066, to modify the
Financial Improvement and Audit Readiness Plan to provide
that a complete and validated full statement of budget
resources is ready by not later than September 30, 2014.
McCain (for Ayotte) modified amendment No. 1067, to require
notification of Congress with respect to the initial custody
and further disposition of members of al-Qaida and affiliated
entities.
McCain (for Ayotte) amendment No. 1068, to authorize lawful
interrogation methods in addition to those authorized by the
Army Field Manual for the collection of foreign intelligence
information through interrogations.
McCain (for Brown (MA)/Boozman) amendment No. 1119, to
protect the child custody rights of members of the Armed
Forces deployed in support of a contingency operation.
McCain (for Brown (MA)) amendment No. 1090, to provide that
the basic allowance for housing in effect for a member of the
National Guard is not reduced when the member transitions
between active-duty and full-time National Guard duty without
a break in active service.
McCain (for Brown (MA)) amendment No. 1089, to require
certain disclosures from postsecondary institutions that
participate in tuition assistance programs of the Department
of Defense.
McCain (for Wicker) amendment No. 1056, to provide for the
freedom of conscience of military chaplains with respect to
the performance of marriages.
McCain (for Wicker) amendment No. 1116, to improve the
transition of members of the Armed Forces with experience in
the operation of certain motor vehicles into careers
operating commercial motor vehicles in the private sector.
Udall (NM) amendment No. 1153, to include ultralight
vehicles in the definition of aircraft for purposes of the
aviation smuggling provisions of the Tariff Act of 1930.
Udall (NM) amendment No. 1154, to direct the Secretary of
Veterans Affairs to establish an open burn pit registry to
ensure that members of the Armed Forces who may have been
exposed to toxic chemicals and fumes caused by open burn pits
while deployed to Afghanistan or Iraq receive information
regarding such exposure.
Udall (NM)/Schumer amendment No. 1202, to clarify the
application of the provisions of the Buy American Act to the
procurement of photovoltaic devices by the Department of
Defense.
McCain (for Corker) amendment No. 1171, to prohibit funding
for any unit of a security force of Pakistan if there is
credible evidence that the unit maintains connections with an
organization known to conduct terrorist activities against
the United States or United States allies.
McCain (for Corker) amendment No. 1172, to require a report
outlining a plan to end reimbursements from the Coalition
Support Fund to the Government of Pakistan for operations
conducted in support of Operation Enduring Freedom.
McCain (for Corker) amendment No. 1173, to express the
sense of the Senate on the North Atlantic Treaty
Organization.
Levin (for Bingaman) amendment No. 1117, to provide for
national security benefits for White Sands Missile Range and
Fort Bliss.
Levin (for Gillibrand/Portman) amendment No. 1187, to
expedite the hiring authority for the defense information
technology/cyber workforce.
Levin (for Gillibrand/Blunt) amendment No. 1211, to
authorize the Secretary of Defense to provide assistance to
State National Guards to provide counseling and reintegration
services for members of reserve components of the Armed
Forces ordered to active duty in support of a contingency
operation, members returning from such active duty, veterans
of the Armed Forces, and their families.
Merkley amendment No. 1239, to expand the Marine Gunnery
Sergeant John David Fry scholarship to include spouses of
members of the Armed Forces who die in the line of duty.
Merkley amendment No. 1256, to require a plan for the
expedited transition of responsibility for military and
security operations in Afghanistan to the Government of
Afghanistan.
Merkley amendment No. 1257, to require a plan for the
expedited transition of responsibility for military and
security operations in Afghanistan to the Government of
Afghanistan.
Merkley amendment No. 1258, to require the timely
identification of qualified census tracts for purposes of the
HUBZone Program.
Leahy amendment No. 1087, to improve the provisions
relating to the treatment of certain sensitive national
security information under the Freedom of Information Act.
Leahy/Grassley amendment No. 1186, to provide the
Department of Justice necessary tools to fight fraud by
reforming the working capital fund.
Wyden/Merkley amendment No. 1160, to provide for the
closure of Umatilla Army Chemical Depot, OR.
Wyden amendment No. 1253, to provide for the retention of
members of the reserve components on active duty for a period
of 45 days following an extended deployment in contingency
operations or homeland defense missions to support their
reintegration into civilian life.
Ayotte (for Graham) amendment No. 1179, to specify the
number of judge advocates of the Air Force in the regular
grade of brigadier general.
Ayotte (for McCain) further modified amendment No. 1230, to
modify the annual adjustment in enrollment fees for TRICARE
Prime.
Ayotte (for Heller/Kirk) amendment No. 1137, to provide for
the recognition of Jerusalem as the capital of Israel and the
relocation to Jerusalem of the United States Embassy in
Israel.
Ayotte (for Heller) amendment No. 1138, to provide for the
exhumation and transfer of remains of deceased members of the
Armed Forces buried in Tripoli, Libya.
Ayotte (for McCain) amendment No. 1247, to restrict the
authority of the Secretary of Defense to develop public
infrastructure on Guam until certain conditions related to
Guam realignment have been met.
Ayotte (for McCain) amendment No. 1246, to establish a
commission to study the United States Force Posture in East
Asia and the Pacific region.
Ayotte (for McCain) amendment No. 1229, to provide for
greater cybersecurity collaboration between the Department of
Defense and the Department of Homeland Security.
Ayotte (for McCain/Ayotte) amendment No. 1249, to limit the
use of cost-type contracts by the Department of Defense for
major defense acquisition programs.
Ayotte (for McCain) amendment No. 1220, to require
Comptroller General of the United States reports on the
Department of Defense implementation of justification and
approval requirements for certain sole-source contracts.
Ayotte (for McCain/Ayotte) amendment No. 1132, to require a
plan to ensure audit readiness of statements of budgetary
resources.
Ayotte (for McCain) amendment No. 1248, to expand the
authority for the overhaul and repair of vessels to the
United States, Guam, and the Commonwealth of the Northern
Mariana Islands.
Ayotte (for McCain) amendment No. 1250, to require the
Secretary of Defense to submit a report on the probationary
period in the development of the short take-off, vertical
landing variant of the Joint Strike Fighter.
Ayotte (for McCain) amendment No. 1118, to modify the
availability of surcharges collected by commissary stores.
Sessions amendment No. 1182, to prohibit the permanent
stationing of more than two Army brigade combat teams within
the geographic boundaries of the United States European
Command.
Sessions amendment No. 1183, to require the maintenance of
a triad of strategic nuclear delivery systems.
Sessions amendment No. 1184, to limit any reduction in the
number of surface combatants of the Navy below 313 vessels.
Sessions amendment No. 1185, to require a report on a
missile defense site on the east coast of the United States.
Sessions amendment No. 1274, to clarify the disposition
under the law of war of persons detained by the Armed Forces
of the United States pursuant to the Authorization for Use of
Military Force.
Levin (for Reed) amendment No. 1146, to provide for the
participation of military technicians (dual status) in the
study on the termination of military technician as a distinct
personnel management category.
Levin (for Reed) amendment No. 1147, to prohibit the
repayment of enlistment or related bonuses by certain
individuals who become employed as military technicians (dual
status) while already a member of a reserve component.
Levin (for Reed) amendment No. 1148, to provide rights of
grievance, arbitration, appeal, and review beyond the
adjutant general for military technicians.
[[Page S8014]]
Levin (for Reed) amendment No. 1204, to authorize a pilot
program on enhancements of Department of Defense efforts on
mental health in the National Guard and Reserves through
community partnerships.
Levin (for Reed) amendment No. 1294, to enhance consumer
credit protections for members of the Armed Forces and their
dependents.
Levin amendment No. 1293, to authorize the transfer of
certain high-speed ferries to the Navy.
Levin (for Boxer) amendment No. 1206, to implement
commonsense controls on the taxpayer-funded salaries of
defense contractors.
Chambliss amendment No. 1304, to require a report on the
reorganization of the Air Force Materiel Command.
Levin (for Brown (OH)) amendment No. 1259, to link domestic
manufacturers to defense supply chain opportunities.
Levin (for Brown (OH)) amendment No. 1261, to extend
treatment of base closure areas as HUBZones for purposes of
the Small Business Act.
Levin (for Brown (OH)) amendment No. 1263, to authorize the
conveyance of the John Kunkel Army Reserve Center, Warren,
OH.
Levin (for Leahy) amendment No. 1080, to clarify the
applicability of requirements for military custody with
respect to detainees.
Levin (for Wyden) amendment No. 1296, to require reports on
the use of indemnification agreements in Department of
Defense contracts.
Levin (for Pryor) amendment No. 1151, to authorize a death
gratuity and related benefits for Reserves who die during an
authorized stay at their residence during or between
successive days of inactive duty training.
Levin (for Pryor) amendment No. 1152, to recognize the
service in the reserve components of the Armed Forces of
certain persons by honoring them with status as veterans
under law.
Levin (for Nelson (FL)) amendment No. 1209, to repeal the
requirement for reduction of survivor annuities under the
Survivor Benefit Plan by veterans' dependency and indemnity
compensation.
Levin (for Nelson (FL)) amendment No. 1210, to require an
assessment of the advisability of stationing additional DDG-
51 class destroyers at Naval Station Mayport, FL.
Levin (for Nelson (FL)) amendment No. 1236, to require a
report on the effects of changing flag officer positions
within the Air Force Material Command.
Levin (for Nelson (FL)) amendment No. 1255, to require an
epidemiological study on the health of military personnel
exposed to burn pit emissions at Joint Base Balad.
Ayotte (for McCain) modified amendment No. 1281, to require
a plan for normalizing defense cooperation with the Republic
of Georgia.
Ayotte (for Blunt/Gillibrand) amendment No. 1133, to
provide for employment and reemployment rights for certain
individuals ordered to full-time National Guard duty.
Ayotte (for Blunt) amendment No. 1134, to require a report
on the policies and practices of the Navy for naming vessels
of the Navy.
Ayotte (for Murkowski) amendment No. 1286, to require a
Department of Defense inspector general report on theft of
computer tapes containing protected information on covered
beneficiaries under the TRICARE Program.
Ayotte (for Murkowski) amendment No. 1287, to provide
limitations on the retirement of C-23 aircraft.
Ayotte (for Rubio) amendment No. 1290, to strike the
national security waiver authority in section 1032, relating
to requirements for military custody.
Ayotte (for Rubio) amendment No. 1291, to strike the
national security waiver authority in section 1033, relating
to requirements for certifications relating to transfer of
detainees at United States Naval Station, Guantanamo Bay,
Cuba, to foreign countries and entities.
Levin (for Menendez/Kirk) amendment No. 1414, to require
the imposition of sanctions with respect to the financial
sector of Iran, including the Central Bank of Iran.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 11 a.m. will be equally divided and controlled between the
Senator from Michigan, Mr. Levin, and the Senator from Arizona, Mr.
McCain, or their designees.
Mr. McCAIN. I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCAIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. McCAIN. Madam President, I would like to say to my colleagues, we
have been waiting approval of a managers' package of amendments that
have been cleared by both sides. It is not a managers' package. It is
simply a group of amendments that have been proposed by Members on both
sides of the aisle, approved--no one has objected--and yet there are
objections to moving forward with these amendments in a package. There
are important amendments by Members on both sides.
I would urge my colleagues who would object to moving forward with
this package of amendments which have been agreed to by both sides--and
there has been no objection voiced to them individually--that I would
like to move to adopt those shortly before the vote on cloture at 11
o'clock. If someone objects to that, then I would insist that they come
over to the floor and object. That is the procedure we will follow that
I would like to inform my colleagues.
In other words, we have a group of amendments. They have been cleared
by both sides; no one objects. And yet there seems to be an objection
to moving forward with a group of amendments that has already been
agreed to. So according to parliamentary rules, I will insist that the
Member be here present to object when I move forward with the package
shortly before the hour of 11. Anyone watching in the offices, please
inform your Senator of that decision.
The ACTING PRESIDENT pro tempore. The Senator from Michigan.
Mr. LEVIN. Madam President, just to reinforce something the Senator
from Arizona said, these are amendments there is no objection to on the
substance. We have worked very hard, working with all the Senators, to
clear amendments. That process will continue after the cloture vote as
well. But we now have this group we have worked very hard on. We know
of no objection. If there were an objection, they would not be in a
cleared package. So we know of no objection. None have been
forthcoming. They have been here for a day or two now, and the Senate
needs to work its will.
This is the way we should be operating, if there is no objection to
an amendment, if people have had a chance to look at it. They have been
cleared on both sides. Any committee on jurisdiction that has an
interest has been talked to, and that has been taken care of. This is,
it seems to me, the right way to proceed.
I commend Senator McCain for what he just said and join with him in
that sentiment.
The bill we have before us that we will be voting cloture on at about
11 o'clock would authorize $662 billion for national defense programs.
This is $27 billion less than the President's budget request. It is $43
billion less than the amount appropriated for fiscal year 2011. We have
been able to find savings without reducing our strong commitment to the
men and women of our Armed Forces and their families, without
undermining their ability to accomplish the mission we have assigned to
them that they handle so remarkably bravely and consistently. So we
have identified and scrubbed this budget to find those savings, and the
bill we will be voting cloture on--and, hopefully, adopting cloture--
reflects those savings.
Because of our action last night on the counterfeit parts amendment,
the bill now contains important new provisions to help fight the tide
of counterfeit electronic parts, primarily from China, that is flooding
the defense supply chain. I went through the provisions last night, and
I will not repeat them here other than to say we are taking strong
action to make sure the parts that are provided to our weapons systems
are new parts as required and are not counterfeit parts.
There are a number of steps in this bill. They are effective and
strong steps. We require, for instance, that parts that are being
supplied come from the original manufacturer of those parts or an
authorized distributor of those parts or, if that is not possible
because the parts are no longer being manufactured or there is no
authorized distributor, that whoever is supplying those parts be
certified by the Department of Defense, the way they currently are, by
one part of the Department of Defense, the Missile Defense Agency, as
being a reliable supplier.
We have had too many cases of missiles and airplanes that have
defective parts, and the lives of our people in uniform depend upon
these as being quality parts. We are not going to accept the status quo
anymore in terms of counterfeiting, mainly from China, and we are
taking this strong action in
[[Page S8015]]
this bill now, following last night's action, to make sure this status
quo is reversed.
We have over 96,000 U.S. soldiers, sailors, airmen, and marines on
the ground in Afghanistan. We have 13,000, as we speak, remaining in
Iraq. There are many issues upon which we disagree. But every one of us
knows we must provide our troops with the support they need and deserve
as long as they are in harm's way. Senate action on the Defense bill
will improve the quality of life for our men and women in uniform. It
will give them the tools they need to remain the most effective
fighting force in the world, and it will also send a critically
important message that we as a nation stand behind our troops and their
families and we appreciate their service.
So I hope we can adopt the cloture motion which is before us so we
can proceed to the postcloture period, where we can then resolve the
remaining amendments that can be resolved, and then pass this bill,
hopefully, tomorrow. But we have a lot of work to do today and
tomorrow. We have many dozens of amendments yet to be voted on,
disposed of, and hopefully cleared in many cases.
With that, I yield the floor.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
[...]
Mr. UDALL of Colorado. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 1125 and 1126
Mr. UDALL of Colorado. Mr. President, I rise today in support of
amendments Nos. 1125 and 1126, which have been offered by the
Intelligence Committee chairwoman, Senator Feinstein.
While the Senate did not adopt my amendment that would have
instructed the Senate to consider these detainee matters separately
from the Defense authorization bill, I believe Senator Feinstein's
amendments make important changes and improvements to the bill--
improvements that may yet avoid a problem with a Presidential veto.
I thank the Presiding Officer for his comments yesterday on the
detainee provisions that are in this proposed legislation. I urge my
colleagues to support these amendments. I want to be clear. I intend to
support them.
I have serious concerns going forward about the unintended
consequences of enacting the detainee provisions in subtitle D of the
Defense Authorization Act. These amendments help to alleviate some of
my concerns.
I wish to, in the context of the debate we are having, note that in
addition to the Secretary of Defense, Leon Panetta; the Director of
National Intelligence, General Clapper; and FBI Director Mueller--who
all oppose the detainee provisions--CIA Director Petraeus's senior
staff has indicated they, too, oppose the detention provisions. The CIA
believes it is important to preserve the current U.S. Government's
prosecution flexibility that has allowed both the Bush and the Obama
administrations to effectively combat those who seek to do us harm.
After the vote yesterday, I had a chance to talk with a number of
Members on the other side of the aisle and, frankly, on the other side
of the debate, because this had bipartisan support on both sides of the
debate. But the folks I talked to told me they did not support my
amendment, but they were still interested in making some more targeted
changes to the detention provisions. I hope those colleagues will take
a close look at what Senator Feinstein is offering here today.
Let me speak to specifically what she would help resolve with her
amendments. There are two important shortcomings that still exist in
the current bill. One of her amendments would preserve the flexibility
of the military, law enforcement, and intelligence agencies to
collaborate, without undue limitation, in any investigation,
interrogation, and prosecution of suspected terrorists. The other
amendment would make it clear that American citizens cannot be held
indefinitely in military detention without a trial. Again, I know the
Presiding Officer spoke powerfully to that very legitimate and
important concern yesterday.
The current language in the bill--which is why I took to the floor
yesterday and I know on other occasions to make this point--I believe
will disrupt the investigation, interrogation, and prosecution of
terror suspects by forcing the military to interrupt FBI, CIA, or other
counterterrorism agency operations--against each of these
organizations' recommendations, including the military's.
In sum, we are going to create an unworkable bureaucratic process
that would take away the intelligence community's and the
counterterrorism community's capabilities to make critical and, in some
cases, split-second decisions about how best to save Americans' lives.
Further--I cannot emphasize this enough--although my friends on the
other side of this debate argue otherwise, the detainee provisions do
allow for the indefinite military detention of American citizens who
are accused of planning or participating in terror attacks. Simply
accused--that cuts directly against values we hold dear: innocent until
proven guilty, presumption of innocence. That is why this is such an
important debate.
Let me be clear. There are American citizens who have collaborated
with our enemies. There are American citizens who have participated in
attacks against our soldiers and civilians. Those Americans are
traitors. They should be dealt with, and we already have a system for
ensuring they are brought to justice and made to pay a very heavy price
for their crimes. That system is working. However, even in the darkest
hours, we must ensure that our Constitution prevails. We do ourselves a
grave disservice by allowing for any citizen to be locked up
indefinitely without trial--no matter how serious the charges may be
against them. Doing so may be politically expedient, but we risk losing
our principles of justice and liberty that have kept our Republic
strong, and it does nothing to make us safer. Our national security
leadership has even said if we implement these provisions, it could
make us less safe.
If I might reflect a bit on what we have learned. At least in three
different wars--three wars we all learn about in our history classes:
the Civil War, World War I, and World War II--as we look back at those
three wars, we made the decision and we drew the conclusion as
Americans that we overreached, that we constricted civil liberties.
President Lincoln limited habeas corpus in the Civil War. I know the
Presiding Officer is familiar with the Palmer Raids during World War I
and the aftermath of World War I. Of course, we know all too well the
history of the interment of Japanese Americans.
I am not suggesting these provisions, as they are now included in
this bill, would result in historians drawing those similar kinds of
conclusions 10 or 20 or 30 years from now. But why not be safe? Why not
take the time to ensure that we keep faith with those core values that
make America what it is? That is all I am asking. I think that is all
Senator Feinstein is asking for us to do. That is what the 38 Senators
who joined us yesterday to vote for my commonsense approach were saying
as well.
In sum, Senator Feinstein has offered some small changes. It would
help alleviate some of the justifiable concerns with these provisions.
As I have said, I continue to worry that there will be unintended
consequences to enacting the detainee provisions altogether. However,
we can make some of these small improvements to avoid harming our
counterterrorism activities and preventing the loss of rights and
freedoms granted to all Americans by our Constitution.
In closing, I urge all of our colleagues to support Senator
Feinstein's amendments.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, briefly, while my friend from Colorado is
on the floor, he said: Take the time. We have been taking time, I tell
the Senator from Colorado, since September 11, 2001, when the United
States of America was attacked. We passed the Detainee Treatment Act.
We passed other pieces of legislation--the PATRIOT Act, and others.
Take the time?
I say, in all due respect, we have taken a lot of time--in fact,
hundreds and hundreds of hours of debate, discussion--as to how to
address this threat to the United States of America.
If the Senator from Colorado supports the Feinstein amendment, I
agree with that. I cannot agree that we have not taken the time. I
personally have taken--I cannot tell you--untold hours addressing this
issue of how we treat detainees. We may have a fundamental
disagreement, but I do reject the argument that we have not taken the
time.
I yield the floor.
Mr. UDALL of Colorado. Would the Senator respond to a question?
Mr. McCAIN. Go ahead.
Mr. UDALL of Colorado. As the Senator from Arizona knows, I have the
utmost respect for the time the Senator has spent in this very
important area. I think what I have been trying to say is that in
regard to this particular set of detainee provisions, I want to ensure
that all of the questions the FBI Director, General Clapper, Secretary
Panetta, and others have raised about how these provisions would
actually be applied--I have no question that the intent is spot on--I
just am aware that there have been some concerns raised about how these
new provisions would actually be applied. I
[[Page S8026]]
think Senator Feinstein's amendments--and I do not know where the
Senator from Arizona stands at this point--may provide some greater
clarification. I know there have been some conversations on the floor
as to how we will deal with these amendments. So I appreciate the
Senator's comments.
Mr. McCAIN. I thank the Senator from Colorado for his clarification,
and I think I understand more clearly his rationale for his support of
the amendment.
I yield the floor.
Mr. UDALL of Colorado. I yield the floor as well and suggest the
absence of a quorum.
The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call
the roll.
The bill clerk proceeded to call the roll.
Mr. HOEVEN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Amendment No. 1274
Mr. SESSIONS. Mr. President, I have offered an amendment that
clarifies--although that is not exactly the right word--the fact that
an unlawful combatant or a combatant who is held by the U.S. military
for being an enemy of the United States, a combatant against the United
States, or an unlawful combatant, is not therefore entitled to be
released if the U.S. military or the civilian courts choose to
prosecute him and he is acquitted or after he serves his sentence but
before hostilities have ended. These are entirely different matters.
There are two questions: Are you an enemy combatant of the United
States? These are the kinds of prisoners of war in World War II,
Germans, for example, who were kept in Aliceville, AL. They stayed in a
prisoner-of-war camp until the war was over, and they went home. They
didn't violate the rules of war; they weren't prosecuted for any
crimes. They simply were not released so that they could go and rejoin
the battle in an attempt to kill more American service men and women.
But they were lawful. They wore uniforms, they complied with the rules
of war, and they were not able to be prosecuted.
But when a person sneaks into the country with an intent to murder
women and children and innocent noncombatants, does not wear a uniform,
and violates other provisions of the rules of war, then they can be not
only held as a combatant but they can be held and tried for commission
of crimes against the United States. That is the classic standard of
the law of war.
I believe it is clear that if a person is captured and tried for a
crime and, let's say, acquitted--whether in a civilian court or a
military commission--they are not entitled to be released. To that end,
I would quote a number of statements to that effect. But I believe the
legal system would be a lot better off if we spoke clearly on that
matter today so there is no doubt whatsoever.
President Obama, on May 21, 2009, said this:
But even when [the prosecution] process is complete, there
may be a number of people who could not be prosecuted for
past crimes, but who nonetheless pose a threat to the
security of the United States.
[[Page S8031]]
In other words, they remain prisoners of war who are likely to join
the enemy if they are released. He goes on to say:
These are people who, in effect, remain at war with the
United States. As I said, I am not going to release
individuals who endanger the American people.
I think that is consistent with all rules of war, and I think the
President was right in that statement.
Attorney General Eric Holder, in November of 2009, before the
Judiciary Committee, said:
I personally think that we should involve Congress in
[ensuring that the Executive Branch has the authority to make
that decision], that we should interact with . . . this
committee in crafting a law of war detention process or
program.
In other words, he was calling on us to work with them in developing
statutes. But, historically, I think the law is clear at any rate.
Jeh Johnson, General Counsel to the Department of Defense, who came
from the New York Times as general counsel for the New York Times--not
a career Department of Justice defense attorney--said this before the
Senate Armed Services Committee:
The question of what happens if there's an acquittal is an
interesting question . . . I think that as a matter of legal
authority, if you have the authority under the laws of war to
detain someone, and the Hamdi decision said that in 2004,
that is true irrespective of what happens on the prosecution
side . . . as a matter of legal authority, I think we have
law-of-war authority, pursuant to the authority Congress
granted us with AUMF, as the Supreme Court interpreted it, to
hold that person provided they continue to be a security
threat, and we have the authority in the first place.
So, again, he is saying if they are not convicted, they can still be
held if they continue to be a threat.
Secretary of State Hillary Clinton on ``Meet the Press'' November of
last year:
MR. GREGORY: But my question is, are we committed with
these terror suspects that if they are acquitted in civilian
courts, they should be released?
SECRETARY CLINTON: Well, no. . . .
Senator Jack Reed, our West Point graduate and a member of the Armed
Services Committee--I am proud to serve with my Democratic colleague--
this is what he said the November before last:
There are no guarantees [of conviction], but under basic
principles of international law, as long as these individuals
pose a threat, they can be detained, and they will. . . . I
do not believe they will be released . . . under the
principle of preventive detention, which is recognized during
hostilities.
I believe this is legislation that would do nothing more but,
importantly, will affirm the classical understanding of our laws of
war, and as a result, the people who are charged can be tried, and if
they are not convicted of a crime, they can still be detained.
I would note that an individual American soldier or German soldier or
Japanese soldier who is lawful and released has a duty to report back
to their military unit and commence hostilities until the war is over.
Senator Graham is here, a current JAG officer in the U.S. Air Force
who has studied these matters very closely and has been engaged in this
debate so eloquently. I am delighted to have him here and to have his
support on this amendment. Perhaps he has some comments?
Mr. GRAHAM. Perhaps the Senator will yield for a question?
Mr. SESSIONS. I will be pleased to.
Mr. GRAHAM. As I understand the purpose of this amendment, it is
basically to have the Congress on record for the concept that once you
are determined to be an enemy combatant, a part of the enemy force,
there is no requirement to let you go at any certain time because in
war it would be silly to let an enemy prisoner go back to the fight for
no good reason.
As the Senator has indicated, in the law of war, you can be
prosecuted for a war crime. You could be taken to a Federal court and
prosecuted for an act of terrorism, but if you are acquitted, that is
not an event that would require us to release you if the evidence still
exists that you are a threat to the country and part of the enemy
forces; is that correct?
Mr. SESSIONS. That is correct.
Mr. GRAHAM. What I would like my colleagues to understand is that no
German prisoner in World War II had the ability to go to a Federal
judge and say: Let me go.
If you had brought up the concept in World War II that an American
citizen who was collaborating with the Nazis could not be held as an
enemy combatant, you would have been run out of town.
Does the Senator agree with me that in every war we have fought since
the beginning of our Nation, unfortunately, there have been episodes
where American citizens side with the enemy?
Mr. SESSIONS. That is certainly true.
Mr. GRAHAM. Does the Senator agree with me that our Supreme Court, as
recently as about 3 to 4 years ago, affirmed the fact that we can hold
our own as enemy combatants when the evidence suggests they have joined
forces with the enemy? That is the law?
Mr. SESSIONS. That is the law as I understand it.
Mr. GRAHAM. Does my colleague agree with me that makes perfect sense,
that an American who helps the Nazis has committed an act of war, not a
common crime?
Mr. SESSIONS. That is correct.
Mr. GRAHAM. Does he agree with me that our courts understand that
when an American citizen collaborates with an enemy of our Nation, that
is an act of war by that citizen against his own country and the law of
war applies, not domestic criminal law?
Mr. SESSIONS. I certainly agree with the Senator that an American
citizen can join in a war against the United States.
Mr. GRAHAM. And they can be treated as an enemy combatant in
accordance with our laws?
Mr. SESSIONS. That is correct.
Mr. GRAHAM. And the law of war allows the following: trial or
detention or both. Is that correct?
Mr. SESSIONS. That is correct.
Mr. GRAHAM. You can be held as an enemy combatant without trial?
Mr. SESSIONS. That is correct.
Mr. GRAHAM. There is no requirement in international law to prosecute
an enemy prisoner for a crime?
Mr. SESSIONS. Absolutely. It is up to the detaining authority whether
they believe a person has committed a crime.
Mr. GRAHAM. Does the Senator agree with me that we do not want to
start the practice in the United States that everybody we capture as an
enemy prisoner is automatically a war criminal because that could come
back to haunt our own people in future wars?
Mr. SESSIONS. Absolutely.
Mr. GRAHAM. That we should reserve prosecution for a limited class of
persons among enemy prisoners?
Mr. SESSIONS. That is correct.
The PRESIDING OFFICER (Mr. Cardin). The Senator has consumed 10
minutes.
Mr. GRAHAM. I ask unanimous consent to have 1 more minute.
The PRESIDING OFFICER. The Chair was informing the Senator that 10
minutes has elapsed.
Mr. SESSIONS. I asked to be informed at 10. I see Senator Sanders is
here.
Mr. GRAHAM. Let's just logically walk through this. In every war in
which America has been involved, American citizens unfortunately have
chosen at times to side with the enemy. Our courts say the executive
branch can hold them as enemy combatants, and the purpose is to gather
intelligence. Does the Senator agree with that?
Mr. SESSIONS. That is a very important purpose of that.
Mr. GRAHAM. The Senator has been a U.S. attorney; is that correct?
Mr. SESSIONS. That is correct.
Mr. GRAHAM. Does criminal law focus on intelligence gathering?
Mr. SESSIONS. Absolutely not. It focuses on punishment for a crime
already committed, normally.
Mr. GRAHAM. Does the Senator agree that holding an enemy prisoner--
one of the benefits of capturing someone is gathering intelligence?
Mr. SESSIONS. Absolutely.
Mr. GRAHAM. Does the Senator agree that our criminal system is not
focused on that?
Mr. SESSIONS. Absolutely. In fact, we specifically tell people
arrested that they have a right not to provide any intelligence, and it
indicates it is clearly not the primary function.
Mr. GRAHAM. Does the Senator agree with me that if this Congress
[[Page S8032]]
chose to change the law and say that an American citizen who has
associated himself with al-Qaida cannot be interrogated for
intelligence-gathering purposes, we would be less safe?
Mr. SESSIONS. Absolutely.
Mr. GRAHAM. And that would be a change in the law as it exists today.
Mr. SESSIONS. Absolutely.
Mr. GRAHAM. Does the Senator agree with me that his amendment that
says you can be acquitted but still be held as an enemy prisoner is
consistent with the law today?
Mr. SESSIONS. I certainly believe it is.
Mr. GRAHAM. I thank the Senator for offering this amendment.
To my colleagues, we are trying to fight a war, not a crime, within
the value systems of being the United States, being the champion of the
free world. I do not believe in torturing people, but I do believe--
does the Senator agree with me that when it comes to interrogating
people, sometimes the best tool is time?
Mr. SESSIONS. Absolutely. Someone may not be willing to talk today,
but as time goes by they might be willing to completely change and be
forthcoming.
Mr. GRAHAM. Does the Senator agree with me that we gathered good
intelligence over time from people held at Guantanamo Bay?
Mr. SESSIONS. That is certainly true.
Mr. GRAHAM. Without water boarding them?
Mr. SESSIONS. Absolutely.
Mr. GRAHAM. My point to my colleagues--and I enjoyed this
discussion--is that if you take the ability to hold someone as an enemy
combatant off the table, you cannot interrogate them for intelligence-
gathering purposes, and if you put a time limit on how long you can
hold them, you defeat the purpose of gathering intelligence. Does the
Senator agree with that?
Mr. SESSIONS. Absolutely. That would undermine one of the functions
of the U.S. military in dealing with enemies of the state.
Mr. GRAHAM. Does my colleague also agree that in this war, we provide
a due process unlike any other war in the past?
Mr. SESSIONS. There is no doubt. No war has ever been lawyered to the
degree this has.
Mr. GRAHAM. Does the Senator agree with me that every enemy
combatant, citizen other otherwise, held at Guantanamo Bay or captured
in the United States has their day in Federal court through habeas
proceedings?
Mr. SESSIONS. They do, and to a large degree that is different from
any other war in our history.
Mr. GRAHAM. We never had, in the history of other wars, a Federal
judge determining whether the military has the ability to determine
whether someone is an enemy combatant, but we have that in this war.
Does the Senator agree with that?
Mr. SESSIONS. Absolutely.
Mr. GRAHAM. Does the Senator agree that the government has to prove
to an independent judge by a preponderance of the evidence that the
person is a member of al-Qaida involved in hostilities?
Mr. SESSIONS. Yes.
Mr. GRAHAM. So everybody held after judicial review for the first
time in the history of warfare.
Does the Senator agree with me that the annual review process that we
have created by this law, this bill, the Defense Authorization Act, is
something we have not done in other wars?
Mr. SESSIONS. We have not done that before, yes.
Mr. GRAHAM. Every detainee not only gets their day in Federal court,
the government must prove they have a solid case to hold them as an
enemy combatant, and everyone gets a yearly review as to whether they
are a continuing threat?
Mr. SESSIONS. I believe so, yes, consistent with the language in the
recent Supreme Court opinions--recent opinions--and perhaps it even
goes further than what the Supreme Court requires.
Mr. GRAHAM. Is the Senator familiar with competency hearings in the
civilian court?
Mr. SESSIONS. Yes.
Mr. GRAHAM. In our civilian law, we can hold people who are a danger
to themselves or others without a trial but with judicial oversight; is
that correct?
Mr. SESSIONS. That is done every day, yes, with judicial oversight.
Mr. GRAHAM. Would the Senator agree with me that it is very smart to
evaluate whether we should allow someone to be let go and intelligence
professionals should be able to make that decision as to whether the
individual is a military threat, that that is a logical process?
Mr. SESSIONS. Absolutely it is. And just for the fact of my
amendment, it does not require people to be held. It only gives the
government the authority to do so if they deem it appropriate for the
defense of America.
Mr. GRAHAM. Does my colleague agree with me that the recidivism rate
of people we are releasing from Guantanamo Bay has gone up?
Mr. SESSIONS. Yes. It is extraordinarily disappointing, actually, and
against projections of many of those advocating for early release.
Mr. GRAHAM. Some of these people have gone back to fighting and
killed American soldiers?
Mr. SESSIONS. They certainly have.
Mr. GRAHAM. Does the Senator agree with me that the dangers our
Nation faces do not justify changing existing law, denying this country
the ability to gather intelligence even against an American citizen
joined with al-Qaida, that that would be an unwise decision given the
dangers we're facing?
Mr. SESSIONS. Yes.
Mr. GRAHAM. Does he agree with me that we need a legal system that
understands the difference between fighting a war and fighting a crime?
Mr. SESSIONS. So well said. I agree.
Mr. GRAHAM. I thank the Senator.
Mr. SESSIONS. Mr. President, with regard to the question of
citizenship, I would just say to my colleague that this in no way deals
with that. Whatever the courts, whatever the bill and other laws say
about citizenship will apply here. It does not change that status at
all. I do believe the legislation is clearly consistent with the
statements and testimony of President Obama; Attorney General Eric
Holder; Jeh Johnson, counsel of the Secretary of Defense; Secretary of
State Clinton, and others.
I urge acceptance of my amendment and yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Amendment No. 1073 Withdrawn
Mr. LEVIN. Mr. President, I ask unanimous consent that the Cardin
amendment, No. 1073, be withdrawn. That has the approval of the sponsor
of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Vermont.
Mr. SANDERS. Mr. President, I want to say a word about two amendments
I have offered, both of which I think are important and both of which
should be agreed to.
As I think you know, this country has a recordbreaking deficit and a
$15 trillion national debt. What many people do not know is that one of
the reasons our deficit is as high as it is is because there is a
significant amount of fraud from defense contractors who sell their
products to the Department of Defense.
I think the American people are very clear that when we pay one
dollar for a product that goes to our military, we want to get one
dollar's worth of value; that we do not want to see the taxpayers of
this country or the Department of Defense ripped off because of
fraudulent contractors. Unfortunately, fraud within the DOD in terms of
private contractors is widespread.
During the last number of years, we have seen company after company
engaged in fraud, including some of the largest defense contractors in
the United States. For example, Lockheed Martin, the largest defense
contractor in our country, in 2008 paid $10.5 million to settle charges
that it defrauded the government by submitting false invoices on a
multibillion-dollar contract connected to the Titan IV space-launch
vehicle program. That did not seem to sour the relationship between
Lockheed and the DOD, which gave Lockheed $30.2 billion in contracts in
fiscal year 2009--more than ever before. One of the patterns we see is
that a company gets convicted or reaches a settlement with regard to
charges of fraud, but next year they continue to get very significant
contracts.
In another case regarding one of the very large defense contractors,
Northrop Grumman paid $62 million in 2005
[[Page S8033]]
to settle charges that ``it engaged in a fraud scheme by routinely
submitting false contract proposals'' and ``concealed basic problems in
its handling of inventory, scrap and attrition.'' Despite that serious
charge of pervasive and repeated fraud, Northrop Grumman received $12.9
billion in contracts the following year, 16 percent more than the year
before.
It seems clear to me that we need to do a much better job in terms of
attacking fraud within the Department of Defense. Several years ago, I
offered an amendment--which was passed--which provided that the DOD
list virtually all of the fraud committed within the DOD. We have that
report, and it is rather astounding. People should read it. Right now
what this amendment does is it says to the DOD: Get your act together,
hire the necessary well-trained staff so they are monitoring the
contracts and making sure we do not continue to see the pervasive
amount of fraud committed against the taxpayers of this country or the
Defense Department. I would hope very much that amendment gets
widespread support and that we see it passed.
There is another amendment we have offered, which I think is equally
important, and that deals with making sure the Department of Defense--
which turns out to be the largest single consumer of energy in the
United States of America. Obviously, the Department of Defense has huge
resources, controls huge numbers of buildings, has enormous aircraft,
and so forth and so on. It is by far the single largest consumer of
energy in the United States, accounting for approximately 90 percent of
Federal energy consumption, with an annual energy cost of up to $18
billion. So the Department of Defense spends $18 billion on energy
costs alone. I think, in recent years, the Department of Defense has
understood the importance of trying to move toward energy efficiency in
terms of saving energy, but we have a long way to go.
The major program to help cut energy consumption and costs at our
military bases is called the Energy Conservation Investment Program.
This is a very important program, although a relatively small program.
This program has operated for more than 10 years, helping to invest in
programs for more energy-efficient lighting, for example, at an Air
Force base in Alaska, geothermal heating at Fort Knox Army Base in
Kentucky, wind turbines for an Army base in Arizona, and solar power
for the Air Force in Colorado.
Historically, according to the Department of Defense, every $1 used
by the Energy Conservation Investment Program yields $2 in savings. We
invest in energy efficiency; we invest in sustainable energy. For every
$1 invested, we save $2. This makes it a very positive program for the
DOD. Some projects, such as energy efficiency improvements at a Navy
base in California, achieve greater than $15 in savings for every $1
invested.
The Department itself, the DOD, has stated this program achieves
``long-term public benefits by investing in technologies that increase
economic efficiency and health benefits, build new sources of renewable
energy, enhance job creation/retention, improve military facilities,
and improve the quality of life for our troops and their families.''
Unfortunately, the authorization for this program in the current
Defense authorization bill is $135 million, a relatively small amount
of money for a Department of Defense which spends about $18 billion
every year on energy. I think what we want to see is, A, the DOD save
money through energy efficiency and sustainable energy and, secondly,
become a model for the country as we attempt to break our dependence on
fossil fuel, foreign oil, and we attempt to cut back on greenhouse gas
emissions.
I can tell you that in the State of Vermont, we have our National
Guard base, where we have worked with them to install a major solar
installation which will pay a significant part of their electric bill.
Frankly, I would like to see this done on National Guard bases all over
the country and to the Active-Duty structures as well.
The bottom line is, we are currently spending about $135 million, a
relatively small amount of money compared to the $18 billion energy
bill run up by the DOD. What this amendment would do is increase the
authorization for the Energy Conservation Investment Program to $200
million, up from $135 million--not anywhere near as much as I think we
should be doing, but it is a step forward in helping the Department of
Defense save money on their energy bill, break our dependence on
foreign oil, and help us cut greenhouse gas emissions.
We know there remain many worthy projects at our military bases that
have not yet been funded at today's funding levels that could be funded
if my amendment were to pass. The amendment is fully offset and paid
for by reducing expenditures on construction at overseas' bases, while
still leaving nearly $300 million in funding for that purpose. I think
that is a decent offset.
I applaud the Department of Defense and the military for the strides
they have made so far in investing in energy efficiency and renewable
energy. There are some wonderful projects going on all over this
country--in fact, all over the world--under the DOD, and they deserve
credit for that. They can and should be a leader for our country, but
we still have a very long way to go.
I would ask for support from my colleagues for this amendment, which
will save the Department of Defense money, will help break our
dependency on foreign oil, move us to energy independence, and cut
greenhouse gas emissions.
I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCAIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Arizona.
Amendment No. 1230, As Modified, Withdrawn
Mr. McCAIN. I ask unanimous consent to withdraw McCain amendment No.
1230, as modified.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CORKER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1172, As Modified
Mr. CORKER. Mr. President, I ask unanimous consent that a
modification to amendment No. 1172 be accepted.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendment (No. 1172), as modified, is as follows:
(Purpose: To require a report assessing the reimbursements from the
Coalition Support Fund to the Government of Pakistan for operations
conducted in support of Operation Enduring Freedom)
At the end of subtitle B of title XII, add the following:
SEC. 1230. REPORT ON COALITION SUPPORT FUND REIMBURSEMENTS TO
THE GOVERNMENT OF PAKISTAN FOR OPERATIONS
CONDUCTED IN SUPPORT OF OPERATION ENDURING
FREEDOM.
(a) In General.--Not later than 120 days after the date of
the enactment of this Act, the Secretary of Defense, shall
submit a report to the congressional defense committees and
the Committee on Foreign Relations of the Senate and the
Committee on Foreign Affairs of the House of Representatives
assessing the effectiveness of the Coalition Support Fund
reimbursements to the Government of Pakistan for operations
conducted in support of Operation Enduring Freedom.
(b) Elements.--The report required under subsection (a)
shall include the following elements:
(1) A description of the types of reimbursements requested
by the Government of Pakistan.
(2) The total amount reimbursed to the Government of
Pakistan since the beginning of Operation Enduring Freedom,
in the aggregate and by fiscal year.
(3) The percentage and types of reimbursement requests made
by the Government of Pakistan for which the United States
Government has deferred or not provided payment.
(4) An assessment of the effectiveness of Coalition Support
Fund reimbursements in supporting operations conducted by the
Government of Pakistan in support of Operation
[[Page S8034]]
Enduring Freedom and of the impact of those operations in
containing the ability of terrorist organizations to threaten
the stability of Afghanistan and Pakistan and to impede the
operations of the United States in Afghanistan.
(5) Recommendations if any, relative to potential
alternatives to or termination of reimbursements from the
Coalition Support Fund to the Government of Pakistan, taking
into account the transition plan for Afghanistan.
(c) Form.--The report required under subsection (a) shall
be submitted in unclassified form, but may contain a
classified annex.
Mr. CORKER. Mr. President, I wish to speak briefly about this
amendment. I think most people in this body understand we are
reimbursing the Pakistani military for efforts they are putting forth
on behalf of what we are doing in Afghanistan in Enduring Freedom. We
have crafted an amendment that asks for certain reporting to take place
from the Pentagon and for them to look at ways of diminishing this
reimbursement over time as we wind down our operations in Afghanistan.
This amendment has been drafted in such a way as to not further
escalate tensions between us and the Government of Pakistan. This is a
good-government type of amendment that asks the Pentagon to begin
looking at ways of decreasing the support we are giving to the
Pakistani military on our behalf regarding Afghanistan as we wind down
our operations there simultaneously.
It is my understanding that both the chairman and ranking member of
the Armed Services Committee have accepted this, there is no hold from
the majority on the Foreign Relations Committee, and I hope we will
have an opportunity to vote and pass this by voice vote very soon.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I support the amendment, as modified, by
the Senator from Tennessee, Mr. Corker, who has devoted a great deal of
time and effort and thought to this issue, and the result is this
amendment. I point out that it would require the Secretary of Defense
to prepare a report on the effectiveness of coalition support fund
reimbursements made to Pakistan in support of coalition military
operations in Afghanistan.
Before I proceed, let me once again express my deep condolences to
the families of the Pakistani soldiers who were killed this weekend in
a cross-border air action. All Americans are deeply saddened by this
tragedy, and I fully support NATO and the U.S. military in their
commitment to conduct a thorough and expeditious investigation.
As my colleagues will recall--this is an important aspect of Senator
Corker's amendment--Congress has authorized and appropriated funding
for coalition support fund reimbursements to Pakistan since we began
our military operations in Afghanistan. At the time, Pakistan made a
strategic decision to support the U.S. war effort against the Taliban
government in Afghanistan and their al-Qaida terrorist allies. In
response, Congress and the Bush administration agreed to reimburse the
Pakistani Government for military activities that support our mission
in Afghanistan.
Over the past decade, Congress has provided billions of dollars worth
of these reimbursements to Pakistan, and we should acknowledge that
much good has come of it. Over the past few years in particular,
Pakistan has shifted tens of thousands of their soldiers from the
eastern border of their country opposite India to the tribal areas in
western Pakistan. Pakistani troops have been deployed and engaged in
military operations in their western provinces and tribal areas for
more than 2 years straight. They have paid a heavy price in this
prolonged fighting.
Hundreds of Pakistani troops have given their lives to fight our
mutual terrorist enemies in their country, and thousands of Pakistani
civilians have been tragically murdered in the same time by these
militant groups who show no compunction about attacking weddings and
funerals and mosques. We honor the sacrifice of Pakistan's soldiers,
and we mourn the loss of innocent Pakistani civilians.
It must be noted, however, that certain deeply troubling realities
exist within Pakistan. It must be noted that elements in Pakistan's
army and intelligence service continue to support the Haqqani Network
and other terrorist groups that are killing U.S. troops in Afghanistan,
as well as innocent civilians in Afghanistan, India, and Pakistan. It
must also be noted that the vast majority of the materials for
improvised explosive devices that are maiming and killing U.S. troops
in Afghanistan originate within Pakistan. These are facts. We cannot
deny them. Any effective strategy for Pakistan and Afghanistan must
proceed from this realistic basis.
It is for this reason that I believe this amendment and this report
would be extremely useful. Already, in response to recent Pakistani
activities, the administration has chosen to withhold coalition support
fund reimbursements to Pakistan. Over the past two quarters, that
withheld money amounts to roughly $600 million. I can imagine that,
amid the current tensions, further administration requests to Congress
for reimbursement of coalition support funds for Pakistan will not be
forthcoming.
The report requested in this amendment would seek additional
information on the amounts, types, and effectiveness of coalition
support fund reimbursements to the Government of Pakistan. It also
would seek recommendations as to the future disposition of this
program, including potential alternatives to it or the possible
termination of it altogether. That option cannot be ruled out. This is
valuable information and recommendations to have as Congress continues
to discuss and debate not just the future of the coalition support fund
reimbursements to Pakistan but the future of our relationship with
Pakistan more broadly. I strongly support this amendment.
Again, I don't want to spend too much time stating the facts. This is
a terrible dilemma. The fact is that Pakistan is a nuclear nation. They
have a significant nuclear inventory. The fact is that for 10 years we
and Pakistan had virtually no relations. We found that not to be a
productive exercise. But at the same time, when there exists--as my
colleague from Tennessee agrees--two fertilizer factories from which
come the majority of the materials used for the majority of IEDs
manufactured and that are killing young Americans, it is not tolerable.
I understand, as I have said earlier in my comments, the tragedy that
resulted from the deaths of these young Pakistani soldiers. I also
understand, as every one of us does, what it is like to call a family
member of a young man or woman who has lost their life in Afghanistan,
which has happened many times, as a result of an IED.
In a hearing of the Armed Services Committee, the then-Chairman of
the Joint Chiefs of Staff ADM Mike Mullen, stated:
The fact remains that the Quetta Shura and the Haqqani
Network operate from Pakistan with impunity.
I wish to repeat, these are the words of the former Chairman of the
Joint Chiefs of Staff.
Extremist organizations serving as proxies of the
government of Pakistan are attacking Afghan troops and
civilians as well as U.S. soldiers. For example, we believe
the Haqqani Network--which has long enjoyed the support and
protection of the Pakistani government and is, in many ways,
a strategic arm of Pakistan's Inter-Services Intelligence
Agency--is responsible for the September 13th attacks against
the U.S. embassy in Kabul.
He goes on to say:
This is ample evidence confirming that the Haqqanis were
behind the June 28th attack against the Inter-Continental
Hotel in Kabul and the September 10th truck bomb attack that
killed five Afghans and injured another 96 individuals, 77 of
whom were U.S. soldiers . . .
Finally, another comment by Admiral Mullen who, by the way, worked
very hard for a long period of time to develop a close working
relationship with General Kayani and other military leaders in
Pakistan. He went on to say:
The Quetta Shura and the Haqqani Network are hampering
efforts to improve security in Afghanistan, spoiling
possibilities for broader reconciliation, and frustrating
U.S.-Pakistan relations. The actions by the Pakistani
government to support them--actively and passively--
represents a growing problem that is undermining U.S.
interests and may violate international norms, potentially
warranting sanction. In supporting these groups, the
government of Pakistan, particularly the Pakistani Army,
continues to jeopardize
[[Page S8035]]
Pakistan's opportunity to be a respected and prosperous
Nation with genuine regional and international influence.
Finally, I wish to say again this is an incredibly difficult
challenge for U.S. security policy. We have a country on which we are
dependent in many respects for supplies, for cooperation, for,
hopefully, not to be a sanctuary, although it is not the case, for
Taliban and al-Qaida elements. We have a country that is a nuclear
power, and we have a country that has a government that I will say
charitably is very weak.
It seems to me the Corker amendment is important for the American
people to know exactly where we are, what policy we are going to
formulate, and what measures need to be taken, because we have, as I
mentioned earlier, spent billions of U.S. taxpayers' dollars. That
doesn't play very well in States such as mine where we have 9 percent
unemployment and more than half--or just less than half the homes
underwater. So the Corker amendment isn't all we need. In fact, we need
to have a national debate and discussion about the whole issue of our
relations with Pakistan. But I believe the Corker amendment is a very
important measure so we can assure the American people that not only
are their tax dollars wisely spent but that actions are being taken to
prevent needless wounding and death of our brave young men and women
who are serving in the military.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I support the amendment of the Senator from
Tennessee. It is a balanced amendment which deals with a very complex
situation. What Senator Corker is doing is pointing out very important
facts. One is that Pakistan has received a lot of funds from the United
States for this particular purpose which is aimed at helping the
success of our operations in Afghanistan. The whole purpose of the
coalition support fund is to reimburse Pakistan for the support they
provide--for instance, in providing security for trucks and other
equipment that is going through Pakistan that have oil, fuel, food
going into Afghanistan to support the effort in Afghanistan. That is
the purpose of these funds. It is a good purpose. This is not a foreign
aid deal; this is a reimbursement deal.
The problem is that while on the one hand the Pakistanis are
assisting us, on the other hand they are assisting our enemy and the
enemy of mankind and the enemy of the Afghan people and the enemy of
the coalition forces in Afghanistan. That is the problem. That is the
dilemma which we all face and which this amendment seeks to address.
Again, it does so in a way which doesn't prejudge the outcome of the
assessment, but it makes a very important point, which is, as is now
stated in the amended final paragraph, that we need recommendations
given this ``on the one hand they are with us, on the other hand they
are against us'' situation. We need recommendations from the
administration, if any, relating to potential alternatives to or
termination of reimbursements for the coalition support fund, the
Government of Pakistan, taking into account the transition plan for
Afghanistan.
I agree with my friend from Arizona that we send condolences to the
families of troops in Pakistan who have recently lost their lives. We
also have to understand that Pakistan has paid a huge price for
terrorism in their country against their people. They have paid a
massive price. But what is unacceptable to us is that they are making
us pay a price by providing a safe haven for the Haqqanis and for the
Quetta Shura. Our troops, our families, coalition troops, coalition
families, Afghan troops, and Afghan families are paying a heavy price
because of the Pakistan support through their ISI for the insurgency in
Afghanistan.
Admiral Mullen, a former Chairman of the Joint Chiefs of Staff, put
it very succinctly. He said the Haqqani Network is a veritable arm of
the Pakistan intelligence service. When he was pressed on that
formulation, he said he meant every word of it.
So we have to send an important message to Pakistan, and the message
is that we want a normal relationship if we can have one, but we cannot
have a normal relationship if you are, on the one hand, supporting the
very people who are attacking us in Afghanistan and, on the other hand,
purporting to help us through the protection of supplies going through
Pakistan, helping us succeed in Afghanistan.
We cannot have it both ways. They cannot have it both ways. This
amendment sends a very significant and important message, I believe, to
the Pakistanis and to our coalition allies and to our Afghan partners
that what is going on inside Pakistan has to come to an end. I believe
this will help bring that important result about. So I very much
support the amendment of Mr. Corker, the Senator from Tennessee, and
hope we can adopt it.
If there is no further debate about it--there may be others who do
want to debate, so I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. CORKER. Mr. President, because of the tremendous cooperation of
the Senator from Michigan and the Senator from Arizona--obviously, my
goal is to call for this amendment to be adopted--I did not provide a
lot of context because I know they both support this amendment. But I
want to thank them both for their comments.
I do not think there are two Senators who can better articulate the
issue we face in Afghanistan with Pakistan, which is both a friend and
a foe on many occasions. None of us who have traveled to Afghanistan--I
know these two Senators have probably more than most, but all of us who
have been there have heard our generals talking about the fact that
they are fighting a war in Afghanistan that is really being led and
directed out of Pakistan.
So basically we have an issue here. I think the two Senators have
articulated the issue very well. The fact is, we need to know, first of
all, if what we are doing in support of the Pakistan military is
effective for us, and the two Senators have outlined that is a big
issue.
The second piece is how we are actually reimbursing. If you talk with
folks at the State Department, we literally are going through reams of
invoices and documents, looking at how many bullets they have used, how
much food has been supplied to the military, what is going to be
counted, what is not going to be counted. We are spending more time, in
many ways, accounting for this than we are really looking at how
effective the aid is.
This amendment would deal with both of those issues. I thank the
Senators for putting this in the proper context, and I do hope, with
the Senators' support and the support of the chairman of the Foreign
Relations Committee, that this is an amendment we can voice vote. I
thank both Senators for their leadership on this issue but also for
putting this in the appropriate context.
I yield the floor.
Mr. McCAIN. Mr. President, I urge adoption of the amendment.
The PRESIDING OFFICER. Is there further debate on the amendment?
Without objection, the amendment, as modified, is agreed to.
The amendment (No. 1172), as modified, was agreed to.
Mr. LEVIN. I move to reconsider the vote.
Mr. McCAIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. LEVIN. Mr. President, I believe Senator Cantwell will want to be
recognized.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll of the Senate.
The legislative clerk proceeded to call the roll.
Ms. CANTWELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. CANTWELL. Mr. President, we continue to make progress on the
Defense authorization bill. Hopefully somewhere in the Halls of
Congress, we are also making progress on the FAA authorization bill
and, maybe before the end of the year, getting that to a final resolve.
I know my colleagues on both sides of the aisle are working very
hard, but I had to come to the Senate floor at this moment to say that
Christmas came early in the Northwest today when a major deal between
the Boeing Company and aerospace workers, machinists, resolved what had
been a conflict in the past on how to work together.
[[Page S8036]]
A new relationship of working together on incentives and efficiency
and performance has resulted in the Boeing Company making a decision to
build the next-generation 737 MAX plane in the Pacific Northwest. That
is great news for aerospace workers in Puget Sound. It means there is
going to be a skill set for building fuel-efficient planes for many
years to come. But it is a great testament to both the company and the
workers who--a year ago you probably heard more about the NLRB issue,
and now what you are hearing about is an agreement on a multiyear
contract that is going to get these workers jobs in building planes
with the next-generation technology.
This is very big and important news not just for the Pacific
Northwest but for the country because it means we can come together to
resolve differences. I would hope the Senate might apply some of the
same things because the dispute as to where these two organizations
were about how to proceed to the future obviously had a lot of
discussion, even here on the Senate floor, and yet now today we see
them coming together in a huge milestone agreement that means more
planes are going to be built, in an agreement where workers and the
company are working together to improve performance and deliver these
planes, which many people want because they are so fuel-efficient, on
time.
So for the Northwest to have this kind of boost, this shot in the
arm, at this point in time is really important. I expect that as this
agreement and the agreement details are seen by many people, they will
see this really is a way forward for the Northwest to continue to be at
the top of the aerospace game. That is important because the United
States needs to be at the top of the aerospace game. We are facing
tough competition from many countries such as China and Europe and
others that are trying to lure the manufacturing base away from the
United States.
What we see in the Northwest is that not only do you have a company
such as Boeing, but you have a chain of many suppliers that are also
working to make aerospace manufacturing in the United States one of the
key industries in which the United States is world premier.
So I say congratulations to both the company and to the machinists
and to Machinists International for their hard work on inking this
deal. I hope it will bring much benefit and economic growth not just to
Puget Sound--certainly to there--but to the rest of the country as
well.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Amendment No. 1126
Mr. KIRK. Mr. President, I rise in support of the Feinstein amendment
with regard to section 1031 of this legislation. I am particularly
worried because, unlike the authorized use of force original doctrine
and legislation passed by the Congress, we limited the authority of the
President and the U.S. military to those connected directly to the
September 11 mass murder of Americans. I think, in times of emergency,
I understand that. But the legislation would be the first congressional
authorization to go far beyond that, to say that any ``person who . . .
substantially supported al-Qaeda, the Taliban, or associated forces''--
undefined--`` . . . including any person who has committed a
belligerent act'' would be allowed to be picked up by U.S. military
authorities and held in U.S. military detention.
While I am in favor of robust and flexible U.S. military action
overseas, including action against American citizens waging war against
the United States, such as Anwar Al-Awlaki, I think we all should agree
on a special zone of protection inside the jurisdiction of the United
States on behalf of U.S. citizens.
I say this in support of the Feinstein amendment because I took the
time--as we all should from time to time, serving in this body--to re-
read the Constitution of the United States yesterday. The Constitution
says quite clearly: In the trial of all crimes--no exception--there
shall be a jury, and the trial shall be held in the State where said
crimes have been committed. Clearly, the Founding Fathers were talking
about a civilian court, of which the U.S. person is brought before in
its jurisdiction.
They talk about treason against the United States, including war in
the United States. The Constitution says it ``shall consist only in
levying War against them, or in adhering to their Enemies, giving them
Aid and Comfort.
The following sentence is instructive:
No person--
``No person,'' it says--
shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open
Court.
I would say that pretty clearly, ``open court'' is likely to be
civilian court.
Further, the Constitution goes on, that when a person is charged with
treason, a felony, or other crime, that person shall be ``removed to
the State having Jurisdiction of the Crime''--once again contemplating
civilian, State court and not the U.S. military.
As everyone knows, we have amended the Constitution many times. The
fourth amendment of the Constitution is instructive here. It says:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures--
Including, by the way, the seizure of the person
shall not be violated, and no Warrants shall issue, [except]
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
Now, in section 1031(b)(2), I do not see the requirement for a
civilian judge to issue a warrant. So it appears this legislation
directly violates the fourth amendment of the Constitution with regard
to those rights which are inalienable, according to the Declaration of
Independence, and should be inviolate as your birth right as an
American citizen.
Recall the fifth amendment, which says:
No person--
By the way, remember, ``no person''; there is not an exception here.
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment--
Hear the words--
of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of
War--
Meaning there is a separate jurisdiction for U.S. citizens who are in
the uniformed service of the United States. But unless you are in the
service of the United States, you are one of those ``no persons'' who
shall be answerable for a ``capital'' or ``infamous crime,'' except on
``indictment of a Grand Jury.''
The sixth amendment says:
In all criminal prosecutions--
Not some, not by exception; in all criminal prosecutions--
the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein
the crime shall have been committed. . . .
I go on to these because I regard all of these rights as inherent to
U.S. citizens, granted to them by their birth in the United States.
If we go on through the Constitution's amendments, we find in the
fourteenth amendment that it says:
No State shall make or enforce any law--
Any law--
which shall abridge the privileges or immunities of citizens
of the United States. . . .
I realize these powers have been defined by courts. But we would
recall that even Abraham Lincoln ex post facto lost his ability to
suspend the writ of habeas corpus pursuant to a Supreme Court decision;
that in the case of Hamdi v. Rumsfeld, the Court did recognize that
under the 2001 statute, the President is authorized to detain persons
captured while fighting U.S. forces in Afghanistan. But I will recall--
and, by the way, this included American citizens--I will recall that
was in Afghanistan.
Clearly, we see in the case where an American citizen has gone to a
foreign jurisdiction, joined a terrorist organization or foreign
military, and is waging war on the United States, they can be held as a
detainee of the U.S. military. Why didn't this legislation say that?
Why did it not restrict its purview to those provisions? In Padilla v.
Hanft, the Fourth Circuit did allow the capture of a U.S. citizen,
Padilla--by the way, arrested at O'Hare Airport, a U.S. citizen and
held in military detention. The Fourth Circuit said because he had
foreign training and a foreign connection that it was legal to hold
him.
[[Page S8037]]
But, remember, very soon thereafter the Bush administration
surrendered this case. I think the Bush administration realized they
were about to lose in the Supreme Court on the subject of whether the
U.S. military could arrest and detain a U.S. citizen and to deprive
them of their rights and subject them only to review under a petition
of habeas corpus. I think they realized they had to kick Padilla into
the civilian court system, and therefore they did. It is only in that
context that we should read the Padilla decision.
I think the bottom line is this: We funded a multihundred-billion-
dollar Department of Defense, in the words of the movie, to put men on
that wall, that we need on that wall, to defend us against foreign
threats, and they must do hard and difficult things, including
sometimes to U.S. citizens, such as Anwar al-Awlaki, who are waging war
on the United States from a terrorist base in Yemen.
But the whole purpose of this exercise and this institution is to
defend the rights of the United States and U.S. citizens inside their
own country. One of the first things a person does when they join the
U.S. military is not to swear allegiance to a President or to a foreign
leader but actually swear allegiance to the Constitution of the United
States and to its rights.
What is the whole purpose of the Constitution? It is to defend our
rights against the government because we are one of those unique
governments that ``posits'' a limited government and which rights are
reserved according to the 10th amendment to the States or the
individuals; that our rights supersede the government's. So we cannot
say for an individual, for example, in Wisconsin, who has never been
abroad, who may or may not have committed an act or may or may not have
one association, that suddenly the U.S. military can roll in on that
person, seize him or her, hold them in military detention, and only
subject review of that case by one habeas corpus petition.
I would argue, then, that all of our rights as American citizens hang
on the decision of the President of the United States; that if the
President of the United States decides a person is substantially part
of al-Qaida, the Taliban, or associated forces engaged in hostilities
against the United States or they have committed a belligerent act or
supported such hostilities in aid of such forces, all of their rights
as an American citizen are now forfeited. Clearly, that is not the
case.
The Founding Fathers understood the power of the state run amok under
a distant king who did not regard the rights of the individual as worth
much. We founded a republic and then wrote a constitution to defend
those rights. While we face a very difficult and dangerous world
overseas and have to do difficult and dangerous things, which I
support, we should make sure there is a place for peace and justice and
rights inside the United States.
So for us, in looking at this provision, the Feinstein amendment
clearly limits the scope of this legislation in an appropriate way--
that we do the difficult things overseas. But the whole purpose of the
Department of Defense is to defend the United States and those rights
inside our country, but that we as U.S. citizens, especially when we
are inside this country, have inalienable rights which cannot be
separated from us by any executive action; that we can only be held,
incarcerated, that we can only have our liberties taken away from us on
indictment of a grand jury, before a civilian court, and with a
presumption beyond a reasonable doubt by unanimous vote of that jury.
That is the essence of who we are as Americans, and it is a historic
decision that we would make if we allow this power to go forward. I
think that is why Senator Paul and I were the only two Republicans to
vote against this. That is why so many e-mails and letters that I have
received in the last few hours support this decision.
I understand that others have a different view. They describe the
United States as a battlefield. I would say that is on overly harsh
determination of how cheaply our rights can be held; that we have a
multihundred-billion-dollar Defense Department; that we have a
substantial and capable FBI; that we have enormous State and city and
local police establishments, all with the capabilities to investigate
and prosecute crimes, but under the Constitution of the United States;
and that if we hold U.S. citizens as capable of losing their rights on
an executive branch decision, that not beyond the shadow of a doubt but
on a lower standard of care, that in the executive branch's view a
person is connected to one of those things, then our rights are not
worth very much.
I would say the whole purpose of the Constitution is to hold our
rights higher than the government and subject only to review by a
civilian court. That review, as described in the Constitution of the
United States, is far more than a habeas corpus review. The text of the
Constitution specifically refers to grand jury indictment.
For those who have questions, I would urge them, first, take a moment
to reread the Constitution, that first document which, as a member of
the U.S. military or as an elected Member of this body, we have to
swear allegiance to, and then make up their minds. I think when they
do, they will support the Feinstein amendment.
I yield the floor.
The PRESIDING OFFICER (Mr. Tester). The Senator from Arizona.
Mr. McCAIN. Mr. President, I must admit that I have heard some
bizarre arguments in my time as a Member of this body in referencing
the Constitution of the United States as a basis for the argument. Now,
it is my understanding my friend from South Carolina--I ask unanimous
consent to enter into a colloquy with the Senator from South Carolina.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. It is my understanding that under the Constitution, it is
the Supreme Court of the United States that gives the interpretation of
the Constitution as to various laws and challenges to the Constitution.
It is their responsibility. Is that a correct assumption?
Mr. GRAHAM. Yes, it is.
Mr. McCAIN. So our colleague from Illinois who continues to quote
from the Constitution of the United States fails to quote from the
specific addressing of this issue by the U.S. Supreme Court,
specifically the Hamdan decision. Is that correct?
Mr. GRAHAM. That is correct.
Mr. McCAIN. Is it not true that according to that decision, the U.S.
Supreme Court, whom we ask to interpret the Constitution of the United
States--they have made many interpretations over the years--says there
is no bar to this Nation's holding one of its own citizens as an enemy
combatant.
Now, one would think to the casual observer that is exactly what the
U.S. Supreme Court meant. It is fairly plain language, not really
complicated. I am not a lawyer, but how the Senator from Illinois,
quoting from inalienable rights, can somehow totally disregard in every
way what the U.S. Supreme Court says--they go on to say we hold that
``citizens who associate themselves with the military arm of the enemy
government''--and I believe, in the view of most, they would view that
as a member of al-Qaida, which this legislation specifically addresses.
We hold that ``citizens who associate themselves with the military arm
of the enemy government and with its aid, guidance and direction,''
which is exactly, basically, the language of our legislation, ``aid,
guidance and direction enter this country,'' enter this country, ``bent
on hostile acts are enemy belligerents within the meaning of the law of
war.''
How can anything be more clear to the Senator from Illinois? I mean,
it is beyond belief. It is beyond belief.
They then go on and talk about the Civil War, the U.S. Supreme Court
does. They talk about the Civil War. They talk about a code binding the
Union Army during the Civil War that captured rebels would be treated
as prisoners of war. So a citizen, no less than an alien, can ``be part
of or supporting forces hostile to the United States or coalition
partners and engaged in an armed conflict against the United States.''
Now, after 9/11, we declared that we were at war with al-Qaida. Is
that correct?
Mr. GRAHAM. Yes.
Mr. McCAIN. So we are at war. We have American citizens who are enemy
combatants. Yet the Senator from Illinois, in the most bizarre fashion
that I have heard, says, therefore, they are
[[Page S8038]]
guaranteed the protections of--as he said--a trial.
I mean, I do not get it. Maybe the Senator from South Carolina can
explain.
Mr. GRAHAM. I will be glad to yield to my friend from Illinois. Let
me just try to set the stage the best I can. And I would love to have
Senator Levin weigh in and anyone else.
The law, as it exists today, to my good friend from Illinois, has
long held that when an American citizen collaborates with the enemy,
that is an act of war, not a common crime. The constitutional review
provided by the Supreme Court in cases involving American citizens
collaborating with the enemy has said that we view that as an act of
war and we apply the law of war. So our Supreme Court, in the Hamdi
case just a few years ago, upheld the ruling in the In re Quirin case,
which went back to World War II.
In that case, we had American citizens assisting Nazi saboteurs. The
Supreme Court ruled that citizenship status does not prevent someone
from being treated as part of the enemy force when they choose to join
the enemy.
Why is this important? My good friend from Illinois is an intel
officer. Intelligence gathering is part of war. An enemy combatant can
be interrogated by our military intelligence community without Miranda
rights. They can be held for an indefinite period of time to be
questioned about past, present, and future attacks. The Supreme Court
has legitimized that process because the individual in question was an
American citizen captured in Afghanistan.
He pled to the Court: You cannot hold me as an enemy combatant
because I am an American citizen.
The Court said: No, there is a long history in this country of having
American citizens who collaborate with the enemy to be held as an enemy
combatant.
Unfortunately, in every war we have engaged in, American citizens
have provided aid and comfort to the enemy. In World War II we had
American citizens assisting Nazi saboteurs.
Mr. McCAIN. Was not one of the most famous cases a woman whose name
was Tokyo Rose, who propagandized--she was an American citizen. She
propagandized on behalf of the Japanese when we were in the war.
Afterwards she was given a military trial.
Mr. GRAHAM. Yes. The point is----
Mr. McCAIN. Not a civilian trial, not given her Miranda rights, but
tried by military tribunal.
Mr. GRAHAM. Right. What we have done in the Military Commissions Act
in 2009, civilians, American citizens cannot be tried in military
commissions. It can only go to Federal court. But the point we are
trying to make is it has been long held in this country that when an
American citizen abroad or on the homeland decides to help the enemy,
we have the right to hold them, not under a criminal theory but under
the law of war because their effort to help the enemy, I say to my good
friend from Illinois, is an act of war against their fellow citizens.
This is so important. If we deny our country the ability to hold and
interrogate an American citizen who has joined forces with al-Qaida, we
lose the ability to find out the intelligence they may have to keep us
safe. If the choice is that an American citizen who chooses to
collaborate with al-Qaida must be put in the criminal justice system,
meaning they will have criminalized the war, the Congress will have
restricted executive branch power.
To make it clear--please understand, I say to Senator Feinstein--the
courts of the United States have acknowledged that the executive branch
can hold an American citizen as an enemy combatant when they engage and
assist the enemy. The courts of the United States recognize the power
of the executive to do that as Commander in Chief.
The question for us is, Do we want to be the first Congress in the
history of the Nation to say to the executive branch that they no
longer have that power given to them by the courts, inherent with being
Commander in Chief, to protect us against enemies foreign and domestic.
I argue to my colleagues, given the threats we face from homegrown
terrorism, from al-Qaida groups and their affiliates, that now is not
the time to change the law preventing our military intelligence
community from holding an American citizen who is helping the enemy on
the homeland and prevent them from gathering intelligence.
I argue that the reason no other Congress has done this in past wars
is because it didn't make a lot of sense. I argue that if a Senator
came to the floor of the Senate during World War II and suggested that
an American citizen who sided with the Nazis to sabotage American
interests here could not be held as an enemy combatant, they would have
been run out of town because most citizens would say anybody who helps
the enemy--citizen or not--is a threat to our country.
Unlike other wars, we do have due process that exists today that
never existed before. No Nazi soldier was able to go to a Federal court
and say: Judge, let me go. The reason I have agreed, and the courts
have applied habeas review to enemy combatant determination, is this is
a war without end.
How does one become an enemy combatant? The executive branch makes
the accusation. They have to follow the statutory criteria. This is a
limited group of people in a limited classification. American citizen
or not, if someone falls into this group, they can be held as an enemy
combatant. But the executive branch has to prove to an independent
judiciary that the case is sufficient, and under the law the judge has
to agree with the military; we have an independent judiciary looking
over the shoulder of the military in this war, unlike at any other
time. So the government has to prove to a Federal judge, by a
preponderance of the evidence, that this person is, in fact, an enemy
combatant. If the judge disagrees, they are let go. If the judge
agrees, we hold the enemy combatant, and they get an annual review
process as to whether future detention is warranted. So we have robust
due process.
But please understand what the Feinstein amendment is about. It is
about the Congress of the United States, the Senate of the United
States, for the first time in American history, restricting the ability
of the executive branch to hold an American citizen who is
collaborating with the enemy and question them under the law of war. If
we do that to ourselves, we will regret it. I don't want to be in the
first Congress, in the times in which we live, to change the law to
deny our intelligence community and the Department of Defense the
ability to deal with American citizens who have decided on their own to
become part of al-Qaida. The day one decides they are going to side
with al-Qaida, they have committed an act of war against the rest of
us, and the courts acknowledge they can be held as an enemy combatant,
not a common criminal.
The question for the Congress is, Do we want to undo that in the
times in which we live? I plead with everybody in this body, get
yourself educated about what the law is today. I ask Senator Levin, we
have done nothing to change the law in this bill; is that correct?
Mr. LEVIN. Not only does 1031, the overall section, not change the
law, it incorporates it, according to the administration's own
statement of policy on what the current law is. The Senator is right.
There is nothing in here which in any way affects habeas corpus, nor
should we seek to do so. Habeas corpus remains exactly as it is. We
could not change it if we wanted to, and we don't want to.
While the Senator asked me a question, I wish to answer a question
with a question to him. Is it not true that for the first time, we
provide that where there is going to be an unprivileged enemy
belligerent who could be held in long-term detention under the law of
war--for the first time we provide a judge and a lawyer to that person;
is that right?
Mr. GRAHAM. That is correct, and we have been working on that
together for 5 years. To respond, if I may, because I think it is a
very good discussion, does the Senator agree with me that under the law
that exists today, in terms of the Supreme Court rulings, an American
citizen can be held as an enemy combatant?
Mr. LEVIN. I read this yesterday, and I will read it again now. The
Senator is right. I don't know how anybody reading this can reach any
other conclusion but what the Supreme
[[Page S8039]]
Court says, not because they are right or wrong but because of the
Supreme Court: ``There is no bar to this Nation's holding one of its
own citizens as an enemy combatant.''
By the way, nor should there be, in my judgment.
Mr. GRAHAM. Does the Senator agree that in past wars American
citizens, unfortunately, have collaborated with the enemy?
Mr. LEVIN. They have, and they have been treated as enemy combatants.
Mr. GRAHAM. Does he agree with me that in World War II some American
citizens agreed to assist the Nazis and were held as enemy combatants?
Mr. LEVIN. I agree.
Mr. GRAHAM. Does the Senator agree it is good policy to hold and
interrogate someone who is helping al-Qaida to find out what they know?
Mr. LEVIN. It is good policy. If they decline, under the procedures
under our language, the person should be first interrogated for
whatever length of time those procedures provide--by the FBI, local
police or anybody else. They have the right to do that.
Mr. GRAHAM. Does the Senator agree that the criminal justice system
is not set up to gather military intelligence?
Mr. LEVIN. Yes.
Mr. McCAIN. To interrupt, briefly, I wonder--in the interpretation of
the Senator from Illinois of the Constitution of the United States--if
it is an American citizen, say, somewhere over in Pakistan, who is
plotting and seeking to destroy American citizens, it is OK for us to
send a predator and fire and kill that person, but according to the
interpretation of the Senator from Illinois, if that person were
apprehended in Charleston planning to blow up Shaw Air Force Base, then
that person would be given his Miranda rights, how in the world does
that fit?
Again, this is one of the more bizarre discussions I have had in the
20-some years I have been a Member of this body.
Mr. GRAHAM. Under the law as it exists today, an American citizen can
be held as an enemy combatant. The question we are debating on the
floor--Senator Feinstein is saying that in the future an American
citizen who is deemed to have collaborated with al-Qaida or the Taliban
or others could no longer be held as an enemy combatant for an
indefinite period, which means we cannot gather military intelligence
as to what they know about past, present, and future attacks.
I argue we would be the first Congress in history to bring about that
result and that now would be the worst time in American history to do
that. If we cannot hold a citizen who is suspected of assisting al-
Qaida under the law of war, the only option is to put them in the
criminal justice system. Then we cannot hold them indefinitely, and we
cannot ask about present, past or future attacks because now we are
investigating a crime, nor should we be allowed to do that under
criminal law.
The point is that when a person assists the enemy, whether at home or
abroad, they have committed an act of war against our citizens, and the
Supreme Court has acknowledged that the executive branch has the power
to hold them as an enemy combatant. The question is, Are we going to
change that and say in the 21st century, in 2011, every American
citizen who chooses to cooperate with al-Qaida can no longer be
interrogated for intelligence-gathering purposes by our Department of
Defense and our intelligence community; that they have to go into the
criminal justice system right off the bat, where they are given a
lawyer and are read their Miranda rights? If we do that, we are going
to deny ourselves valuable intelligence. We would be saying to our
citizens that we no longer treat helping al-Qaida as an act of war
against the rest of us.
If one suggested during World War II that someone who collaborated
with the Nazis should be viewed as a common criminal, most Americans
would have said: No, they turned on their fellow citizens and they are
now part of the enemy.
All I want to do is keep the law as it is because we need it now more
than ever. I am sensitive to due process. There is more due process in
this war. Every enemy combatant being held at Guantanamo Bay, captured
in the United States, has to go before a Federal judge. The military
has to prove their case to a Federal judge. There is an annual review
process. That makes sense to me. What doesn't make sense to me is for
this country and this Senate to overturn a power that makes eminent
sense when we need it the most. It doesn't make sense to set aside a
Supreme Court case that acknowledges that when an American citizen
affiliates with al-Qaida, that is an act of war against the rest of us
and to criminalize that conduct, denying us the ability to gather
intelligence. If we go down that road, we have weakened ourselves as a
people, without any higher purpose.
To those American citizens thinking about helping al-Qaida, please
know what will come your way: death, detention, prosecution. If you are
thinking about plotting with the enemy inside our country to do the
rest of us harm, please understand what is coming your way: the full
force of the law.
The law I am talking about is the law of armed conflict. You subject
yourself to being held as an enemy of the people of the United States,
interrogated about what you know and why you did what you did or
planned to do, and you subject yourself to imprisonment and death. The
reason you subject yourself to that regime is because your decision to
turn on the rest of us and help a group of people who would destroy our
way of life is not something we idly accept. It is not a common,
everyday crime. It is a decision by you to commit an act of aggression
against the rest of us.
I hope and pray this Senate will not, for the first time in American
history, deny our ability to interrogate and find intelligence from
those citizens who choose to associate with the enemy on our soil,
because if we do that, it will be a deviation from the law that has
existed at a time when we need that law the most.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. KIRK. Mr. President, I will yield to Senator Feinstein in a
minute. I appreciate the debate with my friends and mentors. The three
of us who were just debating were all military officers, but we have
different views. We are dangerously close to being similar to the House
of Representatives, where they have face-to-face debate. I appreciate
that.
The law that should not be changed is the Constitution of the United
States, and we realize the regulations of the United States have force,
that the statutes of the United States have greater force, and the
Supreme Court decisions have even greater force. But no document is
above the actual words of the Constitution. I will say those words are
our birthright as American citizens.
The sixth amendment says you shall be secure in your person and that
shall not be violated and no warrant shall issue except upon probable
cause--meaning that a court has made that decision. Your first
amendment rights say that no person--and there is no exception in the
Constitution--shall be held to answer for capital or otherwise infamous
crimes, unless presentment or indictment of a grand jury.
By the way, I am talking specifically about a U.S. person inside the
jurisdiction of the United States. Our sixth amendment right says that
in all criminal prosecutions, the accused shall enjoy the right of a
speedy and public trial. Our fourteenth amendment right says no State
shall make or enforce any law which shall abridge the privileges or
immunities of the citizens of the United States. These are, without
question, for U.S. citizens. There is a balancing act between the
threats we perceive. We know the threats from foreign enemies and
terrorists. That is well known to us, especially the new generation of
Americans who witnessed the mass murders of September 11.
The Founding Fathers were also wrestling with another threat--the
threat of the state, the government itself, against its own individuals
and the abuse of power. We would forget the lesson of history, unless
we understood that is a threat as well. We are told there will be no
intelligence benefit if a U.S. citizen who is arrested can't be
interrogated by Homeland Defense or FBI people. And yet, I would say,
as a member of the intelligence community, the FBI and the Department
of Homeland Security are part of the intelligence community and feed
[[Page S8040]]
information into the intelligence community and can be used.
One of the key ideas behind our American government is it is not what
we do, it is how we do it. One of the things missing in section 1031 is
who is the decider. The decider in this case is the suspicion of being
part of the al-Qaida, the Taliban, or committing that belligerent act,
but we have no court making the decision. As an American, you no longer
have a right to the civilian court system, and those rights are
inherent to you and are your birthright as an American citizen.
We should make sure that what we do here and now is that we
understand your rights; that as an American citizen you can only be
incarcerated on indictment by a grand jury, which is by a preponderance
of evidence; and then conviction is beyond the shadow of a doubt. Under
this language, if you are accused of being part of al-Qaida or the
Taliban, or of committing an act, you can be held subject to only one
habeas review on a preponderance of evidence.
Most Americans think you can only be convicted of a crime in the
United States beyond the shadow of a doubt by a jury of your peers. But
if this is passed, that is no longer true. We want to make sure the
decider always is a civilian article III court. We are talking about a
very specific definition here inside the jurisdiction of the United
States among American citizens.
I agree we can kill Anwar al-Awlaki, who is making war on the United
States from a foreign jurisdiction. But when we are inside the United
States, the whole point of the U.S. military and our establishment is
to defend our rights, and those rights cannot be taken away from us by
any executive action. They can only be taken away from us by action of
a civilian court, by a jury of our peers and by their decision beyond a
shadow of a doubt.
With that, I yield for the Senator from California, whose amendment I
so strongly support.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I want one quick moment to respond and then
I will propound a unanimous consent request.
We couldn't change the Constitution here if we wanted to, and nobody
does want to. And that includes the right of habeas corpus. All the
constitutional rights which the Senator from Illinois talked about are
constitutional rights. They are there. They are guaranteed. They
couldn't be changed by the Congress if we wanted to, and I hope nobody
wants to change those rights.
But what the Senator ignores, and what has been ignored generally
here, is that there is another path, and the Supreme Court has approved
this path so that if any American citizen joins a foreign army in
attacking us, that person may be treated as an enemy combatant. That is
not me speaking. That is the Supreme Court in Hamdi.
There is no bar to this Nation's holding one of its own citizens as
an enemy combatant.
If you join an army and attack us, you can be treated as an enemy
combatant. The Supreme Court has said so more than once.
My unanimous consent request is the following: that the Senator from
California be recognized first for whatever comments she wishes to
make, then the senior Senator from Illinois be recognized to speak on
whatever subject he wishes--on the amendment of the Senator from
California or whatever--and then Senator Merkley's amendment be in
order to be called up by Senator Merkley.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from California.
Mrs. FEINSTEIN. I thank the distinguished manager of the bill, and I
say to the distinguished senior Senator from Illinois, who is here, I
will try to be relatively brief. But I would also say that seldom do we
get an opportunity on the floor of the Senate to debate what is
fundamental to this American democracy. In a sense, I am pleased this
issue has now been aired publicly because I think we can address it
directly.
Senator Durbin, I also want to thank your colleague, the junior
Senator from Illinois, Senator Kirk, for his cosponsorship of this
amendment.
The fact of the matter is, the original draft of this defense bill
had this language in it:
The authority to detain a person under this section does
not extend to the detention of citizens or lawful resident
aliens of the United States on the basis of conduct taking
place in the United States except to the extent permitted by
the Constitution of the United States.
That was removed from the bill. Essentially, what we are trying to do
is put back in that you cannot indefinitely detain a citizen--just a
citizen--of the United States without trial. Due process is a basic
right of this democracy. It is given to us because we are citizens of
the United States. And due process requires that we not authorize
indefinite detention of our citizens.
Where I profoundly disagree with the very distinguished chairman and
ranking member of the Armed Services Committee is by saying that Ex
parte Quirin established the law for U.S. citizens in this area that
still holds. It does not. I went to the Hamdi opinion, and I wish to
read some of the plurality opinion as written by Justice O'Connor. This
first quote is from page 23 of her opinion.
As critical as the government's interest may be in
detaining those who actually pose an immediate threat to the
national security of the United States during ongoing
international conflict, history and common sense teach us
that an unchecked system of detention carries the potential
to become a means for oppression and abuse of others who do
not present that sort of threat.
Continuing on page 24:
We reaffirm today the fundamental nature of a citizen's
right to be free from involuntary confinement by his own
government without due process of law, and we weigh the
opposing governmental interests against the curtailment of
liberty that such confinement entails.
It then goes on, referring to the Hamdi case, on page 26:
We therefore hold that a citizen-detainee seeking to
challenge his classification as an enemy combatant must
receive notice of the factual basis for his classification,
and a fair opportunity to rebut the government's factual
assertions before a neutral decisionmaker.
Then to quote from Justice Scalia's opinion, which is important
commentary on the 1942 case Ex parte Quirin, he says:
The government argues that our more recent jurisprudence
ratifies its indefinite imprisonment of a citizen within the
territorial jurisdiction of Federal courts. It places primary
reliance on Ex parte Quirin, a World War II case upholding
the trial by military commission of eight German saboteurs,
one of whom, Hans Haupt, was a U.S. citizen.
Justice Scalia concludes:
This case was not this Court's finest hour.
Mr. President, the difference today is that we as a Congress are
being asked, for the first time certainly since I have been in this
body--and I believe since the senior Senator from Illinois has been in
this body--to affirmatively authorize that an American citizen can be
picked up and held indefinitely without being charged or tried. That is
a very big deal, because in 1971 we passed a law that said you cannot
do this. This was after the internment of Japanese-American citizens in
World War II. It took that long, until 1971, when Richard Nixon signed
the Non-Detention Act, and that law has never been violated.
The Quirin case was not about whether a U.S. citizen captured during
wartime could be held indefinitely, but rather whether such an
individual could be held in detention pending trial by military
commission. The recent case of an American put into military custody,
of course, was Jose Padilla, and there was a good deal of controversy
over the years about his case. He was ultimately transferred out of
military custody, tried and convicted in a civilian court.
What we are talking about here--and I am very pleased Senator Kirk
and Senator Lee have joined us as cosponsors in this--is the right of
our government, as specifically authorized in a law by Congress, to say
that a citizen of the United States can be arrested and essentially
held without trial forever.
The hypothetical example that has been offered by the Senator from
Arizona, the ranking member of the committee, is: Would we want someone
who is an American--who is planning to kill our people, bomb our
buildings--not to be held indefinitely under the laws of war? I believe
it is a different situation when it comes to American citizens. What if
it is an innocent
[[Page S8041]]
American we are talking about? What if it is someone who was in the
wrong place at the wrong time? The beauty of our Constitution and our
law is it gives every citizen the right of review--review by a court,
and this is what the Hamdi decision is all about. The defense bill on
the floor, as written, would take us a step backward. The bill, as
written, would say an American citizen can be picked up, can be held
for the length of hostilities--is that 5 years, 10 years, 15 years, 20
years, 25 years, 30 years--without a trial. I say that is wrong. I say
that is not the way this democracy was set up. And I also say that is
totally unnecessary because our federal courts work well to prosecute
terrorists. We can go back to the Shoe Bomber, as a case in point. We
can go back to Abdulmutallab as a case in point. We can go back to the
record of the Federal courts prosecuting over 400 terrorists since 9/
11.
I want to thank Senator Durbin for his interest in this issue and his
cosponsorship of this amendment. It is very much appreciated. I don't
know whether we can win this, but I think it is very important that we
try and I know we are getting more and more support as people learn
more about what this bill does. I think it is very important that we
build a record in this body, because I have no doubt this is going to
be litigated. I hope we are successful with this amendment. I hope we
can protect the rights of Americans.
Mr. President, as we have occasion to look at people in Guantanamo,
we know there are people there who were in the wrong place at the wrong
time. If they are going to be held forever, that is a mistake, and we
don't want the same thing to happen to American citizens in this
country.
This is another example of how we are over-militarizing things that
aren't broken. As I have said previously here on the floor, I don't see
a need for the military to go around arresting Americans. The national
security division of the FBI now has some 10,000 people. They have 56
field local offices with special agents who are well equipped to arrest
terrorists and also interrogate them. Certainly the Justice Department
is equipped to prosecute terrorists in Federal criminal court. The
conviction rate and the long sentences achieved shows their success.
I am hopeful we will be able to pass this amendment and change the
bill to reflect that Americans are protected from permanent detention
without trial. That is all we are trying to do.
I thank the Senator from Illinois, I thank the Chair, and I yield the
floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, let me say at the outset what an
extraordinary job my colleague from California has done. There was a
time in American history, before law schools, when people read the law
and practiced the law. The Senator from California has not only read
the law, she has written many laws, and her competence in advocating
this important constitutional question has been proven over and over.
So I thank her for having the determination and courage to stand up for
her convictions against some who would be critical of anyone who
broaches the subject.
This is a controversial subject. We are talking about the security of
Americans. We are talking about terrorism. We all remember a few years
ago when our lives were interrupted--a time we will never forget--when
terrorists attacked the United States and killed 3,000 innocent
American people on 9/11. We came together in this Congress, Democrats
and Republicans, and said we need to keep this country safe; that we
never want that to happen again. So we passed new laws, suggested by
President George W. Bush, and enacted by Democrats and Republicans in
Congress.
We created new agencies, such as the TSA security agency at airports
and we empowered our intelligence branches--which Senator Feinstein has
a particular responsibility for as chairman of the Senate Intelligence
Committee--by giving them more people, more technology, and more
authority, and we said to them, keep us safe.
We said to our military: We want you to be the best in the world and
continue to be, and we will provide the resources for that to happen.
Then we turned, as Senator Feinstein has noted, to the Federal Bureau
of Investigation and said: We are going to dramatically increase your
numbers and give you the technology you need to keep us safe.
Here we are some 10 years later, and what can we say? We can say
thanks to the leadership of President George W. Bush and Barack Obama,
9/11 was not repeated--and we never want it repeated.
We can also say, with very few exceptions, in the 10 years since 9/11
that we have done all these things consistent with America's values and
principles. Other countries--and we see them even today--faced with
uncertainty and insecurity throw out all of the rules of human conduct
even to the point of killing their own people in the streets to
maintain order. Thank God that never has occurred in the United States,
and I pray it never will. Those of us who are elected to represent our
States in the Senate take an oath, an oath that we are going to uphold
and defend the Constitution with its values and principles. We
understand that taking that oath may mean that we are accepting due
process, and due process says a fair day in court for someone accused
of a crime. Other countries dispense with that. They don't need a
trial. They find someone suspected of a crime, whatever it might be,
that person is given summary execution, and that is the end of the
story. No questions asked.
We don't do it that way in America. We establish standards of conduct
and justice, and particularly as it relates to the people who live in
America, our citizens and legal residents who are in the United States.
That is what this debate is about.
This is an important bill, S. 1867. It comes up every year in a
variety of different forms, and we are lucky to have Senator Carl Levin
and Senator John McCain who put more hours into it than we can imagine
to write the bill to authorize the Department of Defense to do its job.
It is the best military in the world, and their hard work makes certain
that it stays in that position.
But this provision they have added in this bill is a serious
mistake--serious. It is serious enough for me to support Senator
Feinstein in her efforts to change and remove the language. Why?
First, we know the law enforcement officials in the United States of
America, the Attorney General's Office, the FBI have done a good job in
keeping America safe. They have arrested over 300 suspected terrorists
in the United States--over 300 of them--and they have tried them in the
criminal courts of America, on trial, in public, for the world to see
that these people will be held to the standards of trial as an American
citizen. Of those 300, they have successfully prosecuted over 300
alleged terrorists, then incarcerated them in the prisons of America,
including Marion, IL, in my home State, where they are safely and
humanely incarcerated.
The message to the world is: We are going to keep America safe, but
we are going to do it by playing by the rules that make us America. Due
process is one of those rules, and it has worked. It has worked under
two administrations.
Now comes this bill and a suggestion that we need to change the
rules. The suggestion is, in this measure, that we will do something
that has not been done in America before. Section 1031 of this bill,
for the first time in the history of America, will authorize the
indefinite detention of American citizens in the United States. This is
unprecedented. In my view, as chair of the Constitution Subcommittee of
Senate Judiciary, it raises serious constitutional concerns.
Senator Levin and Senator McCain disagree. In an op-ed piece for the
Washington Post, they recently wrote:
No provision in the legislation expands the authority under
which detainees can be held in military custody.
But look at the plain language of section 1031. There is no exclusion
for U.S. citizens. So the question is, If we believe an American
citizen is guilty or will be guilty of acts of terrorism, can we detain
them indefinitely? Can we ignore their constitutional rights and hold
them indefinitely, without warning them of their right to remain
silent, without advising them of their right to counsel, without giving
them the basic protections of our Constitution? I don't believe that
should be the standard.
[[Page S8042]]
I listened to Senator McCain. He makes a pretty compelling argument:
Wait a minute. You are telling me that if you have someone in front of
you who you think is a terrorist who could repeat 9/11, you are going
to read their Miranda rights to them?
Well, as an American citizen, yes, I would. I would say to Senator
McCain the same argument would apply if that person in front of me was
not a suspected terrorist but a suspected serial killer, a suspected
sexual predator; we read them their Miranda rights. We believe our
system of justice can work with those rights being read.
Do you remember the case about 2 years ago of the person who was on
the airplane, the Underwear Bomber, Abdulmutallab? He was coming to the
United States to blow up that airplane and kill all the people onboard,
and thank God he failed. He tried to ignite a bomb and his clothing
caught on fire, and the other passengers jumped on him, subdued him,
and he was arrested. This man, not an American citizen, was taken off
the plane and interrogated by the Federal Bureau of Investigation.
After he stopped talking voluntarily, they read him his Miranda rights.
We all know them from the crime shows that we watch on TV: the right to
remain silent, everything you say can be used against you, the right to
retain counsel. He was read all those things, and he shut. But that
wasn't the end of the story.
By the next day, they were back interrogating him and they had
contacted his parents, brought his parents to this country. He met with
his parents and turned and said: I will cooperate. I will tell you
everything I know. He started talking, and he didn't stop.
At the end of the day, he was charged with terrible, serious crimes,
brought to trial in Detroit, and pled guilty under our criminal system.
Now, he wasn't an American citizen, but even playing by the rules for
American citizens we successfully prosecuted this would-be bomber and
terrorist.
What is the message behind that? The message behind that is we will
stand by our principles and values and still keep America safe. We will
trust the Federal Bureau of Investigation and the Department of Justice
to successfully prosecute suspected and alleged terrorists. We will not
surrender our principles even as we fight terrorism every single day.
Now, this bill changes, unfortunately, a fundamental aspect of that.
It says if an American citizen is detained and suspected to be involved
in terrorism with al-Qaida or other groups, they can be held
indefinitely without being given their constitutional rights.
I appreciate that Senator Levin and Senator McCain have said they are
willing to consider excluding U.S. persons, but section 1031 doesn't. I
hope they do.
I want to address a couple statements that have been made by my
Republican colleagues. I like them and respect them.
I would say to Senator Graham, my colleague and friend from South
Carolina, I listened to Senator Levin tell us privately and publicly
over and over again: What we have here doesn't change the law. Then I
listened to your arguments on the floor saying: Well, the law needs to
be changed. That is why we are doing this. So I am struggling to figure
out if Senator Levin and Senator Graham have reconciled.
Mr. GRAHAM. May I respond?
Mr. DURBIN. I want the Senator to respond, but I want to ask point
blank, is there an exclusion currently in the law for U.S. citizens
under section 1031 and whether or not under 1031 American citizens can
be detained indefinitely?
Mr. GRAHAM. No. And there should not be. Could I finish my thought?
Mr. DURBIN. Of course.
Mr. GRAHAM. Now, we are good friends, and we are going to stay that
way. But you keep saying something, Senator Durbin, that is not true.
The law of the land is that an American citizen can be held as an enemy
combatant. It is the Hamdi decision, and I quote:
There is no bar to this Nation's holding one of its own
citizens as an enemy combatant.
Hamdi was an American citizen captured in Afghanistan fighting for
the Taliban. Justice O'Connor specifically recognized that Hamdi's
detention could last for the rest of his life because law of war
detention can last for the duration of the relevant conflict.
The Padilla case involves an American citizen captured in the United
States, held for 5 years as an enemy combatant, and the Fourth Circuit
reviewed his case and said that we could hold an American citizen as an
enemy combatant.
To my good friend from Illinois, throughout the history of this
country American citizens in every conflict have, unfortunately,
decided to side with the enemy at times. In re Quirin is a 1942-1943
case that involved American citizens assisting German saboteurs. They
were held under the law of war because the act of collaborating with
the enemy was considered an act of war, not a common crime.
So the law of the land by the courts is that an American citizen can
be held as an enemy combatant. That has been the law for decades.
What Senator Feinstein would do is change that. The Congress would be
saying we cannot hold an American citizen as an American combatant.
I do appreciate the time. Now, let me tell you why I think that is
important.
The Senator is a very good lawyer. Under the domestic criminal law,
we cannot hold someone indefinitely and question them about enemy
activity: What do you know about the enemy? What is coming? What were
you doing? Where did you train? Under domestic criminal law, we can't
question somebody in a way that would put them in jeopardy.
Under military intelligence gathering we can question an enemy
prisoner without them having a lawyer to be able to find out how to
defend America. If we can't hold this person as an enemy combatant, the
only way we can hold them is under domestic criminal law. When the
interview starts and the guy says: I want my lawyer; I don't want to
talk to you anymore--under the criminal justice model there is a very
limited time we can hold them or question them without reading them
their rights or giving them a lawyer.
Under intelligence gathering our Department of Defense, the FBI, and
the CIA can tell the individual: You are not entitled to a lawyer. You
have to sit here and talk with us because we want to know what you know
about present, past, and future attacks.
If we can't hold an American citizen who has decided to collaborate
with al-Qaida as an enemy combatant, we lose that ability to gather
intelligence. That is the change that Senator Feinstein is proposing;
that the law be changed by the Congress to say enemy combatant status
can never be applied to an American citizen if they collaborate with
al-Qaida. That would be a huge loss of intelligence gathering, it would
be a substantial change in the law, and it would be the first time any
Congress has ever suggested that an American citizen can collaborate
with the enemy and not be considered a threat to the United States from
the military point of view. I don't want to go down that road because I
think that is a very bad choice in the times in which we live.
So to my good friend, the law is clear we can hold an American
citizen as an enemy combatant. The Congress is contemplating changing
that, and I think it would be a very bad decision in the times in which
we live to deny our ability to hold an American citizen and question
them about what they know and why they decided to join al-Qaida.
Mr. McCAIN. Mr. President, I ask for the regular order. What is the
regular order?
The PRESIDING OFFICER. The Senator from Illinois has the floor.
Mr. GRAHAM. Simply stated, if a person decides to collaborate with
al-Qaida in a very limited way, can we hold them? They have to be a
member of al-Qaida or affiliated with it or be involved in a hostile
act. But if they do those things, historically, American citizens who
chose to side with the Nazis--in this case, al-Qaida--have been viewed
by the rest of us not as a common criminal but as a military threat.
Now is not the time to change that. We need that ability to question
that person: Why did you join al-Qaida? Where did you train? What do
you know about what is coming next? And the only way we can get that
information is to hold them as an enemy combatant and take all the time
we need to protect this Nation and interrogate.
Mr. DURBIN. I would like to reclaim the floor.
[[Page S8043]]
Mr. GRAHAM. Yes, sir. I appreciate the exchange.
Mr. DURBIN. And would the Senator end that with a question mark?
Mr. GRAHAM. And, was I right?
Mr. DURBIN. I thank my colleague from South Carolina.
What the Senator concluded with, though, I think is critical to this
conversation. He said the only way to get to the bottom of whether
there is an al-Qaida connection that could threaten the United States
is military detention. Well, the Abdulmutallab case argues just the
opposite. It was the Federal Bureau of Investigation that he sat before
and told all of the information that the Senator has just discussed.
Mr. GRAHAM. May I respond and say the Senator is right.
I am an all-of-the-above guy. I believe that military and civilian
courts should be used.
When an American citizen is involved, does the Senator agree with me
that military commissions are off the table?
Mr. DURBIN. So the Senator is arguing that every President should
have all the options, criminal courts as well as military commissions
and tribunals?
Mr. GRAHAM. Absolutely.
Mr. DURBIN. Well, what is the difference, then, with what the Senator
is standing for and what is the current situation? From my point of
view, our Presidents--President Bush and President Obama--since 9/11,
have used both, with more success on the criminal courts side--
dramatically more success on the criminal courts side.
The obvious question that Senator Feinstein poses is, if the system
isn't broken, if the system is keeping us safe, if we have successfully
prosecuted over 300 alleged terrorists in our criminal courts and 6 in
military commissions, why do we want to change it?
Mr. GRAHAM. Here is the point I am trying to make.
Mr. DURBIN. Retaining the floor.
Mr. GRAHAM. Thank you. And this is a very good exchange.
My view is that when we capture somebody at home and the belief is
that they are now part of al-Qaida, that if we want to read them their
Miranda rights and put them in Federal court, we have the ability to do
that. This legislation doesn't prevent that from happening.
Does it, I ask Senator Levin?
Mr. LEVIN. It does not.
Mr. GRAHAM. But what Senator Feinstein is proposing is that no longer
do we have the option of holding the American citizen as an enemy
combatant to gather intelligence, and we don't have the ability to hold
them for a period of time to interrogate them under the law of war.
What I would suggest to the Senator is that the information we
receive from Guantanamo Bay detainees has been invaluable to this
Nation's defense. To those who believe it was because of waterboarding,
I couldn't disagree more. The chief reason we have been able to gather
good intelligence at Guantanamo Bay is because of time.
The detainee is being humanely treated, but there is no requirement
under military law to let the enemy prisoner go at a certain period of
time.
If you take away the ability to hold an American citizen who has
associated himself with al-Qaida to be held as an enemy combatant, you
can no longer use the technique of interrogating him over time to find
out what he knows about the enemy.
You are worried about prosecuting them. I am worried about finding
out what they know about future attacks. They are not consistent. You
can prosecute somebody. That is part of the law. What the Senator is
taking away from us is the ability to gather intelligence. Our criminal
justice system is not set up to gather intelligence.
Mr. DURBIN. I want to reclaim the floor. I know Senator McCain is
anxious for me to conclude and there is something he is anxious to do
quickly, but I will try to do this in appropriate time for the gravity
of the issue before us.
But to suggest the only way we can get information about a terrorist
attack on the United States by al-Qaida and other sources is to turn to
the military commissions and tribunals and not use the FBI and not use
the Department of Justice defies logic and experience. Abdulmutallab,
the Underwear Bomber, a member of al-Qaida, failed in his attempt to
bring down that plane, interrogated successfully by the FBI, basically
told them everything he knew over a period of time. It worked. To argue
that you cannot do this defies the experience with Abdulmutallab.
I want to say a word about the Hamdi case. I listened as Senator
Feinstein read the Supreme Court decision. I do not think the Supreme
Court decision stands for what was said by the Senator from South
Carolina. I think what he said was inaccurate. I do not believe Justice
O'Connor went to the extent of saying you can hold an American citizen
indefinitely.
Let me also say when it comes to the Hamdi case, Hamdi was captured
in Afghanistan. He was captured on the battlefield in Afghanistan, not
the United States. And Justice O'Connor, in that opinion, was very
careful to say the Hamdi decision was limited to ``individuals who
fought against the United States in Afghanistan as part of the
Taliban.'' She was not talking about American citizens and their
rights. She was talking about this specific situation.
Now let's go to the case of Jose Padilla. Jose Padilla, some will
argue, is a precedent for the indefinite detention of American
citizens. But look at what happened in the case of Padilla, a U.S.
citizen placed in military custody in the United States. The Fourth
Circuit Court of Appeals, one of the most conservative courts in our
Nation, upheld Padilla's military detention.
Then, before the Supreme Court had the chance to review the Fourth
Circuit's decision, the Bush administration transferred Padilla out of
military custody and prosecuted him in an article III criminal court.
I do not think that Hamdi or Padilla makes the case that has been
made on this floor.
I want to say I think Senator Feinstein is proper in raising this
amendment. I think the fact is that Hamdi is a U.S. citizen, but it
does not stand for the indefinite detention of U.S. citizens as this
new law would allow.
It troubles me that as good, as professional, as careful as our
government has been to keep America safe, we now have in a Defense
authorization bill an attempt to change some of the most fundamental,
constitutional principles in America. This bill went through a great
committee, our Armed Services Committee, but not through the Judiciary
Committee which has specific subject matter jurisdiction over our
Constitution. It did not go through the Intelligence Committee. And for
the record, the provisions in this bill--which some have said are not
that significant, that much of a change--are opposed by this
administration, opposed by the Secretary of Defense, Leon Panetta, who
received a 100-to-nothing vote of confidence from the U.S. Senate when
he was appointed, opposed by our Director of National Intelligence, who
says these provisions will not make America safer but make it more
difficult to protect America, and opposed by the Federal Bureau of
Investigation.
I entered a letter from Director Muller in the Record yesterday, as
well as the Department of Justice.
You have to ask yourself, if all of these agencies of government,
which work day in, day out, 24-7 to keep us safe, tell us not to pass
these provisions because it does not make America safer, it jeopardizes
our security, why are we doing it?
Senator Feinstein has the right approach: Let us try to preserve some
of the basic constitutional values here. I think we can. I hope my
colleagues will take care before they vote against Feinstein. Despite
the respect, which I share, that they have for our Armed Services
Committee and its leadership--this is a matter of constitutional
importance and gravity. It is important for us to take care and not to
change our basic values in the course of debating a Defense
authorization bill. Let's keep America safe but let's also respect the
basic principle that American citizens are entitled to constitutional
rights. The indefinite detention of an American citizen accused--not
convicted, accused of terrorist activity--the indefinite detention runs
counter to the basic principles of the Constitution we have sworn to
uphold.
I yield the floor.
The PRESIDING OFFICER (Mrs. Hagan). The Senator from Michigan.
[[Page S8044]]
Mr. LEVIN. I wonder if the Senator will yield for a question. Would
the Senator agree that the majority opinion in Hamdi said the
following:
There is no bar to this Nation's holding one of its own
citizens as an enemy combatant.
Mr. DURBIN. I would respond by saying Justice O'Connor in that
decision said:
[A]s critical as the Government's interest may be in
detaining those who actually pose an immediate threat to the
national security of the United States during ongoing
international conflict, history and common sense teach us
that an unchecked system of detention carries the potential
to become a means for oppression and abuse of others who do
not present that sort of threat. . . .
We therefore hold that a citizen-detainee, seeking to
challenge his classification as enemy combatant, must receive
notification of the factual basis for his classification, and
a fair opportunity to rebut the Government's factual
assertions before a neutral decisionmaker.
Mr. LEVIN. Would the Senator agree that specifically referred to
there is that a citizen being held as an enemy combatant is--excuse me.
Would the Senator agree that what he read refers to the exact statement
of the Justice that a citizen who is held as an enemy combatant is
entitled to certain rights? Would the Senator agree that that, by its
own terms, says that a citizen can be held as an enemy combatant?
Mr. DURBIN. In the particular case of Hamdi, captured in Afghanistan
as part of the Taliban.
Mr. LEVIN. She did not say that. She said ``a citizen.'' I know what
the facts of the case are. She did not limit it to the facts of the
case.
Mr. DURBIN. I am sorry but she did. The quote:
. . . individuals who fought against the United States in
Afghanistan as part of the Taliban.
Mr. LEVIN. She did not limit it to that. She described the facts of
that case.
Mr. DURBIN. She limits it to that case. If I could make one response
and then I will give the floor to the Senator. This is clearly an
important constitutional question and one where there is real
disagreement among the Members on the floor. I think it is one that
frankly we should not be taking up in a Defense authorization bill but
ought to be considered in a much broader context because it engages us
at many levels in terms of constitutional protections.
Mr. LEVIN. I agree with the Senator that Justice O'Connor said what
the Senator said she said. Would the Senator agree with me that Justice
O'Connor said:
There is no bar to this Nation's holding one of its own
citizens as an enemy combatant.
Would the Senator agree that she said that?
Mr. DURBIN. As it related to Hamdi captured in Afghanistan.
Mr. LEVIN. Would the Senator agree she said that, however?
Mr. DURBIN. As it related to Hamdi, of course.
Mr. LEVIN. I am giving the Senator an exact quote. I know the facts
of the case.
Mr. DURBIN. I can read the whole paragraph rather than the sentence.
Mr. LEVIN. You already have. Given the facts of the case. I
understand the facts of the case, that it was somebody captured in
Afghanistan. My question is, of the Senator: Would he agree that
Justice O'Connor said--she is talking about this case, of course----
Mr. DURBIN. Yes.
Mr. LEVIN. ``There is no bar to this Nation holding one of its own
citizens''?
Mr. DURBIN. Captured on the field of battle in Afghanistan.
Mr. LEVIN. Would the Senator agree that the Justice said the
following, that a citizen, no less than an alien, can be ``part of or
supporting forces hostile to the United States or coalition partners''
and ``engaged in an armed conflict against the United States,'' and
would pose the same threat of returning to the front during the ongoing
conflict? Would the Senator agree that she said that?
Mr. DURBIN. Of course.
Mr. LEVIN. Would the Senator agree that she quoted from the Quirin
case, in which an American citizen was captured on Long Island?
Mr. DURBIN. She did make reference to the Quirin case.
Mr. LEVIN. Did she cite that with approval?
Mr. DURBIN. I would say there was some reservation in citing it. I
say to the Senator, our difficulty and disagreement is the fact we are
dealing with a specific individual captured on the field of battle in
Afghanistan with the Taliban.
Mr. LEVIN. I understand.
Mr. DURBIN. We are not talking about American citizens being arrested
and detained within the United States and being held indefinitely
without constitutional rights.
Mr. LEVIN. My question, though--my question is: Did Justice O'Connor
say that, in Quirin, that one of the detainees alleged that he was a
naturalized United States citizen, we held that--these are her exact
words:
Citizens who associate themselves with the military arm of
the enemy government, and with its aid, guidance and
direction enter this country bent on hostile acts, are enemy
belligerents within the meaning of . . . the law of war.
Did she say that?
Mr. DURBIN. I can tell the Senator there were references in there to
the case, but the Supreme Court has never ruled on the specific matter
of law which the Senator continues to read. Until it rules, we will
make the decision in this Department of Defense authorization bill, and
it is not an affirmation of current law because there has been no
ruling.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Isn't it true that Justice O'Connor was specifically
referring to a case of a person who was captured on Long Island? Last I
checked, Long Island was part--albeit sometimes regrettably--part of
the United States of America.
Mr. LEVIN. She is quoting with approval from the Quirin case in which
one of the detainees was----
Mr. McCAIN. Captured in the United States of America.
Those are the facts of the case.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. McCAIN. Madam President, I am afraid we have to move to the
amendment of Senator Merkley, who has been very patient.
Mr. LEVIN. According to a unanimous consent agreement which was
entered into----
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I understand Senator Merkley was going to be recognized
next to offer his amendment. That was according to the unanimous
consent agreement. I understand the Senator from New Hampshire, I don't
know for how long, needed to make a unanimous consent request. Am I
correct? No? I am incorrect.
According to the existing unanimous consent agreement, which was
entered into----
Mr. McCAIN. Can I ask the indulgence----
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Could I ask the indulgence of my friend from Oregon, that
the Senator from South Carolina be allowed 2 minutes, and the Senator
from New Hampshire be allowed 5 minutes? Would that be all right with
the Senator from Oregon?
Mr. MERKLEY. Yes.
Mr. McCAIN. I thank him for his courtesy too. I say to the Senator
from Illinois, this is an important debate and discussion. I appreciate
his presentation. I think a lot of people are getting a lot of good
information, on what is a very complex and very central issue. I thank
the Senator from Illinois.
I yield.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. Please understand what you are about to do if you pass
the Feinstein amendment. You will be saying as a Congress, for the
first time in American history, an American citizen who allies himself
with an enemy force can no longer be held as an enemy combatant. The In
Re Quirin decision was about American citizens aiding Nazi saboteurs,
and the Supreme Court held then that they could be held as enemy
combatants. So as much respect as I have for Senator Durbin, it has
been the law of the United States for decades that an American citizen
on our soil who collaborates with the enemy has committed an act of war
and will be held under the law of war,
[[Page S8045]]
not domestic criminal law. That is the law back then. That is the law
now.
Hamdi said that an American citizen--a noncitizen has a habeas right
under law of war detention because this is a war without end. The
holding of that case was not that you cannot hold an American citizen,
it is that you have a habeas right to go to a Federal judge and the
Federal judge will determine whether the military has made a proper
case. It has nothing to do with an enemy combatant being held as an
American citizen. What this amendment would do is it would bar the
United States in the future from holding an American citizen who
decides to associate with al-Qaida.
In World War II it was perfectly proper to hold an American citizen
as an enemy combatant who helped the Nazis. But we believe, somehow, in
2011, that is no longer fair. That would be wrong. My God, what are we
doing in 2011? Do you not think al-Qaida is trying to recruit people
here at home? Is the homeland the battlefield? You better believe it is
the battlefield.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. GRAHAM. Madam President, I ask unanimous consent for 1 more
minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. That is the point. Why would you say that if you are in
Afghanistan, we can blow you up, put you in jail forever, but if you
make it here, all of a sudden we cannot even talk to you about being
part of al-Qaida. What a perverse outcome, to say if you make it to
America, you are home free; you cannot be interrogated by our military
or our CIA; you get a lawyer. And that is the end of the discussion.
That is what you would be doing. That is crazy. No Congress has ever
decided to do that in other wars. If we do that here, we are changing
the law in a way that makes us less safe. That is not going to be on my
resume.
It is not unfair to make an American citizen account for the fact
that they decided to help al-Qaida to kill us all and hold them as long
as it takes to find intelligence about what may be coming next. And
when they say ``I want my lawyer,'' you tell them ``Shut up. You don't
get a lawyer.''
The PRESIDING OFFICER. The Senator's time has expired.
Mr. GRAHAM. ``You are an enemy combatant, and we are going to talk to
you about why you joined al-Qaida.''
The PRESIDING OFFICER. The Senator from New Hampshire.
Ms. AYOTTE. Madam President, I also rise in opposition to the
amendment offered by Senator Feinstein, and I certainly appreciate the
comments of my colleague from South Carolina. It would lead to an
absurd result that if we were in a situation where an American citizen
became a member of al-Qaida and from within our country attacked
Americans and we could not gather the maximum amount of information
from them to make sure we could prevent future attacks against our
country--that is what is at issue here.
I would like to point out a couple of issues that have not been
addressed with respect to Senator Feinstein's amendment.
If you look at the language of that amendment, she says that the
authority described in this section for the Armed Forces of the United
States to detain a person does not include the authority to detain a
citizen of the United States without trial until the end of
hostilities. I think this provision is going to create some real
problems for the executive branch. If I were they, I would be in here
raising these issues because it does not distinguish--the language--
between an American citizen who is captured overseas versus an American
citizen captured in the United States of America.
Let's use the example of Anwar al-Awlaki. Mr. al-Awlaki, a member of
al-Qaida, was actually killed by us overseas. So it would lead to the
absurd result that we could not detain him to gather intelligence, but
we believe that we are authorized--by the way, I agreed with the
administration taking that step to take out Mr. al-Awlaki, who was a
great danger to our country overseas. So the language as written would
lead to that absurd result that would tie the administration's hands,
that they can actually kill these individuals, but they can't detain
them under military custody and interrogate them to make sure we can
find out what they do know and what other attacks are being planned
against the United States of America.
Also with respect to the language in this amendment, the language
itself is a defense lawyer's dream. You can't hold a U.S. citizen until
the end of hostilities. Well, how long can you hold them? I mean, it is
not clear. There is no language in that. This is going to be litigated
to heaven, and this is an area where our intelligence professionals
need clarity. This is going to create more issues for the executive
branch in an area that needs clarity and where there needs to be some
identified rules and they have to be focused on gathering intelligence
to protect Americans.
Senator Durbin has cited the Abdulmutallab case on numerous occasions
as a way--as a great case as an example of how we can gather
intelligence from enemy combatants to protect America. Let's review the
facts of that case again. Fifty minutes into the interrogation, he was
told: You have the right to remain silent. He exercised that right
because he was given Miranda warnings, and it was only 5 weeks later
that we were actually able to get through the Miranda warnings after we
went to his parents. Is that the type of system we want? What happened
in that 5 weeks? What did we lose in terms of information that could
have protected America?
If we can't hold an American citizen who has chosen to be a member of
al-Qaida and has participated in a belligerent act against our country
to ask them what other attacks they are planning and whom they are
working with, how are we going to get information to make sure that--
God forbid--we can prevent another 9/11 on our soil, because that is
why they want to come to the United States of America. Also, how do we
deal with this issue of homegrown radicals?
Unfortunately, this amendment, in my view, is going to be a situation
where we are opening the welcome mat. If you get to America and you can
recruit one of our citizens to be a member of al-Qaida, then you don't
have to worry about them being held in military custody. You don't have
to worry about us using our maximum tools to gather intelligence to
protect Americans.
I think this amendment is very misguided. I again would point out
that the administration should be concerned about the language in this
amendment. It does not distinguish between an American citizen who is
captured on our soil who is trying to attack us and one overseas. But
either way, if an American citizen has joined al-Qaida and is trying to
kill us from within our own country, they have become part of our enemy
and are at war with us.
The PRESIDING OFFICER. The Senator's time has expired.
Ms. AYOTTE. Thank you, Madam President.
I urge my colleagues to oppose the Feinstein amendment.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I believe it is now in order for Senator Merkley to offer
amendment No. 1257, as amended, with the amendment at the desk. The
amendment at the desk has four words added to the printed amendment,
and those words are ``NATO and coalition allies''; is that correct?
The PRESIDING OFFICER. That is correct.
Mr. LEVIN. I thank the Presiding Officer.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Amendment No. 1257, as Modified
Mr. MERKLEY. Madam President, I call up amendment No. 1257, as
modified, under the unanimous consent agreement and rise to speak to
it.
The PRESIDING OFFICER. Under the previous order, the amendment No.
1257, as modified, is now the pending question.
The amendment (No. 1257) as modified, is as follows:
On page 484, strike line 22 through 24 and insert the
following:
(c) Transition Plan.--The President shall devise a plan
based on inputs from military commanders, NATO and Coalition
allies, the diplomatic missions in the region, and
appropriate members of the Cabinet, along with the
consultation of Congress, for expediting the drawdown of
United States combat troops in Afghanistan and accelerating
[[Page S8046]]
the transfer of security authority to Afghan authorities.
(d) Submittal to Congress.--The President shall include the
most current set of benchmarks established pursuant to
subsection (b) and the plan pursuant to subsection (c) with
each report on progress.
Mr. MERKLEY. Madam President, this amendment requires the President
of the United States to develop a plan to expedite the reduction of
U.S. combat troops in Afghanistan and to accelerate the transfer of
responsibility for military and security operations to the Government
of Afghanistan. Before I speak to some of the details, I want to thank
the original cosponsors who have worked hard on this amendment: Senator
Mike Lee, Senator Tom Udall of New Mexico, Senator Rand Paul, and
Senator Sherrod Brown.
The United States went to Afghanistan with two main goals that were
laid out by President Bush: to destroy al-Qaida training camps and to
hunt down those responsible for 9/11. Our very capable American troops
and their NATO partners have aggressively pursued these objectives.
There are very few al-Qaida operating in Afghanistan. Secretary of
Defense Leon Panetta said in June 2010 that there were at most only 50
to 100 al-Qaida members in Afghanistan. Afghanistan is no longer and
has not been for some time a central arena for al-Qaida activity.
American forces have also effectively pursued the second objective,
which is capturing or killing those who attacked America on 9/11. In
recent years, America has captured or killed two dozen high-level al-
Qaida operatives, including Khalid Shaikh Mohammed, the alleged
operational mastermind of the September 11 attacks, who was captured in
a raid on a house in the Pakistani garrison city of Rawalpindi near the
capital, Islamabad; Ramzi bin al-Shibh, described as a key facilitator
of the September 11 attacks; Sheikh Sa'id Masri, an Egyptian believed
to have acted as the operational leader of al-Qaida, who was killed in
a U.S. drone strike. Most importantly, our exceptional intelligence
teams and armed services have tracked down and killed Osama bin Laden,
the founder and head of al-Qaida.
Citizens may fairly ask--and they do ask--given that we have
successfully pursued our original two missions, isn't it time to bring
our sons and daughters home? Our citizens remind us that the United
States has been at war in Afghanistan for over 10 years, the longest
war in American history. Our citizens recognize that the war in
Afghanistan has come at a terrible price. More than 1,200 Americans
have died from snipers, from improvised explosive devices, and other
deadly weapons of war. More than 6,700 Americans have been wounded by
those same weapons. Thousands of our soldiers have suffered from--and
will suffer for years, decades to come--traumatic brain injuries and
post-traumatic stress disorder. Our soldiers have paid a huge price.
Their families have paid a huge price.
In addition, the war in Afghanistan has consumed and is consuming an
enormous share of our national resources. According to the
Congressional Research Service, by the end of this year--just over a
month from now--we will have spent the better part of $\1/2\ trillion
or approximately $444 billion. In 2011 alone, we will spend about $120
billion.
So what is the answer to our citizens who ask, given our success in
destroying al-Qaida training camps and given our success in pursuing
those responsible for 9/11, why we haven't brought our troops and our
tax dollars home. The official answer is that America has expanded its
mission in Afghanistan from the narrow two original objectives of
destroying al-Qaida and hunting down those responsible for 9/11 to the
broad mission of nation building.
Destroying al-Qaida--our original mission--and building a modern
nation state where one has never existed are two entirely different
things. The expanded mission of nation building in Afghanistan goes way
beyond those original two military objectives. This expanded nation-
building mission involves creating a strong central government. It
involves creating an election process for a functioning democracy. It
involves building infrastructure--roads and bridges and schools. It
involves a major mission to create a sizable national police force and
a sizable and effective national army.
We have spent a lot on this mission, but the success is limited. Over
10 years, as I mentioned, we have spent $444 billion. Now, that is in a
nation that had a prewar gross domestic product, or economy, of about
$10 billion a year. So we have spent an amount equal to 44 times the
economy of Afghanistan. One would think the result is we would have
rebuilt the infrastructure of Afghanistan 10 times over or 20 times
over. But the reality is there is very little to show for this nation-
building mission. Why is that the case? Most simply, this nation-
building mission is systematically stymied by multiple forces. One is
high illiteracy.
On my recent trip to Afghanistan, I was told that among those
recruited for the national police, the literacy rate at a first grade
level is only about 16 percent--first grade level, 16 percent. The goal
is to be able to raise that literacy rate so that soldiers can read the
serial numbers on their rifles. That is a very different world from the
world we live in.
The second huge factor is vast corruption. Just after my first trip
to Afghanistan, the newspapers were full of stories about the family
members and the associates of the President of Afghanistan building
massive mansions in Dubai. Well, sending our money to Afghanistan so
the elite can send it to Dubai to build mansions does not serve our
national security.
The efforts in nation building are stymied by deeply felt, ancient
tribal and ethnic divisions. Moreover, there is a strong national
aversion to the very mission of building a strong central government. I
had an interesting experience where I met with six Pashtun tribal
leaders in Kabul, the capital. They came in to share their stories and
each one of them said that some form of the government you are trying
to build is an affliction to our people. Please do not build a stronger
government that exploits and afflicts our people. I said to them, help
me understand this, because building a government means a force that
can help with education, that can help with health care, that can help
build transportation infrastructure, that can help provide security for
businesses to prosper. They spoke to me and said--one of them summed it
up and said, Senator, you don't understand. All of the government
positions here are sold. The people who buy them do not buy them to
serve our people. They buy them to exploit our people. And when you
build a strong central government, which we oppose, the exploitation
increases.
So this nation-building mission is systematically stymied by high
illiteracy, vast corruption, extensive and deep tribal and ethnic
divisions, and a historic national aversion to a strong central
government.
We have been in Afghanistan for more than 10 years. It is time to
change course. Our President recognizes this. He has worked out an
agreement with the NATO partners to remove the remaining combat troops
by the end of 2014. That is just over 3 years from now. But what
happens during this next 3 years? This amendment says: Mr. President,
during these next 3 years, seize the opportunity to diminish the combat
role of American soldiers and increase the responsibility placed with
the Afghanistan Government and the Afghanistan forces. Seize that
opportunity.
I say to my colleagues today, this is incredibly important for our
success in transferring responsibility. If we do not provide the
opportunity and the necessity for the Afghanistan institutions to take
responsibility for their own security, they will not be prepared to
exercise that responsibility down the road.
The United States is facing a global terrorist threat. We will be
well served by using U.S. troops and resources in a counterterrorism
strategy against terrorist forces wherever in the world they may locate
and train. That strategy was highlighted by the pursuit of Osama bin
Laden in Pakistan or more recently our successful pursuit of Anwar
Awlaki in Yemen. Our intelligence and our military, the best in the
world, have proven without a doubt that they excel at this strategy.
Thus, it makes sense to expedite the reduction of U.S. combat troops in
Afghanistan and accelerate the responsibility for military and security
operations to the Government of Afghanistan. That is what this
amendment does.
The amendment specifically requires the President to prepare a plan
for the
[[Page S8047]]
expedited reduction of troops and accelerate transfer responsibility
based on inputs from military commanders, from NATO and coalition
allies, from diplomatic missions in the region, from appropriate
members of the Cabinet, and from consultation with Congress. What this
amendment does not do is it does not limit our ability to identify an
attack by al-Qaida or terrorist forces wherever they may be in the
world. It does not limit our ability to destroy al-Qaida or associated
terrorist training camps wherever they may be, wherever they are in the
world. It does not restrict funding for supplies and equipment needed
by our troops deployed in the field.
If our national security is well served by taking the fight to al-
Qaida wherever they are, if our nation-building strategy in Afghanistan
is confounded by illiteracy and corruption and cultural opposition and
tribal and ethnic conflicts, if our national resources are needed in
that global antiterrorism strategy and are needed as well for nation
building here at home, if our men and women have suffered enough on
Afghan soil, then we should encourage our President to seize every
opportunity over these next 3 years to reduce our forces in Afghanistan
and to transfer security responsibilities to the Afghan Government.
That is what this amendment does, and I encourage every colleague to
support it.
Thank you, Madam President. I yield the floor and note the absence of
a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant editor of the Daily Digest proceeded to call the roll.
Mr. McCAIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Madam President, I oppose this amendment for one simple
reason. It requires the President to submit a plan to Congress for an
accelerated drawdown from Afghanistan--an accelerated withdrawal; not
just the withdrawal that is already planned, not the withdrawal that
has already been accelerated on several occasions, but a new
accelerated drawdown.
The President is supposed to submit a plan to Congress for an
accelerated drawdown from Afghanistan. Does that mean the Congress of
the United States could see a plan for an accelerated withdrawal from
Afghanistan? Is it required that it be implemented by Congress or is it
a nice informational, notional kind of thing: Here is a plan. Hey,
let's get together. I have a plan. And the President's drawdown plan,
our senior military commanders have stated, is already--already--more
accelerated than they are comfortable with.
First of all, I don't get the point of the Senator's amendment, which
is to submit a plan. It doesn't require that the plan be acted on, just
a plan. I can submit a plan for him if it is plans he is interested in.
But the fact is we are accelerating our withdrawal from Afghanistan at
great risk, as our military commanders have testified--much greater
risk. So I guess another accelerated plan would obviously have the
result of even greater risk to the men and women in the military.
I understand the opposition of the Senator from Oregon to the war.
That is fine. I respect that. But an amendment that a plan is to be
submitted without any requirement that it be implemented--a plan which
would already accelerate more what has already been accelerated--I
guess is some kind of statement.
The plan as required by this amendment would be based on inputs from
our military commanders. I can tell the Senator from Oregon what our
military commanders in Afghanistan have said in testimony before the
Senate Armed Services Committee, which is that more acceleration would
mean greater risk. The acceleration that is already taking place means
greater risk. But the Senator from Oregon wants a more accelerated
plan, I guess.
Then-chairman of the Joint Chiefs of Staff, ADM Mike Mullen,
testified before the House Armed Services Committee on June 23--this is
the Chairman of the Joint Chiefs of Staff--that the President's
drawdown plan would be--that is the present plan, not an accelerated
plan such as the amendment proposes--``more aggressive and incur more
risks than I was originally prepared to accept.''
I wonder if the Senator from Oregon heard that. The present plan is
``more aggressive and would incur more risks'' than the Chairman of the
Joint Chiefs of Staff would have been prepared to accept. So with this
amendment, we accelerate even more.
On the same day, in testimony before the Senate Select Committee on
Intelligence, GEN David Petraeus stated that no military commander
recommended what the President ultimately decided. That is the present
plan.
Their concerns were well grounded. Our commanders had wanted to keep
the remaining surge forces in Afghanistan until the conclusion of next
year's fighting season, which roughly occurs with the onset of the
colder months. That was their recommendation to the President. So now
the President shall devise a plan based on inputs from military
commanders. I can tell the Senator from Oregon what the input from the
military commanders is. It is the same input he got with the first
accelerated withdrawal. All we have to do is pick up the phone and ask
them. We don't have to have an amendment. That was their recommendation
to the President. However, the President chose to disregard that advice
and announce that all U.S. forces would be withdrawn from Afghanistan
by the end of next summer. That guarantees that just as the fighting
season next year is at its peak, U.S. surge forces will be leaving
Afghanistan. In my view, that is a huge and unnecessary risk to our
mission. But the decision has been made. I think there will be great
long-term consequences to it.
A story was related to me recently by a former member of the previous
administration, high ranking, in a meeting with one of the highest
ranking members of the Government of Pakistan. He said to this high-
ranking government official: What do you think the chances for peace
with the Taliban are? That individual laughed and said, Why should they
make peace? You are leaving.
Those are fundamental facts. The primary reason for maintaining all
of our surge forces in Afghanistan through next year's fighting season
is because of another time the President chose to disregard the advice
of his military commanders. It is well known that our military leaders
had wanted a surge to be 40,000 U.S. troops, but the President only
gave them 33,000. So rather than being able to prioritize the south and
east of Afghanistan at the same time, as they had planned, our
commanders had to focus first in the south, which they did last year
and this year, and then concentrate on eastern Afghanistan next year,
all because they didn't have enough troops.
That is not my opinion; that is the sworn testimony of military
leaders before the Senate Armed Services Committee.
The President's decision made the war longer and now our commanders
will not have the forces they said they wanted and needed to finish the
job in eastern Afghanistan.
Before we mandate a plan to further accelerate the drawdown of U.S.
forces from Afghanistan, I suggest we review the facts and consider the
potential consequences of the overly accelerated drawdown we already
have.
Before we base such a plan on the views of our military commanders, I
certainly recommend that my colleagues travel to Afghanistan and speak
with those commanders who can explain far better than I can why further
accelerating our drawdown is reckless and wrong.
So I do not get the amendment. I do not understand why the title of
it is ``To require a plan for the expedited transition of
responsibility for military and security operations in Afghanistan to
the Government of Afghanistan.''
As I said, in case the Senator from Oregon missed it, we have already
accelerated, and in the view of our military commanders, unanimously,
it is a far greater risk.
It says:
The President shall devise a plan based on inputs from
military commanders, NATO and Coalition allies, the
diplomatic missions in the region, and appropriate members of
the Cabinet, along with the consultation of Congress, for
expediting the drawdown of United States combat troops in
Afghanistan and accelerating the transfer of security
authority. . . .
[[Page S8048]]
Apparently, the Senator from Oregon is not satisfied with the
President's already accelerated plan for withdrawal from Afghanistan
beginning in the fall of--well, it has already begun--but the serious
withdrawal in the fall, September 2012.
I can assure--I can assure--the Senator from Oregon that if our
withdrawal, which I greatly fear now, will have long-term consequences,
a further accelerated withdrawal will absolutely guarantee that
Afghanistan becomes a cockpit--a cockpit--of competing interests from
Iran, from India, from Pakistan, and from other countries in the
region. I think the people of Afghanistan deserve better.
So I will, obviously, oppose this amendment.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEE. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEE. Madam President, I ask unanimous consent that the current
amendment be set aside so I might speak briefly regarding amendment No.
1126.
Mr. LEVIN. Madam President, reserving the right to object, I wonder
if the Senator would just seek the right to--the Senator has a right to
speak on another amendment without setting aside this amendment. So I
ask that the Senator not set aside the pending amendment but just
simply speak on whatever amendment he wishes to speak.
Mr. LEE. Wonderful. The second request is withdrawn.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1126
Mr. LEE. Madam President, I rise today to speak in support of
amendment No. 1126 to the current pending legislation. The purpose of
this amendment is to make clear that the United States shall not detain
for an indefinite period U.S. citizens in military custody.
I understand this has been the subject of a lot of debate. I also
understand this would be a break not only with the current pending
legislation but also with current practice, based on Supreme Court
precedent and lower court precedent that some have interpreted to deem
this a constitutionally permissible practice.
It has often been suggested by several of my colleagues that it is
the province of the Supreme Court to interpret the Constitution, and
that statement is absolutely correct as far as it goes. But it is not
the beginning of the analysis and the end of the analysis.
We, as Senators, independently have an obligation, consistent with
and required by our oath to the Constitution--which I took just a few
months ago just a few feet from where I stand now--to uphold the
Constitution of the United States. That means doing more than simply
the full extent of whatever the courts will tolerate.
In this instance, what we are talking about is the right of the U.S.
military to detain indefinitely, without trial, a U.S. citizen, simply
on the basis that person has been deemed an enemy combatant.
Now, there is a real slippery slope problem here, and it is the very
kind of slippery slope problem for which we have protections such as
the fifth amendment and the sixth amendment. You see, under the fifth
amendment, a person cannot be held for an infamous crime unless they
have been subjected to a process whereby a grand jury indictment has
been issued. A person cannot be held and tried for a crime without
having counsel made available to them and without the opportunity for a
speedy trial in front of a jury of the peers of the accused.
We can scarcely afford as Americans to surrender these fundamental
civil liberties for which wars have been fought, for which the founding
era, the founding generation fought so nobly against our mother country
to establish and thereafter to protect. We have to support these
liberties. I think at a bare minimum, that means we will not allow U.S.
military personnel to arrest and indefinitely detain U.S. citizens,
regardless of what label we happen to apply to them. These people, as
U.S. citizens, are entitled to a grand jury indictment to the extent
they are being held for an infamous crime. They are also entitled to a
jury trial in front of their peers and to counsel.
We cannot, for the sake of convenience, surrender these important
liberties. I am not willing to do that. That is why I support this
amendment, amendment No. 1126, to the pending legislation. I encourage
each of my colleagues to do so.
I want to point out that yesterday I voted against what became known
as the Udall amendment. I did so in part because I do not believe that
fixed the problem I am talking about. The Udall amendment did not even
purport to address current practice or the policies as they have been
established in recent years: that this kind of detention is in some
circumstances acceptable. It called for a study and it eliminated
certain provisions in the proposed legislation, but it did not fix the
underlying problem.
This Feinstein amendment, amendment No. 1126, does fix that. That is
why I support it. I encourage each of my colleagues to do the same.
When we take an oath to the U.S. Constitution--to uphold it, to
support it, to protect it, to defend it--we are doing more than simply
agreeing to do whatever the courts will tolerate. We are taking an oath
to the principles embodied in this 224-year-old document that has
fostered the greatest civilization the world has ever known.
Thank you, Madam President.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so
ordered.
Amendment No. 1257, as Modified
Mr. LEVIN. Mr. President, let me just ask Senator Merkley a question,
and then I think we can proceed from there.
It is my understanding that the original language in this and related
amendments had the dates 2012 and 2014 in them, and it could have been
interpreted that the Senator was trying to press those dates forward
rather than address--as I interpret the Senator's current amendment--
the pace of reductions after consultation with the people the Senator
has identified. Am I correct?
Mr. MERKLEY. The Senator is correct. The amendment is designed to
encourage, to increase the pace of the reduction of U.S. forces and the
transfer of responsibility to Afghanistan's forces.
Mr. LEVIN. Mr. President, unless there is someone else here who wants
to speak, I yield the floor.
Mr. McCAIN. Mr. President, I urge adoption of the amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment,
as modified.
The amendment (No. 1257), as modified, was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. MERKLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. LEVIN. Mr. President, I understand the Senator from New
Hampshire----
Mr. McCAIN. Mr. President, the Senator from New Hampshire had
intended to talk about her amendment and withdraw it, and she may be
coming. I have not had a chance to notify her, so there may be a
couple-minute delay.
So I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCAIN. 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. McCAIN. Mr. President, in an exchange I had on the floor, I
mentioned the people on wonderful Long Island. I made a joke. I am
sorry there is at least one of my colleagues who cannot take a joke. So
I apologize if I offended him and hope that someday he will have a
sense of humor.
I yield the floor.
[[Page S8049]]
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I have been working for some time to
wrestle with this question of the right number of military forces we
need in Europe. It is an issue that has given me some pause. I thought
we had an agreement several years ago to make some noticeable changes
in that force structure. Some changes have indeed been made and others
were in the works and they apparently have been put on hold and
altered.
So I just wished to share some thoughts about it. I thank Senator
Levin and Senator McCain for working with me to develop an amendment to
this bill that helps call attention to this problem with the Department
of Defense.
We have had a long and historic relationship with Europe and our
European allies. They remain the best allies we have in the world. We
have large numbers of troops still in Europe. But there are not nearly
as many as there have been in the past. But the numbers are still
extraordinary. We have, at this time, 80,000 U.S. troops in Europe, and
I do not believe military threats justify that large a troop presence.
Our historic even larger number was based on the Soviet threat, the
Fulda Gap, the weakness of our European allies after World War II and
their lack of strength and the bond that NATO meant. We stuck together
and transformed the entire North Atlantic region in a positive way.
A book called ``Paradise and Power'' has been written about where we
are today. It is a pretty significant book, frankly. The essence of it
is that the Europeans are in a paradise protected by American power,
and they do not feel any need to substantially burden themselves with
national defense because the United States is there.
We have a nuclear presence, we have 80,000 troops, and we have the
fabulously trained, highly skilled military with the lift capability of
moving to a troubled and dangerous spot at any time. I do think it is
fair to say they have become a bit complacent.
As part of a CODEL I led in 2004, we visited Europe, because the
United States was going through a BRAC, a reduction of U.S. basing, and
we did not have the same type policy with regard to international
bases. We visited--Senator Chambliss and Senator Enzi and I--bases in
Europe, particularly bases we felt would be enduring, such as Rota,
Spain, Sigonella and Vicenza and other bases--and Ramstein in Germany.
But there are others, lots of others. So part of the NATO commitment
is that each nation in Europe would invest and spend 2 percent of their
GDP on defense. We have been 4 percent--sometimes over that recently--
in recent years. So our NATO members, however, are falling below that.
Germany, the strongest economy in Europe, is at 1.2 percent of GDP on
defense, and they spend a large portion of that on short-term, less
than 1 year, military training of young people in Germany.
The fact is, a 9-month trainee is not someone in the modern world we
can send into combat. They are just not sufficiently trained. Many
military experts believe this is a waste of money. So even the money
they are spending, in many ways, is not effectively and wisely spent to
create the kind of modern military they have to have to be successful
in a serious manner.
We do, though, believe Europe is not facing the kind of threats we
had. I think it is appropriate for us to talk to our European allies
and say we want to proceed with a drawdown, where possible. This Nation
is borrowing 40 cents of every $1 we spend. The Defense Department,
under the sequester that will occur as a result of the failure of the
committee of 12 to reach an agreement, will be facing dramatic cuts in
spending, over $1 trillion based on President Obama's projected budget
over 10 years. We need to look for every reasonable savings we can.
The Defense Department is taking too heavy a cut in my opinion, far
more than any other department of government. However, we cannot
sustain that. I do not support that large a cut, but it will be
reducing spending by a significant amount. So I believe we should think
about our foreign deployments. The National Defense Authorization Act
represents a vision for defense spending. We are now down from $548
billion spent on the Defense Department last year, $527 billion this
year, an actual reduction in noninflation dollars of over $20 billion.
As a matter of fact, the Budget Control Act agreement calls for a
reduction of total spending in the discretionary account this year of
$7 billion; whereas, the Defense Department is taking $20 billion.
Other departments therefore are receiving increases to get the net 7
that is claimed. Unfortunately, that is not an accurate number because
we do not achieve even the $7 billion promised.
Since 2004, the Defense Department had a plan to transfer two of its
four highly trained combat brigades in Europe back to the United States
as part of the larger post-world war realignment. However, in April of
this year, the Department of Defense announced it would maintain three
combat brigades and not bring the fourth one home until 2015.
I have asked the Chairman of the Joint Chiefs of Staff, General
Dempsey, at the Armed Services hearing, and I asked Admiral Stavridis,
our European EUCOM commander, and they had no good explanation for why
we are altering the plan that has been in place.
So my amendment has been agreed to on both sides and would require
three things from the Department of Defense: No. 1, assessment of the
April 2011 decision to station three Army brigade combat teams in
Europe; No. 2, an analysis of the fiscal and strategic costs and
benefits of reducing the number of forward-based military personnel in
Europe to that recommended by the 2004 Global Posture Review; and, No.
3, to describe the methodology used by the Defense Department to
estimate the current and future cost of U.S. force posture in Europe.
So is Europe more threatened today than before? I do not think so.
The United States has a tougher financial condition today than before?
Yes. I believe we need to look at this carefully. I thank Senator
McCain and Senator Levin for working with me to recommend an amendment
they believe is consistent with the goals I am seeking without
micromanaging the Department of Defense.
I thank the Chair. I am pleased this amendment will be considered,
and perhaps we can make some progress to analyzing more properly the
deployment of forces in Europe. Finally, I would say there is no doubt
in my mind that the economy of the United States is benefited if a
brigade is housed in the United States, and the costs of support and
family are in the United States strengthening our economy rather than
transferring the wealth of our Nation to a foreign area.
I hope we will consider that as we deal with this issue.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Amendment No. 1229
Mr. McCAIN. Mr. President, I call up amendment No. 1229 and ask for
its immediate consideration.
The PRESIDING OFFICER. The amendment is already pending.
Mr. McCAIN. I note the presence of my colleague, Senator Lieberman,
on the floor, the chairman of the Homeland Security Committee.
I thank my friend from Connecticut for his support of this amendment
and the importance, with the full realization of the key role the
chairman of the Homeland Security Committee plays in the issue of cyber
security, which is the most--in many respects, one of the most looming
threats to our Nation's security.
Mr. LIEBERMAN. Mr. President, I thank my friend from Arizona. I
appreciate this amendment he has offered. I believe I am now listed as
a cosponsor. If not, I ask unanimous consent that I be so listed.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. This amendment essentially codifies a very important
memorandum of understanding between the Department of Homeland Security
and the NSA, the National Security Agency. This is a perfect balance
and exactly the kind of overcoming of stovepipes we need to see in our
government.
Under existing law, the Department of Homeland Security has
responsibility for protecting nondefense government, Federal Government
cyberspace--cyber networks--and the privately owned and operated
cyberspace,
[[Page S8050]]
which actually amounts to some of the most critical cyber
infrastructure in our country is privately owned.
Today, as Senator McCain suggested, a target of attack by an enemy
wanting to do us harm could be, for instance, our transit systems,
financial systems, electric grid, and the like. What is embodied in
this memorandum of understanding between DHS and NSA--which we will, by
this amendment, codify into law--is to maintain the quite appropriate
interface of the Department of Homeland Security with the privately
owned cyber-infrastructure and those who own and operate it, yet
utilizing the unsurpassed capabilities of NSA.
I appreciate that in this colloquy Senator McCain and I are entering
into, we both make clear--and I appreciate that his intention here in
offering this amendment is not to circumvent the need for broader
legislation to protect our American cyberspace from theft,
exploitation, and attack. It happens that the current occupant of the
chair, the junior Senator from Rhode Island, has been a leader in this
Chamber in pushing us to deal with these kinds of problems.
Senator Reid has announced that he will bring a comprehensive cyber-
security bill to the floor of the Senate in the first work period of
2012. That is very good news for our security. As Senator McCain said,
I don't know that we today have a more serious threat to our security
than that represented by those who would do us harm by attacking our
cyber-systems, both public and private. This colloquy makes clear that
this is a very significant first step, and that we need to do something
more comprehensive and look forward to doing it on a bipartisan basis
in the first work period in 2012.
Mr. McCAIN. I thank the Senator from Connecticut, my dear friend. The
amendment establishes a statutory basis for the memorandum of agreement
between the Department of Defense and Homeland Security on cooperative
cyber-security support. Nobody should have any doubt about how serious
this issue is. Secretary of Defense Panetta said this in June:
The next ``Pearl Harbor'' we confront could very well be a
cyber attack.
ADM Mike Mullen at a hearing on
9/22 referred to the cyber-threat as an existential threat to our
country. This is a serious issue and one that, as the Senator from
Connecticut pointed out, is of utmost importance to our Nation's
security.
Mr. LIEBERMAN. Mr. President, I would like to thank my friend Senator
McCain for introducing an amendment codifying an existing memorandum of
agreement between the Department of Homeland Security and the
Department of Defense that formalizes their cooperation on
cybersecurity work. Our Nation needs to confront the growing threats we
face in cyberspace; as Secretary of Defense Leon Panetta testified in
June, the ``next Pearl Harbor we confront could very well be a cyber-
attack.''
Mr. McCAIN. I thank my friend for cosponsoring my amendment, and
share his concern about the threat our Nation faces. In a hearing
before the Armed Services Committee just two months ago, former
Chairman of the Joint Chiefs of Staff Admiral Mike Mullen called the
cyber threat an ``existential'' threat to our country.
The purpose of my amendment is to codify the current memorandum of
agreement, and to ensure that the relationship between DoD and DHS
endures. This growing partnership demonstrates that the best
government-wide cybersecurity approach is one where DHS leverages, not
duplicates, DoD efforts and expertise. This is just one of the many
issues we need to address on cyber legislation, and does not diminish
the need for a comprehensive bill addressing our Nation's
cybersecurity. But our work together on this should serve as an example
of where consensus can and should exist moving forward.
Mr. LIEBERMAN. I agree wholeheartedly. The approach embodied by the
memorandum of agreement--and this amendment--exemplifies the potential
for DoD and DHS to leverage each other's expertise, to make efficient
use of existing government resources, and to avoid unnecessary growth
of government. That is the approach we must follow as we continue down
the path toward comprehensive cybersecurity legislation.
Mr. McCAIN. I agree, and I again thank my colleague for supporting my
amendment. While at the end of the day we may not agree on all of the
provisions of a bill, I look forward to working together early in the
coming year to address these issues under a process that allows for
full debate of the issues on which we may differ.
Mr. McCAIN. Mr. President, I urge adoption of the amendment.
The PRESIDING OFFICER. Is there further debate?
The question is on agreeing to the amendment.
The amendment (No. 1229) was agreed to.
The PRESIDING OFFICER. The Senator from New Hampshire.
Ms. AYOTTE. Mr. President, I ask unanimous consent that Senator
Lieberman and I be allowed to engage in a colloquy.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1068
Ms. AYOTTE. Mr. President, obtaining intelligence from high-value
terrorist detainees is an urgent national security priority that is
essential to protecting Americans. Unfortunately, under current law,
terrorists need look no further than the Internet to find out
everything they need to know about our interrogation practices and how
they can circumvent them. Under President Obama's 2009 Executive Order
13491, all U.S. Government interrogators are limited to the
interrogation techniques that are available online and described in the
Army Field Manual. As a result, all members of the intelligence
community, including the non-Department of Defense intelligence
professionals who support the high-value detainees interrogation group,
must conform to the procedures in the Army Field Manual, which was
written by the U.S. Army for the U.S. Army; that is, there is little
flexibility permitted under these rules, and they are easy for those
who want to harm us to circumvent them and to know exactly what
techniques we will use to gather information to protect our country if
they are detained as an enemy combatant.
Mr. LIEBERMAN. Would the Senator yield for a question?
Ms. AYOTTE. Yes, I will.
Mr. LIEBERMAN. Let me thank my friend, Senator Ayotte, for playing
such a leading role in our debates on this critical issue of how our
country handles detainees and gathers intelligence in our war on
terrorism. I share her concerns about the potential damage to our
intelligence collection efforts inflicted by adherence to the existing
restrictions on interrogations. That is why I am pleased to be, with
others, a cosponsor of the amendment introduced, amendment No. 1068.
I will say that I am also disturbed about the amount of
misinformation that seems to be circulating about this amendment and
similar efforts in the past that I have supported.
I ask the Senator from New Hampshire, does amendment No. 1068
authorize torture?
Ms. AYOTTE. I thank my friend, the Senator from Connecticut, first,
for his leadership in this body on national security. We both had the
privilege of serving our States as attorneys general.
The answer is no. This is an amendment, I point out, that not only is
Senator Lieberman sponsoring--and I appreciate his experience and
leadership on this most important national security issue--but Senator
Chambliss, vice chairman of the Intelligence Committee, as well as
Senator Graham and Senator Cornyn, who are both members of the Armed
Services Committee, as well as the Judiciary Committee. It is very
important to be clear about what this amendment would and would not do.
This proposal takes every possible measure to put into place
intelligence-gathering practices that honor our American values and
laws. Our amendment in no way condones or authorizes torture. There
have been many groups trying to misrepresent what is in this amendment.
Any new interrogation techniques that are developed would be required
to comply with the U.N. Convention Against Torture, the Military
Commissions Act, the Detainee Treatment Act, as well as section 2441 of
Title 18 U.S. Code that relates to war crimes.
[[Page S8051]]
Mr. LIEBERMAN. I thank my friend for that clarification. It is very
important. It is very critical--particularly for those who
misunderstood this amendment--to understand the host of protections
that the amendment puts in, both compelling compliance with the
international convention against torture, as well as explicit
prohibition in American law against interrogation that amounts to
torture.
I want to ask my friend another question. Right now, all Federal
Government interrogators, whether in the military or in the civilian
intelligence community, are limited to using the Army Field Manual. So
why does the Senator think it is so critical to give interrogators the
ability--limited ability--to go beyond the Army Field Manual?
Ms. AYOTTE. I appreciate the question from my friend and colleague.
The decision by President Obama to limit interrogators to the Army
Field Manual was based, in part, on the horrible abuses that happened
at Abu Ghraib prison in Iraq. Undoubtedly, the abuses at Abu Ghraib
failed to reflect American values, tarnished America's reputation, and
certainly damaged our interests. However, responding to these abuses by
reflexively applying an Army Field Manual--which, to be clear,
terrorists can go online and get and know exactly which techniques they
will be subject to if captured--to all Federal Government interrogators
doesn't reflect the severity of the threat to our country and the
importance of providing our nonmilitary intelligence collectors all of
the lawful tools they need to gather intelligence to prevent nuclear
attacks and protect our country.
Mr. LIEBERMAN. I thank the Senator for that answer. I completely
agree with her. It is important to step back and perhaps state the
obvious. Why do we capture enemy combatants? Why do we take prisoners
of war? Two reasons, really. The obvious one is to get them off the
battlefield against us so they can no longer attempt to kill Americans
in uniform and, in the case of the war we are in with Islamist
terrorists, to kill civilians. That is first--get them off the
battlefield.
The second purpose--and this has been the traditional purpose of
taking prisoners of war as long as there has been warfare in human
history, and all the more so now--is to gather intelligence from them
that will assist us in defeating the enemy and protecting our goals and
protecting the lives of our men and women in uniform. That traditional
purpose for taking prisoners of war is all the more critical in the
unconventional war we are in against a brutal enemy that doesn't strike
from battleships or tactical air fighters or military tanks or even in
uniform; they strike us from the shadows, and they strike civilians as
well.
It is very important to approach this amendment understanding that we
are trying to increase, in a reasonable way, the capacity of those who
work for us to protect our security and freedom to interrogate
detainees that we have captured in the war against terrorism. One of
the purposes is to gather intelligence, which will help us protect the
lives of Americans and of our allies.
The preface to the Army Field Manual says it applies to the active
Army, the Army National Guard, and the U.S. Army Reserve, unless
otherwise stated. So as to the field manual, recognizing that these
words create limited applicability of the manual outside the Army, the
Army Training and Doctrine Command authors had the wisdom to warn that
this manual was ``Army doctrine,'' and it would have to be adapted,
altered to apply to other ``military departments'' or other military
service. If the interrogation techniques in this manual are not ideally
suited for military services other than the U.S. Army, why should
civilian interrogation professionals in the intelligence community, and
particularly those who are in support of a high-value detainee
interrogation, those who get the most powerful and influential and
dangerous prisoners of war, be forced to comply with a document written
for a defined military unit, which is the U.S. Army? I ask my friend
from New Hampshire that question.
Ms. AYOTTE. I appreciate the question from the Senator from
Connecticut. Absolutely, as the Senator pointed out, the Army Field
Manual was not created for this purpose. As he mentioned, the high-
value detainee interrogation group is a group consisting of the CIA,
FBI, and Defense Intelligence Agency, designed to interrogate the worst
terrorists, who are likely to have valuable information about future
attacks and information we need to protect our country. To address this
problem, we drafted the amendment through this authorization that would
allow members of the intelligence community, who are assigned to or in
support of the high-value interrogation group, to utilize interrogation
techniques that are consistent with our laws and values. Our amendment
would ask the Secretary of Defense, working with the Director of
National Intelligence and the Attorney General, to develop a classified
annex to the Army Field Manual that terrorists could not see.
Unfortunately, now they can go on the Internet and look at the
techniques. It classifies that the Army Field Manual would provide
interrogation techniques that would be used by that important select
group of intelligence-gathering professionals, to allow them to have
for their use the techniques they need to gather information and
protect our country.
Mr. LIEBERMAN. Again, I thank my friend from New Hampshire, but I
want to go back to something I said earlier. We have described the
purpose of this amendment--what I call the due process we have put into
it, the mandate that it comply with existing international norms and
treaties, and, obviously, to comply with our law. I want to say to my
colleague that it is certainly not my intention--and I ask my colleague
is it her intention--that any of the measures we are authorizing--the
interrogation tactics for the worst of the terrorist detainees--should
or could equal what is conventionally known as torture? In other words,
we are not attempting to legalize torture with this amendment.
Ms. AYOTTE. I thank the Senator for the question. The answer is, no;
we are not. We believe torture violates our laws and runs counter to
American values. That is what I believe. That is why we specifically
require the techniques developed by the Secretary of Defense, the
Director of National Intelligence, and the Attorney General have to
comply with the U.N. Convention Against Torture and all applicable
laws, including the Detainee Treatment Act. Thus, the ACLU's claim the
amendment threatens to revive the use of torture is patently false,
unfortunately.
Currently, the Army Field Manual interrogation techniques our
intelligence community interrogators must follow are publicly listed
online. That is unacceptable. It is like the New England Patriots
giving their opponents their playbook days or weeks before the game
begins. In my experience as attorney general of New Hampshire and as a
murder prosecutor, no detective or cop in even a common criminal case
would tell the criminals what techniques they are going to use to
gather information.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, could I ask my friend from New Hampshire to
allow me to propose a unanimous consent request?
Ms. AYOTTE. I would grant the leader that request.
The PRESIDING OFFICER. The majority leader.
Mr. REID. The reason I ask is that Senator Levin and I have a
classified briefing that starts at 5:30.
May I ask the Senator how much longer she wishes to speak? It doesn't
matter, but just so I have an idea.
Ms. AYOTTE. I would say probably 5 minutes.
Mr. REID. Mr. President, I ask unanimous consent that following the
statement of Senator Ayotte of approximately 10 minutes--she has been
here long enough that she has learned to keep Senators' time, and 5
minutes really isn't 5 minutes--does the Senator from Connecticut wish
to speak?
Mr. LIEBERMAN. Mr. President, I would say to the leader, I am in this
with the Senator from New Hampshire, so we will complete our colloquy
within 10 minutes.
Mr. REID. So following their colloquy of 10 minutes, I ask unanimous
consent the Senate proceed to a period of morning business for 1 hour;
that following that we go back to the Defense authorization bill.
There will be no more votes this evening, though, Mr. President.
[[Page S8052]]
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I appreciate the time of the Senator from New Hampshire.
The PRESIDING OFFICER. The Senator from New Hampshire.
Ms. AYOTTE. I thank our leader for giving us the opportunity to
continue this colloquy.
I just wanted to point out--we were talking about the fact the Army
Field Manual is online--that in my experience as New Hampshire's
attorney general and prior to that as a murder prosecutor--and I know
my colleague served as his State's attorney general as well--no
detective or cop on the beat, in a common criminal case--and, of
course, we are dealing with a situation where we are at war with
terrorists--would ever give a criminal their playbook as to what
techniques they would use to question them to get information to see if
a crime has been committed and to see that justice is served. Yet here
we are in a situation where we have online the techniques from the Army
Field Manual while we are at war with terrorists who want to kill us.
What we are saying with this amendment is that we need to allow the
intelligence professionals to develop techniques, but in a classified
annex, consistent with our laws, that would allow them to gather
intelligence and not tell our enemies what techniques will be used to
gather information from them.
Not surprisingly, al-Qaida terrorists have taken advantage of our
willingness to tell them publicly on the Internet what will and will
not happen during an interrogation should they be captured. Al-Qaida
terrorists have familiarized themselves with the interrogation
techniques they would confront if captured, and they are training on
how to respond. That makes it more difficult for us to gather
information.
The willingness of the United States to give the equivalent of
interrogation CliffsNotes to terrorists places our interrogators at a
disadvantage and makes it more difficult to gather the information we
need to save American lives. So developing a classified annex of lawful
techniques for intelligence professionals who are interrogating the
worst terrorists would make it harder for terrorists to train to avoid
and resist interrogation.
The key to our amendment is giving this limited group of intelligence
community interrogators the techniques they need to gather information
but to do so without resorting to torture and while retaining an
operational advantage that makes it more likely an interrogation will
be successful.
Mr. LIEBERMAN. Again, Mr. President, I thank the Senator from New
Hampshire. Just in listening to her, it seems so unacceptable that we
are basically telegraphing to our enemy exactly the range of tactics
that we will use against them as part of the interrogation.
We have set some quite appropriate constraints in this amendment
consistent with our values and our laws and international law so that
we are not going to get anywhere near torture. But when a member of al-
Qaida or a similarly associated terrorist group is captured, I want
that person to be terrified about what is going to happen to them while
in American custody. I want them not to know what is going to happen. I
want the terror they inflict on others to be felt by them as a result
of the uncertainty of not knowing they can look on the Internet and
find out exactly what our interrogators are going to be limited to.
Again, we will not tolerate torture. We will not tolerate what
happened at Abu Ghraib. I think the limited interrogation in the Army
Field Manual was an understandable but excessive reaction to the
extreme and unacceptable behavior by Americans at Abu Ghraib. I hope
this amendment will facilitate a return to the kind of sensible middle
ground on which we will not be shackling our interrogators as they try
to get intelligence, within the law, to protect our freedom and the
safety of those who are fighting for us.
So I want to ask my friend from New Hampshire whether she thinks we
have now a kind of one-size-fits-all approach to interrogation that is
posted online. In other words, our laws should make it easier, within
the law, not harder, to gather intelligence to keep Americans safe. Yet
it seems the current policy runs counter to that basic principle. Does
my friend from New Hampshire agree?
Ms. AYOTTE. I do. I do agree. As a matter of common sense, this
amendment should go forward. The reality of telling our enemies online
what to expect just defies common sense. That is what we are addressing
with this amendment.
Mr. GRAHAM. If I may, I find the discussion fascinating. May I enter
into the colloquy?
The PRESIDING OFFICER. Subject to the previous order, the Senator is
welcome to join the colloquy.
Mr. GRAHAM. I thank the Chair.
As I understand it, the reason the Senator is having to do this is
because President Obama, by Executive order, prevented the CIA and
other agencies from using any enhanced interrogation techniques that
have been classified in the past; is that correct?
Ms. AYOTTE. That is right. Unfortunately, we are just telegraphing to
our enemies what techniques we are going to use.
Mr. GRAHAM. If I may, let me ask another question. All of us agree we
don't want to torture anybody. Waterboarding is not the way to get good
intelligence. Not only is it not the right thing to do, it is just not
the wise thing to do. But we believe we have gone too far the other
way; that when the President said no interrogation technique is
available to our intelligence community other than the Army Field
Manual, does my colleague agree that, for the first time in American
history, we are advertising to our enemies what we can do to them if we
capture them, and no more can be done?
Ms. AYOTTE. I would say the Senator is absolutely right. I appreciate
that the Senator from South Carolina has cosponsored this amendment, as
has Senator Lieberman, and I appreciate Senator Lieberman's leadership.
I would like to say while we are in this colloquy that Senator
Lieberman has also been a mentor to me in the Senate, and I appreciate
that as well as his leadership on these issues.
Really, it comes down to this: We should not be telegraphing, we
should not be advertising to our enemies what techniques our
professional interrogators will use. This amendment is limited to the
group of professionals who will focus on these issues and who will be
gathering intelligence from terrorists.
We have to protect our country. Why would we do this? It just doesn't
make sense.
Mr. GRAHAM. My good friend from Connecticut is aware there is a
proposal pending on the floor of the Senate that would say, for the
first time in American history, if a U.S. citizen decides to
collaborate with an enemy, they cannot be held as an enemy combatant. I
think the Senator is very familiar with the history of the law in this
area. Unfortunately, during the entire history of our country, during
other conflicts, American citizens have, on occasion, collaborated with
the enemy, one of the most famous cases being the In re Quirin case,
where an American citizen in New York and other places was helping Nazi
saboteurs try to sabotage America.
In that case, the Supreme Court ruled an American citizen could be
detained as an enemy combatant because the decision to collaborate with
the enemy was a decision to go to war with their country, not a common
crime, and that the law to be applied was the law of war. I am certain
the Senator is familiar with the Hamdi case, where an American citizen
seized in Afghanistan was allowed to be held as an enemy combatant. The
Hamdi decision reaffirmed In re Quirin, and the Padilla case involved
an American citizen captured in the United States accused of
collaborating with al-Qaida.
All of those cases reaffirm the law of the land is, if someone
chooses to help al-Qaida, they have committed an act of war against
their fellow citizens, and they can be held as an enemy combatant for
an indeterminate period of time so that we can gather intelligence
about what they may have done or about what they know about the enemy.
Does the Senator from Connecticut agree that now would be a very bad
time for the Congress to say, for the first time in American history,
if an American citizen decides to help al-
[[Page S8053]]
Qaida attack us, to kill us, our military can't hold them as an enemy
combatant and find out what they were up to?
Mr. LIEBERMAN. Mr. President, I thank my friend from South Carolina
for participating in our colloquy, and, of course, I totally agree with
him, first of all, on the principle. As he has said very well, and he
knows the law very well or better than anyone around here, the Supreme
Court has made clear an American citizen, who by his or her acts has
declared themselves to be an enemy of the United States, can be treated
as an enemy combatant. If we change that now, it is not only wrong on
principle, but it is absolutely the wrong time to do this.
Let me speak now for a moment--and I am privileged to be the chair of
the Senate Homeland Security Committee.
The PRESIDING OFFICER. The 10 minutes allocated for the colloquy has
expired.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent for an
additional 4 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Very briefly, the great concern we have now in terms of the security
of the homeland is from so-called homegrown terrorists, radicalized
Americans who effectively have joined al-Qaida or other terrorist
enemies to attack the United States.
It is a sad and painful reality that, since 9/11, the only Americans
killed on American soil by Islamist extremists and terrorists have been
killed by other Americans who have been radicalized, who have become
enemy combatants. I am speaking particularly of MAJ Nidal Hasan who
killed 13 people at Fort Hood, and then an American named Bledsoe, who
walked into an Army recruiting station in Little Rock, AR, and killed
an Army recruiter just because he was wearing a uniform of the U.S.
Army.
So these people have taken sides. They have joined the enemy. So to
have this body at this time, as the threat of homegrown terrorism
rises, say: No, they can't be treated as enemy combatants, not only
does it not make sense and is totally unresponsive to the facts I have
just described, the fact is, it is also dangerous.
So I couldn't agree with the Senator more. I wish to thank Senator
Ayotte, as we come to the end of this colloquy, for her initiative,
frankly, for swiftly establishing herself in the Senate as one of our
important leaders on national security matters. I am a little biased
about this, but I know her experience as a former State attorney
general has helped as well as what I have noted is her active and
informed participation on the Armed Services Committee.
I must say that as I am about to enter my last year privileged to be
a U.S. Senator, it gives me great comfort to know Senator Ayotte is
going to be here to carry on these fights for American national
security and for freedom.
Ms. AYOTTE. I thank Senator Lieberman very much. Again, I appreciate
the Senator's leadership and all he has done for our country, to
protect our country. I dare say no one has been more focused on
protecting our country, and we deeply appreciate his leadership.
Amendment No. 1067 Withdrawn
Ms. AYOTTE. Before I yield the floor, I need to briefly discuss the
withdrawal of an amendment I have, which is amendment No. 1067,
regarding notification of Congress with respect to the initial custody
and further disposition of members of al-Qaida and affiliated entities.
I have received assurances from the Armed Services Committee majority
and minority staff that these comments and steps which are outlined in
that amendment will be addressed when the Defense bill goes to
conference.
Therefore, Mr. President, I ask unanimous consent that my amendment
No. 1067 be withdrawn. But I also understand that the Armed Services
Committee will take up my amendment when the Defense bill goes to
conference as part of the conference on this bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. RUBIO. Mr. President, some people are wrongly suggesting that the
National Defense Authorization Act for fiscal year 2012, this
legislation will allow the military to capture and indefinitely detain
any American citizen, and that the U.S. Armed Forces would be able to
perform law enforcement functions on American soil because of the
authority conferred under sections 1031 and 1032 of the act.
Several people have asked about my votes on the National Defense
Authorization Act for fiscal year 2012. In particular, some people are
wrongly suggesting that this legislation will allow the military to
capture and indefinitely detain any American citizen, and that the U.S.
Armed Forces would be able to perform law enforcement functions on
American soil because of the authority conferred under sections 1031
and 1032 of the act. While I do have other serious concerns with this
legislation, those particular assertions could not be further from the
truth. I want to take this time to explain what the law actually does,
what my position is on these issues, and why I joined with Senators
Demint, Coburn and Lee to vote for those specific sections but against
cloture on the final bill.
Section 1031 of this act merely affirms the authority that the
President already has to detain certain people pursuant to the current
authorization for use of military force. In fact, this same section of
the bill specifically states that nothing stated in section 1031 is
intended to expand the President's power. In addition, this section
sets specific limits on who can be detained under this act to only
those people who planned or helped carry out the 9/11 attacks on the
United States or people who are a member of, or substantially support,
al-Qaida, the Taliban, or their respective affiliates. There is no
language that could possibly be construed as repealing the Posse
Comitatus Act and allowing the U.S. military to supplant your local
police department in carrying out typical law enforcement activities.
In particular, some folks are concerned about the language in section
1031 that says that this includes ``any person committing a belligerent
act or directly supported such hostilities of such enemy forces.'' This
language clearly and unequivocally refers back to al-Qaida, the
Taliban, or its affiliates. Thus, not only would any person in question
need to be involved with al-Qaida, the Taliban, or its surrogates, but
that person must also engage in a deliberate and substantial act that
directly supports their efforts against us in the war on terror in
order to be detained under this provision. There is nothing in this
bill that could be construed in any way that would allow any branch of
the military to detain a law-abiding American citizen if they go to the
local gun store or grocery store. What this section of the bill does is
help provide for our national security by giving clarity to the
military in regard to its authority to detain people who have committed
substantially harmful acts against the United States. This is extremely
important given that there are al-Qaida cells currently operating
within our borders. I would not leave the risk of a terrorist attack
that could claim the life of a member of my family up to chance, and I
will not leave that risk for your family either.
Section 1032 of this bill concerns a smaller group of people who
Congress believes are required to be detained by the U.S. military
because people who fit within this criteria are a more serious threat
to our national security. Any person detained under section 1032 must
be a member of, or part of, al-Qaida or its associates and they must
have participated in the planning or execution of an attack against the
U.S. or our coalition partners. Simply put, the application of this
detention requirement is limited to al-Qaida members that have tried to
attack the U.S. or its allies. However, this detention requirement is
clearly limited by a clause that states that the requirement to detain
does not extend to U.S. citizens or lawful permanent residents.
Together, these two sections do the following: They affirm the
authority of the executive branch to act within our national interest,
and they provide the Federal Government with the tools that are needed
to maintain our national security. This bill does not overturn the
Posse Comitatus Act; the military will not be patrolling the streets.
This bill does not take away our rights as citizens or lawful permanent
residents; the authority under this act does not take away one's habeas
rights. These sections do not take
[[Page S8054]]
away an individual's rights to equal protection under the 14th
amendment to the U.S. Constitution, nor do they take away one's due
process rights afforded under the 5th or 14th. If this bill did such a
thing, I would strongly oppose it.
I want to thank everyone for reaching out to the office to voice
their concerns on this bill. I want to assure them that I always have,
and always will, listen to their concerns and address them in a timely
fashion. I know this bill is not perfect. In fact, I proposed two
amendments to prevent the President from transferring foreign
terrorists to the U.S. to be prosecuted in the Federal court system,
and I joined with Senators DeMint, Coburn, and Lee to vote against
cloture. However, in regard to the assertions that this bill allows the
U.S. military to supplant our local police departments or that it
allows the Federal Government to detain otherwise law-abiding citizens
for simply carrying on in their daily lives, those assertions are
entirely unfounded. As always, if anyone has any other questions,
please feel free to contact me.
____________________
[Congressional Record Volume 157, Number 183 (Thursday, December 1, 2011)]
[Senate]
[Pages S8088-S8094]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
DEFENSE AUTHORIZATION
Mr. GRAHAM. While we decide how we are going to move on the Defense
bill, I appreciate Senator Kyl coming to the floor. Senator Kyl and I,
along with Senators Levin and McCain, have been working on detainee
policy for years now. There is an issue that is before the Senate soon.
It involves what to do with an American citizen who is suspected of
collaborating with al-Qaida or an affiliated group.
Does the Senator agree with me that in other wars American citizens,
unfortunately, have aided the enemies of their time?
Mr. KYL. Mr. President, yes. I would say to my colleague,
unfortunately, it is the case that there probably hasn't been a major
conflict in which at least some American citizen has decided to leave
his country and side with the enemy.
Mr. GRAHAM. Is the Senator familiar with the efforts by German
saboteurs who landed--I believe, in the Long Island area, but I don't
know exactly where they landed--during World War II, and they were
aided by American citizens to execute a sabotage plot against the
United States?
Mr. KYL. Mr. President, yes. In fact, there is a famous U.S. Supreme
Court case, Ex parte Quirin, decided in 1942, that dealt with the issue
of an American citizen helping the Nazi saboteurs that came to our
shores.
Mr. GRAHAM. Does the Senator agree with me that our Supreme Court
ruled then that when an American citizen decides to collaborate and
assist an enemy force, that is viewed as an act of war and the law of
war applies to the conduct of the American citizen?
Mr. KYL. Mr. President, I would say to my colleague, yes. My
colleague knows this case, I am confident. I think one quotation from
the case makes the point clearly--in Ex parte Quirin the court made
clear: ``Citizenship in the United States of an enemy belligerent does
not relieve him from the consequences of his belligerency.''
In other words, if a person leaves their country and takes the
position contrary, they side with the enemy, they become a belligerent
against the United States, the fact that they are still a citizen does
not protect them from being captured, from being held, and in this case
even being tried by a military tribunal.
Mr. GRAHAM. So the law, at least since 1942, by the Supreme Court has
been that if someone decides as an American citizen to join forces with
enemies of the United States, they have committed an act of war against
their fellow citizens. It is not a criminal event we are investigating
or dealing with; it is an act of war, and the American citizens who
helped the Nazis were held as enemy combatants and tried as enemy
combatants?
Mr. KYL. Mr. President, yes. I would just qualify that statement this
way. A person can be subject to military custody being a belligerent
against the United States, even while being a U.S. citizen, be tried by
military commission because of the act of war against the United States
that they committed. One could also theoretically have been tried in a
criminal court. But one can't reach the opposite conclusion, which is
that they can only be tried in civilian court.
Mr. GRAHAM. In the Military Commission Act of 2009, we prohibited
American citizens from being tried by military commissions. I am OK
with that. But what we have not done--and I would be very upset if we
chose to do that--is take off the table the ability to interrogate an
American citizen who has chosen to help al-Qaida regarding what they
know about the enemy and what intelligence they may provide us to
prevent a future attack.
Since homegrown terrorism is a growing threat, under the current law,
if an American citizen became radical, went to Pakistan and trained
with al-Qaida or an affiliated group, flew back to Dulles Airport, got
off the plane, got a rifle, went down to the Mall right behind us and
started shooting people, does the Senator agree with me that under the
law as it exists today, that person could be held as an enemy
combatant, that person could be interrogated by our military and
intelligence community and we could hold them as long as necessary to
find out what they know about any future attacks or any past attacks
and we don't have to read them their Miranda rights?
Mr. KYL. Mr. President, yes. The answer to the question, short, is,
yes. It is confirmed by the fact that in the Hamdi case, the U.S.
Supreme Court precisely held that detention would be lawful. Of course,
with the detention being lawful, the interrogation to which my
colleague refers could also be taken.
Mr. McCAIN. Would the Senator yield for a question on that subject
point?
The PRESIDING OFFICER. The Senator from Arizona is recognized.
Mr. McCAIN. The individual who was an American citizen--Mr. Hamdi,
the subject of the U.S. Supreme Court case--was an American citizen
captured in Afghanistan; is that correct?
Mr. GRAHAM. Yes.
Mr. McCAIN. Yet in the Supreme Court decision reference is made to an
individual who was captured during World War II in the United States of
America; isn't that correct? It was referenced in the Supreme Court
decision.
Mr. GRAHAM. Yes. The In re Quirin case dealt with an American citizen
helping the Nazis in America. The Hamdi case dealt with an American
citizen helping the Taliban in Afghanistan.
Mr. McCAIN. The reason why I raise the question is because the
Senator from Illinois, and others, have cited the fact that Hamdi was
an American citizen but captured in Afghanistan, not in the United
States of America.
Yet isn't it a fact that the decision in Hamdi also made reference to
a person who was apprehended in the United States of America?
This is what is bizarre about this discussion, it seems to me.
Mr. GRAHAM. The Hamdi case cited In re Quirin for the proposition
that an American citizen who provides aid, comfort or collaboration
with the enemy can be held as an enemy combatant. The In re Quirin case
dealt with an American citizen helping the Nazis in New York. The
Padilla case involves an American citizen, collaborating with al-Qaida,
captured in the United States.
Mr. McCAIN. So I guess my question is, it is relevant where the
citizen of the United States was captured. Because the decision made
reference to people captured both in the United States and outside the
United States.
Mr. GRAHAM. Exactly. I would add, and get Senator Kyl's comment.
Wouldn't it be an absurd result if you can kill an American citizen
abroad--Awlaki--whatever his name was--the President targeted him for
assassination because he was an American citizen who went to Yemen to
engage in an act of terrorism against the United States. The President
went through an Executive legal process, targeted him for assassination
and a drone attack killed him and we are all better off. Because when
an American citizen helps the enemy, they are no longer just a common
criminal; they are a military threat and should be dealt with
appropriately.
But my point is, wouldn't it be an odd result to have a law set up so
that if they actually got to America and they tried to kill our people
on our own soil, all of a sudden they have criminal status?
I would argue that the homeland is part of the battlefield, and we
should protect the homeland above anything else. So it would be crazy
to have a law that says if you went to Pakistan and attacked an
American soldier, you could be blown up or held indefinitely, but if
you made it back to Dulles Airport, you went downtown and started
killing Americans randomly, we couldn't hold you and gather
intelligence. The Supreme Court, in 1982, said that made no sense.
If a Senator, in 1942, took the floor of the Senate and said: You
know those American citizens who collaborated with the Nazis, we ought
not treat them as an enemy, they would be run out of town.
I am just saying, to any American citizen: If you want to help al-
Qaida, you do so at your own peril. You can
[[Page S8089]]
get killed in the process. You can get detained indefinitely. When you
are being questioned by the CIA, the FBI or the Department of Defense
about where you trained and what you did and what you know and you say
to the interrogator: I want my lawyer, the interrogator will say: You
don't have a right to a lawyer because you are a military threat.
This is not ``Dragnet.'' We are fighting a war. The Supreme Court of
the United States has clearly said an American citizen who joins with
the enemy has committed an act of war.
Senator Feinstein, who is the chairman of the Intelligence Committee,
is a very good Senator. But her concerns about holding an American
citizen under the law of war, her amendment, unfortunately, would
change the law.
Does Senator Kyl agree with that?
Mr. KYL. Yes. Mr. President, that is the key point. There is a reason
why you don't want to adopt the Feinstein amendment: It would preclude
us from gaining all the intelligence we could gain by interrogating the
individual who has turned on his own country and who would have
knowledge of others who might have joined him in that effort or other
plans that might be underway.
We know from past experience this interrogation can lead to other
information to save American lives by preventing future attacks, and it
has occurred time and time again. In a moment, I will put a statement
in the Record that details a lot of this intelligence we have gathered.
It is not as if an American citizen doesn't have the habeas corpus
protection--which still attaches--whether or not that individual is
taken into military custody.
The basic constitutional right of an American citizen is preserved.
Yet the government's ability to interrogate and gain intelligence is
also preserved by the existing law, by the status of the law that
exists today. We would not want to change that law by something such as
the Feinstein amendment.
Mr. GRAHAM. Simply stated, when the American citizens in question
decided to give aid and comfort to the Nazis, I am very glad they were
allowed to be held by the military and interrogated about the plot and
what they knew, because intelligence gathering is the best way to keep
us safe.
I would be absolutely devastated if the Senate, for the first time in
2011, denied the ability of our military and intelligence community to
interrogate somebody who came back from Pakistan and started killing
people on the Mall--that we could no longer hold them as an enemy
combatant and find out what they did and why they did it; that we would
have to treat them as a common criminal and read them their Miranda
rights. That is not the law.
If that becomes the law, then we are less safe because I tell you, as
we speak, the threat to our homeland is growing. Homegrown terrorists
are becoming the threat of the 21st century, and now is not the time to
change the law that has been in place for decades. I do hope people
understand what this means.
It means we would change the law so that if we caught somebody in
America who went overseas to train and came back home, an American
citizen who turned on the rest of us, no longer could we hold them as
an enemy combatant and gather intelligence. That, to me, would be a
very dangerous thing to do.
I ask the Senator, who determines what the Constitution actually
means; is it the Congress or the Supreme Court?
Mr. KYL. Mr. President, ultimately the U.S. Supreme Court, when cases
come before the Court that present these issues, determines what the
law is. In this situation we have actually two specific cases, and
there are others that are tangential, that do clarify what the Court
believes what the Constitution would provide in this case.
Mr. GRAHAM. So the issue is pretty simple. Our courts at the highest
level--the Supreme Court has acknowledged that the executive branch has
the legal authority to hold an American citizen who is collaborating
with an enemy as an enemy belligerent to gather intelligence to protect
the rest of us; they recognize that power of the executive. Does the
Senator agree with me that the amendment of Senator Feinstein would be
a situation where the Congress does not recognize that authority and
would actually try to change it?
Mr. KYL. Yes. One of the questions is this interplay between the
executive and the legislative branch. When the legislative branch, as
Congress has done here through the authorization of military force, has
provided the legal basis for the administration to hold a person
engaged in war against us, then it cannot be denied that that authority
exists. There is a 1971 law that Congress passed that said you could
hold people only pursuant to law. This was the precise holding of the
Hamdi case, where the U.S. Supreme Court said they had the authority
because of the authorization of military force. So the executive has
that authority, the legislature has provided the basis for the
authority, and the Supreme Court has upheld it by its ultimate
jurisdiction.
Mr. GRAHAM. And to conclude this colloquy--I enjoyed the discussion--
I am not saying our law enforcement or military intelligence community
cannot read someone their Miranda rights. I will leave that up to them.
I am saying Congress should not take off the table the ability to hold
someone under the law of war to gather intelligence, and that is what
we are about to do if this passes.
To those who believe that homegrown terrorists are a threat now and
in the future, if you want to make sure we can never effectively gather
intelligence, we only have one option, then that is what we are about
to impose on the country.
Mr. KYL. If I might ask my colleague to yield for one other point I
wish to make here.
Mr. GRAHAM. Absolutely.
Mr. KYL. In a criminal trial, the object is to do justice to an
individual as it pertains to his alleged violation of law in the United
States. In the case of the capture and detention of a combatant,
someone who has taken action against the United States, the object
first is to keep the United States safe from this individual's actions
and, second, where possible, gain intelligence from that individual.
That is the critical element that would be taken from our military,
were the Feinstein amendment to be adopted.
I ask unanimous consent to have printed in the Record a statement
that makes very clear where military detention is necessary: to allow
intelligence gathering that will prevent future terrorist attacks
against the American people.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Wartime Detention of Enemy Combatants--Including U.S. Citizens Who Join
the Forces of the Enemy--Is An Established Practice That Is Clearly
Constitutional
Unfortunately, in almost every major war that the United
States has fought, there have been some U.S. citizens who
have joined the forces of our Nation's enemies or who have
otherwise collaborated with the enemy. These traitors and
collaborators have always been treated as enemy combatants--
and have been subjected to trial by military commission where
appropriate.
The U.S. Supreme Court has consistently held that the
President has the constitutional authority to detain enemy
combatants, including U.S. citizens who have cast their lot
with the enemy.
In its 2004 decision in Hamdi v. Rumsfeld, for example, the
Supreme Court held that the detention of enemy combatants is
proper under the U.S. Constitution. Moreover, the person
challenging his military detention in that case was a U.S.
citizen.
During World War II, the Supreme Court also upheld the
military detention and trial of a U.S. citizen who had served
as a saboteur for Nazi Germany and was captured in the United
States. The Court made clear that ``[c]itizenship in the
United States of an enemy belligerent does not relieve him
from the consequences of a belligerency.'' That case is Ex
Parte Quirin (1942).
In support of her amendment number 1126, Senator Feinstein
yesterday cited a 1971 law, apparently arguing that the
detention of an enemy combatant who is a U.S. citizen would
be prohibited under that law.
That 1971 law is 18 U.S.C. 4001. It provides that ``no
citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an Act of Congress.''
This is the very law that was at issue in the Hamdi case.
And the precise holding of the U.S. Supreme Court in Hamdi
was that the detention of a U.S. citizen as an enemy
combatant through the duration of hostilities would not
violate that law.
The Supreme Court stated: ``[Hamdi] posits that his
detention is forbidden by 18 U.S.C. Sec. 4001(a). Section
4001(a) states that `[n]o citizen shall be imprisoned or
otherwise detained by the United States except pursuant
[[Page S8090]]
to an Act of Congress.' . . . Congress passed Sec. 4001(a)
in 1971. . . . [The government maintains] Sec. 4001(a) is
satisfied because Hamdi is being detained pursuant to an Act
of Congress, the AUMF. . . . [W]e conclude that . . . the
AUMF satisfied Sec. 4001(a)'s requirement that a detention be
pursuant to an Act of Congress.''
____
Why Military Detention Is Necessary: To Allow Intelligence Gathering
That Will Prevent Future Terrorist Attacks Against the American People
Some may ask, why does it matter whether a person who has
joined Al Qaeda is held in military custody or is placed in
the civilian court system? One critical reason is
intelligence gathering. A terrorist operative held in
military custody can be effectively interrogated. In the
civilian system, however, that same terrorist would be given
a lawyer, and the first thing that lawyer will tell his
client is, ``don't say anything. We can fight this.''
In military custody, by contrast, not only are there no
lawyers for terrorists. The indefinite nature of the
detention--it can last as long as the war continues--itself
creates conditions that allow effective interrogation. It
creates the relationship of dependency and trust that
experienced interrogators have made clear is critical to
persuading terrorist detainees to talk.
Navy Vice-Admiral Lowell Jacoby, who at the time was the
Director of the Defense Intelligence Agency, explained how
military custody is critical to effective interrogation in a
declaration that he submitted in the Padilla litigation. He
emphasized that successful noncoercive interrogation takes
time--and it requires keeping the detainee away from lawyers.
Vice-Admiral Jacoby stated:
DIA's approach to interrogation is largely dependent upon
creating an atmosphere of dependency and trust between the
subject and the interrogator. Developing the kind of
relationship of trust and dependency necessary for effective
interrogations is a process that can take a significant
amount of time. There are numerous examples of situations
where interrogators have been unable to obtain valuable
intelligence from a subject until months, or, even years,
after the interrogation process began.
Anything that threatens the perceived dependency and trust
between the subject and interrogator directly threatens the
value of interrogation as an intelligence gathering tool.
Even seemingly minor interruptions can have profound
psychological impacts on the delicate subject-interrogator
relationship. Any insertion of counsel into the subject-
interrogator relationship, for example--even if only for a
limited duration or for a specific purpose--can undo months
of work and may permanently shut down the interrogation
process.
Specifically with regard to Jose Padilla, Vice Admiral
Jacoby also noted in his Declaration that: ``Providing
[Padilla] access to counsel now would create expectations by
Padilla that his ultimate release may be obtained through an
adversarial civil litigation process. This would break--
probably irreparably--the sense of dependency and trust that
the interrogators are attempting to create.''
In other words, military custody is critical to successful
interrogation. Once a terrorist detainee is transferred to
the civilian court system, the conditions for successful
interrogation are destroyed.
Preventing the detention of U.S. citizens who collaborate
with Al Qaeda would be a historic abandonment of the law of
war. And, by preventing effective interrogation of these
collaborators, it would likely have severe consequences for
our ability to prevent future terrorist attacks against the
American people.
We know from cold, hard experience that successful
interrogation is critical to uncovering information that will
prevent future attacks against civilians.
On September 6 of 2006, when President Bush announced the
transfer of 14 high-value terrorism detainees to Guantanamo,
he also described information that the United States had
obtained by interrogating these detainees. Abu Zubaydah was
captured by U.S. forces several months after the September 11
attacks. Under interrogation, he revealed that Khalid Sheikh
Mohammed was the principal organizer of the September 11
attacks. This is information that the United States did not
already know--and that we only obtained through the
successful military interrogation of Zubaydah.
Zubaydah also described a terrorist attack that Al Qaida
operatives were planning to launch inside this country--an
attack of which the United States had no previous knowledge.
Zubaydah described the operatives involved in this attack and
where they were located. This information allowed the United
States to capture these operatives--one while he was
traveling to the United States.
Again, just imagine what might have happened if the
Feinstein amendment had already been law, and if the Congress
had stripped away the executive branch's ability to hold Al
Qaeda collaborators in military custody and interrogate them.
We simply would not learn what that detainee knows--including
any knowledge that he may have of planned future terrorist
attacks.
Under military interrogation, Abu Zubaydah also revealed
the identity of another September 11 plotter, Ramzi bin al
Shibh, and provided information that led to his capture. U.S.
forces then interrogated bin al Shibh. Information that both
he and Zubaydah provided helped lead to the capture of Khalid
Sheikh Mohammed.
Under interrogation, Khalid Sheikh Mohammed provided
information that helped stop another planned terrorist attack
on the United States. K.S.M. also provided information that
led to the capture of a terrorist named Zubair. And K.S.M.'s
interrogation also led to the identification and capture of
an entire 17-member Jemaah Islamiya terrorist cell in
Southeast Asia.
Information obtained from interrogation of terrorists
detained by the United States also helped to stop a planned
truck-bomb attack on U.S. troops in Djibouti. Interrogation
helped stop a planned car-bomb attack on the U.S. embassy in
Pakistan. And it helped stop a plot to hijack passengers
planes and crash them into Heathrow airport in London.
As President Bush stated in his September 6, 2006 remarks,
``[i]nformation from terrorists in CIA custody has played a
role in the capture or questioning of nearly every senior al
Qaida member or associate detained by the U.S. and its
allies.'' The President concluded by noting that Al Qaida
members subjected to interrogation by U.S. forces: ``have
painted a picture of al Qaeda's structure and financing, and
communications and logistics. They identified al Qaeda's
travel routes and safe havens, and explained how al Qaeda's
senior leadership communicates with its operatives in places
like Iraq. They provided information that . . . has allowed
us to make sense of documents and computer records that we
have seized in terrorist raids. They've identified voices in
recordings of intercepted calls, and helped us understand the
meaning of potentially critical terrorist communications.
[Were it not for information obtained through
interrogation], our intelligence community believes that al
Qaeda and its allies would have succeeded in launching
another attack against the American homeland. By giving us
information about terrorist plans we could not get anywhere
else, this [interrogation] program has saved innocent
lives.''
If the Feinstein amendment were adopted, this is all
information that we would be unable to obtain if the Al Qaeda
collaborator that our forces had captured was a U.S. citizen.
It would simply be impossible to effectively interrogate that
Al Qaeda collaborator--the relationship of trust and
dependency that military custody creates would be broken, and
the detainee would instead have a lawyer telling him to be
quiet. And we know that information obtained by interrogating
Al Qaeda detainees has been by far the most valuable source
of information for preventing future terrorist attacks.
Again, in every past war, our forces have had the ability
to capture, detain, and interrogate U.S. citizens who
collaborate with the enemy or join forces with the enemy. I
would submit that in this war, intelligence gathering is more
critical than ever. Al Qaeda doesn't hold territory that we
can capture. It operates completely outside the rules of war,
and directly targets innocent civilians. Our only effective
weapon against Al Qaeda is intelligence gathering. And the
Feinstein amendment threatens to take away that weapon--to
take away our best defense for preventing future terrorist
attacks against the American people.
Mr. KYL. I hope this statement clarifies in anyone's mind the point
that by taking people in custody in the past we have gathered essential
intelligence to protect the American people. That is the reason for the
detention in the first place--A, to keep the American people safe from
further attack by the individual, and, B, to gather this kind of
intelligence. Nothing precludes the United States, the executive
branch, from thereafter deciding to try the individual as a criminal in
the criminal courts with all the attendant rights of a criminal. But
until that determination, it cannot be denied that the executive has
the authority to hold people as military combatants, gather
intelligence necessary, and hold that individual until the cessation of
hostilities.
The PRESIDING OFFICER. The time of the Senator has expired.
The senior Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, I understand we are still in morning
business?
The PRESIDING OFFICER. The time for morning business has expired.
Mr. LEAHY. I ask unanimous consent I be recognized for another 5
minutes as in morning business, and the distinguished Senator from
Illinois be recognized for 10 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, earlier this week, one of this bill's lead
sponsors said here on the floor of the United States Senate that the
bill's detention subtitle would authorize the indefinite detention of
U.S. citizens at Guantanamo Bay. That is a stunning statement. We
should all pause to consider the ramifications of passing a bill
[[Page S8091]]
containing such language. Supporters of the detention provisions in the
bill continue to argue that such measures are needed because, they
claim, ``we are a nation at war.'' That does not mean that we should be
a Nation without laws, or a Nation that does not adhere to the
principles of our Constitution.
One of the provisions in this bill, Section 1032, runs directly
contrary to those principles. Section 1032 requires the military to
detain terrorism suspects, even those who might be captured on U.S.
soil. This provision is opposed by the very intelligence, military, and
law enforcement officials who are entrusted with keeping our Nation
safe--including the Secretary of Defense, the Director of National
Intelligence, the Attorney General, the Director of the FBI, and the
President's top counterterrorism advisor. As Chairman of the Judiciary
Committee, I support the efforts of Senator Feinstein, the chair of the
Senate Intelligence Committee, to modify Section 1032 so that it does
not interfere with ongoing counterterrorism efforts or undermine our
constitutional principles.
In the fight against al-Qaida and other terrorist threats, we should
give our intelligence, military, and law enforcement professionals all
the tools they need. But the mandatory military detention provision in
Section 1032 actually limits those tools by tying the hands of the
intelligence and law enforcement professionals who are fighting
terrorism on the ground, and by creating operational confusion and
uncertainty. This is unwise and unnecessary.
On Monday, Director Mueller warned that Section 1032 would adversely
affect the Bureau's ability to continue ongoing international
investigations. Secretary Panetta has also stated unequivocally that
``[t]his provision restrains the Executive Branch's options to utilize,
in a swift and flexible fashion, all the counterterrorism tools that
are now legally available.'' These are not partisan objections, but
rather the significant operational concerns voiced by the Secretary of
Defense and the Director of the FBI--both of whom were confirmed by
this body with 100-0 votes. And yet these are the voices that
supporters of this bill would ignore.
Supporters of this bill have argued that the new national security
waiver and implementation procedures in this section provide the
administration with the flexibility it needs to fight terrorism. The
intelligence and law enforcement officials who are actually responsible
for fighting terrorism and keeping our Nation safe, however, could not
disagree more. As Director Mueller stated in his letter, these
provisions are still problematic and ``fail to recognize the reality of
a counterterrorism investigation.'' Director of National Intelligence
Clapper has stated that ``the various detention provisions, even with
the proposed waivers, would introduce unnecessary rigidity'' in the
intelligence gathering process. Put differently, Lisa Monaco, the
Assistant Attorney General for the National Security Division, recently
stated that ``agents and prosecutors should not have to spend their
time worrying about citizenship status and whether and how to get a
waiver signed by the Secretary of Defense in order to thwart an al-
Qaida plot against the homeland.''
We should listen to the intelligence and law enforcement
professionals who are entrusted with our Nation's safety, and we should
fix this flawed provision.
Senator Feinstein's amendment would ensure that the requirement of
military detention of terrorism suspects does not apply domestically.
As Chairman of the Judiciary Committee, I am proud to be a cosponsor of
this amendment, and I urge all Senators to support its adoption.
I know Senator Durbin is next, but I now understand from Senator
Durbin the distinguished Senator from Missouri is going next.
In any event, I yield the floor and thank my colleagues for their
courtesy.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BLUNT. Mr. President, I ask unanimous consent to address the
Senate for 10 minutes in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BLUNT. I appreciate my good friend from Illinois allowing me to
go ahead and talk about the Defense bill at this time, but doing it in
the context of where we are on the floor right now.
Mr. President, defending the country is the Congress's most important
constitutional responsibility. Abraham Lincoln said that government
should do for people only those things that people cannot better do for
themselves. If there is anything at the top of that list, this is at
the top of that list. So it is critical that we have this discussion,
that we pass this bill as soon as possible in order to give our men and
women in uniform the tools they need to do their job and the certainty
we need to know how that job is going to be done from the point of view
of what the Government can and needs to provide.
While this bill we are debating today is only about next year's
defense program, we should not lose sight of the fact that our budget
environment is more challenging all the time and whether the automatic
budget cuts to future defense happen, we do know we are going to have
to be more thoughtful, more cautious about how we get the most for our
investment in defense. Everybody else in America has spent the last 20
years figuring out how you focus on a better result from less
investment, and defense is going to have to be there as well. Still,
that does not mean it is not a top priority for the Federal Government.
I appreciate the work my friends Senator Levin and Senator McCain
have done to get this bill to the floor. I am proud to represent a
State that is involved in our national defense. Missouri is the home of
Fort Leonard Wood, of Whiteman Air Force Base, of the Marine Corps
Mobilization Command Center in Kansas City. We have dozens of National
Guard and Reserve facilities in our State. Our State has 17,184 active-
duty soldiers, marines, and airmen right now; 34,000 Guard and
Reservists.
We are the home of large and small defense contractors that provide
thousands of jobs in our State. Those defense contractors can do their
work better and our defense dollars are better spent if we know what
the plan is. The only real way to know what the plan is is to have an
authorization bill that works.
Since the beginning of Operations Enduring Freedom and Iraqi Freedom,
134 Missourians have given their lives and over a thousand have been
wounded in the line of duty. In fact, one of the amendments I have that
I hope finds its way into this bill is research associated with
rehabilitating those wounded warriors who have eye injuries. Thousands
of vision-related injuries have occurred as a result of the wars we are
fighting now. Tremendous work is being done by St. John's Hospital and
Missouri State University in Springfield to see what can be done to
develop better ways to deal with those eye wounds. With IEDs as a
principal tool of our opponents, our enemies in this war, your eyes are
the hardest thing ultimately to protect. Twelve percent of our wounded
warriors have eye wounds. Hopefully we can look to see what we can do
to provide greater protection and greater recovery from those wounds.
I join all Missourians in thanking those who serve. I think all of us
will show greater commitment to those who serve by actually having a
Defense authorization bill that sets out a plan for the future.
I am particularly pleased that this bill contains funding for
modifications of the B-2 bomber's mixed load capacity. Most of our
Stealth bombers operate out of Whiteman Air Force Base in Missouri and
we discovered, as recently as the operation in Libya, that operations
with our B-2 bombers are not as efficient as they need to be or could
be, simply by making that loading capacity work differently. That is
the kind of thing we are going to have to do as we look at more
difficult-to-get defense dollars. We are going to have to figure out
how we spend those defense dollars in the best possible way. I hope the
Senate language as it is in the bill now prevails in a final bill.
I also want to call attention to the bill's full authorization of the
development of the next generation long-range strike bomber and I am
pleased with the funding in this bill for a vehicle maintenance
facility at Fort Leonard
[[Page S8092]]
Wood and weapons storage at Whiteman.
I filed a few amendments to this bill and I will mention a couple of
them. One I am working on with Senator Gillibrand is an amendment to
ensure National Guard soldiers mobilized for domestic emergency
operations are entitled to the same employment rights as others are
when they come back. Senator Gillibrand and I also worked on a bill to
ensure that people in the Guard and Reserve, and their families, have
access to financial and marital and other kinds of counseling as they
try to put their other life back together.
I thank my colleagues for bringing this bill to the floor. We face a
wide variety of threats today, including some that are new and
constantly evolving--cyber-warfare, WMD, all things that we need to
take seriously. This is a principal responsibility of the Federal
Government. I am looking forward to seeing this bill passing the Senate
today and then to work with the House to get a bill on the President's
desk so that all who are involved in the defense of the country know
what the long-term plan is.
I yield the floor.
The PRESIDING OFFICER. The assistant majority leader is recognized.
Mr. DURBIN. Mr. President, I thank my colleague from Missouri, and I
concur with his comments about our American military. We have the best
in the world. These men and women serve us well with courage and honor
every day, and we are fortunate to have them. We are fortunate--those
of us who enjoy the blessings of liberty and the safety of this
Nation--to have men and women willing to risk their lives for America.
This Defense authorization bill is a bill that authorizes the
continued operations of our military, and every year we pass this bill,
as we should, in a timely manner. I have supported it consistently over
the years with very few exceptions and believe the work product brought
to us by Senators Levin and McCain is excellent, bipartisan, and moves
us in a direction toward an even safer America, and I thank them for
all the work they put into it.
There are provisions within this bill today which trouble me greatly.
There are provisions on which I hope Members of the Senate will
reflect, one in particular that I will address at this time. Senator
Feinstein is offering amendment No. 1125, which I am cosponsoring. I
would say this amendment raises a serious question about section 1032
in this bill. I am concerned this section would limit the flexibility
of any President to fight terrorism. I am concerned it will create
uncertainty for law enforcement, intelligence, and our military
regarding how to handle suspected terrorists. I think it raises
fundamental and serious constitutional concerns.
This provision, 1032, would, for the first time in the history of the
United States, require our military to take custody of certain
terrorism suspects in the United States. On its face, that doesn't
sound offensive, but, in fact, it creates a world of problems. Where do
we start this debate?
We understand the responsibility of Congress in passing laws and the
President with the option to sign those laws or veto them and the
courts with the responsibility to interpret them. When it comes to the
protection of this country in fighting terrorism, most of us have
believed this is primarily an executive function under Presidents of
both political parties. We may disagree from time to time on the
PATRIOT Act and other aspects of it and debate those issues, but, by
and large, I think we have ceded to Presidents of both parties the
power to protect America.
My colleague and friend, Senator Lindsey Graham, a Republican of
South Carolina, on September 19, 2007, stated--and he states things
very colorfully and clearly--
The last thing we need in any war is to have the ability of
535 people who are worried about the next election to be able
to micromanage how you fight the war. This is not only
micromanagement, this is a constitutional shift of power.
That was Senator Graham's statement in 2007. Although I would
carefully and jealously guard the constitutional responsibility of
Congress when it comes to the declaration of war, even the waging of
war, I do believe there is a line we should honor. We should not stop
our President and those who work for him in keeping America safe by
second-guessing decisions to be made.
Today, again, on the Republican side of the aisle came colleagues who
make the argument that it is a serious mistake for us to take a
suspected terrorist and put them into our criminal justice system. They
argue the last thing in the world we want to do is to take a suspected
terrorist and read them their constitutional rights: the right to
remain silent, everything you say can be used against you, the right to
counsel. They argue that is when terrorists will clam up and stop
talking. Therefore, they argue, suspected terrorists should be
transferred to military jurisdictions where Miranda rights will not be
read. On its face it sounds like a reasonable conclusion. In fact, it
is not. It is not.
Since 9/11, we have arrested and detained 300 suspected terrorists,
read them their Miranda rights, and then went on to prosecute them
successfully and incarcerate them. They cooperated with the Federal
Bureau of Investigation, gave information, and in many cases gave
volumes of information even after having been read their rights. So to
argue that it cannot be done or should not be done is to ignore the
obvious. Three hundred times we have successfully prosecuted suspected
terrorists, and America has remained safe for these 10 years-plus since
9/11. How many have been prosecuted under military tribunals in that
period of time? Six, and three have been released. We are keeping this
country safe by giving to the President and those who work for the
President in the military intelligence and law enforcement community
the option to decide the best course of action when it comes to
arresting, detaining, investigating, and prosecuting an individual.
Remember the man who was on the plane flying into Detroit a couple of
years ago? He tried to detonate a bomb on the plane. His clothing
caught fire, and the other passengers subdued him, restrained him. He
was arrested, investigated by the FBI, and read his Miranda rights.
Within a day his parents were brought over. The following day he
decided to cooperate with the United States and told us everything he
knew. At the end of the day, he was prosecuted, brought to trial, and
pled guilty. He went through our regular criminal court system, though
he was not an American citizen, and he was successfully prosecuted.
President Obama had the right to decide what best thing to do to keep
America safe, and he did it. Why would we want to tie his hands?
Now let me talk about this section 1032 and why it is a serious
mistake. Section 1032 in this bill would for the first time in American
history require the military to take custody of certain terrorism
suspects in the United States. From a practical point of view, it could
be a deadly mistake for us to require this. Listen to what was said by
the Justice Department in explaining why:
While the legislation proposes a waiver in certain
circumstances to address concerns, this proposal inserts
confusion and bureaucracy when FBI agents and
counterterrorism prosecutors are making split-second
decisions. In a rapidly developing situation--like that
involving Najibullah Zazi traveling to New York in September
of 2009 to bomb the subway system--they need to be completely
focused on incapacitating the terrorist suspect and gathering
critical intelligence about his plans.
Instead, this provision, 1032, written into this law, would require a
handoff of terrorism suspects to military authorities. So what does our
military think about this?
Well, the Secretary of Defense Leon Panetta made it abundantly clear
when he said:
The failure of the revised text to clarify that section
1032 applies to individuals captured abroad, as we have
urged, may needlessly complicate efforts by frontline law
enforcement professionals to collect critical intelligence
concerning operations and activities within the United
States.
What we have seen, then, as our Secretary of Defense tells us, ceding
to the military this authority could compromise America's security at a
critical moment when every second counts, when the gathering of
intelligence could literally save not just a life but thousands of
lives.
Senator Feinstein's amendment makes it clear--as the administration
[[Page S8093]]
wants to make it clear--that those terrorism suspects who are arrested
abroad will be detained by the military. But within the United States
we are told by this administration this provision will jeopardize the
security of our country, will require a procedure now to hand off these
individuals to the military side in places where they could not
possibly be handed off quickly or seamlessly.
We have 10,000 FBI agents dedicated to the security of this country
when it comes to these national security issues and 56 different
offices. We don't have anything near that capacity when it comes to the
military picking up the interrogation of an individual who may have
knowledge that if we can glean it from that person could save thousands
of lives.
Why in the world do we want to tie the hands of law enforcement? Why
do we want to tie the hands of the intelligence community? Why do we
want to create this situation of giving to the military this
responsibility when they are not prepared at this moment to take it?
I think Senator Feinstein is doing the right thing for the protection
of this country. Her position is supported by the Attorney General, by
the Secretary of Defense, and by the intelligence community. They have
done a good job in keeping America safe. They have asked us: Please, do
not micromanage. Do not presume, do not create another hurdle for us
when it comes to gathering information that can save lives in America.
Why would we do that? After more than 10 years of success and
avoiding another 9/11, let's not make the situation worse by this 1032,
this section of the bill that is being presented to us.
I know we will hear arguments on the Senate floor, well, there are
opportunities for a waiver. So if a person is detained by the Federal
Bureau of Investigation and then it is determined that this is a
suspect who falls in the category and needs to go to military detention
and then we need to turn to the executive side for a waiver of that
military detention, how much time will be lost? Will it be minutes,
hours, days? Could we afford that if what is at stake is the potential
loss of thousands of American lives? Why? Why make it more complex?
I cannot understand why the other side of the aisle is now so
determined with this President to micromanage the defense of this
country when it comes to terrorism. When it was a Republican President
any suggestions along those lines were dismissed as unpatriotic and
unwise and illogical. Now, under this President, everything is fair
game. They want to change the rules, rules which have successfully
protected the United States for more than 10 years.
I urge my colleagues to support Senator Feinstein's amendment No.
1125 and amend this section 1032 and make sure that our Defense
Department, military and law enforcement, as well as intelligence
community have the tools they need to continue to keep America safe.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. CORNYN. Mr. President, I ask unanimous consent that I be
recognized to speak as in morning business for up to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The senior Senator from Michigan.
Mr. LEVIN. Mr. President, I ask unanimous consent that when we return
to the bill, which will be after Senator Cornyn speaks, we move
immediately to Feinstein amendment No. 1125, and that there be a 30-
minute debate evenly divided and that the vote would occur immediately
following that.
I withdraw my request.
The PRESIDING OFFICER. The Senator from Texas is recognized.
Mr. CORNYN. Mr. President, I want to talk about something that is all
too rare, and that is bipartisan support for an important piece of
legislation that not only fulfills America's commitments to our ally,
Taiwan, under the Taiwan Relations Act of 1979, but it helps stabilize
a critical region of the world--that would be in Asia--and particularly
the growing tensions between Taiwan and China. It also creates jobs in
America by facilitating foreign military sales of things made here in
America, by Americans, that we are going to sell to people in other
countries--our friends in other countries--for cash and doesn't cost
taxpayers a penny.
My amendment No. 1200 is pending before the Senate, and I was pleased
in introducing this amendment to be joined by several of my colleagues
on a bipartisan basis: Senator Menendez from New Jersey, Senator Inhofe
from Oklahoma, Senator Lieberman from Connecticut, Senator Wyden from
Oregon, and Senator Blumenthal from Connecticut.
This amendment is straightforward and simple. It would require the
President to carry out the sale of 66 F-16C/D aircraft to Taiwan. These
are American-made fighters our Democratic ally in Taiwan has been
trying to purchase since 2007. As I said earlier, this is a win-win
amendment. It reflects the right national security policy, and it is
good for the American economy and jobs. We know Taiwan's Air Force
continues to deteriorate.
First, let me just remind my colleagues what Taiwan is looking at in
terms of the disparity in combat aircraft between Communist China and
Democratic Taiwan.
Communist China has roughly 2,300 operational combat aircraft. Our
ally and friend democratic Taiwan has 490 operational combat aircraft--
obviously a growing imbalance in the Taiwan Strait. But that only tells
part of the story because, as my colleagues also know, this chart
indicates the incredible shrinkage of Taiwan's air force, that many of
Taiwan's combat aircraft are F-5 aircraft which America has previously
sold to Taiwan but which are now becoming older and more obsolete as
time goes by, as well as French Mirage 2000 aircraft. As this chart
indicates, around roughly 2020, maybe even before, these aircraft are
going to become completely obsolete, and we will see the huge cliff
and, in fact, exacerbate the disparity between Communist China and our
democratic ally Taiwan.
This F-16 sale would be an export-driven job machine for our country
at a time when unemployment is at 9 percent and when the No. 1 issue on
America's agenda is job creation. People without jobs can't pay their
mortgages, and they lose their homes due to foreclosure. Why in the
world, when this sale would support jobs in 32 different States and the
District of Columbia, would anyone object to this amendment? Indeed, as
I indicated, I believe there is strong bipartisan support for it. This
sale would support more than 60 job-years of employment and generate
some $8.7 billion in economic output. It would also generate $768
million in taxes for the Federal Government.
As I indicated, Taiwan's air force is facing a looming fighter
shortfall. The fact is, this falls squarely in Congress's wheelhouse.
The Taiwan Relations Act that I referred to earlier was, in 1979,
signed by President Jimmy Carter with bipartisan support. It requires
the U.S. Government to provide Taiwan, our friend and ally, with the
defense articles necessary for them to defend themselves against
Communist Chinese aggression, and it instructs the President and the
Congress to determine the nature and quantity of such defense articles
based on their judgment of the needs of Taiwan.
Forty-seven Democrats and Republicans in the Senate--almost half--
have signed a letter to the President of the United States supporting
this sale. In the House of Representatives, 181 Democrats and
Republicans have signed a letter to the President supporting this sale.
As my colleagues will recall, in September the Senate voted on an
amendment like this in the trade adjustment authority assistance bill,
which ended up in a 48-to-48 tie. Although the bill had strong
bipartisan support, some of my colleagues said they preferred not to
offer that amendment on that particular legislative vehicle but said
that if I came back on an appropriate legislative vehicle, they would
support it. And if there is a more appropriate legislative vehicle than
the Defense authorization bill, I hope someone will point that out to
me. This is the appropriate vehicle. This is the appropriate time. This
is the right thing to do for job creation in America. It is the right
thing to do in terms of our national security and stability in Asia.
That is why I believe this is an appropriate time for us to take up
this amendment.
[[Page S8094]]
I was advised by the Parliamentarian that my original amendment as
drafted would not be germane postcloture. However, in consultation with
the Parliamentarian, we have come up with a technical modification
which essentially would strike what are called the findings that would
support the need for the legislation. In essence, it strikes the A
section and the B section and leaves only the C section remaining.
This, of course, at this point in the proceedings would require
unanimous consent.
In consultation with Senator McCain, the ranking member of the Senate
Armed Services Committee, I am advised that our friends across the
aisle will not grant unanimous consent for us to modify what is really
a technical modification for this amendment so we can get a vote on it.
I realize that at this point we are in morning business and it is not
appropriate, perhaps, for me to ask unanimous consent, but I will ask
unanimous consent at a later and appropriate time because I would like
to get an explanation from the distinguished chairman of the Armed
Services Committee as to why in the world there would be an objection
to an amendment that enjoys such broad bipartisan support on a clearly
appropriate legislative vehicle.
Madam President, I see the distinguished chairman on the floor. So I
would at this time, if it is appropriate, ask unanimous consent to
modify my pending amendment, to strike the findings under section A and
under section B, and to leave section C, which states in full:
Sale of aircraft. The President shall carry out the sale of
no fewer than 66 F-16 C and D multirole fighter aircraft to
Taiwan.
We have been advised by the Parliamentarian that this section is
indeed germane and would be eligible for a vote with that modification.
So I ask unanimous consent to so modify my amendment.
The PRESIDING OFFICER (Mrs. Hagan). Is there objection?
Mr. LEVIN. Reserving the right to object.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, there is objection on this side, and I
will attempt to bring together Senator Cornyn and the objectors so he
can hear from them why they object, but in the meantime I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Texas.
Mr. CORNYN. Madam President, I am disappointed, but more than
disappointed, I look forward to that explanation. I hope there will be
an opportunity to have a colloquy and a discussion here on the floor so
the American people can see why a piece of legislation that enjoys such
broad bipartisan support can't even get a vote.
When people watch what is happening in Washington these days, I think
they are tempted to avert their gaze because they ask the question of
me--and I am sure, when the Presiding Officer is back in North
Carolina, of her as well--why can't people get anything done? Well, it
is because, unfortunately, of things like this. These are technical
objections that are not based on the substance or the merit of the
legislation.
I respect the chairman of the Armed Services Committee, who says
there is an objection on the Democratic side, and he personally is not
making that objection but is on behalf of some unnamed other party. I
hope that person will be named. I hope they will come to the floor. I
hope they will explain to the American people and to our Democratic
allies in Taiwan why it is they object to a vote on this amendment.
I believe that if we are able to get a vote on the Defense
authorization bill, this has a high likelihood of passage, and I think
it would send a strong message to our friends and allies around the
world that, yes, you can count on your friend and ally, the United
States of America. Conversely, if we are thwarted in our attempt to try
to get this amendment voted on and passed, then this will send a
countervailing message--that you cannot depend on America--and it will
embolden bullies around the world.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Michigan.
____________________
[Congressional Record Volume 157, Number 183 (Thursday, December 1, 2011)]
[Senate]
[Pages S8094-S8138]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 1867, which the clerk will report.
The bill clerk read as follows:
A bill (S 1867), to authorize appropriations for fiscal
year 2012 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other
purposes.
Pending:
Merkley amendment No. 1174, to express the sense of
Congress regarding the expedited transition of responsibility
for military and security operations in Afghanistan to the
Government of Afghanistan.
Feinstein amendment No. 1125, to clarify the applicability
of requirements for military custody with respect to
detainees.
Feinstein amendment No. 1126, to limit the authority of the
Armed Forces to detain citizens of the United States under
section 1031.
Franken amendment No. 1197, to require contractors to make
timely payments to subcontractors that are small business
concerns.
Begich amendment No. 1114, to amend title 10, United States
Code, to authorize space-available travel on military
aircraft for members of the Reserve components, a member or
former member of a Reserve component who is eligible for
retired pay but for age, widows and widowers of retired
members, and dependents.
Shaheen amendment No. 1120, to exclude cases in which
pregnancy is the result of an act of rape or incest from the
prohibition on funding of abortions by the Department of
Defense.
Collins amendment No. 1105, to make permanent the
requirement for certifications relating to the transfer of
detainees at U.S. Naval Station Guantanamo Bay, Cuba, to
foreign countries and other foreign entities.
Collins amendment No. 1155, to authorize educational
assistance under the Armed Forces Health Professions
Scholarship Program for pursuit of advanced degrees in
physical therapy and occupational therapy.
Collins amendment No. 1158, to clarify the permanence of
the prohibition on transfers of recidivist detainees at U.S.
Naval Station Guantanamo Bay, Cuba, to foreign countries and
entities.
Inhofe amendment No. 1097, to eliminate gaps and
redundancies between the over 200 programs within the
Department of Defense that address psychological health and
traumatic brain injury.
Inhofe amendment No. 1099, to express the sense of Congress
that the Secretary of Defense should implement the
recommendations of the Comptroller General of the United
States regarding prevention, abatement, and data collection
to address hearing injuries and hearing loss among members of
the Armed Forces.
Inhofe amendment No. 1100, to extend to products and
services from Latvia existing temporary authority to procure
certain products and services from countries along a major
route of supply to Afghanistan.
Inhofe amendment No. 1093, to require the detention at U.S.
Naval Station Guantanamo Bay, Cuba, of high-value enemy
combatants who will be detained long-term.
Casey amendment No. 1139, to require contractors to notify
small business concerns that have been included in offers
relating to contracts let by Federal agencies.
McCain (for Cornyn) amendment No. 1200, to provide Taiwan
with critically needed U.S.-built multirole fighter aircraft
to strengthen its self-defense capability against the
increasing military threat from China.
McCain (for Ayotte) amendment No. 1068, to authorize lawful
interrogation methods in addition to those authorized by the
Army Field Manual for the collection of foreign intelligence
information through interrogations.
McCain (for Brown (MA)/Boozman) amendment No. 1119, to
protect the child custody rights of members of the Armed
Forces deployed in support of a contingency operation.
McCain (for Brown (MA)) amendment No. 1090, to provide that
the basic allowance for housing in effect for a member of the
National Guard is not reduced when the member transitions
between Active-Duty and
[[Page S8095]]
full-time National Guard duty without a break in Active
service.
McCain (for Brown (MA)) amendment No. 1089, to require
certain disclosures from postsecondary institutions that
participate in tuition assistance programs of the Department
of Defense.
Udall (NM) amendment No. 1153, to include ultralight
vehicles in the definition of aircraft for purposes of the
aviation smuggling provisions of the Tariff Act of 1930.
Udall (NM) amendment No. 1154, to direct the Secretary of
Veterans Affairs to establish an open burn pit registry to
ensure that members of the Armed Forces who may have been
exposed to toxic chemicals and fumes caused by open burn pits
while deployed to Afghanistan or Iraq receive information
regarding such exposure.
Udall (NM)/Schumer amendment No. 1202, to clarify the
application of the provisions of the Buy American Act to the
procurement of photovoltaic devices by the Department of
Defense.
McCain (for Corker) amendment No. 1171, to prohibit funding
for any unit of a security force of Pakistan if there is
credible evidence that the unit maintains connections with an
organization known to conduct terrorist activities against
the United States or U.S. allies.
McCain (for Corker) amendment No. 1173, to express the
sense of the Senate on the North Atlantic Treaty
Organization.
Levin (for Bingaman) amendment No. 1117, to provide for
national security benefits for White Sands Missile Range and
Fort Bliss.
Levin (for Gillibrand/Portman) amendment No. 1187, to
expedite the hiring authority for the defense information
technology/cyber workforce.
Levin (for Gillibrand/Blunt) amendment No. 1211, to
authorize the Secretary of Defense to provide assistance to
State National Guards to provide counseling and reintegration
services for members of Reserve components of the Armed
Forces ordered to Active Duty in support of a contingency
operation, members returning from such Active Duty, veterans
of the Armed Forces, and their families.
Merkley amendment No. 1239, to expand the Marine Gunnery
Sergeant John David Fry Scholarship to include spouses of
members of the Armed Forces who die in the line of duty.
Merkley amendment No. 1256, to require a plan for the
expedited transition of responsibility for military and
security operations in Afghanistan to the Government of
Afghanistan.
Merkley amendment No. 1258, to require the timely
identification of qualified census tracts for purposes of the
HUBZone Program.
Leahy amendment No. 1087, to improve the provisions
relating to the treatment of certain sensitive national
security information under the Freedom of Information Act.
Leahy/Grassley amendment No. 1186, to provide the
Department of Justice necessary tools to fight fraud by
reforming the working capital fund.
Wyden/Merkley amendment No. 1160, to provide for the
closure of Umatilla Army Chemical Depot, Oregon.
Wyden amendment No. 1253, to provide for the retention of
members of the Reserve components on Active Duty for a period
of 45 days following an extended deployment in contingency
operations or homeland defense missions to support their
reintegration into civilian life.
Ayotte (for Graham) amendment No. 1179, to specify the
number of judge advocates of the Air Force in the regular
grade of brigadier general.
Ayotte (for Heller/Kirk) amendment No. 1137, to provide for
the recognition of Jerusalem as the capital of Israel and the
relocation to Jerusalem of the U.S. Embassy in Israel.
Ayotte (for Heller) amendment No. 1138, to provide for the
exhumation and transfer of remains of deceased members of the
Armed Forces buried in Tripoli, Libya.
Ayotte (for McCain) amendment No. 1247, to restrict the
authority of the Secretary of Defense to develop public
infrastructure on Guam until certain conditions related to
Guam realignment have been met.
Ayotte (for McCain/Ayotte) amendment No. 1249, to limit the
use of cost-type contracts by the Department of Defense for
major defense acquisition programs.
Ayotte (for McCain) amendment No. 1220, to require
Comptroller General of the United States reports on the
Department of Defense implementation of justification and
approval requirements for certain sole-source contracts.
Ayotte (for McCain) amendment No. 1248, to expand the
authority for the overhaul and repair of vessels to the
United States, Guam, and the Commonwealth of the Northern
Mariana Islands.
Ayotte (for McCain) amendment No. 1118, to modify the
availability of surcharges collected by commissary stores.
Sessions amendment No. 1182, to prohibit the permanent
stationing of more than two Army brigade combat teams within
the geographic boundaries of the U.S. European Command.
Sessions amendment No. 1184, to limit any reduction in the
number of surface combatants of the Navy below 313 vessels.
Sessions amendment No. 1274, to clarify the disposition
under the law of war of persons detained by the Armed Forces
of the United States pursuant to the authorization for use of
military force.
Levin (for Reed) amendment No. 1146, to provide for the
participation of military technicians (dual status) in the
study on the termination of military technician as a distinct
personnel management category.
Levin (for Reed) amendment No. 1147, to prohibit the
repayment of enlistment or related bonuses by certain
individuals who become employed as military technicians (dual
status) while already a member of a Reserve component.
Levin (for Reed) amendment No. 1148, to provide rights of
grievance, arbitration, appeal, and review beyond the
adjutant general for military technicians.
Levin (for Reed) amendment No. 1204, to authorize a pilot
program on enhancements of Department of Defense efforts on
mental health in the National Guard and Reserves through
community partnerships.
Levin (for Reed) amendment No. 1294, to enhance consumer
credit protections for members of the Armed Forces and their
dependents.
Levin amendment No. 1293, to authorize the transfer of
certain high-speed ferries to the Navy.
Levin (for Boxer) amendment No. 1206, to implement
commonsense controls on the taxpayer-funded salaries of
defense contractors.
Chambliss amendment No. 1304, to require a report on the
reorganization of the Air Force Materiel Command.
Levin (for Brown (OH)) amendment No. 1259, to link domestic
manufacturers to defense supply chain opportunities.
Levin (for Brown (OH)) amendment No. 1261, to extend
treatment of base closure areas as HUBZones for purposes of
the Small Business Act.
Levin (for Brown (OH)) amendment No. 1263, to authorize the
conveyance of the John Kunkel Army Reserve Center, Warren,
OH.
Levin (for Leahy) amendment No. 1080, to clarify the
applicability of requirements for military custody with
respect to detainees.
Levin (for Wyden) amendment No. 1296, to require reports on
the use of indemnification agreements in Department of
Defense contracts.
Levin (for Pryor) amendment No. 1151, to authorize a death
gratuity and related benefits for Reserves who die during an
authorized stay at their residence during or between
successive days of inactive-duty training.
Levin (for Pryor) amendment No. 1152, to recognize the
service in the reserve components of the Armed Forces of
certain persons by honoring them with status as veterans
under law.
Levin (for Nelson (FL)) amendment No. 1209, to repeal the
requirement for reduction of survivor annuities under the
Survivor Benefit Plan by veterans' dependency and indemnity
compensation.
Levin (for Nelson (FL)) amendment No. 1236, to require a
report on the effects of changing flag officer positions
within the Air Force Material Command.
Levin (for Nelson (FL)) amendment No. 1255, to require an
epidemiological study on the health of military personnel
exposed to burn pit emissions at Joint Base Balad.
Ayotte (for Blunt/Gillibrand) amendment No. 1133, to
provide for employment and reemployment rights for certain
individuals ordered to full-time National Guard duty.
Ayotte (for Murkowski) amendment No. 1286, to require a
Department of Defense inspector general report on theft of
computer tapes containing protected information on covered
beneficiaries under the TRICARE program.
Ayotte (for Murkowski) amendment No. 1287, to provide
limitations on the retirement of C-23 aircraft.
Ayotte (for Rubio) amendment No. 1290, to strike the
national security waiver authority in section 1032, relating
to requirements for military custody.
Ayotte (for Rubio) amendment No. 1291, to strike the
national security waiver authority in section 1033, relating
to requirements for certifications relating to transfer of
detainees at U.S. Naval Station Guantanamo Bay, Cuba, to
foreign countries and entities.
Levin (for Menendez/Kirk) amendment No. 1414, to require
the imposition of sanctions with respect to the financial
sector of Iran, including the Central Bank of Iran.
Amendment No. 1125
The PRESIDING OFFICER. Under the previous order, there will be 30
minutes of debate on the Feinstein amendment.
The Senator from Arizona.
Mr. McCAIN. Madam President, before we begin the debate, and with the
Senator from California on the floor, for the benefit of our colleagues
and the chairman, there are two pending Feinstein amendments, as I
understand it. The Senator from California has agreed to the half hour
equally divided as the chair just said, and then I understand the
Senator from California has agreed to the second amendment at 4 p.m.;
is that correct?
Mrs. FEINSTEIN. That is correct.
Mr. McCAIN. So prior to that, I would ask my friend the chairman if
we could have an hour of debate starting at 3 o'clock equally divided
before the vote at 4:00 on the second Feinstein amendment.
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. Reserving the right to object, I just want to know if the
Senator from California understands that
[[Page S8096]]
the vote on the second Feinstein amendment would be at 4:00 and that
the debate would begin at 3:00, with that hour equally divided.
Mrs. FEINSTEIN. I do. I have a four corners meeting on the Energy and
Water appropriations bill. That is my problem. So the later it is, the
better it is for me.
Mr. LEVIN. So is a 4 o'clock vote after an hour of debate acceptable?
Mrs. FEINSTEIN. Yes. My understanding is the House chairman only has
until 3 o'clock, but I anticipate we will take all that time. So I
can't change that.
Mr. LEVIN. So it is agreeable, then, that there will be an hour of
debate on the second amendment starting at 3 o'clock with a vote at 4
o'clock?
Mrs. FEINSTEIN. Yes.
Mr. LEVIN. I also ask unanimous consent that there be no second-
degree amendments to the Feinstein amendment.
The PRESIDING OFFICER. Is there objection?
Mr. CORNYN. I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Arizona.
Mr. McCAIN. If we can then--obviously, we can call a vote at any
particular time. So I would suggest again that we try to dispose of
other amendments after the vote on the first Feinstein amendment, and
then we will try to dispose of additional amendments between the
disposition of the first Feinstein amendment and the second one, with
the hour of debate equally divided, and Senator Feinstein can begin.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Madam President, I rise to ask my colleagues to
support amendment No. 1125, which will limit mandatory military custody
to terrorists captured outside the United States. This amendment is
cosponsored by Senators Leahy, Durbin, Udall, Kirk, Lee, Harkin and
Webb.
This is a very simple amendment. It adds only one word--the word
``abroad''--to section 1032 of the underlying bill. I strongly believe
if it is not broke, do not fix it. The ability to have maximum
flexibility in the United States is very important, and I totally
support the Executive having that flexibility.
This bill creates a presumption that members or parts of al-Qaida or
associated forces will be held in the military system. That is what
concerns me because the military system has not produced very well over
the last 10 years.
I want to take a moment to contrast some cases.
On this chart, we have sentences--five of them from military
commissions and five or six from Federal courts. The Federal courts
have actually convicted over the last 10, 11 years not 300 people but
400 people.
Military commissions are limited to some six convictions. Let's take
a look at what they are.
A very famous one is Salim Hamdan because he brought a Supreme Court
case. He was bin Laden's driver. He was acquitted of conspiracy and
only convicted of material support for terrorism. He received a 5-month
sentence by the military commission and was sent back to his home in
Yemen to serve the time before being released in January of 2009.
No. 2: David Hicks entered into a plea on material support for
terrorism and was given a 9-month sentence, mostly served back home in
Australia.
Omar Khadr pled guilty in exchange of an 8-year sentence, but he will
likely be transferred to a Canadian prison.
Ibrahim Ahmed Mahmoud al-Qosi pled guilty to conspiracy and material
support to terrorism. His final sentence was 2 years pursuant to a plea
deal.
Noor Uthman Muhammed pled guilty to conspiracy and material support
to terrorism. His final sentence will be less than 3 years pursuant to
his plea agreement.
Ali Hamza al-Bahlul received a life sentence after he boycotted the
entire commission process.
On the other hand, you have sentences from the Federal courts.
You have Richard Reid, the Shoe Bomber--life in prison.
``Blind Sheik'' Omar Abdel Rahman--life in prison for the plot to
bomb New York City.
Twentieth Hijacker Zacarias Moussaoui--life in prison.
Ramzi Yousef--life in prison for the 1993 World Trade Center bombing
and the Manila Air plot.
Umar Farouk Abdulmutallab--probably life in prison; will be sentenced
in January 2012.
Najibullah Zazi--potential life in prison. This is the man, with
conspirators, who was going to bomb the New York subway.
There is definitive evidence that is irrefutable that the Federal
courts have done a much better job than the military commissions.
Why this constant press, that if it is not broke we are going to fix
it anyway, I do not understand. Why the constant push to put people in
military custody rather than provide the flexibility so that evidence
can be evaluated quickly? This person will get life in a Federal court
versus an inability or a problem in a military commission or vice
versa. I think the Executive should have that.
I think the last 10 years have clearly shown that this country is
safer than it has ever been. Terrorists are behind bars where they
belong and plots have been thwarted, so the system is working.
This amendment would make clear that under section 1032, U.S. Armed
Forces are only required to hold a suspected terrorist in military
custody when he is captured abroad. All the amendment does is add one
word--that is the word ``abroad''--to make clear that the military will
not be roaming our streets looking for suspected terrorists. The
amendment does not remove the President's ability to use the option of
military detention or prosecution inside the United States.
The administration has threatened to veto this bill, and has said:
[It] strongly objects to the military custody provision of
section 1032 [because it] would tie the hands of our
intelligence and law enforcement professionals.
Perhaps, most importantly, addressing the issue of this amendment
specifically, on November 15, Defense Secretary Leon Panetta wrote
this:
The failure of the revised text to clarify that section
1032 applies to individuals captured abroad . . . may
needlessly complicate efforts by frontline law enforcement
professionals to collect critical intelligence concerning
operations and activities within the United States.
The Director of National Intelligence, Jim Clapper, also wrote a
letter on November 23, to say that he opposes the detainee provisions
of this bill because they could--and I quote--``restrict the ability of
our nation's intelligence professionals to acquire valuable
intelligence and prevent future terrorist attacks.''
The administration suggested this change to the Armed Services
Committee, but it was rejected. So the administration has had to
threaten a veto on the bill. Who knows whether they will. I certainly
do not know. This amendment limiting mandatory military custody to
detainees outside the United States is a major improvement to the bill,
and I ask my colleagues to support it.
I have a very hard time because I have watched detainees carefully as
part of the Senate Intelligence Committee, and we are doing a study on
the detention and treatment of high-value detainees. This has been
going on for 2 years now. It is going to be a 4,000-page document, and
it is going to be classified. But it will document what was actually
done with each of the high-value detainees and what was learned from
them. It shows some very interesting things. But the upshot of all of
this is that we should keep military custody to people arrested abroad
and have the wide option in this country, which is the case now, and
not mandate--mandate--that military custody and military commission
trial must be for everyone arrested in the United States.
You will hear that anyone who comes to the United States who carries
out a criminal act, a terrorist act under the laws of war, should be
subject to military custody. The problem is, 10 years of experience has
not worked. How many years' experience do we need? How many sentences--
six cases--and this is all there is in 10 years.
I know the other side got very upset when Abdulmutallab was
Mirandized. The fact of the matter is, every belief is Abdulmutallab is
going to do a life sentence in a Federal prison, put away somewhere in
a place where he cannot escape and where the treatment is very serious.
[[Page S8097]]
I have, again, a hard time knowing why if it is not broke we need to
fix it, and why we need to subject everybody who might be arrested in
this country to a record that is like this: 5-month sentence, 9-month
sentence, 8-year sentence, 2-year sentence, 3 years pursuant to a plea
agreement, and one life sentence, when you have 400 cases that have
been disposed of in a prompt way in a Federal court, who are serving
long sentences in Federal prison.
I wish to hold the remainder of my time and have an opportunity to
respond to the distinguished chairman and ranking member.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, I wish to yield----
Mr. LEVIN. Before the Senator yields time to the Senator----
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Will the Senator refrain for 1 minute? While Senator
Feinstein is here, I understand it is now preferable from our leader
that the vote be at 2 o'clock, not immediately following this half-hour
debate.
Mrs. FEINSTEIN. If that is possible, that would be helpful. But it is
whatever Senators want.
OK. All right.
Mr. McCAIN. Does the Senator want to unanimous-consent that?
Mr. LEVIN. Madam President, I ask unanimous consent that the vote,
which was previously scheduled to occur at the end of the half hour of
debate on this amendment, now be rescheduled for 2 o'clock.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. LEVIN. Madam President, relative to the time between that half
hour and 2 o'clock, that time, hopefully, would be used. It will be by
me for my remarks on this amendment, by the way, because after the 30
minutes, if it is used totally, I would want an opportunity to speak
during that time, if necessary in morning business. But there are other
amendments we believe can be voice voted during that period of time, I
believe my friend from Arizona would agree. So that time will be
fruitfully used. But the time now is 2 o'clock for the vote on that
first Feinstein amendment.
I thank my friend.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, the vote will be at 2 o'clock. The
Senators from New Hampshire and South Carolina wish to speak. I do not
know if the chairman wishes to be before or during that or in between.
But, also, it does not change the agreement we have, which has not been
agreed to but we have agreed we will attempt to have a vote on the
second Feinstein amendment at 4 o'clock still. Is that correct? We will
attempt to do that?
Mr. LEVIN. It will continue to be our intent. It was objected to
before. But we hope that objection will be removed. If it is not
removed, we will have to have all these votes at the end of the day
instead of during the day.
Mr. McCAIN. So beginning at 3, whether we have a unanimous consent
agreement--because the Feinstein amendment is very important--I would
ask, informally, if we do not have a unanimous consent agreement, that
we have an hour equally divided beginning at 3 so we can debate the
second Feinstein amendment.
In the meantime, as the chairman said, we will try to dispense with
voice votes and other agreed-upon amendments, and perhaps even maybe a
recorded vote if necessary on one of the amendments.
I would remind my colleagues, we run out of time at 6 o'clock this
evening, and we would rather do it in a measured fashion, allowing
recorded votes or debate before those recorded votes, because those
pending amendments will be voted on after 6 p.m. tonight.
I hope I did not say anything the chairman does not agree with.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. No. I agree with what the Senator said and what the intent
is here; that, hopefully, we could have an hour debate starting at 3
o'clock. We will try to lock that in at a later time, after giving
folks notice. But if there is objection to votes before the time runs
out, the 30-hour clock runs out, then we will have to have all those
votes after the 30-hour clock runs out, and it does not make any sense
to do that. But if there is going to be an objection, then that is the
way it will have to be.
What Senator McCain is saying--and I totally agree with him--is, even
if we are put in that position, which I hope we are not, that at least
we could use the time between now and then for debate on those
amendments which we would have to vote on at a later time. I totally
agree with my friend from Arizona.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, I yield 7 minutes to the Senator from
New Hampshire and 8 minutes to the Senator from South Carolina.
The PRESIDING OFFICER. The Senator from New Hampshire.
Ms. AYOTTE. Madam President, I rise in opposition to the amendment
offered by the Senator from California, amendment No. 1125. I would
start with this: We have heard repeatedly--not only from the Senator
from California but also from the Senator from Illinois--about the
number of cases in our civilian system where we have tried terrorists
versus the number of military commissions.
I think there is one thing that needs to be clarified upfront here;
that one of the first acts the President took when he came into office
was to actually suspend all military commissions for about 2 years. So
to compare the number of cases in our civilian system versus the number
of military commission trials we have had is a false comparison when we
suspended these trials for over 2 years. I want to say that upfront.
But I think the chart the Senator shows actually misses the point of
why we have this amendment before us; that is, we need to gather
intelligence. When we have captured a member of al-Qaida who is
planning an attack against the United States of America, the first goal
has to be, obviously, getting that person away from where he can
threaten us again to kill Americans, but also, just as importantly, to
gather intelligence to protect America. The criminal justice system is
set up to see that justice is served in a particular case, not to see
that we have the maximum tools in the hands of our intelligence
officials to gather information.
Yet it seems to me that if you look in the context of Senator
Feinstein's amendment 1126 that we have already talked about on the
floor, she wants to limit the administration. The case law of our
Supreme Court that is going back to World War II would take us before
9/11. And heaven forbid if we had an American citizen who was one of
the participants in an incident such as we had occur on our soil on 9/
11. Our military would not be permitted to hold that person and to
question them to get the maximum amount of information and protect our
country.
With respect to this amendment she has pending before the Senate,
1125, I want to point out that the amendment would lead to a very
absurd result. Essentially what it would say is if you are a member of
al-Qaida, planning or committing an attack against the United States of
America, a foreigner, and you make it to our soil, as the 9/11
conspirators did who committed that horrible attack on our country,
then you cannot be held in military custody. There is no mandatory
military custody under those circumstances. Yet we will hold you in
mandatory military custody if you are found overseas. So, in other
words, please, their goal is unfortunately to come to the homeland, to
come to our country to attack us here, and in our country we need the
authority to, in the first instance--the presumption should be to hold
those individuals in military custody so that we are not reading them
Miranda rights. To tell a terrorist: You have the right to remain
silent is counter to what we need to do to protect Americans and make
sure that--for example, I will use the Christmas Day Bomber as an
example because it has been cited so many times here on this floor.
That day, when he was found on the plane, after 50 minutes of
questioning, he was read his Miranda rights and he invoked his Miranda
rights and remained silent. It was only 5 weeks later after we tracked
down his parents and convinced him to cooperate that he actually
provided more information.
[[Page S8098]]
We are very fortunate that he was only involved in one event, that it
was not a 9/11-type event where there were multiple events on American
soil planned. But what if after that 50 minutes we waited 5 weeks to
get more information, yet there had been more events coming that day?
That is what is at issue here. Let's bring ourselves back to September
11. What if we had caught the individuals who were on one of those
planes before it took off on 9/11? What if in that instance we would
not hold those members of al-Qaida in military custody that instant to
make sure that we could get the maximum amount of information from them
to hopefully, God forbid, prevent the lifting off of the other flights
and what happened on that horrible day in our country's history?
I have to believe that if we were standing here immediately after the
events of 9/11, I do not think we would be debating this amendment,
deciding whether if you make it to our homeland we will not hold you in
military custody in the first instance, to find out how much
information you have, to make sure you are not part of multiple attacks
on the United States of America.
If the amendment of the Senator from California passes, what kind of
message are we sending to members of al-Qaida, foreigners who are
planning attacks against the United States of America? We are laying
out, unfortunately in my view, a welcome mat to say: If you make to it
America, you will not be held in military custody. But if you attack us
overseas, then you will be held in military custody. Why would we
create a dual standard where we should be prioritizing protecting our
homeland, protecting the United States of America? This leads to an
absurd result.
I would hope my colleagues would reject the Senator's amendment to
say that only those members of al-Qaida who do not make it to our
homeland to attack us right here on our soil will be held in the first
instance in mandatory military custody. Because our goal has to be here
to protect Americans and to make sure we do not create a dual standard
where if you are captured over there, we are going to hold you in
military custody, but if you are captured and if you make it here, you
are going to be getting greater rights, we will process you in the
civilian system, and we will tell you you have the right to remain
silent. We should not be telling terrorists they have the right to
remain silent. We should be protecting Americans. If we were to pass
this amendment, it would create an absurd standard where you get
greater rights when are you here on our soil. I think that makes us
less safe.
I would urge my colleagues to reject both of the Senator's
amendments, both 1126 that would deny the executive branch the
authority to hold them----
The PRESIDING OFFICER. The Senator's time has expired.
Ms. AYOTTE. Madam President, I ask unanimous consent for 30 seconds
to wrap up.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. AYOTTE. Madam President, I would ask my colleagues to reject 1126
as well, which would take away the authority of the executive branch as
allowed by our Supreme Court and would make us less safe in this
country as well as 1125. We have to protect America and make sure we
get the maximum information to prevent future attacks on this country.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Madam President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 3 minutes remaining of the
original 30 minutes.
Mrs. FEINSTEIN. Thank you very much.
Mr. LEVIN. Would the Senator yield for a question?
Mrs. FEINSTEIN. Not on my time. On the Senator's time.
Mr. LEVIN. On my time. Quick question. After the 30 minutes expires,
because we are not going to have a vote now, there would be additional
time should the Senator need it after that 30 minutes.
Mrs. FEINSTEIN. I appreciate it. I may well use it.
Madam President, I object to the statement just made that this will
make the United States of American less safe. Ten years of experience
has shown it has not. Plot after plot after plot has been interrupted.
I have served on the Intelligence Committee for 11 years now. We follow
this closely. This country is much more safe because things have
finally come together with the process that is working.
The FBI has a national security division with 10,000 people. There
are 56 FBI offices. The military does not have offices to make arrests
around this country. This constant push that everything has to be
militarized--they were wrong on Hamdi, they were wrong on Hamdan. And
it keeps going. And that it is terrible to protect people's rights. I
do not think that creates a safe country. This country is special
because we have certain values, and due process of law is one of those
values. So I object. I object to holding American citizens without
trial. I do not believe that makes us more safe. I object to saying
that everything is mandatory military commission and military custody
if anyone from abroad commits a crime in this country. The
administration has used the flexibility in a way that they have won
every single time. There have been no failures.
The Bush administration as well used the Federal courts without
failure. They have gotten convictions. The military commissions have
failed, essentially; 6 cases over 10, 11 years. I pointed out the
sentences. So to say that what we are doing is to make this country
less safe may be good for a 30-second sound bite, but it is not the
truth.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. I say to my good friend from California, you are a
patriot. You are here for all of the right reasons. We just have a
strong disagreement about where we stand as a nation.
Nobody interrupted the Christmas Day Bomber plot. The people on the
plane attacked the guy before he could blow it up. There was no FBI
agent there. There was no CIA agent there. We are lucky, thank God, the
passengers did it. So there is nothing to suggest that our intelligence
community does not need as many tools as possible because the guy got
through the system. We are lucky as hell the bomb did not go off.
Mrs. FEINSTEIN. Would the Senator yield for a question?
Mr. GRAHAM. The Times Square Bomber, nobody interrupted that plot.
The guy did not know how to set the bomb off. We are lucky as hell the
bomb did not go off. So do not stand here and tell me that we have got
it right, because we have not. And here is the point: We never will
always get it right. I am not saying that as criticism. Because we are
going to get hit again. We cannot be right and lucky all of the time.
To those who are trying to defend us, the one thing I do not want to
do is micromanage the war. Here is the political dynamic. You have got
people on the left who hate the idea of saying ``the war on terror.''
If you left it up to them, they would never, ever use the military,
they would always insist that the law enforcement model be used because
they do not buy into the idea of we are at war. So you have got one
part of the country, a minority, that wants to criminalize the war. If
we ever go down that road, woe be unto us.
You have got people on my side--the Senator is right about this. They
have gone the other way. If you left it up to people on my side, there
would be a law passed tomorrow that you could never, ever read a
Miranda right to a terrorist caught anywhere in the United States.
I do not agree with that way of thinking. To my fellow members of the
U.S. military, you have not failed at Guantanamo Bay. You have not
failed. Because you sentenced someone to 9 months to me validated the
fact that those who are taking an oath to defend us, when they are put
in a position of passing judgment on people accused of trying to kill
us all, will be fair.
So when you say a military commission tribunal at Guantanamo Bay gave
a 9-month sentence and that is a failure, I say, as a proud member of
the military, I am proud of the fact that you can judge a case based on
the facts and the law and not emotion. So I am very proud of the fact
that military commissions can do their job as well as the civilian
courts.
[[Page S8099]]
I say to our Federal prosecutors and our Federal juries and our
Federal judges, I am proud of you too. We should be using an ``all of
the above'' approach. There are times that Federal courts are better
than military commissions. There are times that military commissions
are better than Federal courts.
The 1032 language has nothing to do about what venue you choose. This
provision is simple in its concept. It is a compromise between those on
the left who say you must criminalize this war; we are not at war; you
are going to have to use the law enforcement model; you can neither
gather military intelligence, who do not believe that the military has
a role on the homeland to gather intelligence, which is an absurd
concept, never acknowledged before in any other war.
When American citizens helped the Nazis, collaborated with Nazis to
engage in sabotage, not only were they held as enemy combatants during
World War II, they were tried by military commissions. We no longer
allow American citizens to be tried by military commissions. I think
that is a reasoned decision. But what we do not want to do is prevent
our intelligence community from holding an al-Qaida affiliated member
and gathering intelligence.
If an American citizen went to Pakistan and got radicalized in a
madrasah and came back to the United States and landed at Dulles
Airport and got a rifle and started shooting everyone on the Mall, I
believe it is in our national security interests to give our
intelligence community the ability to hold that person and gather
intelligence about: Is another guy coming? What did you do? What future
threats do we face? And not automatically Mirandize him. But if they
choose to Mirandize him, they can. In this legislation, we presume
military custody, but it can be waived.
That is the point I am trying to make. Senators Levin and McCain have
struck a balance between one group that thinks the military can only be
used and nobody else and another group that says we can never use the
military. We have that balance. If we upset this balance, we are going
to make us not only less safe, the Congress is going to do things on
our watch that we have never done in any other war.
A word of warning to my colleagues: If we had a bill on the floor of
the Senate saying we are not going to read Miranda rights to terrorists
who are trying to kill us all, 70 percent of the American people would
say: Heck yes.
I don't want this bill to come up. I believe the people who are best
able to judge what to do is not any politician, they are the experts in
the field fighting this war. We are saying we can waive the presumption
of military custody, we can write the rules to waive it, but we believe
we should start with that construct.
Let me read to you what the general counsel for the Department of
Defense said today:
Top national security lawyers in the Obama administration
say U.S. citizens are legitimate military targets when they
take up arms with al-Qaida. The government lawyers, CIA
counsel Stephen Preston, and Pentagon counsel Jeh Johnson,
did not address the Awlaki case. But they said U.S. citizens
don't have immunity when they are at war with the United
States.
The President of the United States was right to target this citizen
when he went to Yemen to help al-Qaida. I am glad we took him out. So
would it not be absurd that we can kill him, but we cannot detain him?
If he came here, we cannot question him for military intelligence
gathering. So this is a compromise between two forces that are well
intended but will take us into a bad policy position: the hard left who
wants to say the military has no role in protecting us on the homeland
and some people on my side who say the law enforcement community cannot
be involved at all.
So Senator Levin and Senator McCain have constructed a concept that
provides maximum flexibility, gives guidance to the law enforcement
community, starts with a presumption that I like and can be waived and
will not impede an ongoing investigation. That is the part of the bill
that was changed.
To my good friend from California, we have the balance we have been
seeking for 5 years. To me, this is what we should be doing as a
nation--creating legislation that allows those who are fighting the war
the tools they need. In this case, we start with the presumption of
military custody because that allows us to gather intelligence. Under
the domestic criminal law, we cannot hold someone and ask them about
future attacks, because we are investigating a crime. Under military
law, when somebody joins the enemy and engages in an act of war against
the Nation, our military intelligence community can hold that person
for as long as it takes to find out what they know about future
attacks. If the guy gets off of plane and starts killing people at the
mall, when we grab him and he says I want my lawyer, we can say: You
are not entitled to a lawyer. We are trying to gather intelligence.
At the end of the day, use military commission trials, use Federal
courts, and read Miranda rights when we think it makes sense; but we
don't have to because the law allows us to hold people, under military
custody, who represent a military threat. The law allows us to kill
American citizens who have joined al-Qaida abroad. That has been the
law for decades. I hope this compromise that Carl Levin and John McCain
have crafted--and I say to Carl Levin, I have been in his shoes. When
John and I were on the floor saying don't waterboard people--gather
intelligence but don't become like the enemy--a lot of Americans
believed we should waterboard these people, do whatever we need to do
because they are so vicious and hateful. But John McCain knows better
than anybody in this body what it is like to be tortured.
I wish to protect America without changing who we are. It has always
been the law that when an American citizen takes up arms and joins the
enemy, that is not a criminal act; that is an act of war. They can be
held and interrogated about what they did and what they know because
that keeps us safe. If we take that off the table, with homegrown
terrorism becoming the greatest threat we face, we will have done
something no other Congress has done in any other war.
The PRESIDING OFFICER. The original 30 minutes has expired.
Mr. GRAHAM. Madam President, I thank Senators Levin and McCain for
drafting a compromise that I think speaks to the best of this country.
To my colleagues, please don't upset this delicate balance. If you do,
you will open a Pandora's box.
Mr. McCAIN. Madam President, I say to both Senators while they are on
the floor, if it had not been for their invaluable effort, this
legislation would not have come about. I thank them for their
incredibly important contributions, using the benefit of the experience
that both Members have.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Madam President, I wonder if I might take a few
minutes to make a couple statements.
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. Madam President, I have no objection.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Madam President, I wished to say with respect to
Abdulmutallab, what was very new there was that an explosive had been
invented that could go through a magnetometer without detection. It is,
to my knowledge, the first time anyone came into the United States--
this young Nigerian from a very prominent Nigerian family--wearing a
diaper that had enough of this PETN, this new explosive, to blow up the
plane. He missed in detonation and it caught on fire and the fire was
put out.
There have been other incidents of trying to smuggle this PETN in
cartridges of computers and they even had dogs going to the airport and
they could not smell the explosive inside the computer cartridge. That
was in Dubai. It is a very dangerous explosive. It is new, and it has
been improved. It is something we need to be very wary of.
I also wish to point out that there is a public safety exception to
Miranda. We do not have to Mirandize someone or we could continue to
question them, if there is a public safety risk. So Mirandizing an
individual is not a point in this argument, in my view, because we can
continue the interrogation.
[[Page S8100]]
What is a point, in my argument, is that the FBI now has competence;
that there is a group of special experts who can be flown to a place
where someone is arrested and do initial interrogation. They are
specifically trained and, to the best of my knowledge, they are
effective at interrogating. My point is, the system is working, and we
should keep it as it is.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. While Senator Graham is on the floor, I ask unanimous
consent to have a colloquy with him about this section 1032, the
section at issue.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I very much appreciate Senator Graham's remarks. He said
the provision provides for military custody as a beginning or starting
point. I wonder whether he would agree that not only is it a beginning
point, but it is only for a narrow group of people who are determined
to be al-Qaida or their supporters.
Mr. GRAHAM. Yes. It is not only a presumption that can be waived,
based on what the experts in the field think is necessary; the waiver
provision is incredibly flexible. You do not have to stop an
interrogation to get the waiver. The executive branch can write the
procedures. Not only is it a presumption that can be waived, it is also
limited to a very narrow class of people. It has nothing to do with
somebody buying gold. I don't know about Senator Levin, but people call
me, who are on the right, saying: Don't let Obama put me in jail
because I think he is a socialist or are you going to be able to grab
me because of my political views? I tell my staff to be respectful and
read them the language. The only people who need to worry about this
provision are a very narrow group of people who are affiliated with al-
Qaida, engaged in hostile acts.
Mr. LEVIN. Would the Senator also agree with me that under the
provision in the bill, on page 360--we were told that civilian trials
are preferable to military trials, preferable to the detention of an
unlawful combatant. Does the Senator agree that every one of those
options is open to the executive branch and that there is no preference
stated, one way or the other, for which approach is taken to people who
are detained?
Mr. GRAHAM. Not only would I agree that 1032 and 1031--the compromise
language about statement of authority to detain and military detaining
as a presumption--has nothing to do with the choice of venue, there are
people on my side who are champing at the bit to prohibit civilian
courts from being used in al-Qaida-driven cases; is the Senator
familiar with that?
Mr. LEVIN. Yes.
Mr. GRAHAM. I am of the view that we are overly criminalizing the
war. I don't want to adopt that policy. There is nothing in this
language that has anything at all to do with how you try somebody and
what venue you pick. I am in the camp--and I think Senator Levin is
too--of an all-of-the-above approach. I am proud of our civilian courts
and our military courts. The Senator and I are probably not in the best
position to determine that. Let's let the experts do it.
Mr. LEVIN. That is exactly the point. This language, when it is
described as language that says somehow or other it works against using
civilian courts, is from folks who haven't read our language. The
language is explicit. On page 360, lines 3 through 14 in the bill, it
says the disposition of a person under the law of war may include the
following--and then they talk about detention under the law of war,
trial under title X, which is the military trial, transfer for trial by
an alternative court or competent tribunal having lawful jurisdiction;
that is, article III courts, and transfer or return of custody to the
country of origin. There are no others. There is no preference stated
for which of those venues would be selected by the executive branch.
Mr. GRAHAM. Is this a fair statement: If it was your goal to prevent
military commissions from ever being used, you didn't get your way in
this legislation. If it was your goal to mandate that military
commissions are the only venue to be used, you didn't get your way in
this legislation because this legislation doesn't speak to that issue
at all.
Mr. LEVIN. That is absolutely true. Senator Graham brought to the
floor something that was stated this morning by the top lawyer for the
Obama administration. I think everybody ought to listen to this. There
has been so much confusion about what is in the bill and what isn't.
Right now, there is authority to detain U.S. citizens as enemy
combatants. That authority exists right now. That is not me saying it,
that is the Supreme Court that has said it as recently as Hamdi, when
they said there is no bar to this Nation holding one of its own
citizens as an enemy combatant. That is current law. That is the
Supreme Court saying that. Then, the Supreme Court also said in Hamdi
that they see no reason for drawing a line because a citizen, no less
than an alien, can be part of supporting forces hostile to the United
States or coalition partners and engaged in armed conflict against the
United States.
Top lawyers for the President, this morning, acknowledged this. I
wish every one of our colleagues could hear what Senator Graham brought
to the floor. Top national security lawyers in the administration say
U.S. citizens are legitimate military targets when they take up arms
with al-Qaida.
Are we then going to adopt an amendment that says to al-Qaida that if
you attack us overseas, you are subject to military detention; but if
you come here and attack us, you are not subject to military
detention? That is what the first Feinstein amendment says.
Mr. GRAHAM. If I may just add--not only is that the effect, that
would be a change in law because the Senator agrees with me that in
other conflicts, prior to the one we are in today, American citizens,
unfortunately, have been involved in aiding the enemy; is that correct?
Mr. LEVIN. I am sorry, I was distracted.
Mr. GRAHAM. Does the Senator agree with me that in prior wars
American citizens have been involved in aiding the enemy of their time?
Mr. LEVIN. They have, and they have been held accountable.
Mr. GRAHAM. Yes. And the In re Quirin case, which Hamdi cited and
affirmed, was a fact pattern that went as follows: We had German
saboteurs, some living in America before they went back to Germany--I
think one or two may have been an American citizen--who landed on our
shores with a plot to blow up different parts of America. During the
course of their efforts, American citizens aided the Nazis. The Supreme
Court said when an American citizen chose to help the Nazis at home, on
our homeland, they were considered to be an enemy belligerent
regardless of their citizenship, and we could detain one of our own
when they sided with the enemy.
Mr. LEVIN. There was a naturalized citizen involved in Quirin, who
was arrested, as I understand it, on Long Island, and who was charged
with crimes involving aiding and supporting the enemy.
Mr. GRAHAM. Let's talk about the world in which we live today.
Mr. LEVIN. And military detention.
Mr. GRAHAM. Military detention and tried by a military commission.
Mr. LEVIN. Exactly. By the way, I think executed.
Mr. GRAHAM. And executed. The Senator from Michigan and I have said,
along with our colleagues, that military commissions cannot be used to
try American citizens.
Mr. LEVIN. That is correct.
Mr. GRAHAM. Our military has said they do not want that authority.
They want to deal with enemy combatants when it comes to military
commission trials. But our military CI and FBI have all understood
their power to detain for intelligence-gathering purposes is an
important power. It is not an exclusive power.
So let's talk about today's threat. The likelihood of homegrown
terrorism is growing. Does the Senator agree that the homegrown
terrorist is becoming a bigger problem?
Mr. LEVIN. It is an issue, absolutely.
Mr. GRAHAM. So in a situation where an American citizen goes to
Pakistan and gets radicalized in a madrasah, gets on a plane and flies
back to Dulles Airport, gets off the plane and takes up arms against
his fellow citizens, then goes to the mall
[[Page S8101]]
and starts randomly shooting people, the law we are trying to preserve
is current law, which would say if the experts decide it is in the
Nation's best interests, they can hold that American citizen as they
were able to hold the American citizen helping the Nazis and gather
intelligence.
That is a right already given. Senator Feinstein's amendment, even
though I don't think it is well written, could possibly take that away.
That is 1031. But what we are saying is, we want to preserve the
ability of the intelligence community to hold that person under the law
of war and find out: Is anybody else coming? Are you the only one
coming? What do you know? What madrasah did you go to? How did you get
over? How did you get back?
We want to preserve their ability to hold that person under the law
of war for interrogation. But we also concede, if they think it is
better to give them their Miranda rights, they can. That is what the
legislation we create will do. Does the Senator agree with that?
Mr. LEVIN. I do. And the top lawyers of the administration
acknowledged as much this morning when they said U.S. citizens are
legitimate military targets when they take up arms with al-Qaida.
The provisions we are talking about in section 1032, which Senator
Feinstein would modify so that it is only al-Qaida abroad who would be
subject to this presumption of a military detention, but al-Qaida who
come here--and, by the way, American citizens are not even covered
under 1032. But the foreign al-Qaida fighters who come here to attack
us are not going to be subject to that presumption of military
detention which, again, can be waived. It has nothing to do with in
what venue they are tried. The administration, the Executive, has total
choice on that. It is just whether we are going to start with an
assumption if they are determined to be al-Qaida, if they are a foreign
al-Qaida person, they sure as heck ought to be subject to that same
assumption whether they attack us here or whether they attack us
overseas.
Mr. GRAHAM. Wouldn't it be kind of hard to explain to our
constituents that our top lawyers in the Pentagon and CIA said today
that once an American citizen decides to help al-Qaida they can be
killed in a drone attack, but the Congress somehow says, OK, but they
can't be detained?
Mr. LEVIN. I wouldn't want to try to hold that position.
Mr. GRAHAM. Does the Senator believe America is part of the
battlefield in our global war on terror?
Mr. LEVIN. It has been made part of the battlefield without any
doubt. On September 11, the war was brought here by al-Qaida. How do we
suggest that a foreign al-Qaida member should not be subject to an
assumption to begin with, if they are determined to be al-Qaida, that
they are going to be detained--that we should not start with that
assumption--subject to procedures which the administration adopts. It
is totally in their hands. It cannot interfere with a civilian
interrogation. It cannot interfere with civilian intelligence. We are
very specific about it. The procedures are written by the executive
branch. They can try them anywhere they want.
But if they bring a war here--they bring a war here--we are going to
create an assumption that they can be subject, and are going to be
subject, to military detention.
Mr. GRAHAM. Well, my belief is that most Americans would want our
military being able to combat al-Qaida at home as much as they would
abroad. I think most Americans would be very upset to hear that the
military has no real role in combatting al-Qaida on our own shore, but
we can do anything we want to them overseas.
Frankly, there are very good people on our side who want to mandate
that the military has custody, and no one else, so we never have to
read Miranda rights. Quite frankly, there are people on the left,
libertarians, well-meaning people, who want to prevent the idea of a
person being held under military custody in the homeland because they
do not think we are at war and this is really not the battlefield.
What the Senator and I have done is to start with the presumption
that focuses on intelligence gathering because the Senator and I are
more worried about what they know about future attacks than how we are
going to prosecute them.
Under domestic criminal law, we can't hold someone indefinitely. The
public safety law I will talk about in a bit, but I say to my good
friend from California, the public safety exception was a very
temporary ability to secure a crime scene. It was not written regarding
terrorism. So our law enforcement officials cannot use the public
safety exception to hold an al-Qaida operative for days and question
them. The only way to do that legally is under the law of war. In every
other war we have had that right, and we are about to change that.
Mr. LEVIN. If I can interrupt, we have that right abroad against
members of al-Qaida. But under this approach we would not be able to
assume that military detention at home, again, subject to waiver and
subject to all the other protections we have.
Mr. GRAHAM. Right. Well, let's keep talking about it because the more
we talk about it the more interesting the whole concept becomes.
The last time I looked, there were no civilian jails overseas. So
when we capture a terrorist overseas, the only place we can detain them
is in military custody. If they make it at home to say the military
can't hold a person and interrogate them under the law of war, the only
way we can hold an al-Qaida operative who made it to America is under
the law enforcement model. This is not ``Dragnet.'' We are trying to
make sure both systems are preserved, starting with the presumption of
intelligence gathering.
Here is the key distinction. To my colleagues who worry about how we
prosecute someone, that is really the least of my concerns. I am
worried about intelligence gathering. I have confidence in our civilian
system and confidence in our military system. But shouldn't we be
concerned, most of all, Senator Levin, that when we capture one of
these operatives on our shores or abroad that we hold them in a humane
fashion but a fashion to gather intelligence?
Imagine if we got one of the 9/11 hijackers. Wouldn't it have been
nice to have been able to find out if there was another plane coming
and hold them as long as necessary to get that information humanely? To
say we can't do that makes us a lot less safe.
Mr. LEVIN. We could do that if we captured them in Afghanistan, but
here we are going to be treating them differently. It ought to probably
be worse. In other words, people who bring the war here, it seems to
me, at a minimum ought to be subject to the same rules of interrogation
as they would be if they were captured and part of al-Qaida in
Afghanistan.
I don't understand the theory behind this. As a matter of fact, when
we adopted the authorization for use of military force, it would seem
to me the first people we would want to apply the authority of that
authorization to would be al-Qaida members who attack this country.
Mr. GRAHAM. That is the only group subject to this provision; is that
correct?
Mr. LEVIN. The only group that is protected.
Mr. GRAHAM. But this provision we wrote only deals with that.
Mr. LEVIN. Exactly.
Mr. GRAHAM. No one is going to be put in jail because they disagree
with Lindsey Graham or Barack Obama. We are trying to fight a war.
I would say something even more basic. It is in my political
interest, quite frankly, being from South Carolina--a very conservative
State, great people--to be able to go home and say I supported
legislation to make sure these terrorists trying to come here and kill
us never hear the words ``you have the right to remain silent.'' Most
people would cheer.
It would have been in my interest years ago, quite frankly, to have
gone back and said: You know what. I wish the worst thing that could
happen to our guys caught by these thugs and barbarians is that they
would get waterboarded. They get their heads cut off. Yet we have all
these people worried about how we treat them in trying to find out a
way to protect the country. That would be in my political interest, and
I am sure it would probably be in your political interest to say: Wait
a minute, we don't want to militarize this conflict.
At the end of the day, what I wanted to say about the Senator and
Senator
[[Page S8102]]
McCain is that one of you is a warrior who has experienced worse than
waterboarding and doesn't want that to be part of his country's way of
doing business. The other is someone who has been a very progressive,
solid, left-of-center Senator for years. I am a military lawyer who
comes from a very conservative State, but I want to fight this war--I
don't believe we are fighting a crime--but I want to fight it in a way
that doesn't come back to haunt us. I don't want to create a system on
our watch that could come back and haunt our own people. I don't want
to say that every enemy prisoner in this war has to go to trial because
what if one of our guys is captured in a future war? Do we want them to
be considered a war criminal just because they were fighting for the
United States?
So what we are trying to do is to create policy that is as flexible
as possible but understands the difference between fighting a war and
fighting a crime.
Mr. LEVIN. Mr. President, I understand there are other Senators who
may be coming over to speak, and I will be happy to yield the floor
whenever that happens because this is the time which is not structured
before the scheduled vote at 2 p.m. But if I can continue, then, until
another Senator comes to the floor, I want to just expand on this one
point which has been made which has to do with whether there is
something in this section of ours that would allow our military to
patrol our streets. We have heard that.
Well, we have a posse comitatus law in this country. That law
embodies a very fundamental principle that our military does not patrol
our streets. There is nothing in section 1032 or anywhere else in this
bill that would permit our military to patrol our streets.
I think Senator Graham is probably more familiar with what I am going
to say than perhaps any of our colleagues. We have a posse comitatus
statute in this country. It makes it a crime for the military to
execute law enforcement functions inside the United States.
That is unchanged. That law is unchanged by anything in this bill.
Mr. GRAHAM. Does the Senator know why that law was created?
Mr. LEVIN. I think we had a fear a couple hundred years ago that that
might happen.
Mr. GRAHAM. One of the things you learn in military law school is the
Posse Comitatus Act, because if a military member or a unit is asked to
assist in a law enforcement function, that is prohibited in this
country. Why is that? We don't want to become a military state. We have
civilian law enforcement that is answerable to an independent
judiciary.
The Posse Comitatus Act came about after Reconstruction, because
during the Reconstruction era the Union Army occupied the South. They
were the judge, jury, and law enforcement. They did it all because
there was no civilian law enforcement. After the South was
reconstructed, a lot of people felt that was not a good model to use in
the future; that we don't want to give the military law enforcement
power; they are here to protect us against threats, foreign and
domestic; law enforcement activities are completely different.
Now we have National Guard members on the border. That is not a law
enforcement function. That is the national security function. But I
have been receiving calls that say our legislation overturns the Posse
Comitatus Act. Here is why that is completely wrong.
Surveilling an al-Qaida member, capturing and interrogating an al-
Qaida member is not a law enforcement function; it is a military
function. For the Posse Comitatus Act to apply, you would have to
assume that a member of al-Qaida is a common criminal and our military
has no legal authority here at home to engage the enemy if they get
here.
You talk about perverse. You would be saying, as a Congress, that an
al-Qaida member who made it to America could not be engaged by our
military. What a perverse reading of the Posse Comitatus Act.
The reason al-Qaida is a military threat and not a common criminal
threat is because the Congress in 2001 so designated. I think most
Americans feel comfortable with the idea that the American military
should be involved in fighting al-Qaida at home, and that is not a law
enforcement function.
Mr. LEVIN. That is why we have very carefully pointed this provision
1032 to a very narrow group of people--people who are determined to be
members of or associated with al-Qaida.
Then the question becomes, Well, how is that determination made? What
are the procedures for that? The answer is it is left up to the
executive branch to determine those procedures. Can there be any
interference with the civilian law enforcement folks who are
interrogating people that they arrest? If someone tries to blow up
Times Square and they are being interrogated by the FBI, is there any
interference with that interrogation? None. We explicitly say that
there is no such interference.
What about people who are seeking to observe illegal conduct? Is
there any interference with that? There is none. We specifically say
those procedures shall not interfere with that kind of observation,
seeking intelligence. We are not interfering with the civilian
prosecution, with the civilian law enforcement at all.
The rules to determine whether someone is a member of al-Qaida are
rules which the executive branch is going to write. They can't say,
Well, this thing authorizes the interference with civilian
interrogation when, as a matter of fact, it specifically says it won't,
and the procedures to determine whether somebody is governed by this
assumption are going to be written by the FBI and the Justice
Department and the executive branch. And, on top of that, there is a
waiver.
Mr. GRAHAM. May I add something. I want to respond to one of my good
friends, Senator Paul, who said, Well, that is all good, but sometimes
in democracies you let in very bad people and I don't want to give
broad power to the executive branch that could result in political
persecution.
I would tell you--Senator Levin may find this hard to believe--there
are people on my side who don't trust President Obama and his
administration. Some of them don't think he is an American. Some of
them believe that if we pass this law, you are going to give the Obama
administration the power to come on and pick them up because they go to
a rally somewhere.
All I can say to Senator Paul and others: I share the concern about
unlimited executive power. I support the Posse Comitatus Act. I don't
support the idea that the military can't fight al-Qaida when they come
here. We are not talking about law enforcement functions.
But here is what happens: If someone is picked up as a suspected
enemy combatant under this narrow window, not only does the executive
branch get to determine how best to do that--do you agree with me that,
in this war, that every person picked up as an enemy combatant--citizen
or not--here in the United States goes before a Federal judge, and our
government has to prove to an independent judiciary outside the
executive branch by a preponderance of the evidence that you are who we
say you are and that you have fit in this narrow window? That if you
are worried about some abuse of this, we have got a check and balance
where the judiciary, under the law that we have created, has an
independent review obligation to determine whether the executive branch
has abused their power, and that decision can be appealed all the way
to the Supreme Court?
Mr. LEVIN. That guarantee is called habeas corpus. It has been in our
law. It is untouched by anything in this bill. Quite the opposite; we
actually enhance the procedures here. The Senator from South Carolina
has been very much a part of the effort here.
Mr. GRAHAM. Much to my detriment.
Mr. LEVIN. With all the risks that are entailed of being
misunderstood and all the rest. That is something the Senator from
South Carolina has engaged in, to try to see if we can put down what
the detention rules are--by the way, ``are''--because as the
administration itself said in its statement of administration policy,
the authorities codified in this section--authorities codified in
section 1031 they are referring to--those authorities already exist.
Mr. GRAHAM. In this case where somebody is worried about being picked
up by a rogue executive branch because they went to the wrong political
rally, they don't have to worry
[[Page S8103]]
very long, because our Federal courts have the right and the obligation
to make sure the government proves their case that you are a member of
al-Qaida and didn't go to a political rally. That has never happened in
any other war. That is a check and balance here in this war. And let me
tell you why it is necessary.
This is a war without end. There will never be a surrender ceremony
signing on the USS Missouri. So what we have done, knowing that an
enemy combatant determination could be a de facto life sentence, is we
are requiring the courts to look over the military's shoulder to create
checks and balances. Quite frankly, I think that is a good
accommodation.
Mr. LEVIN. Not only is what the Senator said accurate, but we have
done something else in this bill. There is an Executive order that was
issued some years ago that said there should be a periodic review
process for folks who are being detained under the law of war. Because
it is so unclear as to when this war ends, there is real concern about
that. What do we do about that? So in this bill what we require the
executive branch to do--and I am now quoting from section 1035--is to
adopt procedures for implementing a periodic review process. Those
procedures don't exist now. They are not formalized. So we want to
formalize them for the very reason that the Senator from South Carolina
addressed: because we want to make sure that since we don't know when
this particular war is going to end, it is kind of hard to define it
and everyone is concerned about that, you have got to have review
procedures. The greatest review procedure of all is habeas corpus. But
there are also requirements in the Executive order for a periodic
review process of whether somebody is still a threat or not a threat,
for instance. The war may still be going on, but the person may no
longer be a threat.
Should there be an opportunity for the person to say that? Well,
there should be. There surely should be a regular review process. The
Senator from South Carolina has been very much involved in this kind of
due process. But what we put into our bill--which would have been
eliminated, by the way, if the Udall amendment had been adopted
yesterday--is a requirement that the Executive order's procedures be
adopted, because so far we haven't seen that.
Mr. GRAHAM. I would say why I wanted to do that. I want to be able to
say--and not to my political advantage. But I want to be able to tell
people post-Abu Ghraib, post-early Guantanamo Bay, we have cleaned up
our act. We are trying to get the balance we didn't have originally. I
want to be able to tell people we no longer torture in America. That is
why you and I wrote the Detainee Treatment Act, with Senator McCain,
the War Powers Act that clearly bans waterboarding.
I want to be able to tell anybody who is interested that no person in
an American prison--civilian or military--held as a suspected member of
al-Qaida will be held without independent judicial review. We are not
allowing the executive branch to make that decision unchecked. For the
first time in the history of American warfare, every American combatant
held by the executive branch will have their day in Federal court, and
the government has to prove by a preponderance of the evidence you are
in fact part of the enemy force. And we did not stop there. Because
this could be a war without end, we require an annual review process
where each year the individual's case is evaluated as to whether they
still maintain a threat or they have intelligence that could be
gathered by longer confinement.
What I would say to our colleagues is that we have tried to strike
that balance. There are a lot of people who don't like the idea that
you give these terrorists Federal hearings and lawyers and all that
other stuff. There are a lot of people who don't like the fact that we
do have now humane interrogation techniques. But I like that, because I
want to win this war on our terms, not theirs. So I couldn't be more
proud of this bill.
To my colleagues on the right who want to mandate military custody
all the time and you never can read them their Miranda rights, I am
sorry, I can't go there. To our friends on the left who want to say the
military has no role in this war at home, I am sorry, I can't go there.
Military commissions make sense sometimes, sometimes Federal courts
make sense.
I will end on this note. This compromise that we have come up with I
think will stand the test of time. Unfortunately, most likely radical
Islam as we know it today is not going to be defeated in our lifetime,
and I hope to have created on my watch as a Senator a legal system that
has robust due process, that adheres to our values, but also recognizes
we are at threat like any other time in recent memory and allows us to
protect ourselves within the values of being an American. I cannot tell
you how much I appreciate working with the Senator and Senator McCain,
and I think we have accomplished that after 10 years of trying.
Mr. LEVIN. Mr. President, I yield the floor.
Mr. MANCHIN. Mr. President, I ask unanimous consent to speak as if in
morning business.
The PRESIDING OFFICER (Mr. Coons). Without objection, it is so
ordered.
Extension of Payroll Tax Cuts
Mr. MANCHIN. Mr. President, I want to speak on these very strange
days in Washington, in this Congress.
This esteemed body's approval rating is at 9 percent, and I am having
a hard time finding the 9 percent. It seems to me that the only thing
we are working hard on is whether we can get the approval rating to
zero, and I think we seem to be going in that direction.
We fight over political solutions that can't pass and, more
importantly, won't solve this Nation's great problems. We fight for
political points and mistakenly believe that the American people care
who is up or down. But they don't.
I didn't come to Washington for the purpose of playing games, taking
names, or keeping score. That is not what I was sent here to do. That
is not what the people of West Virginia want me to do. I came here to
fix things and to be a part of the solution. I have not come here to
worry about my next election or whether Republicans or Democrats are up
or down. I came here to do what I could to improve life for the next
generation. I, for one, am willing to sacrifice my next election so the
next generation can win. And if that means losing, so be it.
I rise today to speak about the next chapter of this sad state of
affairs which the American people are forced to witness: whether we
should extend and expand the payroll tax cut that will cost more than
$240 billion in 1 year.
Many accusations are being thrown back and forth in the debate over
the so-called tax cuts or tax increases, depending on which side of the
fence you are on. There is one very basic fact that is missing from all
of this very important conversation: Americans pay for one thing with
our payroll tax--One. Social Security.
Social Security isn't just another government program. It was
established in 1935 to provide economic security for our Nation's
seniors who worked hard and earned their retirement benefits. They
worked their whole life to provide our generation and those that will
follow with a better and greater America.
Yet at the time when our Nation faces a death spiral of debt, when we
should be talking about how we can come together to fix a fiscal
nightmare that will threaten the very programs we care about such as
Social Security, instead we are talking about undermining the very
foundation of our longest standing retirement program. Right now,
Social Security is on a collision course. By 2037, according to the
trustees, if we do not do anything, benefits for everyone will have to
be cut by 22 percent. Yet we are digging a deeper hole by destabilizing
its funding with this recommendation. All in return for what? A
temporary measure that has already cost nearly $120 billion and has at
best created few if any jobs.
In the real world, when policy doesn't work, we stop and try
something else. Apparently, in Washington we double down. Why would we
do this? Why would we double down on a policy that did not work? The
answer is simple. For the sake of a short-term political gain, leaders
of both parties and the President are willing to fight over how we
should pay for a failed program that jeopardizes the fundamental way
that
[[Page S8104]]
we pay for our retirement security in this country. That does not make
any sense to me, and it does not make any sense to the good people in
West Virginia.
I know in the coming days we are going to hear a lot of political
talk about extending the payroll tax. What they are saying sure sounds
good: More money in our pockets. In fact, politicians will offer
assurances that Social Security will not be hurt at all. My good
friend, who will be speaking also on this, Senator Kirk from Illinois,
is going to show a graph that basically shows that to be different.
What you will not hear them say, though, is that reducing payroll
taxes even temporarily would take more than $240 billion out of Social
Security's funding stream, if we approve the President's proposal. We
certainly will not hear them say the way they would repay those
hundreds of billions of dollars is through our general revenue fund. If
we extend the cuts this year, what about the next year and the year
after? When does it stop? When do we have the political will to finally
say we better start paying again for Social Security.
Our approval rating is at 9 percent, and we are rapidly losing the
support of our family members. Just how many Americans really believe
that Congress will make sure our general fund is solid enough to live
up to the responsibility of funding Social Security? If the payroll tax
cut is extended as it stands this year, the average family in West
Virginia will pay $14 less per week. For a lot of people that is a lot
of money. But the few West Virginians who even realize they are getting
help say they would gladly give that up in return for a reliable Social
Security safety net or for a real tax reform that cuts rates across the
board and that ensures that every American, especially the wealthy,
will start paying their fair share. They would gladly do that.
Let me be clear. As a country, we cannot expect that Social Security
will remain secure if we keep telling Americans we do not have to pay
for it, and that is exactly the conclusion people will reach if we keep
reducing their contributions. Social Security is one of our highest
priorities as a country, and we should not let the Federal Government
undermine Social Security by convincing Americans they do not really
have to pay for it.
Then, again, there are some in Washington who want us to believe the
very act of reducing our contributions to Social Security will spur job
creation. Unfortunately, the reality is very different.
We tried the payroll tax cut last year, and I supported it. But I
will not double down on the failed policy, especially one that
jeopardizes the future of Social Security. Truth be told, over the last
year I traveled more than 18,000 miles in my State, and I have yet to
find very many West Virginians who even know they are getting a
discount, let alone business owners who say they will hire anybody if
we give them a discount for 1 year.
What business owners do tell me is that what they want more than
anything is some certainty and some confidence in this economy; that we
will do the right thing and stabilize this economy. Instead, the
President and leadership in both parties are trying to give them more
of the same failed policies--taking steps that will further undermine
our finances, worsen our debt crisis, and jeopardize hundreds of
billions from Social Security's regular funding stream, all without the
reality that it will create any jobs.
With this great Nation now more than $15 trillion in debt--it will be
$17 trillion next year and going to $21 trillion by 2021--the enormity
of this problem is that just servicing the debt by 2021 will be greater
than what we spend on our Department of Defense to secure this great
Nation. We cannot afford to continue to double down on failed policies.
As for taxes, don't get me wrong. I don't want to see Americans
paying higher taxes. No way. I simply want a commonsense tax system
that ensures everyone pays their fair share, especially the wealthy,
who have benefitted the most from this failed tax system we have right
now--real tax reform that will lower tax rates for everyone as we close
the loopholes, credits, and offsets that allow some corporations and
some Americans to avoid paying their fair share. It is time to stop all
of that.
Some will say that it is impossible; it cannot be done. I think they
are wrong. It requires leadership from the White House to every corner
of Congress, and it requires each and every one of us to be willing to
sacrifice our political futures for the Nation's future. I, for one, am
willing to do just that.
This is our moment. At this critical moment in our history we must
get our financial house in order and letting Americans believe we do
not have to pay for Social Security is wrong. It is dead wrong. It is
the wrong policy. It is wrong for our seniors, it is wrong for our
future, and I will not vote for it, period, under any condition. For
the sake of the next generation we must get our fiscal house in order,
and we can do that if we are willing to make difficult decisions.
I will not vote for either of these two proposals to extend the
payroll tax cuts. Looking forward for the sake of our Nation, I hope we
will begin to work on a proposal that makes the hard decisions while
also protecting the programs and commitments we value as a nation. For
myself, and I believe many of my colleagues, there is a bipartisan path
forward that can help save this Nation, and I have my good colleague,
the Republican from Illinois, who is going to speak to it also.
I believe the best path forward is based on the framework and
recommendations outlined in the Bowles-Simpson proposal. When those
recommendations were laid out a year ago today--this is the anniversary
today--I had been a Senator for less than a month--brandnew, less than
1 month. What I saw in that report gave me great hope. It gave me hope
that we could identify our problems, which we did--the fiscal
responsibility that we had--and willingly tackle them together. So I
was on a high for that one short period.
As a brandnew Member, I was so encouraged that such a responsible,
bipartisan group of people, put together by the President, offered a
no-holds-barred report on our fiscal situation and some pathways to fix
it. Then the proverbial air came out. Not only did the President and
his administration walk away from these bipartisan proposals, but
leadership in both Chambers of Congress failed to pick up this report
and run with it.
Here we are a year later. If anything, our problems are worse. We are
going to be forced to make deeper cuts than we wanted to, all because
our leadership would not confront the enormous problems we face with a
comprehensive long-term solution. But the Bowles-Simpson plan is still
the only proposal that enjoys strong bipartisan support. It started as
a bipartisan commission. It grew in numbers and it is still growing. It
has a responsible manner to balance this problem we have.
It is not perfect; no plan is. I do not agree with everything it
proposes. But no plan can be everything to everyone. With today being
the 1-year anniversary of the unveiling of that proposal, I am urging,
and will continue to urge, our President and the leadership of both
Chambers to support any and all efforts--not only to pick up this
report, but also to put the resources behind drafting and passing this
legislation into law. I ask we all remember the great opportunity we
have before us to do what is right.
I do not want to be part of the first generation--and I know the
Presiding Officer doesn't want to be part, and I know my good friend
from Illinois doesn't want to be part of the first generation that
leaves this Nation in worse shape for the next generation. I don't
believe this President or any Member of Congress wants to fail the next
generation either.
With that, I want to turn over my time to my colleague from Illinois.
Mr. KIRK. If I could engage the Senator in a colloquy, this is a
chart that shows the legislation we are considering today. What it
shows is the tremendous hit to the tax that supports Social Security.
This is the Old Age Survivors Disability Act. It is a $240 billion hit
to the funding to support Social Security. We both are going to vote no
on both pieces of legislation today because we do not think seniors
should take this level of hit.
In the Casey-Reed legislation--this is where the so-called
millionaires' tax comes in--it only refunds what Social
[[Page S8105]]
Security needs to the level of 7 percent in 2013. In fact, according to
one analysis, we may trigger the end of the debt limit before the
election if we pass this because of the $246 billion we will have to
borrow temporarily until the long stretch of this revenue comes in.
We are about to do a chart with the Republican alternative. It has
the same long payout there, and tremendous hit to Social Security. In
this time of all these political bills, I think Senator Manchin and I
are both saying let's not do the political thing anymore. We both voted
for the payroll tax deduction legislation before because the country
was in crisis, and we wanted to try this out. But this is revenue that
supports the benefits that Social Security recipients depend on, and we
cannot continue to try to run this program without that revenue. So I
think this holiday should end. I think this revenue should not be
foregone. I do not think seniors should be faced with a trust-us policy
that will pay them back. I would actually say even the political vote
is to vote against this so you are for Social Security and for making
sure this payment is continued.
I commend the Senator. I think we should exactly follow this policy
of no on both of these because, if you vote no, you are supporting
Social Security.
One other thing: I ask AARP to speak more clearly on this issue. AARP
currently told my staff that they are neutral on this. I urge AARP
members to contact AARP and say: Defend Social Security revenues. Make
sure there is enough in the kitty for our benefits. We know that 10,000
Americans a day are now qualifying for Social Security. We know this is
an age of no free lunch. We want to make sure the revenues are there
not just today but tomorrow because seniors absolutely depend on that.
With that, I yield back to my colleague.
The PRESIDING OFFICER. Let the record show the Senator sought
recognition, unanimous consent to proceed to a colloquy and did so
without objection.
Mr. KIRK. I thank the Chair.
Mr. MANCHIN. I say to my friend from Illinois, what he says is
absolutely correct. We have so many people, especially in West Virginia
and Illinois, who depend on Social Security. In fact, in West Virginia,
for 62 percent of the people who receive Social Security it is their
major funding mechanism. It is how they live day to day. They have told
me: Do not touch our Social Security Program, our core values of Social
Security, what it does for us. If we pass this, not only do we touch
it, we jeopardize its solvency in the long term.
If you believe we are going to be responsible enough to pay for this
in the 10 years outgoing, then we have some beach-front property in
West Virginia we would love to interest you in.
Mr. KIRK. I would say, this is a very long payout, both under the
majority and minority piece of legislation. I am hoping enough Members
say no to both pieces of legislation so we defend Social Security, and
I commend the Senator.
Mr. MANCHIN. I think we are very strong in support of the Bowles-
Simpson, basically, the template that it laid out. It is the only one
that is bipartisan. As you can see, it stayed bipartisan with the
Senator and I, and it will remain bipartisan. It has a tax reform, but
everyone pays a fair share. The very wealthy who have escaped paying
because of the flawed tax policies would now start paying if we had
real tax reform--not increased rates but just their fair share. That is
what we ask.
Mr. KIRK. With that, I yield and commend the Senator. We are hoping
for two ``no'' votes because we think those are the votes that support
Social Security and its continued revenue.
Mr. MANCHIN. I thank the Bowles-Simpson committee, Mr. Bowles and Mr.
Simpson, for what they have done a year ago, bringing it to our
attention, bringing a pathway to fixing the financial problems we are
dealing with. We are concerned about the next generation more so than
our next election. That is what we were sent here to do.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. MENENDEZ. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1414
Mr. MENENDEZ. Mr. President, I rise to urge my colleagues to pass
amendment No. 1414 that I have offered with my distinguished colleague
from Illinois, Senator Kirk, to strengthen sanctions against Iran that
go to the heart of the regime's ability to finance its nuclear
ambitions. This is a broad-based effort, a bipartisan effort, and one
that needs the Senate's attention and passage.
In my view, we have to follow the money, and this amendment does
exactly that. If we are serious about limiting Iran's ability to
finance its nuclear ambitions, this amendment is essential to that
effort. It is a serious attempt to sanction the Central Bank of Iran,
which is known to be complicit in Iran's nuclear efforts.
If we fail to close loopholes and sanction funding mechanisms for
Iran's nuclear development programs, we would be like a rancher who
left the barn open and wonders why the horses are gone. To not pass
this amendment is leaving the door open to Iran's runaway nuclear
ambitions. We cannot and we must not let that happen.
I know the administration has expressed their concerns about this
amendment--an amendment which, by the way, has come about as a result
of the administration asking us to work with them, and a bipartisan
effort has achieved a narrower, more defined, tailored effort to bring
the maximum sanctions upon Iran with the minimum consequence to both
the United States and our allies across the globe. But in the absence
of congressional action over the last 15 years, starting with the Iran
and Libya Sanctions Act and ending with CISADA, I have to wonder what
we would be doing to stop Iran's drive to obtain nuclear weapons, if it
were not for the Congress's intercession and actions.
I recognize this administration has done more than any prior
administration in terms of using those tools the Congress has given
them, but in my view, we have not done enough.
In a letter from Secretary Geithner today, the administration
recognizes that ``Iran's greatest economic resource is its export of
oil. Sales of crude oil line the regime's pockets, sustain its human
rights abuses, and feed its nuclear ambitions like no other sector of
the Iranian economy.'' That is what Secretary Geithner had to say in
his letter. That is pretty compelling as to why this amendment needs to
pass, that is why I have worked with Senator Kirk to pass this
important amendment, and that is why we urge our colleagues to pass it.
To those who have raised concerns about the impact of the amendment
on our allies and our multilateral diplomacy efforts, I would note that
the European nations and the French in particular are already
considering their own Iranian oil embargo. This is not, by the way, an
oil embargo, but they are considering something far more significant--
their own Iranian oil embargo. They recognize that the Iranian nuclear
program has a short fuse. Published reports say it may be as short as 1
year, and the time to act is now. They recognize that the Shahab
missile would not only be capable of hitting the State of Israel but
could easily hit a European nation--a European nation which obviously
would be a NATO ally.
As for other countries, frankly, I am not concerned with how the
Chinese feel about our amendment given that they are currently one of
greatest violators of our current sanctions regime already. The
evidence is clear.
I have been made aware that several major energy traders continue to
make prohibited sales of refined petroleum to Iran. Yet our response
has been to sanction the front companies rather than the major figures
behind these sales.
China also continues to be a major Iranian trading partner and has
agreements with Iran for nearly $40 billion in investments to develop
Iranian oil fields. China has reportedly directed the China National
Offshore Oil Corporation and National Petroleum Corporation to slow
their work in Iran, presumably to allow them to make the argument to
Washington to hold off on sanctions.
[[Page S8106]]
We must ask, why has the administration been reluctant to sanction
Chinese companies when there is ample evidence that they are violating
our own existing laws and there is precedent for us sanctioning Chinese
companies for nuclear and weapons proliferation outcomes?
Mr. McCAIN. Would the Senator yield for a question?
Mr. MENENDEZ. I would be happy to yield.
Mr. McCAIN. Is it the Senator's impression that action by the United
Nations Security Council is pretty dim given the stated positions of
Russia and China on this issue?
Mr. MENENDEZ. The Senator, in my view, is right, considering that
they both have veto power at the Security Council. It seems to me that
they are not likely allies in helping us pursue this course.
Mr. McCAIN. So then it really makes a more compelling argument to
those who may be wavering on this amendment that there is a clear
record on the part of China and Russia in the U.N. Security Council
that we cannot expect a Security Council vote, but perhaps we could
expect other nations to follow suit once the United States leads on
this issue.
Mr. MENENDEZ. I believe the Senator is right.
Mr. McCAIN. I thank the Senator.
Mr. MENENDEZ. The November 8 IAEA report underscores the need for
this amendment. It undeniably confirms that there is a military
component to Iran's nuclear program; that Iran has not suspended its
Iranian enrichment and conversion activities at declared facilities and
is seeking to develop as many as 10 new enrichment facilities; that
there are undisclosed nuclear facilities in Iran; that Iran is seeking
back channels to acquire dual-use technology and materials; that Iran
is experimenting and testing detonators and initiation systems critical
to creating a nuclear weapon; and that Iran may be working on an
indigenous design for a nuclear weapon, including a nuclear payload
small enough to fit on Iran's long-range Shahab missile, a missile
capable of reaching Israel. These public revelations have led to an
increase in multilateral sanctions on the Iranian regime, which I
applaud, but given what appears to be a shortening timeline until Iran
has a potential nuclear weapon, it would seem we are not doing enough
fast enough.
Iran has adapted to CISADA and has negotiated workarounds to
constraints on its financial transactions and its ability to acquire
requisite materials to advance its clandestine program. This amendment
will prevent those workarounds. It will impose sanctions on those
international financial institutions that engage in business activities
with the Central Bank of Iran--particularly in the pursuit of petroleum
products--with the exception of transactions that include medicine and
medical devices.
It is a timely amendment that follows the administration's decision
last week designating the entire Iranian banking sector as a primary
money laundering concern and a threat to government and financial
institutions, noting Iran's illicit activities, including its pursuit
of nuclear weapons, its support of terrorism, and its efforts to
deceive responsible financial institutions and evade sanctions. In
fact, the Financial Crimes Enforcement Network of the Department of the
Treasury wrote:
The Central Bank of Iran, which regulates Iranian banks,
has assisted designated Iranian banks by transferring
billions of dollars to those banks in 2011. In making these
transfers, the CBI attempted to evade sanctions by minimizing
the direct involvement of large international banks with
both CBI and designated Iranian banks.
The Under Secretary of the Treasury for Terrorism and Financial
Intelligence, David Cohen, wrote:
Treasury is calling out the entire Iranian banking sector,
including the Central Bank of Iran, as posing terrorist
financing, proliferation financing, and money laundering
risks for the global financial system.
I don't know how much more compelling even the administration's own
arguments are. As I have said on this floor, Iran's conduct threatens
the national security of the United States and its allies. The
complicit action of the Central Bank of Iran, based on its facilitation
of the activities of the government, its evasion of multilateral
sanctions directed against the Government of Iran, its engagement in
deceptive financial practices and illicit transactions, and, most
important, its provision of financial services in support of Iran's
effort to acquire the knowledge, materials, and facilities to enrich
uranium and to ultimately develop weapons of mass destruction,
threatens regional peace and global security.
This amendment will starve the beast. It requires the President to
prohibit transactions of Iranian financial institutions that touch U.S.
financial institutions. To ensure that we don't spook the oil markets,
transactions with Iran's Central Bank in petroleum and petroleum
products would only be sanctioned if the President makes a
determination that petroleum-producing countries other than Iran can
provide sufficient alternative resources for the countries purchasing
from Iran and that the country declines to make significant decreases
in the purchases of Iranian oil.
This bipartisan amendment has been carefully crafted to ensure the
maximum impact on Iran's financial infrastructure and ability to
finance terrorist activities and to minimize the impact on global
economy. It has the best chance of helping us achieve a peaceful
solution to this threat. I urge my colleagues to support this
amendment.
Mr. McCAIN. May I ask one additional question?
Mr. MENENDEZ. I would be happy to do so. I know we have a vote in 5
minutes, and I want the distinguished Senator from Illinois to have an
opportunity to speak.
Mr. McCAIN. These questions are for either Senator.
Is it true that in this legislation, there is a national security
waiver, that the President can waive the provisions of this bill if he
feels it is in the national interest? Also, how do you respond to the
argument being put forward that this could destroy the world's
financial system if this legislation would be put into effect?
Mr. MENENDEZ. The answer is, yes, there is a national security
waiver, and, no, we do not believe the world's financial system will be
destroyed. The fact is, as my distinguished colleague from Illinois has
said, it is a choice between a $300 billion economy in Iran and a $14
trillion economy in the United States. I think that choice would be
very clear for countries as they choose to do so, and the Europeans are
already on a march on their own because they understand the risk to
them.
I yield the floor, and I hope to hear from my colleague from
Illinois.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. KIRK. I rise in very strong support of the Menendez-Kirk
amendment.
I wish to compliment the Senator from New Jersey for an outstanding
performance in the Senate Foreign Relations Committee today in which he
called on the representatives of our government to move quicker on
this.
We saw the Baha'is radicals of Iran overrun the embassy of our allies
in the United Kingdom. We saw the British Prime Minister just announce
that he was removing all Iranian diplomats from the United Kingdom. We
saw the Government of Italy announcing that they were suspending some
diplomatic activities. We have seen a whole number of actions by the EU
now to join with us on sanctions.
I will just say with regard to this amendment that it has now been
cosponsored formally by 46 Senators: Menendez, Kirk, Barrasso,
Blumenthal, Blunt, Boozman, Brown of Massachusetts, Brown of Ohio,
Cardin, Casey, Collins, Coons, Crapo, Feinstein, Franken, Gillibrand,
Graham, Hatch, Heller, Johanns, Klobuchar, Kyl, Lautenberg, Lee,
Lieberman, Manchin, Merkley, Mikulski, Moran, Murkowski, Nelson of
Florida, Nelson of Nebraska, Portman, Pryor, Risch, Roberts, Schumer,
Snowe, Stabenow, Tester, Thune, Toomey, Vitter, Warner, Whitehouse, and
Wyden. These 46 Members are on the shoulders of the 92 who signed the
Kirk-Schumer letter in August. When in these partisan times do we have
all but eight Senators agreeing on a policy?
I will just note, as Senator Menendez and Senator McCain pointed out,
the administration is somewhat worried about this amendment, but
Senator Menendez correctly provided flexibility to the administration
by saying,
[[Page S8107]]
No. 1, if the energy information agency says oil markets are tight and
issues a report on the affected oil markets, these sanctions could be
suspended for a time. On top of that one waiver, there is a second
waiver for the national security of the United States that the
President could have that kind of flexibility.
So with flexibility, with bipartisan support, with outrageous
activity by Iran, in the face of the IAEA report, moving toward a
nuclear weapon, with the danger we see from that government and
Hezbollah and Hamas against our allies in Lebanon and Israel, with the
plot announced by the Attorney General of the United States to blow up
a Georgetown restaurant in an effort to kill the Saudi Arabian
Ambassador, with the plight of 330,000 Baha'is oppressed by that
country, with someone like Nasrin Sotoudeh, the lawyer for Shirin
Ebadi--the Noble Prize laureate's lawyer was thrown in jail just for
representing that client--for all these reasons, this is the right
amendment, at the right time, sending the right message in the face of
a very irresponsible regime.
I yield back and thank the Senator for offering this well-timed
amendment.
The PRESIDING OFFICER. The Senator from Arizona.
Amendment No. 1093 Withdrawn
Mr. McCAIN. On behalf of Senator Inhofe, I ask to withdraw amendment
No. 1093.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Mr. President, very briefly I would like to thank the
Senators for their leadership on this issue. There is a threat to the
security of the world posed by the Islamic nation of Iran. This is much
needed legislation.
I think it is important to note, as they did, that there is a
national security waiver given to the President of the United States,
and also we cannot expect a lot of help considering the membership of
the United Nations Security Council and Russia and China's
unwillingness to act on behalf of reining in this path that Iran is on
to the acquisition and the possibility and the capability for the use
of nuclear weapons.
I congratulate both sponsors of the amendment, and I hope we can get
a recorded vote.
I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.
Amendment No. 1125
Mr. UDALL of Colorado. Mr. President, I wanted to rise at this time
in support of the Feinstein amendment No. 1125, which would modify the
requirement that the Armed Forces detain suspected terrorists by adding
the word ``abroad'' to ensure that we aren't disrupting domestic
counterterrorism efforts. And I would like to correct the record
because some of the opponents of the amendment have stated that by
inserting the word ``abroad,'' we would be preventing the military from
detaining al-Qaida terrorists on U.S. soil, and that is simply not
true.
The President knows and my colleagues know that I am not comfortable
with the detention provisions in this bill because I think they will
undermine our fight against terrorism. But this would be an important
change, a narrowly focused change in the provisions that have already
been put on the floor.
Mr. President, is the vote imminent?
The PRESIDING OFFICER (Mr. Sanders). It is.
Mr. UDALL of Colorado. Mr. President, I rise in support of the
Feinstein amendment No. 1125, which would modify the requirement that
the Armed Forces detain suspected terrorists by adding the word
``abroad'' to ensure we are not disrupting domestic counterterrorism
efforts. I wish to correct the Record, because some of the opponents of
this amendment have stated that by inserting the word ``abroad'' we
would be ``preventing the military from detaining al Qaeda terrorists
on U.S. soil.'' This is simply not true.
I am not comfortable with the detention provisions in this bill
because I think they will undermine our fight against terrorism. While
section 1031 of this legislation will authorize the military to detain
terrorists, section 1032 requires that the military detain certain
terrorists even if the FBI or local law enforcement is in the middle of
a larger investigation that would yield the capture of even more
dangerous terrorists.
This may disrupt the investigation, interrogation, and prosecution of
terrorist suspects by forcing the military to interrupt FBI, CIA, or
other counterterrorism agency operations--against each of these
organizations' recommendations, including the military's. This would be
an unworkable bureaucratic process that would take away the ability to
make critical and split-second decisions about how best to save
Americans lives. That is why the director of the FBI and the director
of National Intelligence have strongly opposed the underlying
provisions.
The Feinstein amendment would simply provide the needed flexibility
for the FBI and other law enforcement agencies to work to fight and
capture terrorists without having to stop and hand over suspects to the
military. However, even with the Feinstein modification, with the
authorization in section 1031 the military could still detain a
suspected terrorist but would not have to step in and interrupt other
domestic counterterrorism operations.
In other words, the Feinstein amendment would do nothing to prevent
the military from acting, it would simply take away the mandate that
they interrupt other investigations. I still do not believe we should
enshrine in law authorization for the military to act on U.S. soil, but
to argue that adding ``abroad'' to section 1032 would take away from
the authority given in this bill is just wrong.
Clarifying that the military is only required to detain suspected
terrorists abroad is the best approach to address the FBI's concerns
about this legislation, and it is the best approach for our national
security. What we are doing is working. We should not take away the
flexibility that is necessary to keep us safe.
Passing this amendment would be welcome news to Secretary of Defense
Panetta, Director of National Intelligence Clapper, FBI Director
Mueller, and CIA Director Petraeus--who oppose the intrusive
restrictions on their counterterrorism operations that the underlying
bill would create.
The other side has argued that this is fundamentally about whether we
are fighting a war or a crime. I think that is a false choice and it
does a disservice to our integrated intelligence community that is
fighting terrorism successfully using every tool it possibly can. We
can debate this in theoretical, black-and-white terms about whether
this is a war or a crime. Or we can get back to the business of taking
on these terrorists in every way we know how, including by using our
very effective criminal justice system. At the end of the day, it is
about protecting Americans, protecting this country. Why on Earth would
we want to tie our hands behind our back?
Our national security leadership has said the detention provisions in
this bill could make us less safe. We should listen to their concerns
and pass this amendment to preserve the U.S. Government's current
detention and prosecution flexibility that has allowed both the Bush
and Obama Administrations to effectively combat those who seek to do us
harm.
Again, I encourage my colleagues to support the Feinstein amendment,
to keep faith with the Directors of the FBI, the DNI, the Secretary of
Defense, and our Attorney General, who say these provisions could
create unwanted complications in our fight against terrorism.
Let's adopt the Feinstein amendment. It will help us win the war
against terror.
Thank you, Mr. President.
The PRESIDING OFFICER. Under the previous order, the Senate will now
proceed to a vote on the Feinstein amendment No. 1125.
Mr. BARRASSO. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the amendment.
The clerk will call the roll.
The bill clerk called the roll.
The result was announced--yeas 45, nays 55, as follows:
[Rollcall Vote No. 213 Leg.]
YEAS--45
Akaka
Baucus
Bennet
Bingaman
Blumenthal
Boxer
[[Page S8108]]
Brown (OH)
Cantwell
Cardin
Carper
Conrad
Coons
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Johnson (SD)
Kerry
Kirk
Klobuchar
Kohl
Lautenberg
Leahy
Lee
Menendez
Merkley
Mikulski
Murray
Nelson (FL)
Paul
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NAYS--55
Alexander
Ayotte
Barrasso
Begich
Blunt
Boozman
Brown (MA)
Burr
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
DeMint
Enzi
Graham
Grassley
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (WI)
Kyl
Landrieu
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Moran
Murkowski
Nelson (NE)
Portman
Pryor
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Stabenow
Thune
Toomey
Vitter
Wicker
The amendment (No. 1125) was rejected.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mrs. BOXER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. SHAHEEN. Mr. President, I rise today in support of the 2012
National Defense Authorization Act, the critical piece of legislation
we are now working on that will strengthen our national security,
provide for our troops and their families, and improve oversight of
American taxpayer dollars.
Over the last half century, the Senate has successfully passed a
defense authorization bill without fail every year. This strong
tradition of bipartisanship continues today under the joint leadership
of Senators Levin and McCain.
As a member of the Armed Services Committee, I thank the chairman and
ranking member, as well as the majority and minority staff, for their
dedicated and tireless effort as we work to bring this important
legislation to the floor.
Throughout this yearlong process, our committee takes on extremely
difficult and contentious security issues, and at times we have our
differences. However, we take on these disagreements in a respectful
and openminded fashion, driven by a strong commitment to cooperation
and compromise. Bipartisanship has never been easy, but it works, as
the Armed Services Committee has proven year in and year out. I hope
all of our committees in the Senate can work in this kind of
cooperative fashion, especially these days when budget constraints are
so difficult.
No department of the Federal Government is immune from the severe
fiscal challenges facing our Nation. That includes our Department of
Defense. We are cutting $27 billion from the President's budget request
in this bill, nearly $43 billion from the last year's authorization. We
need to find ways to maximize our investments in defense by
aggressively eliminating unneeded and underperforming programs and we
need to streamline our business practices and invest strategically in
future technology.
The bill before us helps ensure that our troops, especially the
96,000 serving in Afghanistan as well as their families, continue to
receive the care and support they deserve. It provides hard-earned pay
raises for all uniformed military personnel, funding for critical
equipment, and training required for our men and women to succeed on
the battlefield.
The Defense authorization bill before us makes important investments
in defense, science, and technology. As I know the Chair agrees, we
need to do more to prepare the next generation of scientists and
engineers who will be so important to maintaining our Nation's superior
technological edge. The current bill makes a small downpayment on this
important effort, and I intend to continue to fight for more investment
as we move forward.
The bill also includes a number of provisions that will enable the
Defense Department to lead in the creation of a more secure energy
future for our military and for our country. As the single largest
consumer of energy in the world today, the U.S. military has taken some
initial steps on energy efficiency, energy mitigation, and the use of
renewable and clean energy alternatives. But we still have a very long
way to go. I look forward to continuing to work with the Department of
Defense to take advantage of more energy savings opportunities in the
future.
This year's Defense authorization bill also includes significant
resources to fight nontraditional threats, including the proliferation
of nuclear, chemical and biological weapons and the growing challenge
posed by cyber warfare. In addition, I am pleased a number of
provisions I have been working on are currently included in the bill.
First, we are extending the Small Business Innovation Research
Program for the next 8 years. This is critical to keep our defense
manufacturing base and our small business innovators strong and
competitive. This is a provision I have worked on. I commend Senators
Landrieu and Snowe for their leadership in the Small Business Committee
for working on this effort and for working so hard to get this
extension, a long-term extension, into the Defense authorization bill.
The bill also includes a version of the National Guard Citizen
Soldiers Support Act, which will go far in providing our National Guard
members with the unique services and support they need when they return
home from the fight.
We also have a Navy shipyard modernization provision that has been
introduced by Senators Snowe and Collins and Senator Ayotte and I, from
New Hampshire. It also includes a $400 million cut to an unnecessary
and underperforming weapons program that I have worked closely with
Senators McCain and Begich to include.
In addition, I was pleased to cosponsor Senator Leahy's National
Guard Empowerment Act, which gives a stronger voice to our 450,000
citizen soldiers in our National Guard.
Although we have a good bill before us, I believe it could be better,
and I have introduced several additional amendments, two of which are
designed to provide the nearly 214,000 women serving in our Armed
Services with the reproductive health care they are currently denied
under the law. Unfortunately, we were not able to get a vote on those
amendments. But I hope to continue to work closely with the chairman
and ranking member to address these important concerns.
In addition, I have worked closely with Senators Collins and Casey on
an amendment to address unsecured and looted stockpiles of tens of
thousands of shoulder-fired missiles in Libya. If these weapons fall
into the wrong hands, they pose a serious threat to civil aviation
worldwide and to our deployed forces abroad.
I wish to thank the committee for including this provision in the
legislation. I also wish to address, briefly, some of the concerns that
have been raised with respect to the detainee provisions in the bill.
The underlying legislation which I supported is an attempt to provide a
statutory basis for dealing with detained members of al-Qaida and its
terrorist affiliates.
In committee, we made some difficult choices on this extremely
complex issue. But we did that in order to strike a bipartisan
agreement to both protect our values and our security. I understand,
similar to all the Members of this body, the concerns that have been
raised on both sides of these issues.
Again, as a general principle, I believe our national security
officials should have the flexibility needed to deal with the
constantly evolving threat. But I also believe that clear, transparent
rules of procedure are a bedrock legal principle of our constitutional
system. I believe the military detention language in this bill includes
a significant amount of flexibility for the executive branch, including
a national security waiver and broad authorities on implementation.
[[Page S8109]]
Although I support the goals of the chairman and ranking member's
underlying legislation, I also believe we can improve those provisions.
I supported Senator Feinstein's amendment that we just voted on which
would restrict required military custody to only those terrorist
suspects captured abroad.
I hope that despite the disagreements, we will continue to chart a
bipartisan path forward with respect to these detainee provisions in
the years ahead. We need to give our national security officials at
home and abroad a clearly defined but yet flexible system which
protects our constitutional rights and our national security.
In conclusion, I believe the 2012 Defense authorization bill before
us will strengthen our national security, maintain our military power,
keep our defense businesses competitive, help cancel and roll back
wasteful spending, and support the men and women who defend our Nation
every day. I hope the full Senate will quickly come to an agreement on
the pending amendments and pass this important piece of legislation so
it can go to the President's desk as soon as possible.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I call for the regular order with respect
to the Merkley amendment No. 1174.
The PRESIDING OFFICER. The Senator has that right. That amendment is
now the regular order.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Is it necessary to lay aside the pending amendment so I
may engage in a colloquy?
The PRESIDING OFFICER. There is no need to do that.
Amendment No. 1206
Mrs. BOXER. Senator Levin and Senator McCain, I wish to thank you
very much. Before we engage in a colloquy, I simply want to show one
chart which tells a story as to why Senator Grassley and I are so
pleased the Senators are willing to accept this by voice vote.
If I could ask Senator Levin to take a peek at this because I think
this tells the story. This is what our military leadership makes, about
$200,000. This is what the President of the United States as the
Commander in Chief makes every year. This is what we have limited, and
that was a reform, the top five defense contractors to--almost
$700,000. But all the rest of the contract employees have absolutely no
limit and can make $1 million a year. This is from the taxpayers.
Senator Grassley and I feel, particularly in these times, but just as
a matter of equity, we can fix it. We are very grateful to the two
Senators for their willingness. So I would like to enter into a
colloquy with Chairman Levin and, of course through him, Ranking Member
McCain.
I greatly appreciate their willingness to accept the Boxer-Grassley
amendment No. 1206 that limits contractor employees' salaries to no
more than the salary of the Commander in Chief, who is, of course, the
President of the United States.
Mr. LEVIN. The Senator from California, my great friend, Mrs. Boxer,
is correct. We are willing to accept the Boxer-Grassley amendment by
voice vote.
Mr. GRASSLEY. Mr. President, there currently is no cap at all on the
amount taxpayers will reimburse contractor employees for compensation
except for just a handful of executives, and that limit is already too
high at $693,951. That is far above what the chief executive of the
U.S. Government gets paid at $400,000 a year.
So that is why we would cap it at no more than what the President can
get. I presume the Senator from Michigan is aware of that and willing
to help us on that process by adopting this amendment.
Mr. McCAIN. Where would the congressional and staff salaries fit on
that?
Mrs. BOXER. That is a good question. We would be well below. We would
be about here.
Mr. McCAIN. I thank the Senator.
Mr. LEVIN. In response to Senator Grassley's question, I am very much
aware of what he referred to.
Mr. GRASSLEY. I thank the Senator.
Mrs. BOXER. Mr. President, just in conclusion, did the Senator from
Iowa and I have word from the Senator from Michigan that during
conference negotiations with the House of Representatives regarding
this bill, he will work to ensure that contractor employees are covered
by a reasonable limit so taxpayers are not on the hook for excessive
salary reimbursements?
Mr. LEVIN. You do, indeed.
Mrs. BOXER. I thank the Chairman.
Mr. GRASSLEY. I say thank you to the managers of the bill for helping
us with this very important amendment.
Mr. LEVIN. I thank the Senator from California and the Senator from
Iowa for their efforts in this area.
The PRESIDING OFFICER. The Senator from Montana.
Amendment No. 1145
Mr. TESTER. Mr. President, first, I wish to start by thanking
Chairman Levin and Senator McCain for their continued dialog on a
matter of overseas basing priorities. I very much appreciate their
efforts to work to get at least the first steps in place for a thorough
review of our overseas basing needs and finally getting some answers on
the costs of these bases.
I also wish to especially thank my colleague from Texas, Senator
Hutchison, for her continued leadership on this issue and for joining
me on amendment 1145, a bipartisan effort to establish an overseas
basing commission.
I realize there are concerns that this is not the right time to
establish such a commission. However, I think it is the perfect time.
So let me reiterate one point I mentioned yesterday. The commission
would be charged with saving taxpayers money by identifying potential
savings from reevaluating and potentially realigning our overseas
military base structure and investments.
It is time we take some commonsense steps to identify and cut
overseas military facilities and construction projects that have
minimal negative impacts on our national security and military
readiness. There is no better time than the present to begin this work.
In a spirit of compromise and understanding that establishing a
commission is not currently acceptable to some, I have worked with my
colleagues to include an independent assessment of our overseas basing
in this legislation.
I ask unanimous consent to speak now as in morning business for 5
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Payroll Tax Holiday
Mr. TESTER. What I would like to speak on now is regarding the
payroll tax votes that we are going to be taking later today or
possibly even this evening. I wish to tell you exactly why I am going
to vote against both of these proposals. I believe they are gimmicks,
designed more for political posturing than what Congress ought to be
doing right now; that is, working together to create jobs on a long-
term basis; to create long-term certainty for businesses throughout
this country, Montana included, while we work to cut our deficit.
The Democrat's proposal is the same included in the President's
American Jobs Act, which I voted against several weeks ago. My reasons
for voting against that proposal have not changed. It would temporarily
extend the Social Security payroll tax holiday through 2012 and pay for
it by raising taxes on the wealthy. Although I support making sure
millionaires and corporations pay their fair share in taxes, I do not
believe this particular proposal will create jobs or give our economy
the boost it needs right now.
A small 1-year temporary tax cut will not give Main Street businesses
the long-term certainty they need to grow and hire.
The proposal by the Senate Republicans also temporarily extends the
payroll tax holiday but only by cutting certain Medicare benefits and
cutting jobs and extending a current pay freeze for our folks who serve
in public service. Neither of these proposals is right for Montana and
neither will earn my vote.
I want to take you back to a few weeks ago, in November, when
Congress unanimously passed my veterans jobs bill, called the VOW to
Hire Heroes Act. The President has already signed it into law. I
believe Congress has a responsibility to spend more time passing
legislation such as that--real solutions that create real jobs, and not
political theater.
[[Page S8110]]
I know we can do it. It was appropriate for us to work together for
the veterans. It is also appropriate for us to work together to create
jobs for all Americans.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1126
Mr. CHAMBLISS. Mr. President, I rise in opposition to the second
Feinstein amendment, No. 1126, I believe. I have the privilege as
serving as vice chairman on the Intelligence Committee with Chairman
Feinstein. We have a good working relationship and agree on most every
issue that comes before the committee. I know the diligence and
seriousness with which she takes every issue but particularly this one.
We have had a number of discussions about the fact that we have a
lack of a detainee and interrogation policy in this country now, and I
know she is concerned about that and is trying to make the situation
better. I remain committed to work with her on a solution.
Unfortunately, I am going to have to oppose her amendment today
because of my concerns about the limitation it imposes on the authority
to detain Americans who have chosen to wage war against America. My
first concern is that it appears, from the debate yesterday, that there
is confusion among some Members about what this amendment does. For
example, my colleague and friend from Illinois, Senator Kirk, argued
that he is in favor of robust and flexible U.S. military action
overseas, including against American citizens such as Anwar al-Awlaqi.
Senator Kirk said he supports the Feinstein amendment, however, because
he believes in a zone of protection for citizens inside the United
States.
But the Feinstein amendment does not apply to only those American
citizens who commit belligerent acts inside the United States; it would
also prohibit the long-term military detention of American terrorists
such as Anwar al-Awlaqi, who committed terrorist acts outside the
United States. As a result, this amendment would have the perverse
effect of allowing American belligerents overseas to be targeted in
lethal strikes but not held in U.S. military detention until the end of
hostilities. That makes no sense whatsoever.
I am also concerned about the ambiguity in the amendment's language
and the uncertainty it will cause our operators, especially those
overseas. The amendment exempts American citizens from detention
without trial until the end of hostilities. But short of the end of
hostilities, the amendment appears to allow detention without trial. Is
it the Senator's intent to allow for some long-term detention of
Americans without trial?
This is troubling because we don't know how the prohibition will be
interpreted by our operators or the courts that will hear inevitable
habeas challenges. Would the military be permitted to hold a captured
belligerent for a month, a few months, or a few years, as long as it
was not until the end of hostilities? Or would the military interpret
the amendment as a blanket prohibition against military detention of
Americans for any period of time? If the military rounded up American
terrorists such as Adam Gadahn or Adnan Shukrijumah among a group of
terrorists, would they have to let these Americans go because the
military would not be permitted to detain them? Would more American
belligerents be killed in strikes if capture-and-detain operations were
perceived to be unlawful? I don't believe we can leave our operators
with this kind of uncertainty.
Finally, we should all remember the provisions of the National
Defense Authorization Act do not provide for a new authority to hold
U.S. citizens in military detention. American citizens can be held in
military detention under current law. Contrary to some claims that were
made yesterday and debated on this floor, these Americans would be
given ample due process through their ability to bring habeas corpus
challenges to their detention in Federal court. The Supreme Court has
held in the Hamdi case that the detention of enemy combatants without
the prospect of criminal charges or trial until the end of hostilities
is proper under the AUMF and the Constitution. Hamdi is a U.S. citizen.
This is not a new concept. In reaching its decision, the Hamdi Court
cited the World War II case, Ex parte Quirin, in which the Supreme
Court held:
[C]itizenship in the United States as an enemy belligerent
does not relieve him from the consequences of a belligerency.
In conclusion, I understand Senator Feinstein's motivation, but I
just don't believe this amendment does what she wants it to do, and
there will be unintended consequences that could seriously hamper
overseas capture operations. Mr. President, I urge my colleagues to
oppose the Feinstein amendment.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
ATF Fast and Furious Operation
Mr. GRASSLEY. For anybody interested in how long I might be, I would
say roughly 10 minutes.
Mr. President, for nearly a year, I have been investigating the
Bureau of Alcohol, Tobacco, Firearms, and Explosives' operation known
as Operation Fast and Furious. I have followed up on questions from
that investigation as the Senate Judiciary Committee held oversight
hearings over the past few weeks with both Secretary Janet Napolitano
and Attorney General Eric Holder. Each of them testified about the
aftermath of the shooting of Border Patrol agent Brian Terry. I have
sought to clarify with facts some of the half-truths that were said
during these meetings.
Each claimed they were ignorant of the connection between Agent
Terry's death and Operation Fast and Furious until my letters with
whistleblower allegations brought the connection to light. However,
documents that have come to light in my investigation draw those claims
into question. I would like to address a couple of those discrepancies.
Secretary Napolitano went to Arizona a few days after Agent Terry's
death. She said she met at that time with the FBI agents and the
assistant U.S. attorneys looking for the shooters. She also said at
that point in time that nobody knew about Fast and Furious. Yet
documents show that many people knew about Fast and Furious on December
15, the day Agent Terry died.
Secretary Napolitano referenced the FBI agents looking for the
shooters. The head of the FBI field division was present at the
December 15 press conference about Agent Terry's murder. At that very
press conference the FBI head told a chief assistant U.S. attorney
about the connection to an ongoing ATF investigation. That same night,
U.S. attorney Dennis Burke confirmed that the guns tied back to
Operation Fast and Furious. These connections were made days before
Secretary Napolitano's visit at that time. The very purpose of her
visit was to find out more about the investigation.
So a very important question comes up: The Department of Homeland
Security oversees the Border Patrol. Why wouldn't the Phoenix FBI head
have told Secretary Napolitano that the only guns found at the scene of
Agent Terry's murder were tied to an ongoing ATF investigation?
Let's not forget the U.S. Attorney's Office. Secretary Napolitano
said she met with the assistant U.S. attorneys looking for the
shooters. The chief assistant U.S. attorney for the Tucson office,
which coordinated the Terry investigation, found out about the ATF
connection directly from our Federal Bureau of Investigation.
So a very important question comes up that needs to be answered: Why
would they conceal the Fast and Furious connection from Secretary
Napolitano days later?
The Tucson office is overseen by the U.S. attorney for the District
of Arizona, Dennis Burke, who confirmed to Tucson that guns came from
Operation Fast and Furious. When Ms. Napolitano served as Governor of
Arizona,
[[Page S8111]]
Mr. Burke served as her chief of staff for 5 years. Secretary
Napolitano acknowledges that she had conversations with him about the
murder of Agent Terry.
So a very important question comes up: Why would Mr. Burke conceal
the Fast and Furious connection from Secretary Napolitano?
Even before Secretary Napolitano came to Arizona, e-mails indicate
Mr. Burke spoke on December 15 with Attorney General Holder's deputy
chief of Staff, Monte Wilkinson.
So a very important question is unanswered: Before finding out about
Agent Terry, Mr. Burke e-mailed Mr. Wilkinson that he wanted to
``explain in detail'' about Fast and Furious when they talked. In that
phone call--and this is a very important question--did U.S. attorney
Burke tell Mr. Wilkinson about the case's connection to a Border Patrol
agent's death that very day?
The next day, the Deputy Director of the ATF made sure briefing
papers were prepared about the Operation Fast and Furious connection to
Agent Terry's death. He sent them to individuals in Washington, DC, in
the Deputy Attorney General's Office at the Justice Department. Within
24 hours, they were forwarded to the Deputy Attorney General. They were
accompanied by personal e-mails from one of the Deputy Attorney General
assistants explaining the situation.
Two weeks later, that Deputy Attorney General, Gary Grindler, was
named Attorney General Holder's chief of staff. Yet a month and a half
after Agent Terry's death, Attorney General Holder was allegedly
ignorant of the Operation Fast and Furious connection to the murder of
Agent Terry.
So a very important question is unanswered: Why wouldn't Mr. Grindler
bring up these serious problems with Attorney General Holder, either as
his Deputy Attorney General or as his chief of staff?
It is clear that multiple highly placed officials in multiple
agencies knew almost immediately of the connection between Operation
Fast and Furious and Agent Terry's death.
The Department of Justice and the Department of Homeland Security
have failed to adequately explain why Attorney General Holder and
Secretary Napolitano allegedly remained ignorant of that connection.
Whether it is the Attorney General or the Secretary or members of their
staff, somebody wasn't doing their job. Somebody wasn't serving their
higher-ups as they should have been, as proper staff people.
In the case of Secretary Napolitano, either she was not entirely
candid with me and others or this was a gross breach on the part of
those who kept her in the dark. The Border Patrol and the Department of
Homeland Security lost a man--Agent Terry being murdered. It was their
right to know the full circumstances surrounding that from people who
served under them.
No one likes the unpleasant business of having to fess up, but the
FBI, ATF, and U.S. Attorney's Office owed it to Agent Brian Terry and
his family to fully inform the leadership of the Department of Homeland
Security. This was the death of a Federal agent involving weapons
allowed to walk free by another agency in his own government.
Let me explain ``walking guns.'' The Federal Government operates
under the rule of law, just like all of us have to live under that rule
of law. There are licensed Federal gun dealers, and Federal gun dealers
were encouraged to sell guns illegally to straw buyers and, supposedly,
follow those guns across the border to somehow arrest people who were
involved with drug trafficking and other illegal things. Two of these
guns showed up at the murder scene of Agent Terry. So it is a very
serious situation that we need to get to the bottom of.
If what I have just described, with all these unanswered questions,
is not enough to brief up to the top of the Department, then I don't
know what is. In other words, staff people ought to be doing their job
or, if staff people were doing their job, then the Congress, in our
constitutional job of oversight, is being misled.
I yield the floor.
The PRESIDING OFFICER (Mrs. McCaskill). The Senator from Rhode
Island.
Mr. REED. Madam President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
PAYROLL TAX CUT AND UNEMPLOYMENT COMPENSATION
Mr. REED. Madam President, I rise today to urge my colleagues to
extend and expand the payroll tax cut and to fully extend unemployment
compensation insurance immediately. The payroll tax cut and full
extension of unemployment insurance are two of our best tools for
strengthening our economic recovery. We must work without let-up to
pass this legislation before year's end.
Democrats are doing everything we can to create jobs and solve our
unemployment crisis. Millions of Americans are still out of work,
however, and looking for a job in the toughest economy since the Great
Depression. Jobless benefits, which have been essential to millions of
Americans as they search for a job, are set to expire at the end of
this year.
Congress has never failed to extend benefits when unemployment is
this high. Unfortunately, right now, Republicans are refusing to fully
extend unemployment insurance, despite our Nation's 9 percent
unemployment rate. In extending benefits, we should not do any less for
the recently unemployed than we did for those who were unemployed in
the last year or two. That is why I introduced the Emergency
Unemployment Compensation Extension Act of 2011, which fully extends
Federal support for unemployment insurance through 2012.
Extending benefits doesn't just make sense for a person who has been
laid off, it makes sense for the economy as a whole. In fact, during
today's hearing in the Senate Banking Committee, a business operator
recognized that failing to extend unemployment insurance would have a
negative impact on their business. Its was hard for him to quantify,
but the sense he has, from operating a very dispersed convenience store
operation throughout this country, is there would likely be a negative
impact.
Those impacts will be magnified and multiplied throughout our
economy. It will, ironically, cause not just those without jobs to lose
benefits, it will also probably lead to further reductions in jobs as
demand falls off and the need for employees, particularly in retail
establishments, might lessen.
That is why, if Congress truly wishes to help strengthen our economy,
we need to extend unemployment insurance now. The reason we must fully
extend unemployment insurance is simple: If people don't have jobs,
they can't spend money. If people can't spend money, businesses go
under. If businesses fail, more people lose their jobs, and the
downward spiral continues.
Extending unemployment insurance is not just the right thing to do,
it is a wise investment with a strong rate of return that will provide
a much needed economic boost to every State across the country.
Unemployment is, regrettably, a national crisis. This program will
address a nationwide problem, and it will do it in an extraordinarily
cost-effective way. The CBO has calculated that this has one of best
returns on the dollar. The reason we must fully extend unemployment
insurance is quite simple. People who are receiving unemployment
benefits need that money to pay for groceries, to put some gas in the
car, to take care of those immediate expenses. So, as the economists
would say, their marginal propensity to consume--i.e., their
willingness to take the dollar in and spend it out--is very high. As a
result, this program not only helps families who are struggling, it
also immediately injects dollars and demand into the economy. These
programs have a real benefit.
We understand what we have to do to address our unemployment crisis
and that is to grow the economy, and that means we must create jobs.
Again, this program will help stimulate demand, will help keep people
at work and perhaps even--we hope--put more people to work.
When it comes to the efficacy of this program, the bang for the buck,
it is among the most effective. I referred earlier to some economists--
in specific terms--Alan Blinder and Mark Zandi
[[Page S8112]]
have estimated that for every dollar spent on extending unemployment
benefits, the economy grows by $1.61. The Economic Policy Institute has
estimated that failing to extend UI benefits for a year could result in
the loss of $72 billion in economic activity for 2012, which impacts
560,000 jobs across the country. The country cannot afford this hit. We
cannot afford to miss the opportunity to maintain or create over
500,000 jobs. We cannot ignore the fact that, in this very critical
budget situation, this is one of the most cost-effective ways to
continue to stimulate demand and grow jobs in our country.
We also have to understand that we are dealing with a situation that
is getting to be critical because we are running out of time. These
benefits will expire at the end of the year, and we must move forward.
I think we can also do something else, and that is to improve this
program. One way to improve it is to adopt a program that is very
effective in my State of Rhode Island and several other States across
the country, and that is work sharing. Work sharing is a voluntary
program that prevents layoffs, it keeps people on the job, it helps
employers retain skilled workers, and it strengthens the unemployment
insurance system.
Over 20 States are utilizing this program. They estimate they saved
100,000 jobs in 2010 alone. Essentially what it does is it allows an
employer--for example--to keep people on the job for 3 out of 5 days of
the week, and the other 2 days are compensated for by the Unemployment
Insurance Fund. The fund saves money, and the employer keeps these
people in the workplace with all their skills and all their
contributions to the firm. It is a win-win, and it is something over 20
States across this country have embraced. I think it should be
national, and we have provisions in legislation I've introduced that
would help extend it nationally.
Again, we cannot delay. I urge all of my colleagues to join me in
taking the needed steps to help our economic recovery and extend our
unemployment compensation insurance program before the end of this
year.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. HOEVEN. Madam President, I rise to speak in regard to several
amendments to the Defense authorization bill. First is in regard to the
nuclear triad and the important role it plays in defense of our Nation
and security of the world and also in regard to the Global Hawk
unmanned aerial systems program and the important role it has for our
forces, both today in our efforts around the world and what it means to
us in the future.
First, in regard to amendment 1279 and the nuclear triad, this
amendment was cosponsored by Senator Tester, Senator Enzi, Senator
Blunt, Senator Vitter. Also, I ask unanimous consent that my colleague
from North Dakota, Senator Conrad, be included as a cosponsor of the
amendment, as well as Senator Baucus of Montana.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HOEVEN. The amendment declares that the United States should
maintain a triad of strategic nuclear delivery systems which includes
missiles, bombers, and submarines. It also declares that it is the
sense of the Senate that the President should budget for the
modernization of those systems and the weapons they deliver.
Over the past couple of years, numerous statements have been made in
support of the triad. The 2010 Nuclear Posture Review concluded that
the United States needs the nuclear triad. The Senate, in its
resolution of ratification for the New START treaty, declared that the
United States needs the nuclear triad. And President Obama last
February certified that he intends to modernize the nuclear triad.
However, the administration is now currently conducting a further
review of the role nuclear weapons play in defending U.S. national
security--a miniature Nuclear Posture Review. It is important that the
Senate reaffirm its commitment to the nuclear triad once again.
I am particularly concerned by statements that we can reduce our
nuclear arsenal significantly below the requirements laid out in the
New START treaty. Given the threats we face and the responsibility we
have to the American people and to our allies, I believe we must retain
the nuclear triad. The reasons are clear and compelling. We need
missiles to provide a persistent, dispersed, and cost-effective
deterrent. We need submarines to provide an invisible, mobile, and
survivable deterrent. And we need bombers to provide a visible, long-
range, recallable deterrent.
The bottom line is that the triad provides us with a safe, credible,
reliable nuclear deterrent that renders any effort to eliminate or
sidestep our retaliatory capabilities completely meaningless. And those
benefits accrue not only to the United States but to our allies as
well. The Congressional Strategic Posture Commission, the resolution of
the ratification to the New START agreement, and the 2010 Nuclear
Posture Review all concluded that the United States needs to maintain
the triad.
The triad was developed out of a need to counter an immense threat
from the Soviet Union, but it now gives us the flexibility to adapt to
an ever-changing international security environment. And supporting a
triad means supporting a program to maintain and enhance the weapons
and a delivery system that make up the triad.
It is very important to point out--particularly given our fiscal
situation--that the costs of updating and maintaining the weapons in
the triad will not take up a very big percentage of the defense budget,
particularly relative to the tremendous security advantages it
provides. In fact, General Kehler, the head of Strategic Command,
recently indicated his strong support for efforts to preserve the triad
and modernize each of the associated delivery systems.
It is tempting to assume that because the Cold War is over, we don't
need the nuclear arsenal anymore. In fact, people who defend the
nuclear arsenal are often accused of being stuck in a cold war mindset.
The truth is just the opposite. Only in a cold war mindset would we
assume Russia is the sole reason we preserve our nuclear arsenal.
Today, our nuclear deterrent counters a variety of threats that did not
even exist during the Cold War, and it hedges against the emergence of
new nuclear threats.
The decades following the end of the Cold War have made nuclear
deterrence far more complicated than the old superpower confrontation
of last century. We must now counter nuclear threats from multiple
actors around the world.
First, consider China. China's military modernization program is
built on a foundation of a large and growing nuclear arsenal.
Intelligence estimates suggest that the number of warheads atop Chinese
ICBMs capable of reaching the United States could more than double
within the next 15 years. Recent reports indicate that China is
fielding four different new nuclear-ready ballistic missiles. China is
prioritizing the development of mobile land-based ICBMs and submarine-
launched ballistic missiles. China's nuclear posture is also troubling.
China has not defined what it would consider a minimum nuclear
deterrent, making it difficult to understand the motivations behind
China's nuclear force expansion and their modernization efforts.
Second, new nuclear powers such as North Korea and Pakistan further
complicate how we calculate our need for deterrence. North Korea has
pursued nuclear weapons using both plutonium and uranium and continues
to develop long-range ballistic missiles that can threaten the United
States. North Korea's nuclear arsenal forces our allies in East Asia--
especially South Korea and Japan--to put a premium on the U.S. nuclear
deterrent. Pakistan's nuclear weapons greatly complicate the security
situation in central Asia and create a serious risk of nuclear
proliferation. The emergence of these two nuclear powers is a
cautionary tale about the unpredictable ripple effects of new players
in the nuclear game and a strong reason why reductions to U.S.
strategic forces should only be made with the greatest caution.
Third, nuclear proliferation will remain one of our foremost security
challenges in the world. The IAEA reports that Iran has been
researching and developing nuclear weapons, and it expressed serious
concerns about the military dimensions of Iran's nuclear program. Syria
was so serious about developing a nuclear weapon--probably with the
help of North Korea and Iran--that in 2007 Israel had to destroy
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a Syrian nuclear site. Terrorist groups and other rogue actors also
seek the development or the acquisition of nuclear arms.
And, of course, fourth, we cannot yet forget about Russia. Under the
provisions of the New START agreement, Russia can expand its nuclear
force rather than pursue reductions. Russia intends to build a new
heavy ICBM to be available by 2018. Russia expects to build eight new
nuclear submarines, and it also plans on designing and building a new
nuclear bomber.
We cannot afford to let our nuclear deterrent atrophy in light of so
many nuclear threats. Once we lose our nuclear capabilities, it will be
extremely hard to reconstitute them.
We need a reliable and credible nuclear arsenal. We need it to
dissuade new nations from acquiring nuclear weapons. We need it to
deter nuclear powers from using their weapons. And we need it to hold
enemy arsenals at risk.
People may not always stop and think about the demands placed on
America's nuclear deterrent, but they are real and they are extensive.
We have nuclear weapons as a guarantor of the security of the American
homeland. Our nuclear arsenal renders any plan to strike the United
States with nuclear weapons sheer folly. The investments made over the
last several decades continue to pay dividends by creating the space
within which America can address other security threats.
Make no mistake, without a large nuclear arsenal other nations would
move plans to strike the United States from the category of unthinkable
to possibly thinkable.
Second, and nearly as important, the United States nuclear deterrent
replaces the need for our allies to develop or acquire nuclear weapons,
keeping the peace in critical regions around the world. East Asia is a
particularly good example. The status of U.S. nuclear posture is a
major concern in Japan. Despite assurances from the United States that
our nuclear umbrella will continue to protect Japan, Tokyo is worried
about even the most subtle changes in U.S. policy. During his most
recent trip, Secretary Panetta publicly reiterated the U.S. commitment
to protect South Korea with our nuclear umbrella and our nuclear
deterrent is probably the only reason South Korea has not developed a
nuclear capability in response to North Korea's nuclear programs.
I will conclude on the triad. Our nuclear deterrent has been the
foundation of U.S. national security since World War II. The nuclear
triad provides an incredible return on our investment and I urge the
Senate to send a strong signal of support for the nuclear triad as laid
out in amendment No. 1279.
Amendment No. 1358
Madam President, if I may very briefly also address the importance of
the Global Hawk with a brief overview of amendment No. 1358. This
amendment simply states that it is the sense of Congress that the
Secretary of the Air Force should continue to abide by the guidelines
set forth in the acquisition decision memorandum issued June 14, 2011
from the Office of the Secretary of Defense. That memorandum on Global
Hawk, the RQ-4 Global Hawk, found that the Global Hawk UAS is essential
to national security and that there is no other program that can
provide the benefits to the warfighter that the Global Hawk can
provide.
The Global Hawk is a vital intelligence surveillance and
reconnaissance asset. The Global Hawk flies at high altitude. It can
fly at extended ranges and for long periods of time, and it can carry a
wide array of sensors simultaneously.
We have invested a lot of time and a lot of money in this platform
and it is paying fast dividends. The Global Hawk is flown in a wide
variety of missions all over the world in support for things such as
CENTCOM operations, humanitarian relief efforts in Japan and Haiti, and
extensively for operations in Libya. For these reasons and many more,
my amendment stresses that the Air Force must continue to heed the
conclusions of the June 14, 2011 acquisition decision memorandum on the
RQ-4 Program. The RQ-4, which is Global Hawk, remains essential for
United States national security and is irreplaceable.
The bottom line is America needs to support and continue the Global
Hawk. Our commanders require as much information about the battlefield
as they can get. The RQ-4 represents a new generation of ISR aircraft
with unprecedented capabilities.
Finally, we must invest in this essential capacity precisely because
budgets are tight. As the Pentagon concluded in June, the Global Hawk
represents the most cost-effective way to meet the requirements of our
warfighters now and in the future.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Amendment No. 1274
Mr. SESSIONS. Madam President, I wish to address amendment 1274,
which would clarify what I believe is existing law that the President
has authority to continue to detain an enemy combatant under the law of
war, following a trial before a military commission or an article III
court, and regardless of the outcome of that trial. Let me explain what
I mean.
As I said yesterday, even under the law of war the President has the
authority to detain an enemy combatant, a prisoner of war, a captured
enemy soldier, a belligerent. The President can detain him through the
duration of the hostilities. The President is not required--the
Commander in Chief is not required to release an individual whose sworn
duty it is to return to his military outfit and commence hostilities
again against the United States. That individual could be killed on the
battlefield, but if captured, you are not required, under all laws of
war that I am aware of and certainly the Geneva Conventions--you can
maintain that individual in custody to prevent him from attacking you.
But you can also try an individual who has been captured if that
individual violated the rules of war.
For example, a decent soldier from Germany--many of them were held in
my State of Alabama. They behaved well. They made paintings of American
citizens, they did a lot of things, and did not cause a lot of trouble.
They were in uniform and they complied with the rules of war and they
were not tried as illegal enemy combatants.
But many of the terrorists today do not wear uniforms, deliberately
target innocent men, women, and children, and deliberately violate
multiple rules of war. Those individuals are subject, in addition to
being held as a combatant, as an unlawful combatant. They can be
prosecuted and they should be prosecuted. In World War II a group of
Nazi saboteurs in the Ex parte Quirin case were let out of a submarine
off, I think, of Long Island. They came into the country with plans to
sabotage the United States. They were captured and tried by military
commissions. Several were American citizens. A number of them--most of
them, frankly--after being tried and convicted, were executed. The
Supreme Court of the United States approved that procedure.
But recent cases demonstrate the potential problem we have today. One
Guantanamo Bay detainee has already raised the question I have
discussed before the military commission where he is being tried. Abd
al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing,
was arraigned before a military commission on November 9. He was held
not only as an al-Qaida, or a belligerent against the United States,
but he was charged with a violation of the rules of war.
This was a group that sneaked into the harbor pretending to be
innocent people and ran their boat against the Cole, killing a number
of U.S. sailors.
I remember being at a christening of one of the Navy ships at Norfolk
not long after this. I walked out of that area and I heard one of the
sailors cry out: Remember the Cole. The hair still stands up on my neck
when I hear it.
We have an obligation to defend our men and women in uniform. When
they are out on the high sea or they are in a neutral port, they expect
to be treated according to the laws of war and then they are murdered
by an individual such as this.
This individual's lawyers filed a motion asking the military judge to
clarify the effect of an acquittal, should the commission acquit him.
He argued that the members of the committee had a right to know what
would happen if he were acquitted because they might object to taking
part in what he called a show trial if it turned out that he would
continue to be detained at Guantanamo Bay.
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There is another case in which the administration was almost
confronted with the problem a year ago, in the case of a former
Guantanamo detainee, an al-Qaida member named Ahmed Ghailani, who was
responsible for the 1998 embassy bombings in Kenya and Tanzania. Most
of us remember those early al-Qaida bombings against our embassies in
Africa.
After the Justice Department chose to prosecute Ghailani in an
article III civilian court and directed the United States Attorney not
to seek the death penalty--I am not sure why that ever happened; we
don't know--but the jury acquitted him on 284 out of 285 counts.
Luckily, he received a life sentence on the single count of conspiracy,
for which he was convicted.
But what if he had not been convicted? What if there was insufficient
evidence to prove he committed a crime, but not insufficient evidence
to prove he was a combatant against the United States? Al-Qaida has
declared war against the United States, officially and openly. The U.S.
Congress has authorized the use of military force against al-Qaida,
which is the equivalent of a declaration of war.
What if he had received a modest sentence after being convicted and
had credit for time served? What if he had been acquitted on all 285
counts? Would the President have been required to release him into the
United States, if the government could not get some country to take
him? That would be wrong. He was at war against the United States. He
was a combatant against the United States. Like any other captured
combatant, he can be held as long as the hostilities continue.
By the way, let me note, military commissions are open. If they
decide to try one of these individuals--not just hold him as a prisoner
of war but hold him and try him for violation of the laws of war--they
get lawyers, they get procedural rights. The Supreme Court has
established what those rights are. Congress has passed laws
effectuating what the Supreme Court said these trials should consist
of, and a mechanism has been set up to fairly try them.
But enemy combatants are not common criminals. If a bank robber is
denied bail, he remains in jail awaiting a trial, a speedy public
trial, with government-paid lawyers. Enemy combatants are not sitting
in Guantanamo Bay awaiting trial by a military commission, or by an
article III court. They are held in military custody precisely because
they are enemies, combatants against the United States. They should
continue to be held there as long as the war continues and as long as
they do not remain a threat to return to the battlefield against the
United States.
This is an important point, considering that 27 percent of the former
Guantanamo detainees who have been released--161 out of 600--have
returned to the battlefield, attacked Americans. This Nation has no
obligation to release captured enemy prisoners of war when we know for
an absolute fact that 27 percent of them have returned to war against
the United States. How many others have but we do not have proof of it?
That is what the whole history of warfare is.
Lincoln ceased exchanging prisoners with the South after he realized
they had more soldiers in the South. It was not to his advantage to
release captured southern soldiers who would return to the fighting, so
he held them until the war was over. Under the laws of war, the
President has the authority to prevent an enemy combatant from
returning to the battlefield. That is consistent with all history.
This amendment--please, Senators, I hope you would note--would make
it clear that the President simply has authority to continue to detain
enemy combatants held pursuant to the rules of war, even though they
may have been tried, regardless of where that trial would be held and
what the outcome was, as long as, of course, they could prove they were
an enemy combatant and violating the rules of war.
I would note one thing.
I see my friend, the Senator from California, is here and probably is
ready to speak.
On the question of citizenship, can a citizen be held in this
fashion? The Supreme Court has clearly held they may. But the Senator
is offering legislation that might change that. My amendment does not
answer that question. It simply says a combatant should be able to be
held under the standard of a prisoner of war, a combatant, even if they
had been prosecuted for violation of the laws of war and acquitted.
It is common sense. I believe the courts will hold that, but it is an
issue that is out there. I think Congress would do well to settle it
today.
I urge my colleagues to do so.
I thank the Chair, and I yield the floor. I note the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. LEVIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Madam President, in a few moments, Senator McCain and I
will be seeking unanimous consent that the following pending and
germane amendments be considered en bloc, that the amendments be
modified with the changes that are at the desk where applicable: Begich
1114, as modified; McCain 1220; Reed of Rhode Island 1146, as modified;
Levin 1293, as modified; Boxer 1206; Chambliss 1304, as modified; Pryor
1151; Nelson of Florida 1236; Blunt 1133; Murkowski 1287.
Further, that the amendments be agreed to en bloc--we are not making
that request now. We will be making that request in a few minutes. This
is not the so-called managers' package, by the way. These are the
pending germane amendments which have been before us for some time but
which we believe have now been cleared, and there is no opposition;
however, if there is, there is an opportunity for people to come down.
I would yield now to my friend from Arizona.
Mr. McCAIN. Reserving the right to object, and I will not object, I
thank my friend. I believe the Senator overlooked Brown of
Massachusetts amendment No. 1090, I think, was agreed to be a part of
that.
Mr. LEVIN. That was not on my sheet, but that is fine, and that would
be added.
Mr. McCAIN. I note the presence of our friend from Texas, who would
like to voice his objections to the package of amendments which is
pending which have been agreed by both sides because of his concerns
about a particular amendment he had. I would like to hear from him in a
minute.
I would like to say to my colleagues on this side of the aisle, if
you have an objection, please come to the floor. We would intend to
vote--or seek approval of what the distinguished chairman just
proposed--at 5 after the hour. That gives them 15 minutes.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Madam President, is there a unanimous consent request
pending?
The PRESIDING OFFICER. There is not.
Mr. CORNYN. Thank you for clarification. I just wanted to make sure.
Madam President, I discussed with the distinguished chairman of the
Senate Armed Services Committee and the distinguished ranking member my
concerns that earlier I attempted to gain unanimous consent to modify
my amendment regarding the sale of F-16s to Taiwan in order to make it
germane. I was happy to do that in order to get a vote, but the
chairman tells me there is an objection to that.
I wished to make clear that any amendment that is offered--whether
now in this list or subsequently in the managers' package or
otherwise--and is being treated differently than mine is, then I am
going to object to unanimous consent.
Through the Chair, I would ask the distinguished chairman of the
Armed Services Committee are there any amendments on this list that
were modified in order to make them germane?
Mr. LEVIN. I doublechecked on this. The answer is no, and that is
about as directly as I can say it. I checked with staff and the staff
says they have been modified--in many cases as I indicated--but none in
order to make them germane.
Mr. CORNYN. Madam President, I appreciate the direct response from
the chairman. I will have no objection to
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any amendment that is being offered that is not being offered as
modified in order to make it germane. I hope my point is clear as mud.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. I just wish to say I strongly support the amendment by
the Senator from Texas, and I will do everything I can to see that this
issue is raised. I cannot comprehend why we would not want to provide
one of our closest allies with the equipment they need to defend
themselves with the growingly aggressive mainland China exhibiting the
characteristics of intimidation and bullying and perhaps threatening
Taiwan.
I wished to state, first of all, my appreciation to both Senators
from Texas, who have been very involved in this issue, and I wish to
tell them I will do everything I can to make sure this amendment is
adopted. We do need to send the signal that we support our friends.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Madam President, I join with Senator McCain in support
of Senator Cornyn's amendment. Taiwan has been a strong ally of the
United States. Senator McCain said we would provide them military
aircraft, but, in truth, they would buy it. They are our allies. They
are friends. They are prepared to purchase from an American company
legitimate military equipment that they could use to help maintain the
freedom they have cherished on the island, and it is hard for me to
understand how that would be objected to.
I just wish to say, as someone who has looked at these issues for
some time as a member of the Armed Services Committee, I do believe
Senator Cornyn--also a member of that committee--is correct, and I
strongly support the amendment and urge my colleagues to vote for it,
if and when we can get a vote.
I thank the Chair, yield the floor, and note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BROWN of Massachusetts. Madam President, I ask unanimous consent
that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1090
Mr. BROWN of Massachusetts. I have an amendment that has been
accepted--almost--sort of kind of accepted--amendment No. 1090, which I
would like to discuss briefly.
I thank Senators Wyden and Coons for their bipartisan leadership as
cosponsors of this amendment. I believe we are going to vote on it
shortly, and I ask that it be accepted, either by vote or by unanimous
consent.
It is a simple amendment that will make sure the National Guardsmen
who get deployed will receive the housing allowances they need and
deserve. This is a bipartisan amendment. The Defense Department has
agreed that the situation needs to be fixed--something that recently
was developed.
There is a little bit of history behind this, but I don't think it is
important because Senator Wyden and Senator Coons and I have taken the
lead on this issue, which is critically important to providing the
funds that have been taken merely by a change in the regulations. This
has happened at a time, quite frankly, when our men and women who are
fighting need that money.
I am offering this amendment as a result of a bill I introduced last
September, entitled the ``National Guard Basic Allowance for Housing
Equity Act.'' I introduced this legislation to fix an inequity that
hurts National Guardsmen who are deployed. Merely as a result of their
deployment, they could lose upward of $1,000 per month in their monthly
housing allowance.
Basic Allowance for Housing, or BAH, is a benefit paid to members of
the military to help offset the cost of local housing markets. When a
servicemember is deployed, for example, BAH is necessary to help offset
the cost of a mortgage or rent in a particular geographic area.
Everyone in the military, especially families, rely on this benefit.
This benefit is especially critical when servicemembers deploy because,
as we know, the spouse is often at home and she or he is responsible
for taking care of the bills.
What would my colleagues say if I said that because you are ordered
to deploy to Afghanistan, for example, the Department of Defense is
going to withhold $1,000 or more from your monthly housing allowance, a
huge piece of your total household income--upward of $12,000 or more
per year--because of a new policy interpretation? That is right. It is
merely a new policy interpretation.
Because of a DOD oversight, over 800 Guardsmen--some even in the
Presiding Officer's State and 40 in Massachusetts who are deployed to
Afghanistan right now--are losing, in the middle of the battle, up to
$1,000 per month in their housing allowance because they were ordered
to deploy.
Title X mandates that full-time Guardsmen, when ordered to Active
Duty for a contingency operation, even if there is no break in their
active Federal service, must revert back to their home-of-record status
rather than their current duty station. Because of this change in
status, it alters a guardsman's basic allowance for housing on their
monthly pay stub. Basically, guardsmen are being punished for being
deployed to a war zone.
For example, take a full-time guardsman who is from Worcester. He
calls Worcester, MA, home and probably votes there, but he is stationed
in Washington, DC, let's say right down the street at the Pentagon. So
he or she earns a housing allowance based on the cost of living in DC
and, as we all know, it is higher than in Worcester, MA. Sounds pretty
normal, pretty straightforward, right?
This guardsman is then ordered to Active Duty--to Federal status--for
the purpose of deploying overseas. A new housing allowance rate kicks
in that is based on his home of record back in Worcester, not where he
or she was actually stationed, here in D.C.
As a result, the guardsman and his family immediately start losing up
to $1,000 per month because of that deployment to serve their country.
So full-time guardsmen are entitled to the BAH rate they are receiving
at the duty station because it is where they and their dependents live,
and that is often where the spouses will reside until that
servicemember comes back. Obviously, family members are not going back
to Worcester while the guardsman is stationed at the Pentagon or here
in D.C.
This is not right. It is something DOD agrees with. Senator Wyden and
Senator Coons concur, and I appreciate their bipartisanship in moving
this forward. I am all about finding savings, but the good thing is
that this is no cost to the government. It is already budgeted in the
DOD budget. I am not into savings that treat our service men and women
unfairly.
So my amendment provides a simple, noncontroversial fix. It is
germane. It is relevant. It helps people who are serving our country
right now. It is bipartisan. It is how we should do things around here.
I am glad the DOD has realized this is a problem, and I hope my
colleagues will move forward in a manner to make our citizens proud.
I wish to thank Senator McCain for his effort in getting this
important matter to our guardsmen who are serving presently overseas.
It is a testament to his diligence. I thank Chairman Levin for putting
up with the problems over the last few days, but it is important to the
people. It is not about politics; it is about serving our men and
women.
Amendment No. 1206
Mr. GRASSLEY. Madam President, at a time when the national security
budget is under immense pressure, it is vitally important that we spend
our defense dollars more wisely.
The Boxer-Grassley amendment will contain runaway spending in
contractor salary reimbursements. Notice that I said ``salary
reimbursements,'' not salaries.
Someone not familiar with government contracting might ask why it's
any of our business what government contractors get paid, and I would
agree if we're talking about what their company pays them out of its
own pocket.
When most people hire a contractor to renovate their bathroom or re-
shingle their roof, they find the one that does the best work for the
least cost.
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Having done that, you are not likely to ask or care what their cut is
or what they pay their crew.
To the extent that government contracts work the same way, the same
principle applies. Unfortunately, not all government contracts do work
that way.
A large proportion of government contracts actually reimburse the
contractor directly for the costs they incur, including for the
salaries of their employees. These types of contracts are risky because
contractors lose the incentive to control costs. They are only supposed
to be used when a fixed price contract is not possible for instance, if
the scope or duration of the work is not possible to determine at the
outset.
Nevertheless, cost-reimbursement type contracts are used extensively
by Federal departments and agencies.
The Defense Department alone accounted for over $100 billion in cost
reimbursement type contracts in fiscal year 2010.
President Obama has criticized the widespread use of these types of
contracts and has set a goal of slowing the growth and ultimately
reducing their use.
He has made a little progress. However, we are talking about a small
dent in a large bucket.
It's clear that cost type contracts are going to account for a major
proportion of the dollars spent on federal contracting for the
foreseeable future. As a result, we must take steps to limit
unreasonable expenditures under these types of contracts.
Senator Boxer and I worked together to try to head off this problem
back in 1997.
At that time, we proposed capping salary reimbursements at the salary
level of the President of the United States.
However, a compromise was ultimately enacted that capped how much the
top 5 highest earning contractor executives could charge the federal
government for their salaries.
The cap was set at the median salary of the top five executives at
companies with annual sales over $50 million, which must be
recalculated annually.
Since that time, the cap has more than doubled from $340,650 to
$693,951. That's 53 percent faster than the rate of inflation.
The House-passed version of the National Defense Authorization bill
expands the current cap to all contractor employees, not merely the top
five executives, closing a loophole that was being exploited.
The version of the DoD Bill before the Senate extends the cap only to
the top 10 to 15 executives.
However, Senator Boxer and I think it's time to reconsider a fixed
cap at the level of the President's salary, which I should add was
doubled by Congress to $400,000 since our previous proposal.
That is more than generous.
Surely the taxpayers should not be asked to pay the salary of a
contractor more than the President makes, which is twice what any
cabinet secretary makes.
Keep in mind that this cap just limits how much Uncle Sam can be
billed for, which is on top of whatever the company chooses to pay its
employees out of its own pocket.
Not only would our straightforward cap save man-hours in the Office
of Federal Procurement Policy, which has to gather the data every year
to determine the current convoluted cap, but it would save millions of
dollars that need not be spent.
Again, we cannot afford to go on wasting our increasingly limited
defense dollars.
We have to be more aggressive in weeding out waste in defense
spending and this is one unnecessary expenditure that we can easily
eliminate in favor of higher priorities.
I urge my colleagues to join us in this commonsense cost cutting
measure.
I yield the floor.
The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Arizona.
Mr. McCAIN. Madam President, I thank the Senator from Massachusetts
for his amendment. He has spent a great deal of time in his life
serving in the National Guard, including spending time in Afghanistan
recently. He understands the burdens our National Guard men and women
bear. I am very grateful for his careful attention to their needs. This
is clearly an issue that needed to be addressed. We are proud to have
it as part of our legislation.
Again, my thanks to the Senator from Massachusetts as well as to my
friend, Chairman Levin, for helping make this amendment possible.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEVIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 1114, as Modified; 1220; 1146, as Modified; 1293, as
Modified; 1206; 1304, as Modified; 1151, 1236, 1133, as Modified; 1287,
as Modified; and 1090, as Modified
Mr. LEVIN. Madam President, I now ask unanimous consent that the
following pending germane amendments be considered en bloc; that the
amendments be modified with the changes that are at the desk, where
applicable: Begich No. 1114, as modified; McCain No. 1220; Reed of
Rhode Island No. 1146, as modified; Levin No. 1293, as modified; Boxer
No. 1206; Chambliss No. 1304, as modified; Pryor No. 1151; Nelson of
Florida No. 1236; Blunt No. 1133, as modified; Murkowski No. 1287, as
modified; and Brown of Massachusetts No. 1090, as modified; further,
that the amendments be agreed to en bloc.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendments (Nos. 1220, 1206, 1151, and 1236) were agreed to.
The amendments (Nos. 1114, 1146, 1293, 1304, 1133, 1287, and 1090),
as modified, were agreed to, as follows:
AMENDMENT NO. 1114, AS MODIFIED
At the end of subtitle E of title III, add the following:
SEC. 346. ELIGIBILITY OF ACTIVE AND RESERVE MEMBERS,
RETIREES, GRAY AREA RETIREES, AND DEPENDENTS
FOR SPACE-AVAILABLE TRAVEL ON MILITARY
AIRCRAFT.
(a) In General.--Chapter 157 of title 10, United States
Code, is amended by inserting after section 2641b the
following new section:
``Sec. 2641c. Space-available travel on department of defense
aircraft: eligibility
``(a) Authority to Establish Benefit Program.--The
Secretary of Defense may establish a program to provide
transportation on Department of Defense aircraft on a space-
available basis. The program shall be conducted in a budget
neutral manner.
``(b) Benefit.--If the Secretary establishes such a
program, the Secretary shall, subject to section (c), provide
the benefit equally to the following individuals:
``(1) Active duty members and members of the Selected
Reserve holding a valid Uniformed Services Identification and
Privilege Card.
``(2) A retired member of an active or reserve component,
including retired members of reserve components, who, but for
being under the eligibility age applicable to the member
under section 12731 of this title, would be eligible for
retired pay under chapter 1223 of this title.
``(3) An unremarried widow or widower of an active or
reserve component member of the armed forces.
``(4) A dependent that--
``(A)(i) is the child of an active or reserve component
member or former member described in paragraph (1) or (2); or
``(ii) is the child of a deceased member entitled to
retired pay holding a valid Uniformed Services Identification
and Privilege Card and a surviving unremarried spouse; and
``(B) is accompanying the member or, in the case of a
deceased member, is the surviving unremarried spouse of the
deceased member or is a dependent accompanying the surviving
unremarried spouse of the deceased member.
``(5) The surviving dependent of a deceased member or
former member described in paragraph (2) holding a valid
Uniformed Services Identification and Privilege Card, if the
dependent is accompanying the member or, in the case of a
deceased member, is the surviving unremarried spouse of the
deceased member or is a dependent accompanying the surviving
unremarried spouse of the deceased member.
``(6) Other such individuals as determined by the Secretary
in the Secretary's discretion.
``(c) Discretion to Establish Priority Order.--The
Secretary, in establishing a program under this section, may
establish an order of priority that is based on
considerations of military needs and military readiness.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such chapter is amended by inserting after the
item relating to section 2641b the following new item:
``2641c. Space-available travel on Department of Defense aircraft:
eligibility.''.
(c) Requirement for Comptroller General Review.--
(1) In general.--The Comptroller General of the United
States shall conduct a review
[[Page S8117]]
of the Department of Defense system for space-available
travel. The review shall determine the capacity of the system
presently and as projected in the future and shall examine
the efficiency and usage of space-available travel.
(2) Elements.--The review required under paragraph (1)
shall include the following elements:
(A) A discussion of the efficiency of the system and data
regarding usage of available space by category of passengers
under existing regulations.
(B) Estimates of the effect on availability based on future
projections.
(C) A discussion of the logistical and managements
problems, including congestion at terminals, waiting times,
lodging availability, and personal hardships currently
experienced by travelers.
(D) An evaluation of the cost of the system and whether
space-available travel is and can remain cost-neutral.
(E) Other factors relating to the efficiency and cost
effectiveness of space available travel.
AMENDMENT NO. 1146, AS MODIFIED
On page 114, strike line 2 and insert the following:
the study; and
(8) ensure the involvement and input of military
technicians (dual status).
AMENDMENT NO. 1293, AS MODIFIED
At the end of subtitle C of title X, add the following:
SEC. 1024. TRANSFER OF CERTAIN HIGH-SPEED FERRIES TO THE
NAVY.
(a) Transfer From MARAD Authorized.--The Secretary of the
Navy may, subject to appropriations, from funds available for
the Department of Defense for fiscal year 2012, provide to
the Maritime Administration of the Department of
Transportation an amount not to exceed $35,000,000 for the
transfer by the Maritime Administration to the Department of
the Navy of jurisdiction and control over the vessels as
follows:
(1) M/V HUAKAI.
(2) M/V ALAKAI.
(b) Use as Department of Defense Sealift Vessels.--Each
vessel transferred to the Department of the Navy under
subsection (a) shall be administered as a Department of
Defense sealift vessel (as such term is defined in section
2218(k)(2) of title 10, United States Code).
AMENDMENT NO. 1304, AS MODIFIED
Strike section 324 and insert the following:
SEC. 324. REPORTS ON DEPOT-RELATED ACTIVITIES.
(a) Report on Depot-level Maintenance and Recapitalization
of Certain Parts and Equipment.--
(1) In general.--Not later than 90 days after the date of
the enactment of this Act, the Secretary of Defense in
consultation with the military departments, shall submit to
the congressional defense committees a report on the status
of the Drawdown, Retrograde and Reset Program for the
equipment used in support of operations in Iraq and
Afghanistan and the status of the overall supply chain
management for depot-level activities.
(2) Elements.--The report required under paragraph (1)
shall include the following elements:
(A) An assessment of the number of backlogged parts for
critical warfighter needs, an explanation of why those parts
became backlogged, and an estimate of when the backlog is
likely to be fully addressed.
(B) A review of critical warfighter requirements that are
being impacted by a lack of supplies and parts and an
explanation of steps that the Director plans to take to meet
the demand requirements of the military departments.
(C) An assessment of the feasibility and advisability of
working with outside commercial partners to utilize flexible
and efficient turn-key rapid production systems to meet
rapidly emerging warfighter requirements.
(D) A review of plans to further consolidate the ordering
and stocking of parts and supplies from the military
departments at depots under the control of the Defense
Logistics Agency.
(3) Flexible and efficient turn-key rapid production
systems defined.--For the purposes of this subsection,
flexible and efficient turn-key rapid production systems are
systems that have demonstrated the capability to reduce the
costs of parts, improve manufacturing efficiency, and have
the following unique features:
(A) Virtual and flexible.--Systems that provide for
flexibility to rapidly respond to requests for low-volume or
high-volume machined parts and surge demand by accessing the
full capacity of small- and medium-sized manufacturing
communities in the United States.
(B) Speed to market.--Systems that provide for flexibility
that allows rapid introduction of subassemblies for new parts
and weapons systems to the warfighter.
(C) Risk management.--Systems that provide for the
electronic archiving and updating of turn-key rapid
production packages to provide insurance to the Department of
Defense that parts will be available if there is a supply
chain disruption.
(b) Report on the Alignment, Organizational Reporting, and
Performance Rating of Air Force System Program Managers,
Sustainment Program Managers, and Product Support Managers at
Air Logistics Centers or Air Logistics Complexes.--
(1) Report required.--The Secretary of the Air Force shall
enter into an agreement with a federally funded research and
development center to submit to the congressional defense
committees, not later than 180 days after the date of the
enactment of this Act, a report on the alignment,
organizational reporting, and performance rating of Air Force
system program managers, sustainment program managers, and
product support managers at Air Logistics Centers or Air
Logistics Complexes.
(2) Elements.--The report required under paragraph (1)
shall include the following elements:
(A) Consideration of the proposed reorganization of Air
Force Materiel Command announced on November 2, 2011.
(B) An assessment of how various alternatives for aligning
the managers described in subsection (a) within Air Force
Materiel Command would likely support and impact life cycle
management, weapon system sustainment, and overall support to
the warfighter.
(C) With respect to the alignment of the managers described
in subsection (A), An examination of how the Air Force should
be organized to best conduct life cycle management and weapon
system sustainment, with any analysis of cost and savings
factors subject to the consideration of overall readiness.
(D) Recommended alternatives for meeting these objectives.
(3) Cooperation of secretary of air force.--The Secretary
of the Air Force shall provide any necessary information and
background materials necessary for completion of the report
required under paragraph (1).
AMENDMENT NO. 1133, AS MODIFIED
At the end of subtitle H of title X, add the following:
SEC. ___. REEMPLOYMENT RIGHTS FOLLOWING CERTAIN NATIONAL
GUARD DUTY.
Section 4312(c)(4) of title 38, United States Code, is
amended--
(1) in subparagraph (D), by striking ``or'' at the end;
(2) in subparagraph (E), by striking the period at the end
and inserting ``; or''; and
(3) by adding at the end the following new subparagraph:
``(F) ordered to full-time National Guard duty (other than
for training) under section 502(f) of title 32 when
authorized by the President or the Secretary of Defense for
the purpose of responding to a national emergency declared by
the President and supported by Federal funds, as determined
by the Secretary concerned.''.
AMENDMENT NO. 1287, AS MODIFIED
At the end of subtitle C of title I, add the following:
SEC. 136. LIMITATION ON RETIREMENT OF C-23 AIRCRAFT.
(a) In General.--Upon determining to retire a C-23
aircraft, the Secretary of the Army shall first offer title
to such aircraft to the chief executive officer of the State
in which such aircraft is based.
(b) Transfer Upon Acceptance of Offer.--If the chief
executive officer of a State accepts title of an aircraft
under subsection (a), the Secretary shall transfer title of
the aircraft to the State without charge to the State. The
Secretary shall provide a reasonable amount of time for
acceptance of the offer.
(c) Use.--Notwithstanding the transfer of title to an
aircraft to a State under this section, the aircraft may
continue to be utilized by the National Guard of the State in
State status using National Guard crews in that status.
(D) Sustainment.--Immediately upon transfer of title to an
aircraft to the State under this section, the State shall
assume all costs associated with operating, maintaining,
sustaining, and modernizing the aircraft.
AMENDMENT NO. 1090, AS MODIFIED
At the end of title VI, add the following:
Subtitle D--Pay and Allowances
SEC. 641. NO REDUCTION IN BASIC ALLOWANCE FOR HOUSING FOR
NATIONAL GUARD MEMBERS WHO TRANSITION BETWEEN
ACTIVE DUTY AND FULL-TIME NATIONAL GUARD DUTY
WITHOUT A BREAK IN ACTIVE SERVICE.
Section 403(g) of title 37, United States Code, is amended
by adding at the end the following new paragraph:
``(6) The rate of basic allowance for housing to be paid a
member of the Army National Guard of the United States or the
Air National Guard of the United States shall not be reduced
upon the transition of the member from active duty under
Title 10, United States Code, to full-time National Guard
duty under Title 32, United States Code, or from full-time
National Guard duty under Title 32, United States Code, to
active duty under Title 10, United States Code, when the
transition occurs without a break in active service of at
least one calendar day.''
Amendments Nos. 1105 and 1158 Withdrawn
Mr. LEVIN. I ask unanimous consent now that the following two
amendments be withdrawn: Collins No. 1105 and Collins No. 1158.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered. The amendments are withdrawn.
Mr. LEVIN. I note the absence of a quorum.
[[Page S8118]]
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. VITTER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. VITTER. Madam President, I ask unanimous consent to speak for up
to 10 minutes on a different topic than the Defense authorization bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
National Flood Insurance Program
Mr. VITTER. Madam President, I come to the Senate floor to discuss
another very important issue for our economy, which is the National
Flood Insurance Program.
The National Flood Insurance Program is a vital Federal program that
helps provide flood insurance for properties all across the country. It
is absolutely vital to citizens and to our economy, to the real estate
market, to closings which cannot happen without this type of insurance
in many instances. It is important all across the country. It is
nowhere more important than in Louisiana, which, unfortunately, has
pretty severe flooding risks.
In the last few years, we have extended this necessary and important
program but sometimes with real fits and starts and even lapses of the
program. As you know, Madam President, in 2010, it got worse than ever.
Congress allowed the National Flood Insurance Program to lapse four
times--for a total of 53 days--for no good reason. It was not a money
issue; it was not a cost issue; it was not a deficit issue because
continuation of the program along the current structure does not raise
deficit and debt. But we had these deadlines that kept approaching, and
we let, in many instances--in four instances--the deadline actually
come and the program to lapse--four times in 2010, for a total of 53
days.
That had enormous negative consequences. Real estate closings that
were scheduled to happen had to be canceled. Here we are in the middle
of a horrendous recession--clearly the worst since World War II--led by
problems in the real estate market, and we had good, solid real estate
closings which had to be put off and canceled for no good reason.
Really crazy.
We learned a little bit from that experience, and this year, in 2011,
we have done better. We have continued the program without lapse. But I
am afraid we are getting back into this habit of extremely short-term
extensions, which brings with it the threat of lapses. We extended the
program a few weeks ago, but we only extended it for the duration of
the current CR, until this December 16. So, again, the program is set
to completely expire nationwide this December 16.
The ultimate solution is a long-term, full reauthorization of the
flood insurance program. I support that full 6-year bill, and we have
voted out of the Senate Banking Committee a full, long-term, 6-year
reauthorization bill. However, that is not going to pass into law
between now and December 16, and it is pretty clear it is not going to
pass into law for several months.
That is why I am urging all of us to come together in a bipartisan
fashion in the meantime to pass a clean extension of the program for
the remainder of this fiscal year, through September 30, 2012, or for
some significantly long time within that year. I think that is needed
right now to assure the real estate market there will not be
disruptions, to take that threat and that uncertainty out of the market
and out of the line of closings, that we want to encourage, we want to
build, as we try to build up the real estate market and the economy in
general.
Because I believe this is clearly the right path, I have done two
things. First, I have filed that extension, that clean extension--a
bill under my name--through September 30, 2012. This is very similar to
the extension we passed in late 2010 to get us through that fiscal year
to September 30, 2011. That was my bill. We passed it unanimously here
in the Senate, again, to avoid these deadlines and disruptions, which
hamper economic recovery. So I filed that bill. That would be a clean
extension of the program through September 30, 2012.
The second thing I did today is write Senator Reid, the majority
leader, and ask him to focus on this important program and the need for
this extension as soon as possible, and to hotline it through the
Senate, to ask for unanimous consent from both sides, all Members, as
we did about a year ago, pass this so we extend this important, vital
program through September 30, 2012, or some similar, significant
timeframe.
Again, I wrote Senator Reid today to highlight this need. I will be
following up with him. I have already followed up and talked to many
other interested Members, starting with those leaders on the Banking
Committee under whose jurisdiction this falls.
This should be a no-brainer. This should be a completely nonpartisan
or bipartisan exercise. This is not some big ideological dispute. This
is simply extending, continuing a vital, necessary program without in
any way increasing deficit and debt, in a way that we take out
uncertainty, take out the specter of this necessary program lapsing yet
again, as it did four times in 2010, for a total of 53 days.
We cannot let this lapse. And, quite frankly, we should not even go
near the deadline before we extend it because that in and of itself--
even if we do not technically allow it to lapse--creates uncertainty
and chaos in the real estate market and disrupts real estate closings.
We need every good real estate transaction we can get. We need every
bit of additional economic activity we can get in this horrible
economy, this recession that was led by a bad real estate market. We
need to lead recovery with a recovering real estate market. So let's do
this in a simple, straightforward, commonsense, bipartisan way in that
effort. We did it around my bill in that nearly full-year extension
about a year ago. Let's do it again.
In closing, I want to underscore I am fully committed to the full,
detailed 6-year reauthorization bill. It has come out of the Senate
Banking Committee. It needs to pass through the Senate. We need to
resolve differences with the House. We need to pass that into law. But
that is not going to happen between now and December 16, and it is not
going to happen for several months. So, in the meantime, let's remove
the threat of disruption, of lapses in the program, of uncertainty. All
of that is extremely harmful in this very fragile economy.
Madam President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. THUNE. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. THUNE. Madam President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Keystone XL Pipeline
Mr. THUNE. Madam President, yesterday a number of us--I think the
number now is somewhere in the 37-to-38 ballpark of Senators--
introduced legislation to expedite consideration of the Keystone XL
Pipeline. What is interesting to me about all of this is that this is a
project that has been literally reviewed and analyzed and studied and
scrutinized now for the better part of 3 years.
In fact, they have had two comprehensive environmental evaluations
and 3 years of study and review. Then, just recently, the Obama
administration deferred a decision on the permit until after the 2012
elections, essentially putting off the decision for about 18 months.
Well, what is ironic and sort of interesting about that is this is a
project which--after having been carefully vetted for the past 3 years,
carefully reviewed, carefully studied, all of the environmental impact
analysis done--would lead to all kinds of economic development for this
country and job creation in many of the States that are impacted.
Our State of South Dakota happens to be one of those. The pipeline
traverses South Dakota as it heads down to refineries in other places
in the country. But it would benefit my State by generating significant
amounts of State and local tax revenue, revenue that is much needed by
many of the
[[Page S8119]]
local jurisdictions: school districts, counties, municipalities in the
State of South Dakota.
So there is a tremendous benefit to the construction of this pipeline
to the various States that are impacted simply as a result of the
additional tax revenue that would be raised by it. Add to that, in my
State of South Dakota, the hundreds of jobs that would be created, the
half billion dollars of economic activity that it would generate--and
this is very clear, from the State of South Dakota's standpoint, which
is why I believe our Governor has weighed in behind this project, that
this is something that ought to at least be decided. There is no reason
why, no rational reason why, no logical reason why this project would
be delayed for 18 months simply to get past the next election.
All of the work has been done. It seems to me at least there ought to
be a decision made. We are talking about a $7 billion investment in
this country and partly in Canada to get from where the oil sands are
to get the oil to the refineries in the United States. If we look at
the overall, as I said, economic impact, number of jobs created, it is
pretty impressive--20,000 jobs, I think, is the estimate that it would
create in this country.
Those are jobs that, frankly, many of these States could certainly
benefit from. Not to mention the fact that we are doing business with
someone who is favorable and friendly to us. Canada is our biggest
trading partner. I think we do about $640 billion annually in bilateral
trade with Canada. Canada is a country with which we have a very good,
strong trading relationship. It strikes me at least that if we are
going to get oil from somewhere, it makes sense to get it from a
country such as Canada as opposed to some of the other countries around
the world that are much less friendly to the United States.
In fact, the Keystone XL Pipeline would transport daily about 700,000
barrels of oil that would come through that pipeline. That is the
equivalent of the amount that we get on a daily basis from Venezuela.
So if you are thinking about getting 700,000 barrels of oil from
somewhere in the world, would it not make more sense to get it from
Canada as opposed to Venezuela? I think in terms of what it does for
our energy independence, for our energy security, dealing with a
friendly nation, and making it more possible for our country to become
less dependent upon foreign countries for this energy we need, it
strikes me that at least this particular project makes a lot of sense.
You have not only the economic impact, in terms of the activity it
would create in the various States that would be impacted by it, the
number of jobs created--as I said, 20,000 jobs is the estimate, with a
$7 billion initial investment--and all the tax revenue generated for
State and local government along the way, but wouldn't it be nice if
the United States got into the situation where we were actually an
energy exporter?
Believe it or not, this is the first year in the last 62 years--and
this is according to a story that ran in the Wall Street Journal
yesterday--according to data released by the U.S. Energy Information
Administration on Tuesday, the United States has sent abroad 753.4
million barrels of everything from gasoline to jet fuel in the first 9
months of this year, while it imported 689.4 million barrels. That
means that, for the first time in 62 years, in 2011--if this trend
continues--and it looks as though it will--we will have exported more
energy than we imported. We are still a net importer of petroleum, or
oil. Hopefully, we can change that in the future by developing these
resources we have in this country, one of which is the Bakken Reserve
in North Dakota, which is generating enormous amounts of oil for this
country. So we are still a net oil importer.
In terms of refined gasoline and other products--refined energy--for
the first time in 62 years, in 2011, we may be a net exporter of
energy. I think that is an amazing data point, and it suggests this is
something that could benefit enormously the American economy. Well, in
order for that to happen, we have to have those resources we can get
from the oil sands in Canada and bring them into the United States,
where they are refined here and then either used here or sent abroad.
But it is a way we can generate additional economic activity and jobs
for our economy.
This is a quote from the Global Director of Oil, which tracks energy
markets. He said this trend we are going to see this year, 2011--again,
first time in 62 years we will be a net exporter of energy--he says it
looks like a trend that could stay in place for the rest of the decade.
That is a remarkable change in terms of the flow of energy from this
country. The last time we were a net exporter of energy was during
World War II and shortly thereafter. It has been over 60 years.
That is what a project such as this could do for our country--not
just the immediate impact on those States through which this pipeline
would traverse, in terms of the tax revenue that would be generated for
State and local governments, but you also have the economic activity it
creates in those States, the jobs it creates in those States, and what
it does in order to move us increasingly away from dependence upon
other countries in the world with whom we have, at best, shaky
relationships to start with.
Doing business with our largest trading partner--a country with which
we do enormous amounts of trade every single year--seems to me at least
to be a much better solution to this country's energy needs than is
getting that same amount of energy from other countries around the
world.
Madam President, 700,000 barrels a day is what the pipeline would
transport into this country. That is the equivalent that we get on a
daily basis from Venezuela. This is a project that ought to be decided.
Whether it is decided affirmatively--obviously, as you can tell, I
believe it should be. There are people in South Dakota who are opposed
to this. There have been ample opportunities for public forums and
hearings for people to comment on it. There have been lots of
opportunities for those opposed to it to weigh in.
Notwithstanding that, again, all the analyses have been done, the
review done, and the studies are now completed, and they have indicated
there is no reason for this not to move forward--particularly given the
fact that the State of Nebraska has negotiated with TransCanada, the
builder of the pipeline, an agreement that would take it in a different
direction through that State. All those hoops have been gone through,
and the hurdles have been cleared. There isn't a reason why this should
be delayed another 18 months until after the next Presidential
election--other than, purely and simply, for political reasons.
I hope we will be able to get good, strong support in the Senate for
this legislation that would allow this to be decided in a more
immediate timeframe. As I said, right now, the administration has
punted until after the next election, 18 months down the road. This
legislation would enable this to be decided in the next couple of
months--the next 60 days or so--subject, obviously, to some
requirements that are in there--obviously, the strongest environmental
requirements. But all that having been reviewed and having been
accomplished, it is time for a decision on this important project.
I hope we can get strong support in the Senate for this legislation.
It has been introduced by a number of my colleagues, including the
Senator from North Dakota, Senator Hoeven, Senator Johanns from
Nebraska, Senator Murkowski from Alaska, and a number of others. I am a
cosponsor. At last count, I think it has somewhere along the lines of
37 or 38 cosponsors. Incidentally, it passed in the House of
Representatives already. So there is a vehicle out there that has
passed one body of Congress. It is my hope we will be able to get
action here in the Senate, and that it might be something we can do
that would have an immediate impact on jobs.
We always talk about shovel-ready projects. This is a shovel-ready
project. This is ready to go. They are ready to start construction of
this project. It has been through in the last 3 years all of the
process this government can require it to go through in order to make
sure this project should move forward.
I think it is important for this body to act on this legislation and
allow us to get to where we can get a decision on this project that
will lead to more
[[Page S8120]]
economic activity, more economic impact, more jobs for Americans, more
energy security for this country, and hopefully, at the end of the day,
a lessening of the dangerous dependence we have on foreign sources of
energy, which we want to get away from. I think it is a win-win. I
congratulate the sponsors of the legislation for the thoughtful way
they have considered this and put this legislation together. I hope it
gets consideration in the Senate.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. NELSON of Florida. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Franken). Without objection, it is so
ordered.
The Economy
Mr. NELSON of Florida. Mr. President, here we are, stuck again, and I
want to speak just a little bit about getting this country moving again
and getting Americans earning again.
This great country of ours has endured a lot. We have endured despite
the Civil War, the Great Depression, the two World Wars we have been
in, the assassination of leaders, and the slaughter of innocents by
terrorists. This great Nation of ours has confronted racism and civil
unrest and political scandal at all levels, and always we have endured.
In the throes of the Great Depression, the words of President
Roosevelt reassured most Americans when he said:
This great Nation will endure as it has endured. It will
revive and it will prosper.
Today, we are once again walking a rugged path, and the most recent
example of the failure of the supercommittee has been the latest crash
caused by super-rigid ideology and hyperpolitical partisanship. Truth
be told, we are in a most difficult time in our Nation's economic
life--still facing a decision of how to pay for an enormous debt. We
owe this money mostly due to the misconduct of the money changers, the
misuse of the Tax Code that favors special interests, and years of
excessive spending. Yet there are Members of this Congress who propose
we should first not address those underlying causes, and that those
most responsible should not even have to pay their fair share toward
reducing the debt.
Instead, they propose we first take away from Social Security savings
and Medicare health coverage for the elderly, and that we pull back the
hand this Nation compassionately extends to those among us who are less
fortunate. That would seem somewhat to erase all the progress we have
made since those words of President Roosevelt by declaring war not on
poverty but on the poor, the middle class, and the elderly.
Because a host of our citizens face the grim problems of
unemployment, the loss of their homes, and depletion of their savings,
this Congress should fight any measure that unfairly inflicts pain on
those least responsible for our present economic condition. The
American people deserve a lot from their Congress. They deserve
honesty. They expect us to work together, and they want action that is
evenhanded.
So as we move forward, I hope all my colleagues in the Senate and in
the House will be guided by the words of a young President Kennedy, who
said:
Let us not seek the Republican answer nor the Democratic
answer--but the right answer.
In this spirit, can't we work to pull our Nation out of its financial
doldrums? Can't we just ask: What is the right thing to do?
Is it right that household income for the average American is
actually in decline? Is it right that a hedge fund manager pays a lower
tax rate than the person who cleans his office? Is it right that an oil
company gets to write off $11 billion on its tax return because it
polluted the Gulf of Mexico? Is it right that the Congress cannot agree
on a deficit reduction plan because of partisan politics?
The American people know what is right and they know what is not
right. If we could just for 1 minute put all this partisanship aside
and do what is right, then we might be able to balance our Nation's
books to get this country moving again and to get Americans employed
and earning again. While we are at it, we might just restore the
American public's confidence in our government.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. 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. SESSIONS. I ask that I be allowed to speak as if in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Financial Crisis
Mr. SESSIONS. Mr. President, our country is facing a very serious
financial crisis.
We have seen what happened in Europe. We had some numbers on the
stock market for a while. But if I understand what happened, there was
a very real crisis facing the Europeans, and at the very last moment
they took some action that was received positively.
But they are not out of the woods yet and neither are we. Our debt is
surging. We have gone from 5 years ago a $161 billion deficit to a $450
billion deficit in President Bush's last year to $1.2 trillion in
President Obama's first year, $1.3 trillion in President Obama's second
year, $1.2 trillion this year, and over $1 trillion predicted in
deficits next year.
We are going to have a proposal that comes before us to provide a
payroll holiday, and it is sold as avoiding a tax increase. That is
what the President says it is; we are avoiding a tax increase. So we
ought to ask ourselves exactly how that is so and if it is so. Let me
just say, I don't think that is accurate.
Two years ago, there was an employer payroll tax holiday that went
only to the employer. It cost the Treasury $7.6 billion. Last year, as
part of the final compromise, a bipartisan compromise, it was agreed
that there would be a 2-percent tax holiday for working persons. So
instead of paying 6-plus percent on your withholding tax, you would pay
4. That cost $111 billion for that year.
So the President said: If we don't extend that, we are going to have
a tax increase. But is he accurate? No, not really. This year's
proposal would be to reduce not the 4 percent but the 3.1 percent,
cutting the 6.2 withholding to 3.1 for the employer and for the
employee, and it would cost in 1 year $265 billion--$265 billion that
would not be going into the Social Security trust fund so that those
who retire would have the retirement funds they have been promised. It
would not go there. It weakens Social Security, the integrity of the
system, in my opinion.
But we are told not to worry, the U.S. Treasury will replace this
$265 billion with Treasury money. But the problem is, the Treasury
doesn't have any money. The Treasury is already in debt. The Treasury
is going to add another $1 trillion to the deficit this year. So now it
is going to be added to--$265 billion more in one fell swoop, in one
bill, right here at the end of the session. If you don't vote for it,
the President says, you are raising taxes on the American people. That
is not an accurate statement.
In an economic sense, in my opinion, the real essence of this is the
U.S. Treasury will borrow $265 billion. Then, it will direct the Social
Security Administration to send that money out in the form of a reduced
withholding amount to be paid by workers. It is a direct borrow and it
is a direct delivery of money and it uses Social Security trust fund
moneys as a vehicle to transfer the money. In an economic sense, it
borrows $265 billion to spend.
How much is $265 billion? The supercommittee, the committee of 12,
was trying to find $1,200 billion in savings over 10 years--not 1 year,
10 years. This one bill, this one proposal of $265 billion would be
spent this 1 year.
To achieve the committee of 12's goal, they would simply have needed
to have cut $120 billion a year for 10 years out of the entire Federal
Government. They failed. Immediately now, the President and our
majority leader are demanding this Congress pass an expenditure--
unexpected, not before
[[Page S8121]]
done; nothing like such a large expenditure ever has come out of Social
Security--to spend another $265 billion. How will we ever get our house
in order? I wish I could figure out a way to be supportive. I don't see
how I can be.
I am pleased the Republicans are trying to work up a bill that would
not cost as much as $265 billion and some way to pay for it. But, in
truth, if we are going to be able to cut spending to pay for any kind
of new expenditure, wouldn't we be better to do what the committee of
12 tried to do: cut spending to reduce the debt? Shouldn't we be
seeking ways, if we are going to raise taxes, to use those taxes to pay
down the debt, instead of taking 10 years under the President's plan in
a new tax that takes 10 years of that tax to pay for this 1 year's
expenditure? That is what the proposal is.
I would say to my colleagues, this goes beyond partisan politics.
This gets to the point: Are we in control of the Treasury and the
spending of the United States of America? Can we defend what we are
doing?
Don't think that is the only thing that is going to come up. I am the
ranking Republican on the Budget Committee. We look at these numbers.
This also will be taken care of in December, count on it: We are going
to deal with the alternative minimum tax. That is going to cost $50
billion. We are going to deal with unemployment insurance, an
additional $70 billion to extend those payments beyond 90-some-odd
weeks. We are going to fix the doctors payment, because we have to. We
can't cut the doctors that much, $21 billion. We are going to extend
most, if not all, of the tax extenders we call them, $90 billion. The
total is $500 billion.
Some of this we have been expecting to take care of. But we weren't
expecting or planning in any way to have a continuation of the payroll
holiday that is going to cost $265 billion. I just would say to my
colleagues, when are we going to think more rationally about it?
I just heard: How are we going to pay for the AMT, unemployment
insurance, doctors payments, and the tax extenders? Somebody said: We
are going to count the savings from the war. The Congressional Budget
Office will show a decline in expenses for the Iraq and Afghanistan war
will be a savings. We can spend that. That is fraudulent, that is a
gimmick, and it should not be acceptable.
Everybody knows the war costs are going to be coming down and we have
been planning for that. We can't assume that money is available to
spend willy-nilly. We were bringing the war costs down to bring the
debt down, not to fund new spending. We need to bring the war costs
down to try to reduce our debt and our deficit, not to fund new
spending. But that is how they are going to do this, I have been told.
I am not surprised because there is no other way they are going to do
it.
I just would share that. We will be voting in a little bit on this
issue. I don't know what the answer is. I don't know how to fix our
problems, but I know one thing. We remain in denial. Our country is in
greater debt crisis than we realize. Mr. Erskine Bowles and Alan
Simpson of President Obama's debt commission say we are facing the most
predictable financial crisis in our Nation's history as a result of our
debt, and we need to get serious about how to fix it.
I thank the Chair and I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. I ask unanimous consent to speak as if in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Freeing Alan Gross
Mr. CARDIN. Mr. President, I rise to address the human rights issue
of deep concern.
For 2 years, since December 3, 2009, an American citizen and a
Marylander, Alan Gross, has been imprisoned by the Cuban Government.
For 2 years, he has been held by the Cuban authorities.
Alan was in Cuba to help the country's small Jewish community
establish an Internet and improve its access to the Internet, which
would allow the community to go online without fear of censorship or
monitoring.
After being held for 14 months without charge and then a cursory 2-
day trial, he was convicted and sentenced to 15 years in prison. His
appeal to the Cuban supreme court was denied in August of this year.
Alan Gross is a caring husband and a father, a devoted man who has
dutifully promoted U.S. foreign policy interests while serving the
needs of thousands of foreign citizens, from Afghanistan to Haiti, over
a career that has spanned more than 25 years of public service.
Unfortunately, Alan has been caught in the middle of a conflict
between two nations with a long and difficult relationship. But it is
entirely unacceptable that his personal freedoms have been violated
every day he continues to be incarcerated.
Alan's health has deteriorated during his imprisonment. He has lost
100 pounds and suffers from a multitude of medical conditions,
including gout, ulcers, and arthritis, that have worsened without
adequate treatment.
Last night, I had a chance to talk to his wife Judy, who had a chance
to visit with her husband in Cuba earlier last month. Judy informs me
that Alan Gross's health conditions are deteriorating and that he is in
need of adequate health care. In addition, his mother and daughter are
both struggling with serious health care issues, and his wife is
struggling to make ends meet.
The Gross family should not have to suffer through such a trying
period of time without Alan for support. Sentencing Alan Gross to 15
years behind bars also sentences his family to 15 years without a
husband, father, and son. There is no reason for the Gross family to
continue to suffer the consequences of political gamesmanship any
longer. I urge the Cuban Government to remember that this is a real man
and a family who are suffering.
I have already written the Cuban Government urging them, in the
strongest possible manner, to immediately and unconditionally release
Alan Gross. His continued imprisonment is a major setback in our
bilateral relations, and it is unlikely any positive steps to improve
that relationship can or will happen while he remains in prison.
As a Senator and as a Marylander and as a fellow human being, I urge
the Cuban Government to see Alan Gross, who has dedicated his life to
serving others, for who he is--a man who believed he was helping others
by stepping in when he saw a need. Enough is enough. I call on the
Cuban Government to release Alan Gross immediately and to allow him to
return to his family.
Ms. MIKULSKI. Mr. President, Mr. Gross has worked with Cuban
communities for many years. In 2009, he was working with USAID to
assist Cuba's Jewish community by improving their access to the
Internet. As a former social worker who has worked for 25 years in
international development, he has a long record of helping people
around the world to improve their lives.
He was arrested and held without charge for 14 months and later
sentenced to 15 years for crimes against the state.
Mr. Gross is in failing health. He has lost 100 pounds and suffers
from arthritis. He is being held in harsh conditions on trumped-up
charges.
His family in Maryland has had very limited contact with him. They,
too, have faced health challenges and are facing significant financial
hardships.
I was hopeful that America and Cuba could move closer together--in
trade, in community connections, and for individual families who have
been separated. I thought these links would help open up Cuba, improve
human rights, and enable their country to move toward democracy. Yet
the case of Mr. Gross shows that Cuba is not serious about moving
forward--for its own people or for its relations with the United
States.
If Cuba wants to improve relations with the United States, they need
to release Mr. Gross now. I will not support easing restrictions or
sanctions on Cuba until Mr. Gross is allowed to come home to Maryland.
I thank my colleagues for joining me in standing up for Alan Gross and
urge the Government of Cuba to release him immediately.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[[Page S8122]]
The assistant legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I ask unanimous consent that upon the
conclusion of the postcloture time, the pending germane Feinstein
amendment, No. 1126, be the pending business; that the Senate proceed
to vote in relation to the following Feinstein amendments in the order
listed: Feinstein amendment No. 1126, Feinstein amendment No. 1456;
that there be 2 minutes equally divided in the usual form prior to the
second vote--there will be more time than that prior to the first vote;
that no amendment be in order to either amendment prior to the votes,
and that all postcloture time be considered expired at 6 p.m.
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. Reserving the right to object, and I will not object, for
the benefit of our colleagues, after spirited discussions for a long
period of time we have reached a compromise with the Senator from
California on language concerning detainees and there are certain
Members on my side who wanted a vote on the original amendment as
written. We modified it, so that there will be a vote on the original
Feinstein amendment and then on the one which is modified by agreement
among most of the people involved. There may be some who will still
oppose it, but we have reached an agreement among the Senator from
California, the chairman, myself, the Senator from Idaho, the Senator
from South Carolina and others, that I think will be agreeable to the
majority of the Members.
I suggest to my friend, the chairman, that when the vote starts at 6,
perhaps we can line up the other remaining amendments, on some of which
we hope to get voice votes, some of which will require recorded votes,
as is the procedure under postcloture.
Mr. LEVIN. Mr. President, this has not yet been ruled on. I want to
modify very slightly what I said in the unanimous consent request. I
said that the Senate proceed to votes in relation to the following
Feinstein amendments. I should have said the Senate proceed to votes on
the Feinstein amendments in the order listed.
The PRESIDING OFFICER. Is there objection to the request, as
modified?
Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I have two other unanimous consent requests
before we turn this over to the Senator from California. I ask
unanimous consent that it be in order to make a point of order en bloc
against the list of amendments in violation of rule XXII that is at the
desk.
The PRESIDING OFFICER. Is there objection?
Without objection, the points of order are sustained and the
amendments fall.
The nongermane amendments are as follows:
Amendments Nos. 1255, 1286, 1294, 1259, 1261, 1263, 1296,
1152, 1182, 1184, 1147, 1148, 1204, 1179, 1137, 1138, 1247,
1249, 1248, 1118, 1117, 1187, 1211, 1239, 1258, 1186, 1160,
1253, 1068, 1119, 1089, 1153, 1154, 1171, 1173, 1099, 1100,
1139, 1200, 1120, 1155, 1097, 1197; as being dilatory: No.
1174: as being drafted in improperly: No. 1291
Mr. McCAIN. Mr. President, in the minutes remaining between now and 6
p.m. I hope we could roughly divide time on the amendment between the
two sides.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I would hope and I ask the time between now and 6 o'clock
be divided between the two sides. We will yield immediately to Senator
Feinstein.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I have one more unanimous consent.
The PRESIDING OFFICER. The Senator from Michigan.
Amendments Nos. 1290 and 1256 Withdrawn
Mr. LEVIN. I ask unanimous consent that the following amendments be
withdrawn: Rubio amendment No. 1290 and Merkley amendment No. 1256.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendments are withdrawn.
Amendment No. 1126
Mr. LEVIN. I thank the Presiding Officer and all those who have been
involved in working out this approach that allows us now to vote on two
amendments, the original Feinstein amendment that is pending, plus an
alternative which I think, hopefully, will command great support.
Mr. McCAIN. I ask how much time is remaining?
The PRESIDING OFFICER. Eight minutes on each side.
Mr. McCAIN. I wish to give 3 minutes to the Senator from South
Carolina, preceded by 2 minutes from the Senator from Idaho, and 2
minutes for the Senator from New Hampshire if she arrives.
Mrs. FEINSTEIN. Shall I go first?
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I wish to explain what has happened
this long afternoon. Originally some of us, namely Senators Leahy,
Durbin, Udall of Colorado, Kirk, Lee, Harkin, Webb, Wyden, Merkley, and
myself, realized that there was a fundamental flaw in section 1031 of
the bill. There is a difference of opinion as to whether there is this
a fundamental flaw. We believe the current bill essentially updates and
restates the authorization for use of military force that was passed on
September 18, 2001. Despite my support for a general detention
authority, the provision in the original bill, in our view, went too
far. The bill before us would allow the government to detain U.S.
citizens without charge until the end of hostilities. We have had long
discussions on this.
The disagreement arises from different interpretations of what the
current law is. The sponsors of the bill believe that current law
authorizes the detention of U.S. citizens arrested within the United
States, without trial, until ``the end of the hostilities'' which, in
my view, is indefinitely.
Others of us believe that current law, including the Non-Detention
Act that was enacted in 1971, does not authorize such indefinite
detention of U.S. citizens arrested domestically. The sponsors believe
that the Supreme Court's Hamdi case supports their position, while
others of us believe that Hamdi, by the plurality opinion's express
terms, was limited to the circumstance of U.S. citizens arrested on the
battlefield in Afghanistan, and does not extend to U.S. citizens
arrested domestically. And our concern was that section 1031 of the
bill as originally drafted could be interpreted as endorsing the
broader interpretation of Hamdi and other authorities.
So our purpose in the second amendment, number 1456, is essentially
to declare a truce, to provide that section 1031 of this bill does not
change existing law, whichever side's view is the correct one. So the
sponsors can read Hamdi and other authorities broadly, and opponents
can read it more narrowly, and this bill does not endorse either side's
interpretation, but leaves it to the courts to decide.
Because the distinguished chairman, the distinguished ranking member,
and the Senator from South Carolina assert that it is not their intent
in section 1031 to change current law, these discussions went on and on
and they resulted in two amendments: our original amendment, which
covers only U.S. citizens, which says they cannot be held without
charge or trial, and a compromise amendment to preserve current law,
which I shall read:
On page 360, between lines 21 and 22, insert the following:
Nothing in this section shall be construed to affect
existing law or authorities relating to the detention of
United States citizens or lawful resident aliens of the
United States or any other persons who are captured or
arrested in the United States.
I believe this meets the concerns of the leadership of the committee
and this is presented as an alternative. There are those of us who
would like to vote for the original amendment, which I intend to do, as
well as for this modifying amendment. They will appear before you as a
side-by-side, so everyone will have the chance to vote yea or nay on
the original or yea or nay on the compromise. As I said, I would urge
that we vote yes on both.
This is not going to be the world as we see it postvote, but I will
tell you this, the chairman and the ranking member have agreed that the
modified language presented in the second vote will be contained in the
conference; that they will do everything they can to contain this
language in the conference.
[[Page S8123]]
In the original amendment--my original amendment--which affects only
U.S. citizens, that is not the case. They are likely to drop that
amendment. So I wish to make the point by voting for both, and I would
hope others would do the same. I think a lot has been gained. I think a
clear understanding has been gained of the problems inherent in the
original bill. I think Members came to the conclusion that they did not
want to change present law and they wanted to extend this preservation
of current law not only to citizens but to legal resident aliens as
well as any other persons arrested in the United States. That would
mean they could not be held without charge and without trial. So the
law would remain the same as it is today and has been practiced for the
last 10 years.
I actually believe it is easy to say either my way or the highway. I
want to get something done. I want to be able to assure people in the
United States that their rights under American law are protected. The
compromise amendment, which is the second amendment we will be voting
on, does that. It provides the assurance that the law will remain the
same and will not affect the right of charge and the right of trial of
any U.S. citizen, any lawful legal alien or any other person in the
United States. We have the commitment by both the chairman and the
ranking member that they will defend that in conference.
There are those who say I wish to just vote for the original
amendment. That is fine. I am not sure it will pass. I don't know
whether it will pass, but in my judgment, the modification is eminently
suitable to accomplish the task at hand and has the added guarantee of
the support of the chairman, the ranking member in a conference
committee with the House, which I think is worth a great deal. They
have given their word, and I believe they will keep it. This Record
will reflect that word.
Amendment No. 1456
I call up my amendment No. 1456, which is the modification.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from California [Mrs. Feinstein] proposes an
amendment numbered 1456.
Mrs. FEINSTEIN. I ask unanimous consent that the reading of the
amendment be dispensed with.
There are others who wish to speak.
The amendment is as follows:
On p 360, between lines 21 and 22, insert the following:
(e) Nothing in this section shall be construed to affect
existing law or authorities, relating to the detention of
United States citizens, lawful resident aliens of the United
States or any other persons who are captured or arrested in
the United States.
I will yield the floor.
Mr. LEVIN. How much time is there on our side?
The PRESIDING OFFICER. One minute.
Mr. LEVIN. I wanted to have a couple minutes. I wonder if Senator
McCain is here, if there is an objection to extending this by 10
minutes. Is there objection? I am not going to do that without him
here.
Madam President, if the other side is ready to go, they can start
using the time on their side.
Mr. GRAHAM. How much time do we have?
The PRESIDING OFFICER. Eight minutes. You were allotted 3 minutes.
Mr. GRAHAM. Will the Chair warn me when I use 2 minutes.
The PRESIDING OFFICER. Yes.
Mr. GRAHAM. To Senator Feinstein, I do believe the second provision
is where we want to be, at least from my point of view. To my
colleagues, I never intended by 1031 to change the law imposing a
greater burden on American citizens or more exposure to military
detention, nor did I wish to have additional rights beyond what exist
today. The problem I have with Senator Feinstein's amendment is it says
the authority in this section for the Armed Forces of the United States
to detain a person does not include the authority to detain a citizen
of the United States without trial until the end of hostilities.
Here is my concern. When you tell a judge, as a defense attorney: I
want my client's rights preserved regarding a civilian trial guaranteed
in this section--and the end of hostilities could be 30 years from
now--Your Honor, if these rights mean anything, they need to attach
now--if the civilian rights attach immediately upon detention, what I
think would be a problem is that the military interrogation is lost.
American citizens are not subject to a military commission trial. A lot
of people on my side didn't like that.
I do want to make sure American citizens go into article III courts,
but the law has been since World War II, if a person joins the enemy,
even as an American citizen, they are subject to being detained for
interrogation purposes. That is my goal and that has always been my
goal. We can detain an American who has sided with al-Qaida, if they
are involved with hostile acts, to gather intelligence, and that is a
proper thing to have been doing. It was done in World War II when
American citizens helped the Nazis. If an American citizen wants to
help al-Qaida involved in a hostile act, then they become an enemy of
this Nation. They can be humanely detained, and that is my concern
about the Senator's amendment; that it would take that away.
We have common ground on the second amendment, and at the end of the
day, the Senate has talked a lot about different things. This has been
a discussion about something important and I, quite frankly, enjoyed
it.
I yield my time.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. RISCH. First of all, let me say I think there has been an
adequate compromise that has been reached, and we are to have a side-
by-side to vote on which will give everybody the opportunity to express
themselves. Let me say that every single one of us on this floor has a
goal to protect the rights of U.S. citizens.
This country was founded by people who had just gone through some
very difficult times with a government that was very oppressive on
them, and they wrote the Constitution specifically to protect
themselves and to protect individuals from the government. Those
constitutional provisions today are as good as they were then. Every
single one of us wants to see that American citizens are protected;
that is, protections that take place in the case of criminal cases.
In the case of a war, in the case where a U.S. citizen joins enemy
combatants and fights against the United States, there is a different
standard--although a delicate division--that exists. If we look at the
provisions of section 1031, where covered persons are defined, it is
very clear it applies only to people who participated in the September
11, 2001, attack on the United States, and it applies to people who are
part of it or who have substantially supported al-Qaida and the Taliban
or its associated forces and have actually committed a belligerent act
or have directly participated in the hostilities.
This is drawn very carefully and very narrowly so a U.S. citizen
can--as my good friend from Kentucky always says--be able to file a
writ of habeas corpus in the U.S. district court and have the U.S.
district judge determine whether a person is actually an enemy
combatant. If that U.S. district judge turns it down, that person does
not necessarily go free. The U.S. Government can then charge them with
treason or any one of a number of crimes, but they will be tried in the
U.S. district court.
On the other hand, if they are found to be an enemy combatant by a
U.S. district judge whose decision is reviewable by the circuit court
and if the Supreme Court chooses--by the Supreme Court, if they are
found to be the enemy combatant, then they will, indeed, be subject to
this.
So this has been very narrow. People who are watching this and who
are concerned about the civil liberties of U.S. citizens, as I am, as
people in Idaho are, as people in every State in America are, under
those circumstances, those people will be well protected. We will have
the amendment here that everybody will have the opportunity to express
themselves on.
I will yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. LEVIN. Mr. President, I would ask that there be 5 additional
minutes, evenly divided, so we could have 3 minutes left on our side. I
would split that with the Senator from Illinois.
The PRESIDING OFFICER. Is there objection?
[[Page S8124]]
Mr. RISCH. We have no objection.
Mr. LEVIN. Mr. President, we are soon going to be voting on two
amendments. The first amendment that is proposed, the first Feinstein
amendment restricts the authority that was available and is available
currently to the President of the United States under the laws of war.
That authority is if an American citizen joins a hostile Army against
us, takes up arms against us, that person can be determined to be an
enemy combatant. That is not me saying that; that is the Constitution.
That is the Supreme Court of the United States in the Hamdi case:
``There is no bar to this Nation's holding one of its own citizens as
an enemy combatant.''
The problem with the Feinstein amendment is that current authority of
the President to find and designate an American citizen who attacks us,
who comes to our land and attacks us as an enemy combatant would be
restricted. We should not restrict the availability of that power in
the President. Now we have an alternative. In the second Feinstein
amendment, which I ask unanimous consent to be a cosponsor of--
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. In the second amendment, we have an alternative because
now it would provide the assurance that we are not adversely affecting
the rights of the U.S. citizens in this language. Senator McCain,
Senator Graham, and I have argued on this floor that there is nothing
in our bill--nothing which changes the rights of the U.S. citizens.
There was no intent to do it, and we did not do it.
What the second Feinstein amendment provides is that nothing in this
section of our bill shall be construed to affect existing law or
authorities relating to the detention of the U.S. citizens or lawful
resident aliens of the United States or any other persons who are
captured or arrested in the United States. It makes clear what we have
been saying this language already does, which is that it does not
affect existing law relative to the right of the executive branch to
capture and detain a citizen. If that law is there allowing it, it
remains. If, as some argue, the law does not allow that, then it
continues that way. We think the law is clear in Hamdi that there is no
bar to this Nation holding one of its own citizens as an enemy
combatant, and we make clear whatever the law is. It is unaffected by
this language in our bill.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I wish to thank my colleagues, Senators
Graham and Levin, and particularly Senator Feinstein for working so
hard to come to an agreement on section 1031. I was concerned that the
United States would, for the first time in the history of this country,
with the original language, authorize indefinite detention in the
United States. But we have agreed to include language in this bill with
the latter amendment that makes it clear that this bill does not change
existing detention authority in any way.
It means the Supreme Court will ultimately decide who can and cannot
be detained indefinitely without a trial. To this day, the Supreme
Court has never ruled on the question of whether it is constitutional
to indefinitely detain a U.S. citizen captured in the United States.
Some of my colleagues see this differently, but the language we have
agreed on makes it clear that section 1031 will not change that law in
any way. The Supreme Court will decide who will be detained; the Senate
will not.
I ask unanimous consent to be added as a cosponsor to the second
pending amendment by Senator Feinstein.
The PRESIDING OFFICER. Without objection, it is so ordered.
All time has expired on the majority side.
Mr. GRAHAM. How much time do we have remaining?
The PRESIDING OFFICER. There is 4\1/2\ minutes remaining.
Mr. GRAHAM. Mr. President, I would like to take the opportunity to
end what I think has been a very good debate. Senator Feinstein--and I
know she is busy--said something on the floor that I wish to reiterate:
that the second amendment which Senator Durbin just suggested we have
reached a compromise on, I am fully committed to making sure it stays
in the conference report. Some folks in the House may have a problem,
but I think it is good, sound law.
The goal for me has never been to change the law, to put an American
citizen more at risk than they are today. It is just to keep the status
quo and acknowledge from the point of view of the Congress that the
Obama administration's decision to detain people as enemy combatants
lies within the President's power to do so. The Court has said in In re
Quirin and in the Hamdi case that at a time of war the executive branch
can detain an American citizen who decides to collaborate with the
Nazis, as well as al-Qaida, as an enemy combatant. They can hold them
for interrogation purposes to collect intelligence. We don't have to
take anybody into court and put them on trial because the goal is to
protect the Nation from another attack.
The law also says no one, including an American citizen, can be held
indefinitely without going to an article III court. Every person
determined to be an enemy combatant by the executive branch has to have
their case presented to an independent judiciary, and the government
has to prove to a Federal judge by a preponderance of the evidence that
they fall within this narrow exception. The government has lost about
half the cases and won about half the cases.
My concern with Feinstein 1 is that it would change the law; that the
law would be changed for the first time ever, saying we cannot hold an
American citizen who has collaborated with the enemy for intelligence
gathering purposes. I think homegrown terrorism is growing. If an
American citizen left this country and went to Pakistan, got
radicalized in a madrasah, came back and started trying to kill
Americans, I think we should have the authority to detain them as with
any belligerent, just like in World War II, and gather intelligence as
to whether somebody else may be coming.
So that is what I want to preserve. With all due respect to Senator
Feinstein, I think her first amendment very much puts that in jeopardy.
It is going to be confusing, litigation friendly, so let's just stay
with what we believe the law is.
As to Senator Durbin, he has one view, I have another, but we have a
common view; that is, not to do anything to 1031 that would change the
law. The ultimate authority on the law is not Lindsey Graham or Dick
Durbin, it is the Supreme Court of the United States. That is the way
it should be, and that is exactly what we say here. We are doing
nothing to change the law when it comes to American citizen detention
to enhance it or to restrict whatever rights the government has or the
citizen has. I think that is what we need to say as a nation.
One last word of warning to my colleagues, the threats we face as a
nation are growing. Homegrown terrorism is going to become a greater
reality, and we need to have tools. Law enforcement is one tool, but in
some cases holding people who have decided to help al-Qaida and turn on
the rest of us and try to kill us so we can hold them long enough to
interrogate them to find out what they are up to makes sense. When we
hold somebody under the criminal justice system, we have to read them
their rights right off the bat under the law or we don't because the
purpose is to gather intelligence. We need that tool now as much as at
any other time, including World War II.
Thank you all for a great debate. I hope we can vote no on Feinstein
1 and have a strong bipartisan vote on Feinstein 2.
With that, I yield the floor.
The PRESIDING OFFICER. Is all time yielded back?
Mr. GRAHAM. If anybody wishes to speak, speak now.
All time is yielded back.
The PRESIDING OFFICER. Under the previous order, the question is on
amendment No. 1126 offered by the Senator from California.
Mr. LEVIN. Could I just interrupt with a unanimous consent request
that prior to each vote there be 2 minutes of debate equally divided in
the usual form and that it start with the vote after this one.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. McCAIN. I ask for the yeas and nays.
[[Page S8125]]
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The question is on agreeing to amendment No. 1126.
The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 45, nays 55, as follows:
[Rollcall Vote No. 214 Leg.]
YEAS--45
Akaka
Baucus
Bennet
Bingaman
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Coons
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Johnson (SD)
Kerry
Kirk
Kohl
Lautenberg
Leahy
Lee
McCaskill
Menendez
Merkley
Mikulski
Moran
Murray
Nelson (FL)
Paul
Reid
Rockefeller
Sanders
Schumer
Shaheen
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Wyden
NAYS--55
Alexander
Ayotte
Barrasso
Begich
Blumenthal
Blunt
Boozman
Brown (MA)
Burr
Chambliss
Coats
Coburn
Cochran
Corker
Cornyn
Crapo
DeMint
Enzi
Graham
Grassley
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (WI)
Klobuchar
Kyl
Landrieu
Levin
Lieberman
Lugar
Manchin
McCain
McConnell
Murkowski
Nelson (NE)
Portman
Pryor
Reed
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Stabenow
Thune
Toomey
Vitter
Whitehouse
Wicker
The amendment (No. 1126) was rejected.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. MENENDEZ. I move to lay that motion on the table.
The motion to lay upon the table was agreed to.
Amendment No. 1456
The PRESIDING OFFICER (Mr. UDALL of Mexico). Under the previous
order, there will be now be 2 minutes of debate equally divided prior
to a vote on amendment No. 1456 offered by the Senator from California,
Mrs. Feinstein.
The majority leader is recognized.
Mr. REID. I ask unanimous consent that all votes relating to the
Defense authorization bill be 10 minutes in duration, including final
passage.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Michigan.
Mr. LEVIN. Mr. President, a number of my colleagues have asked where
we are. We are going to have probably three or four more rollcall
votes, hopefully including final passage. There is also a package--and
everyone should listen to this because at least 70 of us are affected.
There is a package of about 70 amendments which have been cleared.
However, as of the moment, there is an objection to that package being
adopted.
When I say the package has been cleared, what I am saying is there
has been no objection to the substance of any of those 70 amendments.
If there was an objection to the substance, they would not be cleared.
So there is no objection to the substance of those approximately 70
amendments, but you should be aware, because most of us have amendments
in that cleared managers' package, that unless that objection is
removed, we cannot get that package adopted tonight.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I wonder if I might be able to make a
few comments.
This amendment is a compromise amendment. I think it is actually a
very good amendment. I want to thank the chairman of the committee, the
ranking member, and Senator Graham, who participated in a rather
lengthy discussion, and this is the result.
The amendment--I will read it. It says:
Nothing in this section shall be construed to affect
existing law or authority relating to the detention of United
States citizens or lawful resident aliens of the United
States or any other persons who are captured or arrested in
the United States.
There is a commitment from both the chairman and the ranking member
and Senator Graham that they will defend this amendment in conference.
So I hope everyone will vote for it because essentially it just
supports present law, whether one supports the broad interpretation of
present law, or one supports a more narrow interpretation of present
law. There is no change in law.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Michigan.
Mr. LEVIN. Mr. President, I very much support this amendment, I am a
cosponsor, and I hope we can all vote for it. This does what we said--
those of us who wrote this bill--the bill does and does not do all
along. It does not change current law. This amendment reinforces the
point that this bill does not change current law relative to this
section of this bill. The section of this bill does not change current
law relative to the detention of people in the United States.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I will not repeat what the chairman said
except that I would like to thank Senator Feinstein for her willingness
to sit down and negotiate with us, and Senator Durbin, who has been a
passionate advocate. I would also like to thank all of the people who
came to the floor so often. I think the Senate is a better institution
as a result of the debate, and I am sure the Senate and the American
people are much better informed on this very important national
security aspect of this bill.
I thank my colleagues. I urge an aye vote.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
Mrs. FEINSTEIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 99, nays 1, as follows:
[Rollcall Vote No. 215 Leg.]
YEAS--99
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Lee
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Paul
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wicker
Wyden
NAYS--1
Kyl
The amendment (No. 1456) was agreed to.
Amendment No. 1414
The PRESIDING OFFICER. Under the previous order, there will be 2
minutes of debate, equally divided, prior to a vote on amendment No.
1414, offered by the Senator from New Jersey, Mr. Menendez, and the
Senator from Illinois, Mr. Kirk.
The Senator from New Jersey.
Mr. MENENDEZ. Mr. President, the Menendez-Kirk bipartisan amendment
is sponsored by over half of the Members of the Senate. It makes it
very clear that the Treasury Department's own determination under the
PATRIOT Act that the Iranian Central Bank is the central source for
money for Iran's nuclear march toward a nuclear weapon needs to be
addressed. That is exactly what we do in this amendment. It creates the
maximum effort against the Iranians, and it ensures that we do not have
any oil disruption as a result of those sanctions by giving the
President the opportunity to make a determination that there are
sufficient oil supplies so as not to create a disruption, and it gives
him in addition a national security waiver.
This is the maximum opportunity to have a peaceful diplomacy tool to
stop Iran's march to nuclear weapons.
I urge my colleagues to give it a strong bipartisan vote.
[[Page S8126]]
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. I support the amendment. I think this amendment is vital
at this time to send a strong signal to Iran, which recently tried to
pull off the assassination of the Saudi Ambassador here in Washington,
DC. It is long overdue, and it is too bad that the United States has to
do it by ourselves rather than having the U.N. Security Council act.
This is a strong amendment. I think it is very important and, again, I
strongly support it.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. KIRK. Mr. President, this Menendez-Kirk amendment is a strong,
bipartisan amendment. Over half of the Senate has formally cosponsored
it. I urge its adoption, especially after the bomb plot in Washington,
DC, the IAEA report on nuclear development in Iran, and the overrunning
of our British ally's embassy site by Iran 2 days ago.
I yield the floor.
The PRESIDING OFFICER. Is all time yielded back?
Mr. McCAIN. Yes.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
Mr. MENENDEZ. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 100, nays 0, as follows:
[Rollcall Vote No. 216 Leg.]
YEAS--100
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Lee
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Paul
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wicker
Wyden
The amendment (No. 1414) was agreed to.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, if we have this consent agreement that I am
going to ask in just a second, we will have four votes remaining for
the evening, and that would be all. We will be in session tomorrow. We
have some things we need to do procedurally, but there shouldn't be any
votes tomorrow.
Mr. President, I ask unanimous consent that upon disposition of S.
1867, the Defense authorization bill, the Senate proceed to vote on the
Reid of Nevada motion to proceed to Calendar No. 238, S. 1917; that
there be 2 minutes equally divided between the two leaders or their
designees prior to the vote; that upon disposition of the Reid motion
to proceed, it be in order for the Republican leader or his designee to
move to proceed to Calendar No. 244, S. 1931; that there be 2 minutes
of debate equally divided between the two leaders or their designees
prior to the vote; that both motions to proceed be subject to a 60
affirmative-vote threshold; finally, that the cloture motion relative
to the motion to proceed to S. 1917 be vitiated.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Amendment No. 1209
The PRESIDING OFFICER. Under the previous order, there will be 2
minutes of debate equally divided prior to a vote on amendment No. 1209
offered by the Senator from Florida, Mr. Nelson.
The Senator from Florida.
Mr. NELSON of Florida. Mr. President, it is my understanding that
both leaders have decided to accept this. So I don't see any need for a
rollcall vote.
Mr. McCAIN. I thank the Senator.
The PRESIDING OFFICER. Is all time yielded back?
Mr. LEVIN. Our time is yielded back.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 1209) was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. McCAIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1080 Withdrawn
The PRESIDING OFFICER. Under the previous order, there will now be 2
minutes of debate equally divided prior to a vote on amendment No.
1080, offered by the Senator from Vermont, Mr. Leahy.
The Senator from Michigan.
Mr. LEVIN. Mr. President, Senator Leahy authorized me and told me he
was withdrawing this amendment relative to military custody because of
all of the actions which have been previously taken. I am very
confident that is what he told me, so I am going to withdraw that
amendment on his behalf.
The PRESIDING OFFICER. Without objection, the amendment is withdrawn.
Amendment No. 1274
The PRESIDING OFFICER. Under the previous order, there will now be 2
minutes of debate equally divided prior to a vote on amendment No.
1274, offered by the Senator from Alabama, Mr. Sessions.
The Senator from Alabama.
Mr. SESSIONS. Mr. President, this amendment is crafted to simply
clarify and affirm what appears to be the law, and logic tells us
should be the law today.
If an individual is apprehended as a prisoner of war, they are
detained under the laws of war until the conflict ends. But if, after
being detained or when they are detained, it is determined they have
committed crimes against the laws of war, they can be tried for those
crimes.
There is a slight ambiguity. I think it is pretty clear the military
would have a right to continue to detain them as a prisoner of war if
they were not convicted of the much higher burden crime against the
laws of war.
So the essence of this is simply to say what the judge said in the
case involving the African Embassy bombing, the Ghailani case. The guy
was acquitted of 284 out of 285 counts, and the judge said: You
probably would be detained under the laws of war. So this would clarify
that.
The PRESIDING OFFICER. Who yields time?
The Senator from Michigan.
Mr. LEVIN. Mr. President, I think this can be accepted on a voice
vote. I have great problems with it, but I think there is probably a
majority here that will favor it and a distinct minority perhaps that
would not. But it is something which basically doesn't add to the
existing law, which says this is theoretically possible, and all this
does is say it is possible one could be acquitted of a criminal case
and still be held as an enemy combatant.
Mr. PAUL. I object. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the amendment.
The clerk will call the roll.
The legislative clerk called the roll.
The result was announced--yeas 41, nays 59, as follows:
[Rollcall Vote No. 217 Leg.]
YEAS--41
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Coburn
Cochran
Cornyn
Crapo
DeMint
Enzi
Graham
Grassley
Hatch
Hoeven
Hutchison
Inhofe
Isakson
Johanns
Johnson (WI)
Kyl
Lieberman
Lugar
Manchin
McConnell
Moran
Murkowski
Portman
Pryor
Risch
Roberts
Rubio
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
NAYS--59
Akaka
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (MA)
Brown (OH)
Cantwell
Cardin
Carper
Casey
Collins
Conrad
[[Page S8127]]
Coons
Corker
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heller
Inouye
Johnson (SD)
Kerry
Kirk
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Lee
Levin
McCain
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (NE)
Nelson (FL)
Paul
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Snowe
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
The amendment (No. 1274) was rejected.
The PRESIDING OFFICER. The majority leader is recognized.
The 9,000th Vote of Senator Frank Lautenberg
Mr. REID. Mr. President, the next rollcall vote will be the 9,000th
vote cast by Senator Frank Lautenberg. Senator Lautenberg, the senior
Senator from New Jersey, has always been a fighter for his State, for
progressive causes.
Before coming to the Senate, Senator Lautenberg served his country
admirably in World War II, graduated from Colombia Business School, and
became--and this is an understatement--a successful businessman.
The determination that made him successful in the private sector
served him well in the Senate, where he worked tirelessly on behalf of
the State of New Jersey. Frank tried to retire once--in 2000--but he
just couldn't stay away from serving the State and the Nation and
returned to the Senate a little over a year after he had retired.
As the top Democrat on the Senate Budget Committee, Senator
Lautenberg negotiated the balanced budget amendment of 1997, which
restored fiscal discipline while cutting taxes for students and
families with children.
He has been at the cutting edge of environmental issues in this
country since he came to the Senate. He has worked as a member of the
Environment and Public Works Committee, doing a good job with highways,
railways, and runways in New Jersey, and has done that in conjunction
with being a member of the Environment and Public Works Committee but
also the Appropriations Committee.
During his time in the Senate, he has done things that will be a
lasting mark on his career, his legacy, forever. Our Nation's roads are
safer because he was responsible for our passing the 21-year-old
drinking age. He established a national drunk driving standard, a
standard throughout the country. He banned triple-trailer trucks--so-
called killer trucks--from the roads of New Jersey and many other
States. He dedicated his time in the Senate to holding terrorists
accountable and protecting New Jersey's ports, which are important to
all of us, not only to New Jersey.
Senator Lautenberg has done many things. He authored the domestic
violence gun ban--the only significant gun legislation to become law
since the Brady bill--which prevents convicted abusers from buying
guns.
The thing I recognize as very important--one of my boys couldn't
stand the cigarette smoke in airplanes. Even though the airlines tried
to set up a standard for smoking, you know that if there was smoking in
the airplane, the fact that you were someplace else in the airplane
didn't matter; everybody got the secondhand smoke. He fought this and
banned smoking on airplanes, which I will always remember, and
certainly my boy Key will always remember that.
For three decades, Frank Lautenberg has left a mark that is very
impressive, and his 9,000 votes will be something people will look back
on and determine that Frank Lautenberg is one of the most productive
Senators in the history of our country.
Congratulations, Frank.
The PRESIDING OFFICER. The Republican leader is recognized.
Mr. McCONNELL. Mr. President, I would like to associate myself with
the remarks of the majority leader and congratulate the Senator from
New Jersey on this milestone in his long and very distinguished career
here in the Senate.
(Applause.)
The PRESIDING OFFICER (Mr. Udall of Colorado). The Senator from New
Jersey.
Mr. MENENDEZ. Mr. President, I know we want to hear from our
colleague shortly. I wish to join in recognizing over a quarter of a
century of distinguished service from the senior Senator from New
Jersey on this 9,000th vote, which is only emblematic of the type of
work he has done, which is with a view toward not the next election but
the next generation, whether it is saving lives by raising the drinking
age; whether it is allowing workers to understand and have the right to
know the toxic chemicals they were working with and the community in
which those toxic chemicals were located; whether it is making sure all
of us don't have to breathe secondhand smoke on an airplane; whether it
is making sure that those who pilfer the land and contaminated it were
held responsible to clean it up in the Superfund or to have cleaner air
to breathe, Frank Lautenberg's legislation has touched millions of
lives not only in New Jersey but across the Nation, and we salute him
for his tremendous service.
The PRESIDING OFFICER. The senior Senator from New Jersey.
Mr. LAUTENBERG. Mr. President, I thank the leader for his kind words
and the help he has given me to make some of the decisions we labored
with. I thank my colleague, the Senator from New Jersey, Bob Menendez,
who has worked very hard to do his share in moving legislation and
doing the right thing by the people in our State and our country.
One of the things that is, to me, pretty important is when I said to
my mother in 1982: Mom, I am going to run for the U.S. Senate; I think
there is an opportunity there. I was running ADP and in quite good
company at the time. So she said: Frank, what do you need it for? I
said: Mom, I don't need it. On the night of the election, we were
gathered at my house in New Jersey--and my mother was then committed to
a wheelchair--and she had tears running down her face. I said: Mom, you
asked me why I needed it. I said: Why are you crying? She said: Because
I always wanted you to win.
The people in New Jersey were very kind over these years, electing me
five times to the Senate and giving me the honor and the opportunity to
give something back to this country of ours.
I came from a family that was a poor family, immigrant family. My
parents were young when they were brought by their parents to America.
They were hoping that maybe good things could happen as a result of
their becoming Americans. So I stand here and I am glad we are not
taking a vote on whether I should be commended for this. I might not
get all the votes you gave me because you didn't ask for unanimous
consent, but nevertheless, it passed, and so I thank all of you, even
those with whom I might occasionally disagree. It is shocking, but it
does happen here. But I have respect for everybody who is sent here by
their constituents from every State in the country and for their point
of view. It doesn't mean I agree, but I have respect for the fact that
we can say what we want in this free country of ours, say things that
sometimes maybe we wish we had not said, but we have a chance to speak
out on the things we believe in.
I thank all of my colleagues for their service and for the accolades
given to me this night.
With that, I yield the floor.
Amendment No. 1087
The PRESIDING OFFICER. There will now be 2 minutes of debate on the
Leahy amendment No. 1087.
Who yields time?
The Senator from Michigan.
Mr. LEVIN. Mr. President, I ask unanimous consent that the germane
Leahy amendment No. 1087 be modified with the changes at the desk;
further, that the amendment, as modified, be agreed to.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. THUNE. Reserving the right to object, could the manager clarify
exactly what that is?
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. There was a provision in the bill relative to the Freedom
of Information Act which, by agreement, was modified.
Mr. THUNE. This doesn't have anything to do with the managers'
package.
Mr. McCAIN. It is agreeable on both sides.
The PRESIDING OFFICER. Is there objection?
[[Page S8128]]
Without objection, the amendment, as modified, is agreed to.
The amendment (No. 1087), as modified, is as follows:
Strike section 1044 and insert the following:
SEC. 1044. TREATMENT UNDER FREEDOM OF INFORMATION ACT OF
CERTAIN SENSITIVE NATIONAL SECURITY
INFORMATION.
(a) Critical Infrastructure Security Information.--
(1) In general.--The Secretary of Defense may exempt
certain Department of Defense information from disclosure
under section 552 of title 5, United States Code, upon a
written determination that--
(A) the information is Department of Defense critical
infrastructure security information; and
(B) the public interest in the disclosure of such
information does not outweigh the Government's interest in
withholding such information from the public.
(2) Information provided to state or local first
responders.--Critical infrastructure security information
covered by a written determination under this subsection that
is provided to a State or local government to assist first
responders in the event that emergency assistance should be
required shall be deemed to remain under the control of the
Department of Defense.
(b) Military Flight Operations Quality Assurance System.--
The Secretary of Defense may exempt information contained in
any data file of the Military Flight Operations Quality
Assurance system of a military department from disclosure
under section 552 of title 5, United States Code, upon a
written determination that the disclosure of such information
in the aggregate (and when combined with other information
already in the public domain) would reveal sensitive
information regarding the tactics, techniques, procedures,
processes, or operational and maintenance capabilities of
military combat aircraft, units, or aircrews. Information
covered by a written determination under this subsection
shall be exempt from disclosure under such section 552 even
when such information is contained in a data file that is not
exempt in its entirety from such disclosure.
(c) Delegation.--The Secretary of Defense may delegate the
authority to make a determination under subsection (a) or (b)
to any civilian official in the Department of Defense or a
military department who is appointed by the President, by and
with the advice and consent of the Senate.
(d) Transparency.--Each determination of the Secretary, or
the Secretary's designee, under subsection (a) or (b) shall
be made in writing and accompanied by a statement of the
basis for the determination. All such determinations and
statements of basis shall be available to the public, upon
request, through the office of the Assistant Secretary of
Defense for Public Affairs.
(e) Definitions.--In this section:
(1) The term ``Department of Defense critical
infrastructure security information'' means sensitive but
unclassified information that, if disclosed, would reveal
vulnerabilities in Department of Defense critical
infrastructure that, if exploited, would likely result in the
significant disruption, destruction, or damage of or to
Department of Defense operations, property, or facilities,
including information regarding the securing and safeguarding
of explosives, hazardous chemicals, or pipelines, related to
critical infrastructure or protected systems owned or
operated by or on behalf of the Department of Defense,
including vulnerability assessments prepared by or on behalf
of the Department, explosives safety information (including
storage and handling), and other site-specific information on
or relating to installation security.
(2) The term ``data file'' means a file of the Military
Flight Operations Quality Assurance system that contains
information acquired or generated by the Military Flight
Operations Quality Assurance system, including the following:
(A) Any data base containing raw Military Flight Operations
Quality Assurance data.
(B) Any analysis or report generated by the Military Flight
Operations Quality Assurance system or which is derived from
Military Flight Operations Quality Assurance data.
Mr. LEAHY. Mr. President, I am pleased that the Senate has
unanimously adopted my Freedom of Information Act, FOIA, amendment to
the National Defense Authorization Act. This measure appropriately
narrows the overbroad exemptions to FOIA contained in the bill and will
help ensure that the American public has access to important
information about potential threats to their health and safety at or
near Department of Defense facilities.
I thank Senator Levin and Senator McCain for working with me on this
issue and including this language, with our agreed-to modifications, in
the managers' package for this bill. I also thank the many open
government groups from across the political spectrum that support this
amendment, including OpentheGovernment.org, the Liberty Coalition, the
Sunlight Foundation and the American Library Association.
For more than 45 years, the Freedom of Information Act has been a
cornerstone of open government and a hallmark of our democracy,
ensuring that the American people have access to their Government's
records. The addition of this measure to the National Defense
Authorization Act will help ensure that FOIA remains a viable tool for
access to Department of Defense information that impacts the health and
safety of the American public.
I am particularly pleased that the language adopted by the Senate
includes a public interest balancing test that requires the Secretary
of Defense to consider whether the Government's interests in
withholding critical infrastructure information are outweighed by other
public interests. This improvement to the bill will help ensure that
truly sensitive information is protected, while allowing the public to
obtain important information about potential health and safety
concerns.
This language adopted by the Senate strikes an appropriate balance
between safeguarding the ability of the Department of Defense to
perform its vital mission and the public's right to know. I am pleased
that this measure has been included in this important legislation with
the unanimous support of the Senate.
Mr. LEVIN. Mr. President, I move to reconsider the vote on the Leahy
amendment.
Mr. McCAIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1202, As Modified
The PRESIDING OFFICER. There will now be 2 minutes of debate on the
Udall amendment.
Mr. LEVIN. Mr. President, there is a pending amendment which
apparently the clerk will need to report at this point.
The PRESIDING OFFICER. The Udall amendment is pending.
Mr. LEVIN. Mr. President, I ask unanimous consent that the pending
germane Udall of New Mexico amendment No. 1202 be modified with the
changes at the desk; further, that the amendment, as modified, be
agreed to.
The PRESIDING OFFICER. Is there objection?
Without objection, the amendment, as modified, is agreed to.
The amendment (No. 1202), as modified, is as follows:
At the end of subtitle B of title VIII, add the following:
SEC. 827. APPLICABILITY OF BUY AMERICAN ACT TO PROCUREMENT OF
PHOTOVOLTAIC DEVICES BY DEPARTMENT OF DEFENSE.
(a) In General.--Section 2534 of title 10, United States
Code, is amended by adding at the end the following new
subsection:
``(k) Procurement of Photovoltaic Devices.--
``(1) Contract requirement.--The Secretary of Defense shall
ensure that each contract described in paragraph (2) awarded
by the Department of Defense includes a provision requiring
any photovoltaic devices installed pursuant to the contract,
or pursuant to a subcontract under the contract, to comply
with the provisions of chapter 83 of title 41 (commonly known
as the `Buy American Act'), without regard to whether the
contract results in ownership of the photovoltaic devices by
the Department.
``(2) Contracts described.--The contracts described in this
paragraph include energy savings performance contracts,
utility service contracts, power purchase agreements, land
leases, and private housing contracts pursuant to which any
photovoltaic devices are
(A) installed on property or in a facility--owned by the
Department of Defense;
``(B) generate power consumed by the Dept of Defense and
counted toward Federal renewable energy purchase requirements
``(3) Consistency with international obligations.--
Paragraph (1) shall be applied in a manner consistent with
the obligations of the United States under international
agreements.
``(4) Definition of photovoltaic devices.--In this
subsection, the term `photovoltaic devices' means devices
that convert light directly into electricity.
``(5) Effective date.--This subsection applies to
photovoltaic devices procured or installed on or after the
date that is 30 days after the date of the enactment of the
National Defense Authorization Act for Fiscal Year 2012
pursuant to contracts entered into after such date of
enactment.''.
(b) Conforming Repeal.--Section 846 of the Ike Skelton
National Defense Authorization Act for Fiscal Year 2011 (10
U.S.C. 2534 note) is repealed.
Mr. UDALL of New Mexico. Mr. President, I thank the chairman for
working with me on this amendment. I think he gave us a modification
that is a good one. This amendment I offer
[[Page S8129]]
with Senator Schumer and Senator Sanders closes the Buy American
loopholes, and applies Buy American requirements to solar projects that
are funded by the Department of Defense to meet energy goals in this
bill. If American taxpayer funds are used to improve our military
bases' energy security, then American solar firms should have the
ability to compete.
I ask unanimous consent that my full statement be printed in the
Record.
Mr. UDALL of New Mexico. Mr. President, solar power increases energy
security for American military installations and our troops in the
field. With solar power, our military is less dependent on the
surrounding electricity grid or fuel supplies for generators. As a
result, the Department of Defense is a leader on utilizing solar
power--not for environmental reasons, but for energy security reasons.
However, if we are going to use taxpayer funds to support military
solar power--which also qualifies for federal solar tax incentives--we
must provide a level playing field for U.S. solar manufacturers in the
contracting process. Last year's Defense Authorization bill took an
important step, by clarifying that DOD's Buy American Act requirements
apply to solar.
Previously, when solar was installed on DOD property, Buy American
would not apply because DOD purchases the power, not the panels. DOD
uses that arrangement for two reasons--first, it spreads the cost out
through long term power purchase agreements instead of up-front costs;
second, it allows the project to use tax credits DOD cannot use.
While last year's bill attempted to fix this situation, it left two
loopholes. First, the Buy American requirements from last year's bill
are limited ``to the extent that such contracts result in ownership of
[solar] devices by DOD.'' The nature of power purchase agreements means
that often this requirement is not fulfilled, thus allowing Chinese
solar makers to undercut bids for DOD funded solar projects.
Second, last year's provision also only applied when ``reserved for
the exclusive use'' of DOD for the ``full economic life'' of the
device. Solar power projects may sometimes sell back to the grid, and
DOD may use them for 20 years, when they are warranted for 25. The
combined effect of these loopholes is that Buy American does not
currently apply to DOD-funded solar.
The amendment I am offering with Senator Schumer and Sanders closes
these loopholes and applies Buy American requirements to solar projects
that are funded by DOD to meet the energy goals in this bill.
If American taxpayer funds are used to improve our military bases'
energy security, American solar firms should have an ability to
compete. We know that other nations like China are spending vast
resources to become leaders in the solar power market. They do not play
by our trade rules, and they are taking advantage of our taxpayer
funds.
Think about it this way: China does not spend its tax dollars on U.S.
solar panels at Chinese military bases. Why should Congress provide
market access that is not extended to U.S. manufacturers?
This amendment halts that practice, while maintaining all existing
provisions of the Buy American Act: Nations who are in the WTO are not
discriminated against--``Buy American'' does not bar nations that allow
reciprocal access to U.S. firms to their government procurement.
Existing exemptions such as availability and cost still apply, so we do
not expect this to harm DOD's procurement in any way.
Our amendment is supported by a strong coalition of U.S. solar
manufacturers and U.S. workers.
I thank Senator Schumer and his staff for working with us, along with
Chairman Levin and his staff, and I urge the Senate's support.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. UDALL of New Mexico. I thank Senator McCain, I thank Senator
Levin, and I appreciate their help on this amendment.
Foreign Subsidiaries of U.S. Parent Companies Active in Iran
Mr. LAUTENBERG. Mr. President, I wish to engage in a colloquy with my
friend, the distinguished chairman of the Senate Banking Committee,
regarding U.S. companies that continue to do business with Iran. I know
the chairman shares my concern about Iran's continued violations of
international norms. As the International Atomic Energy Agency's recent
report starkly highlights, Iran continues to work to build a nuclear
weapon despite the current sanctions in place. While we have made great
strides in strengthening sanctions on Iran, more work clearly needs to
be done to place pressure on Iran to change its behavior. For the past
7 years, I have been working to close a loophole in current law that
allows foreign subsidiaries of U.S. companies to continue doing
business with Iran without facing the same penalties that would be
placed on the parent company. I have now filed an amendment to the
National Defense Authorization Act for Fiscal Year 2012 currently under
consideration to try and close this loophole once again. Although I am
not going to call for a vote on this amendment at this time, it is time
we work to close this loophole once and for all.
Mr. JOHNSON. I thank Senator Lautenberg for his longstanding
leadership on this issue. It is timely for him to raise it again now in
the wake of the IAEA's recent report on Iran's illicit nuclear
activities and in the midst of our efforts in the Banking Committee to
ratchet up the pressure on Iran's leaders through additional sanctions.
As President Obama noted last week when he imposed a new round of
sanctions using the tools Congress gave him, Iran's government has
persistently refused to abide by its international obligations, and it
is time to turn up the heat in an effort to persuade its leaders to
come clean on their nuclear program. While U.S. sanctions enacted last
year, multilateral sanctions, and other efforts have slowed Iran's
nuclear program and damaged its key revenue-generating energy sector,
it remains my urgent priority to strengthen sanctions further to ensure
that Iran effectively has no choice but to change its current path.
That is why we are acting to sanction Iran's Central Bank today as
well. On the issue you have raised, I think it is long past time for
U.S. subsidiaries to withdraw from doing business in Iran. That is
already happening due to U.S. and other international pressure on the
business and financial sectors. Firms realize the huge risks this
activity poses, reputationally and otherwise, to their companies. I
note that it is already a violation for American subsidiaries to engage
in sanctionable activity in Iran's energy sector and certain other
activities under U.S. sanctions laws. It is also a violation of U.S.
trade law for a U.S. firm to do business of any kind in Iran via a
subsidiary. What that means is that if a U.S. parent is acting through
its subsidiary, directing its activity, that violates U.S. law. The
balance that has been struck so far is that we have directed our law,
including our trade embargo, to U.S. companies and what U.S. companies
do. Foreign subsidiaries are not, by definition, U.S. persons. But I
agree with you that we can and should do more to stop the foreign
subsidiaries of American companies from doing business with Iran, and I
intend to address this problem in our upcoming legislation to expand
Iran sanctions.
Mr. LAUTENBERG. My amendment would have applied the same penalties
that can be imposed on U.S. companies that violate the U.S. trade ban
with Iran to foreign subsidiaries of U.S. companies. Does the chairman
agree that this loophole remains an issue that must be addressed?
Mr. JOHNSON. I agree that we must address the problem of foreign
subsidiaries of U.S. companies doing business in Iran not being
penalized for it under U.S. law. I know that, as in the past, there
will be opposition from some in the business community, and elsewhere
including European and other foreign governments who have long objected
to the extraterritorial application of U.S. laws to reach companies
organized under their jurisdiction. They will argue that the activities
of U.S. subsidiaries are not legally U.S. persons, but are rather
foreign persons organized under other countries' laws, and so should
not be reached by U.S. law. But I am committed to working with my
friend and with my committee members to address this issue.
Mr. LAUTENBERG. I thank the chairman. As we know, Iran funds Hamas,
Hezbollah, and other terrorist
[[Page S8130]]
organizations. We should not allow American-controlled companies to
provide cash to Iran so that they can convert these funds into bullets
and bombs to be used against us and our allies. It is inexcusable for
American companies to engage in any business practice that provides
revenues to terrorists, and we have to stop it. I look forward to
working with Chairman Johnson to close this loophole.
Mrs. FEINSTEIN. Mr. President, I rise to respond to a colloquy
yesterday that occurred between Senators Ayotte, Lieberman, and Graham
regarding amendment No. 1068 offered by Senator Ayotte to the Defense
authorization bill.
Senator Ayotte's amendment would eliminate measures that provide our
interrogators with the guidance and clarity they need to effectively
solicit actionable intelligence while upholding American values. In
doing so, the amendment would override the better judgment of our
military and intelligence professionals in a manner that will harm, not
improve, our short- and long-term security.
Yesterday, Senator Lieberman said on the Senate floor that he wants
prisoners taken captive by the United States to be ``terrified about
what is going to happen to them while in American custody.'' He also
said he wants ``the terror they inflict on others to be felt by them.''
I believe that such statements are antithetical to fundamental American
values. I firmly believe that America will not and cannot lower itself
to the level of terrorists. To do so would be to abandon our most
cherished principles and what our country stands for.
There was also discussion of abuses at Abu Ghraib, which diminished
America's standing and outraged the American public, and there was
discussion about how there were a few isolated incidents at Abu Ghraib.
As chairman of the Select Committee on Intelligence, I can say that
we are nearing the completion a comprehensive review of the CIA's
former interrogation and detention program, and I can assure the Senate
and the Nation that coercive and abusive treatment of detainees in U.S.
custody was far more systematic and widespread than we thought.
Moreover, the abuse stemmed not from the isolated acts of a few bad
apples but from fact that the line was blurred between what is
permissible and impermissible conduct, putting U.S. personnel in an
untenable position with their superiors and the law.
That is why Congress and the executive branch subsequently acted to
provide our intelligence and military professionals with the clarity
and guidance they need to effectively carry out their missions. And
that is where the Army Field Manual comes in.
However, Senator Ayotte's amendment would require the executive
branch to adopt a classified interrogation annex to the Army Field
Manual, a concept that even the Bush administration rejected outright
in 2006.
Senator Ayotte argued that the United States needs secret and
undisclosed interrogation measures to successfully interrogate
terrorists and gain actionable intelligence. However, our intelligence,
military, and law enforcement professionals, who actually interrogate
terrorists as part of their jobs, universally disagree. They believe
that with the Army Field Manual as it currently is written, they have
the tools needed to obtain actionable intelligence from U.S. detainees.
As an example, in 2009, after an extensive review, the intelligence
community unanimously asserted that it had all the guidance and tools
it needed to conduct effective interrogations. The Special Task Force
on Interrogations--which included representatives from the CIA, Defense
Department, the Office of the Director of Intelligence, and others--
concluded that ``no additional or different guidance was necessary.''
Since 2009, the interagency High Value Detainee Interrogation Group
has briefed the Select Committee on Intelligence numerous times. The
group has repeatedly assured the committee that they have all authority
they need to effectively gain actionable intelligence. As a consummate
consumer of the intelligence products they produce, I agree.
Unfortunately, amendment No. 1068 would overrule the judgments of
these professionals--who have served under both the Bush and Obama
administrations--and impede their important work.
If our intelligence community is telling us that the current
guidelines and interrogation techniques are effective, why would we add
secret interrogation methods?
Senator Ayotte's amendment would muddy the waters on what is and
isn't permissible in interrogating U.S. detainees. Her amendment would
overturn not only the Executive order on lawful interrogations but also
roll back the McCain amendment passed in 2005--which the Senate
approved in a 90-to-9 vote--by allowing some interrogators, including
some military interrogators, to evade established interrogation
protocols.
In creating unnecessary exceptions to existing interrogation
guidance, Senator Ayotte's amendment would deprive our military and
intelligence professionals of the clarity they deserve and threaten to
reopen the door to secret techniques and other abuses of U.S.
detainees.
While Senator Ayotte has insisted that her amendment would continue
to prohibit cruelty, the colloquy on the floor suggests otherwise. When
Senator Graham asked her if the amendment was needed to bring back
enhanced interrogation techniques--techniques we now know included
induced hypothermia, slapping, sleep deprivation, and forced stressed
positions she responded in the affirmative.
We cannot have it both ways. Either we make clear to the world that
the United States will honor our values and treat prisoners humanely or
we let the world believe that we have secret interrogation methods to
terrorize and torture our prisoners.
The Ayotte proposal also ignores the dangerous practical implications
for our intelligence and military partners overseas.
The colloquy between the Senators yesterday suggests they believe the
United States will have some advantage by having a secret list of
interrogation techniques and that this will have no negative
implications, aside from giving interrogators more options.
Last year, GEN David Petraeus said it best when he unequivocally
asserted that we should not return to so-called ``enhanced'' techniques
because they ``undermine your cause'' and ``bite you in the backside in
the long run.''
Current U.S. law and policy makes clear that America is committed to
fundamental humane treatment standards. By overturning the status quo,
the Ayotte amendment would create dangerous pockets of uncertainty to
the detriment of our international standing, our intelligence
collectors, and our national security.
Should this amendment ever come to the floor of the Senate, I urge my
fellow Senators to oppose it.
Mr. AKAKA. Mr. President, I rise to express my deep concerns with the
payroll tax alternative that our colleagues have proposed. Their
alternative would be paid for by extending the current pay freeze for
Federal employees through 2015 and requiring each agency to cut its
workforce by 10 percent.
I strongly oppose putting the entire cost on the backs of two million
middle class Federal employees, who already have contributed to deficit
reduction through a 2-year pay freeze. These men and women are working
harder than ever with tighter budgets and, in many agencies, continued
staffing shortages. If adopted, these provisions would hamper
investments in national defense, homeland security, veterans' services,
food safety inspection, and other critical areas for a short-sighted
approach that does little to address our current fiscal challenges and
does nothing to create jobs. In the end, these policies would cost the
government more, by harming the Federal Government's ability to recruit
and retain highly-skilled workers and increasing our reliance on high-
cost contractors.
Arbitrary caps on Federal employees often lead to waste, fraud, and
abuse as contracting expands without investment in oversight. Already,
over the past decade, Federal contracts have nearly doubled in size,
but the acquisition workforce charged with overseeing our Federal
contracts has remained constant. We should not be adding to this trend,
but working to reverse it.
While I agree it is important that all Americans share the sacrifice
in these
[[Page S8131]]
challenging economic times, I believe Federal workers have already done
so. The 2-year Federal pay freeze enacted as part of the Budget Control
Act of 2011 will save approximately $60 billion over the next 10 years.
It is important to remember that a pay freeze affects employees much
longer than just the years it is in place; future salaries will build
from a lower base throughout employees' careers. The pay freeze will
also reduce future retirement benefits, because they are calculated
using the high three years' of earnings.
Nearly two thirds of our 2 million Federal employees are employed by
the Departments of Defense, Veterans Affairs, or Homeland Security--and
according to the Office of Personnel Management, 4 out of 5 jobs filled
since President Obama took office have been to these same agencies.
These employees do critical work to keep our Nation safe and care for
our veterans.
Approximately 85 percent of Federal employees work outside of the
Washington, DC area, and they are our neighbors and constituents in
each of our States. Like the rest of our constituents, they are
struggling with the deepest recession since the Great Depression.
Although fortunate to have more job security than most workers, many
have unemployed spouses and adult children, their home values and
retirement savings have fallen dramatically, and like everyone else
they face high health care, college, and other costs. Contrary to what
you might hear from our colleagues, Federal employees are not overpaid.
Those guarding our airports and borders, and working at our naval
shipyards, may start at less than $30,000 per year. Many make less than
what they could in the private sector, but they work for the American
people because they love their country and they are committed to
service. Further cuts to Federal pay and benefits will not only hurt
these individual families, but will hinder the larger economic
recovery.
At a time when close to half our Federal workforce will soon be
eligible to retire, I worry that extending the pay freeze could further
harm our ability to recruit the best and brightest to government
service. As chairman of the Federal workforce subcommittee, I have been
working with my colleagues to adopt policies to ensure that the Federal
Government is viewed as the employer of choice in this country.
Guaranteeing fair and competitive pay for its civilian workforce should
be part of our commitment to the American people that the Federal
Government has the right people, with the right skills to run their
government in an effective and efficient manner.
Our Federal civil service is made up of hard working, talented people
who have dedicated their lives to serving this country. These honorable
men and women provide many essential services to the American people,
including keeping our Nation safe, caring for our wounded warriors,
ensuring our food and drugs are safe, and responding to natural
disasters. America's public servants deserve our gratitude and respect.
I thank them for their dedication, and I urge my colleagues to support
them by opposing these efforts to freeze Federal pay and hiring.
Mr. COONS. Mr. President, earlier this week, the Senate adopted an
amendment to the bill we now consider that would, among other things,
give the Chief of the National Guard Bureau a seat on the Joint Chiefs
of Staff. I was a strong supporter of this amendment, as I was its two
legislative predecessors, the Guardians of Freedom Act and the National
Guard Empowerment and State-National Defense Integration Act.
Since then, I have actively lobbied my colleagues to support the
measures, and I am glad that this week, so many of them came together
to support it. With more than 70 cosponsors from across the political
spectrum and ultimately, the unanimous consent of this body, the deep
bipartisan support shown for the National Guard this week is not only
indicative of the immense respect the brave citizen soldiers of this
Nation have earned, but of the extraordinary potential they have for
enhancing our national security.
A National Guard in one form or another has served our Nation bravely
and honorably for 375 years. Their courage is no less respected, their
families no less concerned for their well-being. They have done
extraordinary work these last 10 years in in Operation Enduring
Freedom, Operation Iraqi Freedom, and in Operation New Dawn. But that
is not what this amendment was about. This amendment was not about
rewarding what has been done in the past.
Rather, it was about recognizing what we need to do for our future in
order to keep our country safe. That is the key here: bringing to bear
every resource we have for the defense of this Nation.
The Joint Chiefs of Staff are the top military advisers to the
President and to the Secretary of Defense. They are responsible for
making sure our military is prepared for every threat to our national
security, but as those threats tilt toward the asymmetric, so must our
military planning.
The wars in Afghanistan and Iraq have begun a fundamental
transformation of our military, shifting away from a posture designed
to counter Soviet aggression in Europe toward a posture that confronts
asymmetric threats to American lives and interests.
Writing in a report for the Center for New American Security last
year, retired General Gordon Sullivan described the National Guard as
at a crossroads: ``Down one path lies continued transformation into a
21st-century operational force and progress on the planning, budgetary
and management reforms still required to make that aspiration a
reality. Down the other path lies regression to a Cold War-style
strategic force meant only to be used as a last resort in the event of
major war.''
There was a clear choice, and this week the Senate made it, taking
what I believe is a significant step toward strengthening our national
security.
When national defense solely meant fighting our enemies abroad, the
current organizational strategy made sense. But now that we are more
likely to have to defend against threats to America's national security
here on American shores at the same time, we need the National Guard to
have a seat at the table. We need the National Guard's resources and
capabilities to be a first-line consideration that matches their first-
line mandate.
In my home State of Delaware, the 31st Civil Support Team is the tip
of the spear of the military response to a chemical, biological,
radiological, or nuclear attack by terrorists. Following closely behind
police, fire, and EMS services, our CST would diagnose the threat,
inform and update the chain of command, and prepare the affected area
to receive a response by larger units, coordinating as far up the chain
as U.S. Northern Command.
When the Joint Chiefs sit down to plan for a biological attack on
this country, they need someone at the table who fully understands the
mission of units like the 31st Civil Support Team, whose members are
full-time Guard, but not Active Duty military.
One area that needs more thought by the Joint Chiefs, and that I hope
General McKinley and his successors will help them focus on, is the
important role the Guard can play in cyber security, an area where most
threats are decidedly asymmetric.
The Delaware Air National Guard's 166th Network Warfare Squadron is
already playing a key role in our nation's defensive and offensive
cyber capability working with U.S. Cyber Command, but its potential as
a bridge between the Departments of Defense and Homeland Security,
between Federal and State governments, and between the public and
private sectors has barely been considered outside of a few circles.
Determining what unique role the Guard can play in cyber security to
create a more robust, more flexible defense-in-depth is just one of the
new ideas I believe the Chief of the National Guard Bureau can bring to
the planning process.
The men and women of the National Guard bring extraordinary
capabilities to our Armed Forces, and because of the action we have
taken here this week, I know that our military will be better prepared
for new and emerging threats to our Nation.
Mrs. MURRAY. Mr. President, I rise today to reiterate my support for
section 526 of the Energy Independence and Security Act of 2007.
Section 526 prohibits Federal agencies including the Department of
Defense--from contracting for fuels that have higher
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emissions than conventional petroleum.
This is not only an issue of clean energy and a better environment
but, more importantly, our Nation's security and ability to fight. The
Department of Defense is the world's biggest energy consumer, using
300,000 barrels of oil every day. Given our reliance on foreign sources
of oil, this is a formidable security challenge for our country.
The efforts underway at the Department to increase efficiency and
expand the use of renewable energy and alternative fuel sources are
critical to both the bottom line of Pentagon and to increase the safety
of our warfighters. As you know, a record number of casualties in Iraq
and Afghanistan have occurred while units transport fuel and supplies
in military convoys. Increasing our energy and fuel efficiency not only
reduces the overhead costs of the military, but it will also decrease
the need to move as much fuel and supplies, lessening the risks posed
by these convoys to our troops.
This is an important and timely issue because while the National
Defense Authorization Act we are considering on the Senate floor does
nothing to affect section 526, the House version of NDAA repeals this
important law.
The Department of Defense supports this existing law and has said
that it does not prevent them from purchasing the fuel it needs to meet
its current mission needs. Hundreds of veterans who served in the Armed
Forces from World War II through the Iraq and Afghanistan wars have
asked the Senate to oppose repeal of section 526.
I urge my colleagues to join with the Department and our veterans to
support this law.
I also applaud the work the DOD has done to date to move toward
homegrown, renewable fuel sources, including the Navy's commitment to
reduce petroleum use in its fleet by 50 percent through programs such
as the Green Fleet.
To help the DOD realize its goals and to increase the security of our
troops, we must dramatically scale up advanced biofuels production in
the United States. Companies here in the United States have already
developed technologies to produce ``drop-in'' ready fuels, so no new
infrastructure or engine modifications are needed. These fuels are
based on plants like camelina, jatropha, and algae--plants that can be
grown all over the country in a variety of climates.
I believe section 526 has laid the foundation for this needed scale
up of advanced biofuels, and it is time to take the next step toward
ensuring that the DOD has access to a greater range of energy options
than foreign sources of fossil fuels. That is why I have been working
with my colleagues, Senator Cantwell, Congressman Inslee, and others,
to put in place multiyear contracting authority for the purchase of
biofuels.
We have introduced legislation in both the Senate and the House to do
just that, and while that legislation in not included in this bill, I
am pleased that we were able to include language that will require the
Department to clarify its existing authorities for multiyear contracts
for the purchase of advance biofuels and what additional authorities
are needed for the Department to enter into such contracts going
forward.
Mr. President, I look forward to working with my colleagues to ensure
the final NDAA bill keeps the Department moving forward on securing and
supporting renewable energy and fuel alternatives.
Mr. BAUCUS. Mr. President, I rise in support of Senator Merkley's
calling for the withdrawal of American troops from Afghanistan. I
support bringing our troops home for two reasons: First, we can't
afford what we are spending today in Afghanistan. Second, we need to
focus on nation building here at home.
We are spending $10 billion per month in Afghanistan. Every dime of
it is deficit spending. We should listen to the former Chairman of the
Joint Chiefs of Staff, Admiral Mullen. He said our debt is the top
security threat facing the United States. We can't continue down this
path.
Our troops continue to serve heroically on some of the toughest
missions imaginable. They have done everything we have asked of them--
and we have asked a lot through weekends and holidays, over frigid
mountains and hot deserts. The service of the men and women of the
military has been nothing short of remarkable.
It is now time to hand over the responsibility of this war to the
Afghans. Afghan President Hamid Karzai recently held a Loya Jirga, or
grand assembly, among leaders and elders from across Afghanistan.
The assembly approved a resolution calling for the Afghans to take
the lead role of the war effort. Let's take them up on their offer.
Let's not have American men and women doing the work that Afghans want
to do for themselves.
For years we have been putting war spending on our national credit
card. In 2003, I joined Senators Biden and Conrad in offering an
amendment to the Iraq supplemental appropriations bill that would have
offset the war spending.
Instead of adopting the amendment, Congress elected to pay for the
war with deficit spending. Over the past decade, we have grown our debt
by $1.3 trillion due to war spending alone. The President's budget
projects $500 billion dollars in war spending in the coming decade.
This spending is in addition to the trillions we will spend on the
defense base budget. This endless deficit spending is simply not
sustainable.
During our work on the Joint Select Committee on Deficit Reduction,
every member of the panel came to a better appreciation of the
difficult financial decisions we face as a nation. There is no choice:
we have to balance our books.
But how we balance our books will reflect who we are as a nation,
what our values are, what our goals are. Most important, these choices
will determine whether the 21st century will be the American century or
whether we will cede our leadership to countries such as China.
In the year ahead, Congress will make a number of hard choices, and
we must be strategic about these choices. We will choose among
essential investments in education, infrastructure, health care for our
veterans and seniors, and maintaining the best military in the world.
And every month we spend $10 billion dollars in Afghanistan will
limit what we can do at home. Every dollar we send to Afghanistan is
one less dollar we have for health care for our seniors or education
benefits for our veterans.
The tough choices must be made at a time when the world is changing
rapidly. During his final press conference as the U.S. Ambassador to
Japan on November 14, 1988, Mike Mansfield said:
[Japan and the United States] will work together in the
next century which will be the Century of the Pacific.
Our two nations working together will be able to compliment
and guide the rest of the world as it moves into this area,
into the [Pacific] basin, because we both realize that it is
in that Basin where it all is, where it is all about, and
where our joint future lies.
Looking back 23 years later, his remarks seem prescient. According to
the World Bank, China's average annual GDP growth rate since 2001 has
been 10.4 percent. Asian developing nations collectively had an average
growth rate of 9.1 percent. The United States has seen an average
growth of just 1.7 percent.
The 21st century will not be the American century if we don't change
course. During the first decade of this century, we spent $5.9 trillion
dollars on defense spending, much of it in Iraq and Afghanistan. During
that same decade, China spent $1.1 trillion. Now, which nation's power
increased more during that period?
China is flexing muscles abroad not with shiny new weapon systems but
with their growing financial power. China is now the second-largest
economy in the world, and it continues to grow.
We are seeing our influence wane around the world not because we are
short an aircraft carrier but because some have begun to question
American resolve, the ability of American political process to solve
basic problems and to govern.
Meanwhile, millions of Americans are out of work and struggling to
make ends meet. Last year, I asked the Congressional Budget Office to
prepare a report on income inequality in this country. The statistics
are sobering. The top 1 percent of earners in the United States more
than doubled their
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share of income in the past 30 years. The wealthiest fifth of the
country earned more than the other four-fifths combined.
These are only but a few of the great challenges we face at home, and
to overcome these challenges we have to work together. To compete and
win in today's world, we need to balance our budget, grow our economy,
and invest in education and infrastructure. We can't afford another
year of spending tens of billions of dollars on nation building
overseas.
For the 21st century to be the American century, we are going to have
to make some changes. We need to bring our troops home from Afghanistan
and focus on nation building here at home. I urge my colleagues to
support Senator Merkley's amendment.
Mr. COONS. Mr. President, another amendment that I filed to S. 1867,
the Senate's Fiscal Year 2012 National Defense Authorization bill,
would have advanced new clean energy opportunities and enjoyed
bipartisan support. The amendment's cosponsors included Senators
Shaheen, Portman, Gillibrand, Merkley, and Kerry. Unfortunately, we
were not able to offer it this week because of a disagreement over
scoring. It was an important opportunity missed so I wanted to take a
moment to note what this amendment entailed.
Amendment No. 1265 would have confronted a critical long-term
challenge facing our Nation's military: the spiraling cost of its
reliance on petroleum. As we look for ways to save taxpayer dollars and
reduce our Nation's dependence on foreign oil, utilizing more electric
vehicles should become a priority for the Defense Department and the
entire Federal Government.
Investment in clean energy technology is an investment in America's
energy security. Liquid petroleum accounts for three-quarters of our
Armed Forces' energy consumption, and approximately 60 percent of that
comes from abroad. The Defense Department has explicitly cited the
operational risk inherent to our dependence on foreign oil and has
committed itself to aggressively reducing energy consumption.
Senate Amendment No. 1265 would allow the Defense Department and
other Federal agencies to purchase electric vehicles and charging
infrastructure under Energy Savings Performance Contracts, ESPC. ESPCs
themselves aren't new: the government has used ESPCs for years to pay
for energy efficiency upgrades. It has been enormously successful and
costs the government nothing up front. That's right, ESPCs are paid
for, financed, performed and guaranteed by the private sector with the
government paying back the private sector through guaranteed energy
savings over time. Our amendment would have made electric vehicles and
charging infrastructure eligible for the program.
Energy efficiency is about more than turning the lights off when you
leave a building. It is about the appliances you buy, the tools you
use, and the vehicles you drive.
The Federal Government is America's largest energy consumer and
within the government, the Defense Department is the biggest energy
consumer. One out of every three vehicles owned by the Federal
Government is owned by the Pentagon, which is why we raised this
amendment this week.
Amendment No. 1265 would have helped increase the share of the
government-owned fleet that is cost-efficient, energy-efficient
electric vehicles. On top of that, it would not add a dime to the
Federal deficit. By buying these vehicles in through ESPCs, the
government does not put up any money up front. Rather, it enters an
agreement with a private-sector contractor--a job-creating private-
sector contractor--where the agency pays the contractor over an agreed-
upon period of time--as many as 25 years.
What they are paying each month, though, is the net savings achieved
by using the electric vehicle instead of a conventional vehicle. This
is an unconventional, but creative and cost-efficient way to save
money, reduce our dependence on foreign oil, and even to help support a
growing private industry.
This amendment would have simply provided the Defense Department with
a new tool for acquiring cost-efficient electric vehicles, which is
what they are asking us to do. They want to add electric vehicles to
their fleets. The Defense Department has already done extraordinary
work in leveraging energy efficiency to reduce its costs and reduce its
dependence on foreign oil. We want to help them do more.
This is a challenging economic time for our country, and our military
needs every advantage it can get as it confronts dangerous threats to
our national and energy security. By empowering the Pentagon to buy
more of these energy-efficient, cost-efficient electric vehicles, we
are saving taxpayer dollars and reducing our dependence on foreign oil.
Investment in clean energy technology is an investment in America's
energy security, and energy security is, without a doubt, an
increasingly important, and increasingly fragile, aspect of America's
national security.
This is a common-sense policy that unfortunately cannot be considered
at this point because of a technicality in how the Congressional Budget
Office scores ESPCs. It has been going on for 10 years and, as I
understand, it has provided endless frustration to my colleagues on the
Senate Energy and Natural Resources Committee and several other
congressional committees, and this problem reaches beyond the electric
vehicle option alone.
A key point to make here is that whenever Congress tells the Federal
Government to become more efficient but does not provide appropriated
funding for the purpose, a score is triggered because the government
might use ESPCs to meet the mandate. Effectively, Congress cannot tell
the Federal Government to save money through efficiency. Further, while
ESPCs are scored by the CBO rules, OMB does not score them because the
government does not incur any costs through their use. This specious
score has essentially limited our ability to reduce appropriated
dollars and achieve energy efficient simultaneously using private
sector expertise and funding.
This amendment is something that is important to me. I am hopeful it
is something that we will be able to pass down the road. In the
meantime, it is an opportunity lost, to help our military prepare for
the threats facing our nation.
Mrs. SHAHEEN. Mr. President, I rise today to express my
disappointment that the Senate was not able to reach agreement to
consider an important amendment on the Defense authorization bill that
would allow women in the military access to the same health care
coverage as civilian women.
There are almost 214,000 women currently serving in our Armed Forces.
Many of these brave women are risking their lives for our national
security. Despite the sacrifices these women make to protect our
freedom, they are not given the same rights as civilian women when it
comes to their reproductive health care.
If a service woman becomes pregnant as a result of rape or incest,
her insurance will not cover an abortion if she decides to seek one;
the law as currently written expressly prohibits it. This is
unconscionable. To correct this injustice, I offered an amendment to
the bill that we are currently debating that would allow a service
woman the ability to receive insurance coverage for an abortion if her
pregnancy is the result of rape or incest. Unfortunately, because there
are some in this body who do not want this unfair law changed, we were
not able to bring this amendment to the floor for a vote.
Women currently serving in the armed services are victims of
discrimination. They do not have access to the same critical--and
legal--reproductive health care as the civilians they protect.
Bans on abortion coverage exist for millions of women who receive
their health care through government programs, but in most cases these
bans allow for coverage of such care if the pregnancy is the result of
rape or incest. Women receiving their health care through Medicaid,
Medicare, the Federal Employees Health Benefits Program, and the Indian
Health Services all have access to the care they need if the pregnancy
is a result of rape or incest. Even women serving time in our Federal
prisons can get abortions covered in the case of rape. Sadly, this is
not the case for our Nation's women in uniform.
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I believe that every woman should have the reproductive health care
coverage she needs wherever she is and whenever she needs it. I do not
think that any ban on abortion is appropriate. However if Federal bans
do exist, they should at least be consistent.
My amendment is simple. It would permit a service woman to have an
abortion covered by her military health insurance if the pregnancy is
the result of rape or incest. Repealing the current ban on such
coverage will simply bring the Department of Defense in line with most
other federal policies.
I recently met a woman who was a victim of rape during her military
service. She was stationed in Korea and was unable to receive the
health care she needed and deserved. Her story was heartbreaking.
Because of her unwanted pregnancy, she had to leave the service and
return home.
The reality is that women in the military, especially those posted
overseas, have few safe or legal reproductive health care options when
they cannot rely on the military. Without access to these services,
some women will be forced to resort to unsafe care or delay the health
services they need. Women who give their lives for our country deserve
better.
While the bill we are considering today will move forward without
this important change, I pledge to all the women in our military who
are victims of this law that I will continue my fight to bring the
Department of Defense in line with other Federal agencies to allow
coverage for critical reproductive health care.
Mr. LUGAR. Mr. President, I commend Chairman Levin and Ranking Member
McCain, our distinguished Armed Services Committee leaders, for their
amendment regarding the problem of counterfeit parts, Senate amendment
1092, which was agreed to, as modified, last Tuesday. The amendment
establishes a prudent framework for countering the dangerous
infiltration of counterfeit parts into our defense supply chain. I also
want to commend Senator Whitehouse for his work on this important
issue.
The amendment would create criminal penalties for those trafficking
in counterfeit parts so as to ensure that our Armed Forces have the
best equipment from trusted suppliers in order to carry out their
critical roles and missions. It would also significantly strengthen our
supply-chain management to detect and prevent surreptitious attempts to
supply our Armed Forces with counterfeit parts and components.
I have followed the hearings in the Senate Armed Services Committee
regarding these matters. I wanted to take time today to raise in
relation to the amendment a problem that I believe could complicate its
enforcement. If we truly intend to grow our economy through exports,
then we ought to pay attention to any risks that may stem from
liberalizing our present export controls so as to ensure that our
industrial base benefits--and not those who deal in counterfeit parts
and components in other nations.
A person who commits an offense under this amendment may be punished
if that person ``had knowledge that the good or service is falsely
identified as meeting military standards or is intended for use in a
military or national security application.''
I am concerned that the amendment may be undermined by the export
control initiatives of the administration. The administration is
engaged in an effort to remove most, if not all, of the military-grade
parts and components controlled on the U.S. Munitions List. Many of
these will be decontrolled altogether for export and import purposes.
Others will be placed under the Commerce Department's Export
Administration Regulations. Hundreds of thousands of military-grade
parts, components and systems are involved.
The reasons why this agenda presents significant challenges to
dealing with counterfeit parts center on the relatively liberal legal
and policy considerations that govern our commercial trade with China.
Senators Levin and Whitehouse pointed to the many problems emanating
from counterfeit Chinese parts in their remarks on the floor. As we
know from the hearings and studies to date, Chinese suppliers play the
major role in the unauthorized supply of counterfeit parts.
We also know from the Commerce Department's January 2010 report on
counterfeit electronics, which was commissioned by the Navy Department,
that the counterfeit electronics infiltrating the Defense Department
supply chain and affecting weapon system reliability are predominantly
commercial and industrial grade parts--so-called commercial off-the-
shelf, COTS, technology.
The drawings and specifications needed to produce those parts can
be--and are--freely exported to China under the Commerce Department's
Export Administration Regulations, EAR. There is no legal bar to
exports of such drawings and parts to China and, in all but rare cases,
they may be sent to China without an export license. The same holds
true for the import of such parts into the United States after they are
produced in China.
In contrast, there has been a much lower incidence to date of
counterfeit parts specifically designed for military use. Such parts
are currently controlled on the U.S. Munitions List. Maintenance of the
U.S. Munitions List is authorized by the Arms Export Control Act, AECA,
and it is administered by the State Department in consultation with the
Defense Department. The Foreign Relations Committee has unique
jurisdiction over these matters in the Senate.
The reasons for the lower incidence of counterfeit military-grade
parts are threefold: One, it is illegal to export any drawings or
specifications to China that are controlled on the U.S. Munitions List,
due to the statutory arms embargo imposed on China following the
Tiananmen Square massacre; two, it is illegal under the International
Traffic in Arms Regulations, ITAR--the State Department's regulations
which contain the U.S. Munitions List--to import any defense article
into the United States from China; and three, willful violations of the
ITAR and the AECA are vigorously enforced by U.S. courts, with the
majority of convictions resulting in prison sentences, while the
majority of willful violations involving illegal exports of industrial
or commercial products result in probation. The latter are currently
enforced under the International Emergency Economic Powers Act because
the Export Administration Act has lapsed.
Unfortunately, all of the deterrents inherent in control on the U.S.
Munitions List could go away if and when the administration's export
control reform initiatives are implemented.
I congratulate and welcome the efforts of Senator Levin, Senator
McCain and other Senators to close down the infiltration of counterfeit
parts into our defense supply chain, but I remain concerned that the
administration's agenda for export control reform will increase these
problems in the future and frustrate enforcement of this amendment.
In addition, it is my understanding that the administration not only
plans to remove nearly all the military-grade parts and components from
the U.S. Munitions List, but also to redefine those few categories of
high-end parts and components remaining on the Munitions List in a way
that would seriously complicate enforcement of the amendment.
We will continue to consult with the administration on its reform
agenda in the Foreign Relations Committee.
Mr. WARNER. Mr. President, I would like to ask for the attention of
my colleagues on two amendments that I have filed to S. 1867, the
National Defense Authorization Act of 2012.
Each of these amendments relates to the Navy's proposal to build a
new nuclear pier facility to support East Coast aircraft carriers. With
annual recurring costs, this new project would likely cost just shy of
a billion dollars.
At a time when our Nation is in a severe fiscal crisis the Navy
cannot pay to maintain the infrastructure it currently owns. As Admiral
Mullen has said, the greatest challenge to our national security is our
mounting debt.
Together, these amendments would save nearly $30 million for an
unnecessary Navy military construction project at Naval Station
Mayport, Florida. We are awaiting completion of an independent GAO
assessment of the strategic risks to our carrier fleet which include
manmade and natural disasters. The study would also consider the cost
and benefits of what
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other measures we can take to mitigate risk.
This is not a small project. The Navy estimates its homeporting plan
will cost nearly $600 million, but those costs could rise to up to $1
billion over the next eight years. Tack on to that more than $25
million in annual maintenance costs currently estimated for an
additional homeport and we are signing the taxpayer up for a big bill,
much of which is not funded. It's in the ``out years'' as they say.
The justification for a new homeport is the mitigation of the risk of
a terrorist attack, accident, or natural disaster occurring at the
nuclear handling facility at the existing carrier homeport at Norfolk,
VA.
However, the current Navy plan fails to take into account the two
additional East Coast carrier capabilities facilities at Newport News,
VA, and the Naval Shipyard. Each of these facilities maintains separate
nuclear handling sites located many miles apart. If there were damage
to the existing Naval base, the Navy could simply disperse the carriers
to other piers. That is a lot cheaper and more efficient than building
a new, duplicative facility.
Additionally, recent Navy briefings indicate there is a 50 percent
greater chance of a major hurricane hitting Mayport than Norfolk. Why
would we want to build a new facility at a higher risk location?
The Navy has also identified unfunded priorities totaling $11.8
billion dollars. These priorities are in critical areas including
shipbuilding, military construction, maintenance, and acquisition
programs--programs which are critical to both our current and future
readiness.
We must maintain our existing infrastructure properly before pursuing
a duplicative homeporting project. It is more fiscally responsible for
the Navy to reduce its current unfunded requirements, which total tens
of billions of dollars.
We have had some recent developments that I want to highlight that
cast more doubt on the wisdom of embarking on this enormous
expenditure. Responding to a letter I wrote, along with other
colleagues in the Virginia delegation, the Navy's new CNO, Admiral
Greenert has said that it is time to take a fresh look at the costs of
this project, given the current fiscal constraints. Admiral Greenert
wrote the Navy will be making a ``comprehensive strategic review,
examining every program element, including the funding required to
homeport a CVN in Mayport.'' I agree with Admiral Greenert. With the
serious fiscal issues facing our Nation, the prudent course of action
is to focus on taking care of the infrastructure we already have
instead of buying new infrastructure which we do not need and cannot
afford.
Mr. JOHNSON of South Dakota. Mr. President, I want to discuss the
amendment to the pending Defense authorization bill negotiated between
my two Banking Committee colleagues, Senators Menendez and Kirk,
designed to address the deceptive and fraudulent practices, sanctions
evasion, facilitation of proliferation, and other illicit behavior of
Iran's Central Bank.
Ten days ago, President Obama issued an Executive order designed to
further isolate and penalize Iran for its refusal to live up to its
international obligations regarding its nuclear program. As he noted,
for years the Iranian Government has failed to abide by its obligations
under the Nuclear Non-Proliferation Treaty, violated repeated U.N.
Security Council resolutions, and ignored its legal commitments to the
International Atomic Energy Agency. In the face of this intransigence,
the world has spoken with one voice--at the IAEA, at the U.N., and in
capitals around the world--making it clear that Iranian actions are a
threat to international peace and stability and will only further
isolate the Iranian regime.
The President targeted, for the first time, Iran's petrochemical
sector, prohibiting the provision of goods, services, and technology to
this sector and authorizing penalties against any person or entity that
engages in such activity. He also designated for sanction a group of
individuals and entities for assisting Iran's prohibited nuclear
programs, including its enrichment and heavy water programs. And he
escalated the financial and economic pressure by using provisions of
the USA PATRIOT Act to identify the entire Iranian banking sector--
including Iran's Central Bank--as a threat to governments and financial
institutions that do business with Iran.
I strongly support enhanced sanctions on Iran, including its Central
Bank, and have been working with my ranking member, Senator Shelby, on
another sanctions measure to expand and reinforce the Comprehensive
Iran Sanctions and Accountability Act, CISADA, enacted last year. That
legislation will be marked up soon in our committee. But as in all
areas of complex sanctions law, it is important to craft these
provisions with an eye to ensuring that they do not have negative
unintended consequences for the United States and American consumers in
terms of substantially increased oil and gas prices; for our allies,
whose cooperation is crucial in further isolating Iran; for central
banks around the world. We also want to avoid the result--if this
measure is not further refined and then implemented by the White House
in close consultation with our allies--that Iran itself could benefit
from an oil price premium we in the West would pay if notoriously
volatile world oil markets respond negatively and if non-Iranian oil
supplies are not sufficient to fill the gap caused by countries that
seek their oil elsewhere than from Iran.
The amendment seeks to address that concern by providing for a lag
time of 6 months for oil markets to prepare and providing for a
Presidential certification on oil price and supply availability before
the petroleum sanctions would become effective. But that may not be
sufficient, given the complexity of oil markets, which I am told by the
Energy Department tend to pull such dates forward, anticipating oil
price supply shortfalls--and oil price increases--and building them
into oil traders' assumptions well before sanctions actually take
effect.
I have heard a number of concerns about this amendment in its current
form from senior officials at the Treasury Department charged with
implementing it. First, Treasury officials have indicated that they
have concerns about how this amendment could affect our close allies,
including foreign central banks of those governments that have worked
with us in recent years to sanction Iran and that hold large reserves
in the United States but who have thus far decided they cannot, because
of their current dependence on Iranian oil, completely and relatively
quickly withdraw from purchasing its oil. We must avoid having these
central banks begin to pull their reserves from the United States out
of fear that enforcement of this amendment might limit their access to
the U.S. financial system. That is why the signals sent by the Treasury
Secretary and the President about implementing this provision are so
important.
The administration also has concerns regarding effective
implementation of this amendment, especially its requirement that the
President prohibit accounts outright instead of, as elsewhere in U.S.
law, allowing discretion to impose strict conditions on accounts--on
trade finance limits, on the nature or size of transactions, on
preapproval of transactions and about the timelines it presents, the
confusing and seemingly conflicting interaction of some of its
provisions, its lack of an exception for countries that are closely
cooperating with the United States on sanctions enforcement, and
others. I ask consent to print in the Record following my statement a
copy of a letter from Secretary Geithner indicating his strong
opposition to the amendment.
The PRESIDING OFFICER. Without objection, so ordered (see Exhibit 1).
Mr. JOHNSON. We all agree that interactions by the international
financial community with Iran's financial system should be severely
reduced, not least because such interactions pose serious risks for the
international banking system. But we do not want to do it in a way that
could have negative consequences for some of our closest allies or for
ourselves. We want to be careful that we don't end up shooting
ourselves in the head and Iran in the foot.
I know my colleagues have worked in the last week, including over the
Thanksgiving holidays, to make the provision more effective and to
provide for additional targeting by the President, building in a
national security
[[Page S8136]]
waiver, a lag period for implementation of the crude oil sanctions, and
other measures. But I think the provision could use further refinement.
That is why I had hoped to be able to address this issue through the
more deliberative committee process.
Even though I have concerns about some of the effects of this
amendment in its current form, I will support it as a signal of my
support for tightening the financial and economic noose around Tehran
and for further isolating its government as a means of prompting it to
turn aside from its current path and come clean on its nuclear program.
Even so, these implementation issues should be addressed in conference
prior to the legislation being finalized.
Finally, I want to remind my colleagues that the Banking Committee is
working expeditiously to adopt new comprehensive sanctions legislation
and I hope will be ready to bring that legislation to the full Senate
soon. It will complement and reinforce the Comprehensive Iran Sanctions
and Accountability Act, CISADA, enacted a little over a year ago, and
international diplomatic efforts led by the President to further
isolate Iran and ratchet up the pressure on its leaders. I think all of
us would agree that the most effective sanctions are those that are
imposed and enforced by a coalition of nations, and the
administration's success in building and sustaining a coalition to do
precisely that is to be commended. I look forward to working with my
colleagues on that effort.
Exhibit 1
Department of the Treasury,
Washington, DC, December 1, 2011.
Hon. Carl Levin
Chairman, Committee on Armed Services, U.S. Senate,
Washington, DC.
Dear Chairman Levin: I am writing to address amendment 1414
to S. 1867, the National Defense Authorization Act for Fiscal
Year 2012, regarding the imposition of sanctions on foreign
financial institutions that conduct business with the Central
Bank of Iran (CBI).
The Obama Administration's determination to prevent Iran
from acquiring nuclear weapons is unwavering. We are resolved
to build and sustain as much pressure as necessary to bring
Iran to meet its international obligations and address the
international community's grave concerns with its nuclear
program. I know that you and your colleagues in the Senate
share this commitment.
We understand that this amendment was offered in this
spirit. However, I am writing to express the Administration's
strong opposition to this amendment because, in its current
form, it threatens to undermine the effective, carefully
phased, and sustainable approach we have undertaken to build
strong international pressure against Iran. In addition, the
amendment would potentially yield a net economic benefit to
the Iranian regime.
We have steadily increased the pressure on Iran by
tightening sanctions, closing loopholes, and encouraging
other countries to do the same. Congress has been absolutely
critical in providing some of the tools that we have used to
accomplish that goal, and we are seeing genuine results. The
collaborative approach the U.S. has taken with our
international partners has led many to impose sanctions on
Iran that were not even contemplated three years ago,
including on Iran's energy sector.
Iran's greatest economic resource is its oil exports. Sales
of crude oil line the regime's pockets, sustain its human
rights abuses, and feed its nuclear ambitions like no other
sector of the Iranian economy. We are committed to doing as
much as possible to reduce Iran's oil revenue while
concurrently working to stabilize global oil markets. Today,
the United States does not permit the import of Iranian
crude. Other countries have already begun to reduce their
consumption of Iranian crude and the Administration is
working hard to discourage anyone from taking advantage of
the responsible policies of these countries. Our closest
allies are seriously considering curtailing their own crude
purchases altogether in the near future and we are doing
everything possible to encourage them to make the right
decision.
However, as currently conceived, this amendment threatens
severe sanctions against any commercial bank or central bank
if they engage in certain transactions with the CBI. This
could negatively affect many of our closest allies and
largest trading partners. Rather than motivating these
countries to join us in increasing pressure on Iran, they are
more likely to resent our actions and resist following our
lead--a consequence that would serve the Iranians more than
it harms them. Further, there is a substantial likelihood
that this amendment, particularly if passed into law at this
time and in its current form, could have the opposite effect
from what is intended and increase the Iranian regime's
revenue, literally fueling their suspect nuclear ambitions.
The Administration is prepared at your convenience to share
the details of our analysis on this point, in a classified
briefing.
The Obama Administration strongly supports increasing the
pressure on Iran significantly, including through properly
designed and well-targeted sanctions against the CBI. The
Administration has several legislative proposals to both
enhance and expand the Comprehensive Iran Sanctions,
Accountability, and Divestment Act (CISADA) and to strike at
the CBI that we would like to discuss with you and your
colleagues. We intend to work with our partners to achieve
the objectives of this amendment, but in a fashion that we
believe will have a greater and more sustainable impact on
Iran. We ask that you continue to work with us on ways to
improve this amendment and to consider other, more immediate
and more effective steps that we can take to accomplish our
shared goals while we work with our partners to bring about
the effects this amendment is intended to achieve.
Sincerely,
Timothy F. Geithner.
Mr. BROWN of Massachusetts. Mr. President, I rise today to protect
the families of our men and women in uniform. While these brave members
of our community put their lives on the line to protect our freedoms
abroad, courts here are using their service against them when making
child custody determinations.
Although I did not submit my amendment due to concern expressed by
the Senate Veterans Affairs Committee, it is important that the
committee take up this issue to ensure that servicemembers have a
uniform standard of protection when determining the best interests of
their children.
Servicemembers risk their lives in support of the contingency
operations that keep our Nation safe. The amendment prohibits courts
from permanently altering custody orders during a parent's deployment,
and requires pre-deployment custody to be reinstated unless that is not
in the best interest of the child.
This language of my amendment has enjoyed widespread support in the
House for the past five years and was recently endorsed by the
Department of Defense. Earlier this year Secretary Gates stated that he
wanted to work with Congress to pursue the creation of a Federal
uniform standard. In his letter of support dated February 15th, 2011,
Secretary dates stated: ``I have been giving this matter a lot of
thought and believe we should change our position to one where we are
willing to consider whether appropriate legislation can be crafted that
provides servicemembers with a federal uniform standard of
protection.''
Our men and women in uniform sacrifice a great deal to serve our
country. We owe it to them to provide uniform legal standards regarding
child custody. Servicemembers should never be in the position of having
to choose between their country and their family.
Mr. REID. Mr. President, tonight the Senate will vote overwhelmingly
to support our men and women in uniform, including the more than 1,100
Nevadans serving overseas, as they continue to put their lives on the
line. I congratulate Senators Levin and McCain for their stewardship of
this bill and for working through several difficult issues.
There is still work to be done in conference to perfect parts of this
bill, including the provisions dealing with military detainees and
efforts to improve key elements of TRICARE.
I am pleased that today an overwhelming, bipartisan majority agreed
that protecting our national security is more important than partisan
politics. Today we came together to support our troops, and ensured
that this Nation does everything in its power to keep America safe from
those who would do us harm.
Mr. McCAIN. I yield back the 1 minute of time remaining.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
The PRESIDING OFFICER. There will now be 2 minutes of debate equally
divided on the bill, as amended.
The Senator from Michigan.
Mr. LEVIN. Mr. President, we are going to be making a unanimous
consent request. I am not even going to use my 1 minute on this other
than to say thanks to everybody who has been so heavily involved, which
is just about everybody in this Senate.
[[Page S8137]]
I want to particularly thank Senator McCain. His staff and my staff
have been utterly incredible. We have had hundreds of amendments we had
to get through. We have done the best we can, and I want to tell my
friends this so we can prepare a path for a unanimous consent
agreement. It is not prepared yet, so I cannot read it, but it is going
to be something like this. For those amendments which were germane, not
because of modification, but were germane--
Mr. UDALL of New Mexico. Will the Senator from Michigan yield? I
don't think we disposed of the Udall amendment.
Mr. LEVIN. I believe we did.
The PRESIDING OFFICER. The Udall amendment was agreed to.
Mr. McCAIN. Reluctantly.
Mr. LEVIN. Let me describe what this is about so we can be thinking
about it before it is offered. There were 71 amendments, approximately,
which were cleared. We spoke about those before. If anyone had an
objection, they were not cleared. So by definition there is no
objection on the substance of these amendments. However, there is
objection for other reasons, one of them being that if an amendment was
modified to make it germane, there would be an objection on that basis.
So what Senator McCain and I are talking about--and we will put it in
a unanimous consent proposal and then you all can decide if you want to
agree to this--is that we would work--we pass a bill tonight and do all
the other things we need to do because that has to be done. We have to
get to conference.
In the next couple of days Senator McCain and I, working with the
Parliamentarian, would go through the 71 amendments, or whatever the
number is. The Parliamentarian would then advise us as to which of
those amendments is germane and were germane--and these are all cleared
amendments. And for that group, whatever the number is, that we are
informed by the Parliamentarian is germane and were germane, we would
then put in a bill which would be introduced next week. If we can get
that done, then the unanimous consent request would have that bill
introduced, read a third time, and passed. That would be the most we
could ask for.
It would seem to me if we could pass this tonight, we could do the
same thing with a bill--providing Senator McCain and I agree after
talking to the Parliamentarian--that the only amendments that would be
in that bill would be amendments which were germane.
How do we get that bill into the conference report? We have not
figured that out yet, but we are working on that piece as well. At
least we can get the bill passed so we can go to conference and show
the Senate passed these X number of amendments. This is the best we
could do. It is the cleanest we could do. The Parliamentarian did not
like the different idea that we proposed, and I don't blame him and
her, but that is what we are going to be offering in a few minutes.
Mr. McCAIN. I have nothing more to add. I wish to vote.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. If I may be permitted to thank the distinguished chairman
for that offer. It is unclear to me how it will actually be executed--
and all of this could have been avoided, from my perspective, if a
simple unanimous consent request had been allowed to modify an
amendment that I had that was not germane to make it germane so we
could have a simple up-or-down vote, something that was in the nature
of a technical correction, which I would think as a matter of custom
and courtesy would be allowed. But apparently that is not the way
things are operating.
All of these convulsions are being engaged in simply to avoid an
objection to a unanimous consent request to modify an amendment to make
it germane. It could all be avoided and we could have taken care of
this in 10 or 15 minutes. I don't understand if the distinguished
chairman is actually making that unanimous consent request at this time
or is merely explaining what his intentions are. I will try to work
with him, but I am not yet sure this is going to work as he hopes it
will. My objection will remain that any amendment that was not germane
when filed but could be made germane by modification, as mine could,
would not be permitted to be in this managers' package or passed by
unanimous consent.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. It sounds simplistic, and the hour is late and we need to
vote, but the fact is there were 382 amendments that were submitted.
There were hundreds of amendments that were waiting, and the fact is
that initially the Cornyn amendment was not agreed to, so it is a
little more complicated than that. There were literally 400 or 500
amendments that were filed, and we had to at some point cut off the
process. For next year's bill we will try to get a situation where it
is far more inclusive and far more informative. When you are dealing
with 500 amendments, I know that each is important, but there is no way
you are going to be able to get through the authorization bill with
that many amendments that are filed, and that is just a fact. We are
doing the best we can to accommodate the Senator from Texas and the
Senator from Oklahoma and every other Senator who didn't get their
amendment voted on.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I ask unanimous consent that upon passage
of S. 1867, the Armed Services Committee be discharged from further
consideration of H.R. 1540 and the Senate proceed to its consideration;
that all after the enacting clause be stricken and the text of S. 1867,
as amended, and passed by the Senate, be inserted in lieu thereof; that
H.R. 1540, as amended, be read a third time, passed, and the motion to
reconsider be laid upon the table; that the Senate insist on its
amendment, request a conference with the House on the disagreeing votes
of the two Houses; and the Chair be authorized to appoint conferees on
the part of the Senate, with the Armed Services Committee appointed as
conferees; that no points of order be considered waived by virtue of
this agreement; and all with no intervening action or debate.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. LEVIN. I thank everybody and I thank the Chair.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill, as amended, pass?
Mr. McCAIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 93, nays 7, as follows:
[Rollcall Vote No. 218 Leg.]
YEAS--93
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Mikulski
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wicker
NAYS--7
Coburn
Harkin
Lee
Merkley
Paul
Sanders
Wyden
The bill (S. 1867), as amended, was passed.
(The text of the bill will be printed in a future edition of the
Record.)
Mr. HARKIN. Mr. President, as a Senator, I have no greater
responsibility than to work to ensure the security of the United
States, and I believe the military should have all the tools they need
to keep our Nation safe. I
[[Page S8138]]
support the vast majority of the Defense authorization bill. However,
because I believe we can protect our national security without
infringing on critical constitutional values, I could not support this
bill. The bill fails to clarify that under no circumstance can an
American citizen be detained indefinitely without trial. And it
mandates for the first time that suspects arrested in the United States
will be detained by the military rather than domestic and civilian law
enforcement, who since 9/11 have successfully convicted in civilian
courts over 400 terrorists. Finally, the bill would make it more
difficult to close the detention center at Guantanamo Bay, for which I
have long fought because the detention facility is a stain on our honor
and a recruiting tool for terrorists around the world.
Not only do these provisions violate the core values upon which our
freedom rests, but they won't make us safer. The Pentagon, CIA Director
Petraeus, Intelligence Director Clapper, and FBI Director Mueller all
said these provisions will needlessly hurt, rather than help, our
national security.
The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from
Michigan.
Mr. LEVIN. Mr. President, I will be very brief for obvious reasons.
But this is a golden moment for us. The proud tradition of the Senate
Armed Services Committee has been maintained every year since 1961 and
continues with the Senate's passage of the 50th consecutive national
defense authorization bill. It always takes a huge amount of work to
get a bill of this magnitude done. It could not happen without the
support of all the Senators on the committee. I will not thank each and
every one--the subcommittee chairs, the ranking members, our staff, the
floor staff here, who do extraordinary work. But the bipartisanship of
this committee dominates again, and we hope that flavor will continue
to dominate forever in the committee and hope it will permeate this
Senate.
We always have to work long and hard to pass this bill and no two of
these bills are alike. But it's worth every bit of effort we put into
it because it is for our security, for our troops, and for their
families. I thank all Senators for their roles in keeping our tradition
going.
Our committee's bipartisanship also makes this moment possible. I am
proud to serve with Senator McCain and grateful for his partnership and
friendship. I also want to thank our very dedicated and capable Senate
floor staff on both sides of the aisle--Gary Myrick, Trish Engle, Tim
Mitchell, and Meredith Mellody on the Democratic side and David
Schiappa, Laura Dove, Ashley Messick, and Patrick Kilcur on the
Republican side. They have all helped us get this bill across the
finish line and we are very grateful to them and all others here on the
floor and in both cloakrooms.
Finally, I thank all our committee staff members for their
extraordinary drive and many personal sacrifices to get this bill done.
Led by Rick DeBobes, our committee's staff director; Peter Levine, our
general counsel; and Dave Morriss, our minority staff director, our
staff really has given their all to get this bill passed. So to all of
you and to all your families, thank you for your hard work. Take a few
minutes to celebrate this moment and then put all your talents to work
in conference with the House so we can bring a conference report back
to the Senate before the holidays.
Mr. President, they all deserve recognition and, as a tribute to
their professionalism and as a further expression of our gratitude, I
ask unanimous consent that all staff members' names be printed in the
Record.
There being no objection, the list was ordered to be printed in the
Record, as follows:
Richard D. DeBobes, Staff Director; David M. Morriss,
Minority Staff Director; Adam J. Barker, Professional Staff
Member; June M. Borawski, Printing and Documents Clerk; Leah
C. Brewer, Nominations and Hearings Clerk; Christian D.
Brose, Professional Staff Member; Joseph M. Bryan,
Professional Staff Member; Pablo E. Carrillo, Minority
Investigative Counsel; Jonathan D. Clark, Counsel; Ilona R.
Cohen, Counsel; Christine E. Cowart, Chief Clerk; Jonathan S.
Epstein, Counsel; Gabriella E. Fahrer, Counsel; Richard W.
Fieldhouse, Professional Staff Member; Creighton Greene,
Professional Staff Member.
Ozge Guzelsu, Counsel; John W. Heath, Jr., Minority
Investigative Counsel; Gary J. Howard, Systems Administrator;
Paul C. Hutton IV, Professional Staff Member; Jessica L.
Kingston, Research Assistant; Jennifer R. Knowles, Staff
Assistant; Michael J. Kuiken, Professional Staff Member;
Kathleen A. Kulenkampff, Staff Assistant; Mary J. Kyle,
Legislative Clerk; Gerald J. Leeling, Counsel; Daniel A.
Lerner, Professional Staff Member; Peter K. Levine, General
Counsel; Gregory R. Lilly, Executive Assistant for the
Minority; Hannah I. Lloyd, Staff Assistant; Mariah K.
McNamara, Staff Assistant.
Jason W. Maroney, Counsel; Thomas K. McConnell,
Professional Staff Member; William G. P. Monahan, Counsel;
Lucian L. Niemeyer, Professional Staff Member; Michael J.
Noblet, Professional Staff Member; Bryan D. Parker, Minority
Investigative Counsel; Christopher J. Paul, Professional
Staff Member; Cindy Pearson, Assistant Chief Clerk and
Security Manager; Roy F. Phillips, Professional Staff Member;
John H. Quirk V, Professional Staff Member; Robie I. Samanta
Roy, Professional Staff Member; Brian F. Sebold, Staff
Assistant; Russell L. Shaffer, Counsel; Michael J. Sistak,
Research Assistant; Travis E. Smith, Special Assistant;
William K. Sutey, Professional Staff Member; Diana G. Tabler,
Professional Staff Member; Mary Louise Wagner, Professional
Staff Member; Barry C. Walker, Security Officer; Richard F.
Walsh, Minority Counsel; Bradley S. Watson, Staff Assistant;
Breon N. Wells, Staff Assistant.
Mr. LEVIN. To end my thanks--I do not see Senator McCain here. I
think he had to leave for a few minutes.
He is here. Let me personally thank him. I thought Senator McCain had
to leave.
I put in some thank-yous here on behalf of the committee, and I just
want to tell the Senator how tremendous it is to work with him and how
this tradition of bipartisanship in our committee has been maintained.
The Senator is a very major part of the reason for that happening, and
I thank him.
Mr. McCAIN. I thank the chairman. One of the things I look back on
with great nostalgia and appreciation is the relationship we have
developed over many years. I must say that we have had spirited
discussions from time to time, but they have been educational,
enlightening, and entertaining. I thank the Senator for his leadership.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, I ask unanimous consent that the
next two votes be 10 minutes in duration.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. REID. As the order that is now before the Senate indicates, I
have the ability to designate who will be the speakers. We have 1
minute on one and 1 minute on the other. Those 2 minutes will be used
by the senior Senator from Pennsylvania, Mr. Casey.
The PRESIDING OFFICER. Under the previous order, the Armed Services
Committee is discharged from further consideration of H.R. 1540 and the
Senate will proceed to its consideration; all after the enacting clause
is stricken and the text of S. 1867, as amended, is inserted in lieu
thereof; the bill, as amended, is considered read a third time and
passed, and the motion to reconsider is made and laid upon the table.
The Senate insists on its amendment, and requests a conference with
the House on the disagreeing votes of the two Houses, and the Chair
appoints Mr. Levin, Mr. Lieberman, Mr. Reed, Mr. Akaka, Mr. Nelson of
Nebraska, Mr. Webb, Mrs. McCaskill, Mr. Udall of Colorado, Mrs. Hagan,
Mr. Begich, Mr. Manchin, Mrs. Shaheen, Mrs. Gillibrand, Mr. Blumenthal,
Mr. McCain, Mr. Inhofe, Mr. Sessions, Mr. Chambliss, Mr. Wicker, Mr.
Brown of Massachusetts, Mr. Portman, Ms. Ayotte, Ms. Collins, Mr.
Graham, Mr. Cornyn, and Mr. Vitter conferees on the part of the Senate.
____________________
