[Congressional Record Volume 152, Number 108 (Wednesday, September 6, 2006)]
[Senate]
[Pages S8992-S8998]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2007
The PRESIDING OFFICER. Under previous order, the Senate will resume
consideration of H.R. 5631, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (H.R. 5631) to make appropriations for the
Department of Defense for the fiscal year ending September
30, 2007, and for other purposes.
Pending:
Kennedy-Reid amendment No. 4855, to include information on
civil war in Iraq in the quarterly reports on progress toward
military and political stability in Iraq.
Allen modified amendment No. 4883, to make available from
Defense Health Program up to $19,000,000 for the Defense and
Veterans Brain Injury Center.
Feinstein-Leahy amendment No. 4882, to protect civilian
lives from unexploded cluster munitions.
Mr. STEVENS. Mr. President, what is the pending business on this
bill?
The PRESIDING OFFICER. The pending amendment is the Feinstein
amendment.
Mr. STEVENS. Is the Kennedy amendment still set aside following that
amendment?
The PRESIDING OFFICER. Yes, it is.
Mr. STEVENS. 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.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Graham). Without objection, it is so
ordered.
Amendment No. 4882
Mrs. FEINSTEIN. Mr. President, I understand it is appropriate for me
now to speak on an amendment I offered yesterday having to do with
cluster bombs.
The PRESIDING OFFICER. That is correct.
Mrs. FEINSTEIN. Mr. President, I rise to discuss again the amendment
offered by myself and Senator Leahy to this bill on the use of a
munition called a cluster bomb. Our amendment is very simple. It
prevents any funds from being spent to purchase, use, or transfer
cluster munitions until rules of engagement have been adopted by the
Department of Defense to ensure that such munitions will not be used in
or near any concentration of civilians.
That is not a difficult requirement. It seems to me, because of the
widespread damage caused by these munitions, that there ought to be
specific rules of engagement which ban their use in areas where
civilian death or maiming might result.
Cluster munitions are large bombs, rockets, or artillery shells that
contain up to hundreds of small submunitions or individual bomblets.
They are intended for attacking enemy troop formations, and they
release these small
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bomblets over the radius of a half mile. In practice, they pose a real
threat to the safety of civilians when used in populated areas because
they leave hundreds of unexploded bomblets over a large area, and they
are often inaccurate. In some cases, up to 40 percent of cluster bombs
fail to explode, posing a particular danger to civilians long after the
conflict has ended.
Bomblets are no bigger than a D battery and in some cases resemble a
tennis ball, so they are attractive to small children who pick them up
to play with them. Then the bomblet explodes and the individual is
either killed or maimed.
I would like to show three photographs.
On March 25, 2003, a youngster by the name of Abdallah Yaqoob was
sleeping in his bed in his home in Basra, Iraq when he was hit with
shrapnel from a cluster munitions strike that hit his neighborhood. He
lost his arm, and his abdomen was severely damaged. He was hit by a
British L20A1/M85 munition--a cluster bomb.
Second, Falah Hassan, 13, was injured by an unexploded ground-
launched submunition in Iraq on March 26, 2003. The explosion severed
his right hand and spread shrapnel throughout his body. He lost his
left index finger and soft tissue in his lower limbs.
This is a photo of an unexploded M42 cluster submunition found on a
barbed-wire fence in southern Iraq in August 2006. As you will see,
this is the bomblet and this is a small pinecone. You will see how
small this bomblet is, hanging on the barbed wire.
These unexploded cluster bombs become, in essence, de facto
landmines.
The issue was first brought to my attention by a 2005 PBS documentary
entitled ``Bombies'' which chronicled the impact of unexploded cluster
bombs in Laos. This is startling. In Laos alone, there are between 9
and 27 million unexploded cluster bombs. They are leftovers from U.S.
bombing campaigns in the 1960s and 1970s. Approximately 11,000 people,
30 percent of them children, have been killed or injured since that war
ended--11,000 killed or injured by cluster bombs. So 40 to 50 years
after these munitions were used, their deadly force remains active.
As the documentary showed, these unexploded cluster bombs have ended
up in bamboo trees, in playgrounds, in houses, on rice paddies, and in
schools. They have been found in the ground where farmers prepare their
fields to plant. They have threatened their lives and their livelihood.
As one farmer from northern Laos put it, ``Working in these fields is a
problem. There are lots of bombies. But we work very carefully. If we
work fast, we are afraid we'll hit a bombie.''
These farmers have to tend the fields and put their lives at risk
because they have to grow food to feed their families. Decades after
the last bomb was dropped, they are still threatened by death and
serious injury. A cluster bomb is lethal for up to 150 yards. It will
kill or maim the person who picks it up and those nearby.
I remind my colleagues, these munitions have been used in many
battles in many wars.
In the first gulf war, 60,000 cluster bombs were used, containing 20
million bomblets. Since 1991, unexploded bomblets have killed 1,600
innocent men, women, and children and injured more than 2,500.
In Afghanistan in 2001, 1,228 cluster bombs with nearly a quarter of
a million--248,056--bomblets were used.
Between October of 2001 and November of 2002--that is just 1 year--
127 civilians were killed, 70 percent of them under the age of 18.
In Iraq in 2003, 13,000 cluster bombs with nearly 2 million bomblets
were used. Combining the first and second gulf wars, the total number
of unexploded bomblets in the region is approximately 1.2 million. An
estimated 1,220 Kuwaitis and 400 Iraqi civilians have been killed since
1991 by these discarded munitions.
Here we have it: In Iraq, 13,000 cluster bombs, two million bomblets;
in Afghanistan, 1,200 cluster bombs, a quarter of a million bomblets,
numbers killed in a year, 127 civilians; in the first gulf war, 61,000
used, 20 million bomblets lying around, 1,600 innocent, men, women, and
children killed, more than 2,500 wounded since 1991.
This gives rise to recent developments in Lebanon. Throughout
southern Lebanon, more than 405 cluster bomb sites containing
approximately 100,000 unexploded bomblets have been discovered. Each
site covers a radius of 220 yards. As Lebanese children and families
return to their homes and begin to rebuild, they will be exposed to the
danger of these unexploded bomblets lying in the rubble. Thirteen
people already, including three young children, have been killed, and
48 injured. One United Nations official estimates that the rate of
unexploded bomblets is 40 percent in southern Lebanon. So far, more
than 2,900 exploded bomblets have been destroyed. It will take 12 to 15
months to complete that effort.
The State Department is looking into charges that the cluster bombs
found in southern Lebanon were American-made and that they were used in
violation of agreements between the United States and Israel that
govern their use. I do not know whether that is true. We have tried to
find out. At this time, and despite repeated inquiries, I am unaware
what those agreements actually say and what conditions they place on
Israel. It seems to me we ought to know. It seems to me this
information ought to be transparent and that the Congress of the United
States, in the process of lawmaking, is entitled to that information.
By passing this information and codifying this language in statute we
will help ensure that civilian populations will be protected by
adequate rules of engagement that accompany the sale or transfer of
these weapons to another country and the rules of engagement that
condition their use by our military in foreign countries.
Each death that results from an unexploded bomblet weakens American
diplomacy and American values. How do people in Laos feel when they
live and farm with the daily threat of running into one of these
bomblets? How do they feel in Afghanistan, Iraq, in southern Lebanon,
in any other place where civilians can be wounded and killed by these
bomblets?
Simply put, unexploded cluster bombs fuel anger and resentment. They
make security, stabilization, and reconstruction efforts that much
harder.
Senator Leahy and I are not the only ones that feel this way. Former
Secretary of Defense Bill Cohen recognized the threat that cluster
bombs pose to civilians and U.S. troops alike because they litter a
battlefield. He issued a memorandum which became known as the Cohen
policy. It stated that beginning in 2005 all new cluster bombs would
have a failure rate of less than 1 percent.
This was an important step forward. But we still have 5\1/2\ million
cluster bombs containing 728 million bomblets. They are aging in the
American arsenal. This indicates we are still prepared to use,
transfer, or sell an enormous number of cluster bombs that have
significant failure rates.
I ask this question: Is this the source of legacy we want to leave
behind in Iraq and Afghanistan?
Let me be clear, this amendment does not place a ban on cluster
bombs. It is a simple step that will give the Pentagon time to develop
specific guidelines to ensure that cluster bombs are not used in or
near populated areas. Does anyone in this Senate believe that a cluster
munition should be used in a civilian populated area? That person can
stand up and talk to that point of view. It is unconscionable. It is
immoral. It is beyond the laws of warfare. If somebody wants to argue
that point of view, so be it. If that is the kind of country a Member
wants to represent, so be it. It is not the country I want to
represent.
This is a simple amendment which says no funds will be used until
there are rules of engagement that say that these munitions will not be
used in civilian areas where death and maiming is apt to result.
This amendment will go a long way toward ensuring only prudent
battlefield use. I hope this amendment has an opportunity to pass.
I yield the floor and I reserve the remainder of my time.
How much time remains?
The PRESIDING OFFICER. Four and a half minutes.
Mrs. FEINSTEIN. I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Mr. President, I cannot support this amendment. It is
not
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enforceable. It establishes policies that may in some situations
dangerously restrict the options available to our commanders on the
battlefield.
I do share the Senator's concern about potential use on the
indiscriminate manner of these antipersonal weapons. Protecting
innocent civilians from the violence and destruction of war is our
goal. It is a laudable goal.
Of course, the consequences of using cluster munitions must be
carefully considered before such weapons are engaged. This is a complex
policy area. It deserves comprehensive review by the relevant policy
committees, not only the Committee on Armed Services but also the
Foreign Relations Committee. As the Senator has said, it has already
been reviewed on a secretarial level several times in the Department of
Defense.
This amendment is just not acceptable. It legislates the rules of
engagement for an entire class of weapon. The task of settling the
rules of engagement properly belongs to the military and to the
commander and ultimately to the Commander in Chief.
In an extreme situation the commander must be able to use all options
to shape the battlefield to protect our forces and those allied with
us. Restricting the deployment of cluster munitions could severely
hinder aviation and artillery capabilities and reduce the commander's
capability to wage war successfully. It could severely degrade our
allies' capability to defend themselves in threatening situations.
The Department of Defense already has guidance and target
methodologies that emphasize minimizing dangers to civilians in or near
the zone of conflict. This amendment requires that prior to the sale or
transfer, the Department ensures that munitions will not be used in or
near populations, including villages, camps, and groups of refugees,
evacuees, or nomads. This could be obtained at the point of sale.
Once the weapons are transferred, it would be impossible to enforce.
They place a burden on the military that is impossible to achieve.
The Arms Export Control Act already has broad guidelines on the use
of weapons sold by the United States, and press reports indicate the
State Department has opened an investigation into use of cluster bombs
by Israel against Hezbollah to determine if those guidelines were
violated. If it has, the United States may impose sanctions. This was
done in 1982. The Department of State already has tools to enforce the
humanitarian considerations and sanction wanton use of cluster
munitions.
The Senate should recall the use of cluster munitions is consistent
with the convention on certain conventional weapons and international
humanitarian law, including the Geneva and Hague Conventions. I
recommend the Senate refuse to accept this amendment.
I do support the Defense appropriations bill as drafted.
I yield the floor.
Mr. BIDEN. Mr. President, I share the concerns that prompted the
introduction of this amendment, but I am not prepared to approve such a
far-reaching measure without a clear legislative record regarding the
need for it and its likely impact on U.S. and allied forces.
Cluster bombs have always posed problems for responsible military
forces like those of the United States. The weapons are very useful
militarily, but they also carry a real risk of causing civilian
casualties if they are used where civilians are present or if too many
submunitions fail to explode when they hit the ground. This is a
legitimate issue to consider and, perhaps, to legislate. But it should
be done in a careful manner, after holding hearings and with proper
preparation.
I urge the Senate Armed Services Committee to hold hearings on the
issue of cluster munitions so that we can all gain a better
understanding of how to maintain their usefulness while minimizing
their risks. The committee should also make sure the Defense Department
lives up to its claim that it ``is working towards minimizing `dud'
cluster munitions by phasing cluster munitions systems with more
reliable or self-destructing fuzes.'' Success in that effort would go
far to reduce the risks of postwar casualties.
The PRESIDING OFFICER. Who yields time?
Mrs. FEINSTEIN. Mr. President, the ranking member of the Judiciary
Committee is here, Senator Leahy of Vermont, someone whose leadership
on the landmine issue has been unparalleled in the Senate. He is a
cosponsor of this amendment.
I yield the Senator the remainder of my time.
The PRESIDING OFFICER. The Senator is recognized for 4 minutes.
Mr. LEAHY. Mr. President, I thank the distinguished Senator from
California. I have had a chance to work with the Senator on this
amendment. It is an extremely important amendment. I have spent decades
on the question of landmines. We use the Leahy War Victims Fund in
parts of the world to aid landmine victims. I have visited these field
hospitals. I have seen the damage, usually to children, overwhelmingly
to civilians. My wife is a registered nurse. She has gone into the
surgeries and watched the amputations.
The problem of cluster bombs which maim and kill the innocent has
been known for many years. Probably one of the most egregious examples
was in Laos, where millions of the explosives were dropped by U.S.
planes during the Vietnam war. Unfortunately, what happens with
landmines, the war ends, the landmines stay. The peace treaties are
signed and civilians continue to die; 30 years after those were dropped
there are horrific casualties of civilians.
I have urged the Pentagon both in Democratic and Republican
administrations to address this problem for nearly a decade. While they
have acknowledged the problem, and they do acknowledge it, they have
not taken effective steps to solve it.
We have used massive numbers of cluster munitions in the invasion of
Iraq, including in densely inhabited areas. Civilians paid the price
and continue to pay the price.
Israel used these weapons in Lebanon. Again, it has been innocent
civilians who have suffered disproportionately.
Now, cluster munitions, like any weapon, of course, have military
utility. They can be effective against armor or military
infrastructure, but they are in effect indiscriminate because they
scatter thousands of lethal bomblets over wide areas. There are many
weapons that can be effective. Used right, I suppose, poison gas is
effective, but we have banned it since World War I. We have urged other
countries to ban it.
On these cluster munitions, between 1 and 40 percent, depending on
the type or the condition of the terrain, fail to explode on contact.
Remember, there are thousands of these coming down. So if anywhere from
even 1 percent fail, and as high as 40 percent fail, they remain as
hazardous duds indefinitely, no different than scattering landmines,
something we do not do.
And those who come in contact with them activate them. That could
very well be a child out walking to school. It can be someone playing.
It can be someone going to tend their animals, their crops, and they
end up with lifelong disfigurement or disability, often death.
No one argues it is possible to completely avoid civilian casualties
in a war.
Such casualties are inevitable. They have been tragic consequences in
all wars. But this amendment should not be necessary. Weapons that are
so disproportionately hazardous to civilians should be subject to
strict rules of engagement.
The Feinstein-Leahy amendment is fully consistent with the laws of
war and international humanitarian law. It uses the same standard as
for incendiary weapons, which are also notoriously hazardous to
civilians. Rather than prohibit cluster munitions, the amendment says
only that they should not be used where there are concentrations of
civilians.
This is a moral issue and it is an issue of our own self interest.
Using or selling weapons that are so indiscriminate, without strict
rules of engagement, is immoral. It is immoral. Anyone who has seen the
horrific consequences of children with an arm or a leg blown off, or a
part of their face, or their lifeless body cut to pieces by the
shrapnel, knows that.
But it is also contrary to our own interest to be using or selling
weapons which, without strict controls on their use, cause such
appalling casualties of
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innocent people who are not the enemy. It fuels anger and resentment we
can ill afford among the very people whose support we need.
So again I commend the Senator from California and strongly support
the amendment.
Mr. President, I ask unanimous consent that an article from USA
Today, dated December 11, 2003, about cluster bombs be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From USA Today, Dec. 11, 2003]
Cluster Bombs Kill in Iraq, Even After Shooting Ends
(By Paul Wiseman)
Baghdad.--The little canisters dropped onto the city, white
ribbons trailing behind. They clattered into streets, landed
in lemon trees, rattled around on roofs, settled on lawns.
When Jassim al-Qaisi saw the canisters the size of D
batteries falling on his neighborhood just before 7 a.m.
April 7, he laughed and asked himself: ``Now what are the
Americans throwing on our heads?''
The strange objects were fired by U.S. artillery outside
Baghdad as U.S. forces approached the Iraqi capital. In the
span of a few minutes, they would kill four civilians in the
ai-Dora neighborhood of southern Baghdad and send al-Qaisi's
teenage son to the hospital with metal fragments in his foot.
The deadly objects were cluster bomblets, small explosives
packed by the dozens or hundreds into bombs, rockets or
artillery shells known as cluster weapons. When these weapons
were fired on Baghdad on April 7, many of the bomblets failed
to explode on impact. They were picked up or stumbled on by
their victims.
The four who died in the al-Dora neighborhood that day
lived a few blocks from al-Qaisi's house. Rashid Majid, 58,
who was nearsighted, stepped on an unexploded bomblet around
the corner from his home. The explosion ripped his legs off.
As he lay bleeding in the street, another bomblet exploded a
few yards away, instantly killing three young men, including
two of Majid's sons--Arkan, 33, and Ghasan, 28. ``My sons! My
sons!'' Majid called out. He died a few hours later.
The deaths occurred because the world's most modern
military, one determined to minimize civilian casualties,
went to war with stockpiles of weapons known to endanger
civilians and its own soldiers. The weapons claimed victims
in the initial explosions and continued to kill afterward, as
Iraqis and U.S. forces accidentally detonated bomblets lying
around like small land mines.
A four-month examination by USA Today of how cluster bombs
were used in the Iraq war found dozens of deaths that were
unintended but predictable. Although U.S. forces sought to
limit what they call ``collateral damage'' in the Iraq
campaign, they defied international criticism and used nearly
10,800 cluster weapons; their British allies used almost
2,200.
The bomblets packed inside these weapons wiped out Iraq
troop formations and silenced Iraqi artillery. They also
killed civilians. These unintentional deaths added to the
hostility that has complicated the U.S. occupation. One anti-
war group calculates that cluster weapons killed as many as
372 Iraqi civilians. The numbers are impossible to verify:
Iraqi records are incomplete, and many Iraqi families buried
their dead without reporting their deaths.
In the most comprehensive report on the use of cluster
weapons in Iraq, USA Today visited Iraqi neighborhoods and
interviewed dozens of Iraqi families, U.S. troops, teams
clearing unexploded ordnance in Iraq, military analysts and
humanitarian groups. The findings:
The Pentagon presented a misleading picture during the war
of the extent to which cluster weapons were being used and of
the civilian casualties they were causing. Gen. Richard
Myers, chairman of the Joint Chiefs of Staff, told reporters
on April 25, six days before President Bush declared major
combat operations over, that the United States had used 1,500
cluster weapons and caused one civilian casualty. It turns
out he was referring only to cluster weapons dropped from the
air, not those fired by U.S. ground forces.
In fact, the United States used 10,782 cluster weapons,
according to the declassified executive summary of a report
compiled by U.S. Central Command, which oversaw military
operations in Iraq. Centcom sent the figures to the Joint
Chiefs in response to queries from USA Today and others,
but details of the report remain secret.
U.S. forces fired hundreds of cluster weapons into urban
areas. These strikes, from late March to early April, killed
dozens and possibly hundreds of Iraqi civilians. Forty
civilians were killed in one neighborhood in Hillah, 60 miles
south of Baghdad, say residents and Saad Khazal al-Faluji, a
surgeon at Hillah General Hospital who tracked casualties.
The attacks also left behind thousands of unexploded
bomblets, known as duds, that continued to kill and injure
Iraqi civilians weeks after the fighting stopped. U.S.
officials say they sought to limit civilian casualties by
trying to avoid using cluster munitions. But often
alternative weapons were not available or would not have been
as effective during the invasion.
Unexploded U.S. cluster bomblets remain a threat to U.S.
forces in Iraq. They have killed or injured at least eight
U.S. troops.
The U.S. Air Force, criticized for using cluster bombs that
killed civilians during the wars in Vietnam, Kosovo and
Afghanistan, has improved its cluster bombs. But U.S. ground
forces relied on cluster munitions known to cause a high
number of civilian casualties.
The Air Force, responding to the criticism, began working
on safer cluster bombs in the mid-1990s and started using
them in Afghanistan. But the Army started a program to
install self-destruct fuses in existing cluster bomblets only
after former Defense Secretary William Cohen called in
January 2001 for dud rates of no more than 1% after 2005. The
safer bomblets won't be available for at least two years.
During the war in Iraq, U.S. ground forces dipped into
stockpiles of more than 740 million cluster bomblets, all
with a history of high dud rates.
Senior Army officials in Washington would not answer
questions about the Army's use of cluster weapons in Iraq.
Maj. Gary Tallman, an Army spokesman at the Pentagon, said
such weapons are effective ``against enemy troop formations
and light-skinned vehicles'' and are used only after ``a
deliberate decision-making process.''
Why cluster bombs are deadly
Cluster bombs have been controversial since they killed
thousands of Vietnamese, Cambodian and Laotian civilians
during and after the Vietnam War. They have since been used
by armies around the world, including Russian forces in
Chechnya and Sudanese government troops fighting rebels in a
long-running civil war. But their use in urban areas of
Iraq has given new momentum to a movement to restrict the
use of cluster bombs.
Last month, dozens of activist groups hoping to duplicate
the success of the campaign to ban land mines formed a
coalition aimed at getting a worldwide moratorium on cluster
weapons. After seeing the toll the weapons took on Iraqi
civilians and their own forces, even some U.S. soldiers have
misgivings about using cluster weapons, at least in urban
areas.
As the war in Iraq approached, humanitarian groups warned
the Pentagon against using cluster weapons, especially in
urban areas. New York-based Human Rights Watch predicted on
March 18, a day before the war began with an airstrike in
Baghdad: ``The use of cluster munitions in Iraq will result
in grave dangers to civilians and friendly combatants.''
Cluster weapons are especially dangerous to civilians because
they spray wide areas with hundreds of bomblets. Most are
unguided ``dumb'' weapons, so they can miss their target, and
many of the bomblets don't explode immediately.
The U.S. military was aware of the threat cluster munitions
posed and was determined to minimize them. Col. Lyle Cayce,
an Army judge advocate general (JAG), led a team of 14
lawyers providing advice on the battlefield to the 3rd
Infantry Division on the use of cluster munitions, as well as
other weapons, during its 21-day, 450-mile drive north from
Kuwait to Baghdad. The goal was to ensure that U.S. forces
complied with international humanitarian law, enshrined in
the Geneva Conventions. ``No other army in the world does
that,'' Cayce says. ``We value the rule of law.''
The Geneva Conventions hold that when choosing which
targets to hit and which weapons to use, armies must make
sure they do not ``cause superfluous injury or unnecessary
suffering'' and ensure that the harm to civilians does not
outweigh the military advantages.
U.S. forces relied on sophisticated radar to pinpoint the
sources of Iraqi fire, then cross-checked them against a
computerized list of about 10,000 sensitive sites, such as
mosques and schools. Cayce and the other lawyers looked at
potential targets and advised U.S. commanders whether the
military benefits of using specific weapons against those
targets justified the risks to civilians.
Cayce gave advice 512 times during the war, usually in
cases involving cluster munitions. Most involved sites
outside populated areas. Cayce estimates he dealt with only
25 to 30 ``controversial missions.'' For example: He approved
a strike against an Iraqi artillery battery in a soccer field
next to a mosque because it was firing on the 3rd Infantry
Division's artillery headquarters.
The choices could be agonizing. He says he asked himself,
``How many Americans do I have to let get killed before I
take out that (Iraqi) weapons system?'' Ten to 15 times,
Cayce advised commanders against firing on a target; they
never overruled him. Five times, in fact, they decided
against using cluster munitions even after he gave them the
go-ahead because they believed the risk to civilians was too
great. ``We didn't just shoot there willy-nilly,'' he says.
``It was the enemy who was putting his civilians at risk. .
. . They put their artillery right in town. Now who's at
fault there?''
Rather than call upon their artillery to hit a target with
cluster munitions, U.S. ground forces preferred either to use
other weapons, such as M-16 rifles or tank rounds, or to
summon the Air Force to hit Iraqi targets from the sky with
precision bombs. ``Cluster munitions were the last choice,
not the first,'' Cayce says.
But aircraft frequently were unavailable. Sometimes the
weather was bad or sandstorms were swirling. Sometimes Air
Force pilots insisted on seeing targets instead of relying on
radar readouts. The cluster munitions, especially M26 rockets
fired by a multiple-launch rocket system (MLRS), had
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greater range than other weapons and were more reliable in
bad weather.
Commanders also thought an MLRS was better at returning
fire and killing the enemy. ``MLRS is ideal for
counterfire,'' says Col. Ted Janosko, artillery commander for
the Army's V Corps. In fighting on March 31 around Karbala,
50 miles south of Baghdad, U.S. forces came under heavy
artillery fire from the Iraqis. ``We used (MLRS) rockets to
fire back,'' Janosko says. ``As soon as we started using
rockets, guess what? We never heard from that unit again. I'm
not going to say we killed them all . . . but believe me,
they did not fire again from that position.''
The 3rd Infantry Division also used MLRS frequently. The
rockets can go more than 20 miles, and they spray a wider
area than other weapons. The 3rd Infantry fired 794 MLRS
rockets during the Iraq war, according to an assessment by
two high-ranking division artillery officers in the U.S. Army
journal Field Artillery, published at Fort Sill, Okla.
As they raced north from Kuwait toward Baghdad in late
March and early April, U.S. forces fired rockets and
artillery shells loaded with bomblets into Iraqi troop and
artillery positions in Hillah, in Baghdad and in other
cities. U.S. aircraft sometimes dropped cluster bombs as
well.
Just before U.S. forces' ``thunder run'' into Baghdad on
April 7, the 3rd Infantry Division fired 24 MLRS cluster
rockets into Iraqi positions at an important intersection in
the capital. The damage assessment, recounted in the Field
Artillery article: ``There's nothing left but burning trucks
and body parts.''
The PRESIDING OFFICER. The time of the Senator from California has
expired.
The Senator from Alaska.
Mr. STEVENS. Mr. President, I reiterate my opposition to this
amendment. The rules of engagement properly belong with the Department
of Defense and the Commander in Chief. This amends and sets forth
restrictions on the ability of our military to use these munitions to
protect our people in the future. It also would put on our military and
our executive branch the duty of trying to determine how weapons might
be used in the future, should they sell these weapons to other
countries.
We have been informed that this amendment is opposed by the
Department of Defense. It is their determination that once the weapons
have been transferred to a country under a sale that is permitted, it
would not be possible to enforce this restriction. They point out the
Arms Export Control Act already has broad guidelines on the use of
weapons sold by the United States. And if that act is violated, the
United States may impose sanctions and deny sale or transfer of weapons
in the future, and has, as it did in 1982, sanctioned a country for
misusing such weapons, not these in particular but the weapons that had
been sold.
The Senator from California said if anyone wants to stand up and talk
about using these munitions, they ought to defend them. Some of the
instances which the Senator from California mentioned were years ago
when the areas were not occupied by civilians at all. And later the
civilians moved into the areas, areas that had not been cleared
properly by the country involved. I think that is a dangerous
situation. Obviously, it is a difficult situation.
But I would urge her to go back to the countries she mentioned and
reconsider the reason for the use of these weapons in the past--in
Korea, in Vietnam. I do not think we used them in Spain. But they were
used in Spain after having been sold to Spain. The concepts here are
impossible for our commanders to protect our forces with the
prohibitions that are involved. It is impossible for us to enforce.
We have a population of approximately 300 million people. We are
involved in situations throughout the world and have been. Just
remember the ``Marines' Hymn: From the halls of Montezuma to the shores
of Tripoli.'' We have been doing this for years, protecting our system
abroad and protecting freedom abroad. It is not the province of the
Senate to enact rules of engagement. We authorize people to do it, and
we review them--if you want to have a hearing on it and review the
rules of engagement, I will be pleased to participate in such a
hearing--but we do not write them. And we should not attempt to
restrict them. I think this would place a dangerous restriction on the
options available to our commanders, as I have said.
If the issue is a relatively high rate of existing inventory, as the
Senator indicates, then the solution is to replace these munitions with
improved items, many of which are not possible to manufacture now
because of existing restrictions on such manufacturing.
I do not believe it can be shown we have used these weapons
indiscriminately in civilian areas. I believe civilians have moved into
areas where they have been used in defense of our country and defense
of our people.
So under the circumstances, I 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. STEVENS. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Murkowski). Without objection, it is so
ordered.
Mr. STEVENS. Madam President, it is my understanding this is the time
set for the vote on Senator Feinstein's amendment. Have the yeas and
nays been ordered?
The PRESIDING OFFICER. The yeas and nays have not been ordered.
Mr. STEVENS. Madam President, 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 legislative clerk called the roll.
The result was announced--yeas 30, nays 70, as follows:
[Rollcall Vote No. 232 Leg.]
YEAS--30
Akaka
Baucus
Bingaman
Boxer
Byrd
Cantwell
Carper
Conrad
Dayton
Dorgan
Durbin
Feingold
Feinstein
Harkin
Jeffords
Johnson
Kennedy
Kerry
Kohl
Leahy
Levin
Menendez
Mikulski
Murray
Obama
Reed
Reid
Sarbanes
Stabenow
Wyden
NAYS--70
Alexander
Allard
Allen
Bayh
Bennett
Biden
Bond
Brownback
Bunning
Burns
Burr
Chafee
Chambliss
Clinton
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dodd
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Kyl
Landrieu
Lautenberg
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Rockefeller
Salazar
Santorum
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
The amendment (No. 4882) was rejected.
Mr. DURBIN. Madam 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.
Amendment No. 4895
Ms. MIKULSKI. Madam President, I am here to join with my colleague,
Senator Paul Sarbanes, to offer an amendment, which we have at the
desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Maryland [Ms. Mikulski], for herself, and
Mr. Sarbanes, proposes an amendment numbered 4895.
Ms. MIKULSKI. Madam President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide that none of the funds appropriated or otherwise
made available by this Act may be used to enter into or carry out a
contract for the performance by a contractor of any base operation
support service at Walter Reed Army Medical Hospital pursuant to a
private-public competition conducted under Office of Management and
Budget Circular A-76 that was initiated on June 13, 2000, and has the
solicitation number DADA 10-03-R-0001)
On page 218, between lines 6 and 7, insert the following:
Sec. 8109. None of the funds appropriated or otherwise made
available by this Act may be used to enter into or carry out
a contract for the performance by a contractor of any base
operation support service at Walter Reed Army Medical
Hospital pursuant to a
[[Page S8997]]
private-public competition conducted under Office of
Management and Budget Circular A-76 that was initiated on
June 13, 2000, and has the solicitation number DADA 10-03-R-
0001.
Ms. MIKULSKI. Madam President, I ask unanimous consent that Senator
Sarbanes be added as a cosponsor to the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. STEVENS. Madam President, I thought we had an agreement to stand
in recess at 12:30.
Ms. MIKULSKI. If the distinguished Senator will yield, I thought
there was an agreement for us to offer this amendment and not ask for a
vote on this amendment. Had the Senate followed the regular order, we
would have been done with the other business, the pending business on
cluster bombs.
Mr. STEVENS. Was there an order for the recess at 12:30?
The PRESIDING OFFICER. There is an order to recess. The Senator from
Maryland will need unanimous consent in order to proceed beyond the
hour of 12:30.
Ms. MIKULSKI. I apologize. Madam President, I ask unanimous consent
that the session be extended for 10 additional minutes so that Senator
Sarbanes and I may offer an amendment.
The PRESIDING OFFICER. Is there objection?
Mr. STEVENS. Will the Senator yield? I thought the amendment had been
offered.
Ms. MIKULSKI. No, it has not.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SARBANES. Madam President, parliamentary inquiry: Is the
amendment now pending?
The PRESIDING OFFICER. The amendment is now pending.
Mr. SARBANES. And we have this unanimous consent request to take 10
minutes in order to proceed; we are trying to help the chairman move
this process along.
Mr. STEVENS. Madam President, I have no objection to offering the
amendment and making comments about its introduction. The Senator wants
10 minutes?
Ms. MIKULSKI. Yes.
Mr. STEVENS. I have no objection.
The PRESIDING OFFICER. The Senator from Maryland is recognized.
Ms. MIKULSKI. We will move briskly. This is to fix a terribly botched
competition for Federal jobs at the Walter Reed Army Medical Center.
This competition has wasted taxpayer money. It is unfair to Federal
employees, and we urge that it stop. We are opposed to this because it
has gone on too long, it is unfair, it has broken the rules, and cost
taxpayers an incredible amount of money.
I do wish at this time, though, to pay tribute to the distinguished
Senators, the chair and the ranking member of the Defense
Appropriations Subcommittee, Senator Stevens and Senator Inouye. We
have had no finer, more hard-working champions for Walter Reed and
military medicine than those two men. So in raising this amendment, we
understand where they are and why they also don't want to get into
individual privatization issues, but this was such an egregious, unfair
process, we felt we had to do this.
This amendment would privatize 350 jobs at Walter Reed, mostly
landscapers and maintenance workers.
Why is this A-76 so flawed? Well, the competition has broken the
rules. It has gone on and on and on. It is deeply flawed. It is
disastrous. It started in June of 2000. It has lasted more than 6
years, beyond a full Senate term and longer than a President's term.
OMB says that it should not have gone on more than 12 months, but this
competition has gone on for more than 6 years. Federal employees in
2004 September were declared the winner of this competition, only to
have the decision reversed 2 years later--not 2 days, not 2 weeks, but
2 years. Then DOD kept putting out new plans. They announced a new plan
where they amended it 16 times. Every time the Federal employees won,
the Army came up with a new rule. The last amendment included 1,500
changes. This was the 49th month of this solicitation, and once again
they said: Let's start over. They keep changing the rules every time
the Federal employees win, and then finally they lost it in 2006 after
this chaos.
Now, does contracting out save money? You bet, sometimes, but not
this time. It has already cost the military $7 million to conduct this
privatization. It is going to cost another $5 million to implement.
When the demands on Walter Reed are so high, when we have a war that
has no line item, should we be spending tax dollars to implement a
program that will not save it? This will not save the taxpayers' money.
Also, I bring to my colleagues' attention that Walter Reed will be
closing in just a couple of years. Why privatize now? It is a solution
that is wrong. The competition was flawed. It does not save taxpayers'
money. Sure, we understand contracting out when it is legal, when it is
fair, when it saves taxpayers' money and maintains integrity. This
amendment will eliminate the funding to carry this out, and we urge its
adoption at the appropriate time.
Mr. SARBANES. Madam President, how much time remains?
The PRESIDING OFFICER. There is 5 minutes remaining.
Mr. SARBANES. Madam President, I wish to very strongly underscore the
arguments made by my very able colleague, Senator Mikulski, with
respect to this amendment. I am very pleased to join with her in
offering it.
This amendment would put an end to a very costly and flawed A-76
competitive sourcing study at Walter Reed Army Medical Center, which
is, of course, one of our foremost military hospitals. There have been
numerous and serious flaws in the conduct of this A-76 study. The study
has been going on now for 6 years--contrary to law governing the A-76
process. As a result, it has been extraordinarily expensive and
promises to be even more expensive if completed.
The Federal employees actually were declared the winner of this
competition in September of 2004, only to have that decision reversed
earlier this year. The decision was reversed after a whole new set of
amendments were made with respect to the bidding process. In fact, the
solicitation has been amended a number of times with hundreds of
changes, making the process terribly unfair to everyone involved. This
particular A-76 is so egregious that it ought to be brought to an end,
and that is what this amendment proposes to do.
I believe the situation as it currently stands is also having a
detrimental impact on the work being done at Walter Reed. The A-76
study covers base operation support services--workers who deal in
landscaping and maintenance. The requirements now are that these A-76
processes cannot go on for more than 30 months--in part to avoid such a
disruption in the workforce. However, this study has been going on for
more than 6 years. Obviously it is having an impact on the morale of
the employees and resulting in a loss in productivity. So I urge my
colleagues to be supportive of this amendment, which will bring this
costly and flawed A-76 study to an end and help Walter Reed maintain
the high level of services which characterizes that fine institution.
I would also add that the BRAC Commission has recommended the
consolidation of Walter Reed with the Bethesda Naval Medical Center.
That is supposed to take place over the next few years. That seems to
me to be an additional argument for adopting this amendment.
In other words, in a very short period of time, Walter Reed will move
to a new campus where we will be developing a new, more modern,
military hospital. At that point, the base operations workforce will
have to be reshaped to fit the needs of this new facility.
So I urge my colleagues to respect the reasonable rules of the
bidding process, rules which have been so departed from in this
instance. We should adopt this amendment to ensure that this and other
competitive sourcing studies are conducted pursuant to the laws and
regulations governing the A-76 process.
I very strongly support my colleague. I commend her for her important
leadership on this issue. Let's be fair to the employees. Let's honor a
reasonable bidding process with its own rules and requirements.
If Federal jobs are to be subject to the competitive sourcing
process, Federal agencies should follow the rules and requirements
governing that process. That has not been done in this instance, which
is the reason I support
[[Page S8998]]
the amendment that is pending before us.
I yield the floor.
____________________