[Congressional Record Volume 152, Number 125 (Friday, September 29, 2006)]
[Senate]
[Pages S10805-S10810]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 JOHN WARNER NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2007--
                           CONFERENCE REPORT

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of the conference report to 
accompany H.R. 5122, the Defense authorization bill, and the conference 
report be agreed to, with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  The Democratic leader.
  Mr. REID. Mr. President, reserving the right to object, I want the 
Record to reflect the hard work that has gone into this bill by the 
managers of the bill, the chairman, Senator Warner, and the ranking 
member, Senator Levin. There are no two finer Senators in the Senate. 
They have worked so diligently and so hard on this legislation for 
which they deserve so much credit for getting us to where we are. They 
are both dedicated to the service of their country. They are just two 
of the best, and if not for them we could not be where we are.
  I also express my appreciation to Senator Coburn for allowing us to 
move forward on this legislation this morning.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. No.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            insurrection act

  Mr. KENNEDY. Mr. President, I want to applaud the Senator from 
Virginia for his amendment in the Defense authorization bill. This 
amendment clarifies the President's authority to employ the Armed 
Forces inside the United States to restore public order when domestic 
violence has occurred to such an extent that the State authorities are 
not able to enforce the laws and protect the legal rights of its 
people.
  Late August last year, New Orleans and gulf coast residents saw the 
devastation nature can sow. We are now in another hurricane season. 
Communicable diseases like SARS and avian flu are still real risks. No 
one needs reminding that bin Laden and al-Qaida are still out there. We 
need to clarify the applicability of this law to modern problems.
  This is a task that uniquely belongs to Congress. It is Congress's 
responsibility, according to the Constitution, to make rules ``for the 
government and regulation'' of the Armed Forces. Senator Warner's 
provision takes a real step in the right direction.
  Mr. WARNER. Mr. President, I'm glad Senator Kennedy drew attention to 
my amendment to the Militia Acts, sometimes referred to as the 
``Insurrection Act.'' These statutes have not been amended for a half 
century. We urgently need a statute that clarifies when and how the 
President can use the Armed Forces in the homeland.
  This is not a new problem. The Second Congress passed a law in May 
1792 giving the President power to call out the Armed Forces inside the 
United States. Congress carefully defined when the President could act. 
In certain cases, he had to get a judge's approval before calling forth 
the troops. When President Washington put down the Whiskey Rebellion, 
he used this 1792 statute.
  Congress made changes to this authorization in 1795, 1807, 1861 and 
1871. Clearly, Congress was responding to threats of the day. These 
included Aaron Burr's conspiracy, the Civil War, and Reconstruction. 
The end result of all these amendments was a very sweeping statute with 
open-ended authorization in some situations, but ambiguous authority to 
use the Armed Forces in others. So we clearly needed to revisit this.
  Mr. KENNEDY. As I understand the amendment, it defines when the 
President can call on the Armed Forces if there is a major public 
emergency at home. The amended statute now lists specific situations in 
which the troops can be used to restore public order. This includes 
natural disasters, epidemics or other serious public health 
emergencies, and terrorist attacks or incidents that result in domestic 
violence to such an extent that

[[Page S10806]]

State authorities are unable to maintain public order. These were not 
mentioned specifically before. While the amendment does not grant the 
President any new powers, it fills an important gap in clarifying the 
President's authority to respond to these new kinds of emergencies.
  The amendment defines the kind of situations in which the President 
can employ the Armed Forces to restore public order. In our system, 
responsibility for law enforcement and the maintenance of public order 
normally lies with the State and local authorities. The Armed Forces 
can and should enter this arena only in extreme ergencies. The 
amendment explains that the trigger for the employment of Armed Forces 
is a condition, which may result from a terrorist attack or a natural 
disaster, that makes it impossible for regular law enforcement agencies 
to enforce the laws.
  Mr. WARNER. The Senator from Massachusetts is correct about the 
provision. The Armed Forces have a legitimate role to play in 
responding to serious emergencies. That role benefits from clear 
definition. Bringing this statute to date and removing its ambiguities 
will help the Nation respond better to the next crisis.
  Mr. SESSIONS. Mr. President, I rise to compliment the distinguished 
chairman and ranking member of the Armed Services Committee for their 
work in bringing forth the National Defense Authorization Act for 
fiscal year 2007 through conference. This Act supports our Armed Forces 
during this critical period in our Nation's history.
  In particular, I would like to note the House and Senate conferees 
full support for the administration's missile defense activities. The 
conference report before us fully funds the President's request for 
missile defense activities--reflecting strong confidence in and support 
for the current program.
  The recommendations of the conferees with respect to missile defense 
follow very closely the actions taken in the national Defense 
authorization bill for fiscal year 2007--as passed by the full Senate 
earlier this year.
  Notably, the conference report reflects the consensus view of the 
Senate and House that the Department of Defense must accord a priority 
to those near-term missile defense capabilities that are now beginning 
to provide a measure of protection for the American people, our 
deployed forces, and our friends and allies.
  The need to emphasize near-term missile defense capabilities was 
brought home to many of us by the fourth of July ballistic missile 
launches by North Korea, where six missiles of short-, medium-, and 
long-range were tested.
  Similarly, I just returned from the Ballistic Defense Annual 
Conference in London where over 900 delegates from over 20 nations 
discussed near and long term missile requirements in Asia and Europe. 
Among the key issues was the 3rd site requirement in Europe--a site 
designed to protect the United States and our NATO allies; a site which 
will provide an additional mix of options, both military and diplomatic 
to us and our NATO partners as the specter of missile blackmail 
increases.
  On Independence Day, for the first time ever, Americans witnessed 
their country activate a missile defense system to protect our homeland 
against long-range ballistic missiles. This was certainly an epiphany 
for some and a wake up call for friends and foes alike.
  Missile defense has thus become part of the diplomatic and military 
tool set available to our President and other senior policymakers.
  Some critics of missile defense questioned whether the ground-based 
midcourse defense system would be able to intercept a long-range 
ballistic missile fired by North Korea.
  Lieutenant General Obering, Director of the Missile Defense Agency, 
expressed confidence that the ground-based midcourse defense, GMD, 
system would be able to address a limited threat posed by North Korea.
  He said that while the entire system had not undergone the full 
comprehensive testing regime he has planned, General Obering flatly 
stated he believed the system would, if need be, work to knock down a 
North Korean missile.
  The successful intercept test of a long-range ballistic missile on 
September 1 confirms General Obering's assessment that the current GMD 
system has the capability, though not fully developed and tested, to 
defend America.
  Both of these recent tests--the North Korean launches of July and our 
GMD test earlier this month--confirm, more broadly, the wisdom of the 
decision by President Bush in 2002 to begin deployment of an initial 
set of missile defense capabilities.
  In less than 2 years, we have laid the infrastructure in Fort Greely, 
Alaska, and elsewhere so that this country at last is ready to defend 
itself against long-range ballistic missiles fired against our 
homeland.
  The successful intercept of a long-range ballistic missile target on 
September 1 was the most operationally realistic test for the ground-
based midcourse defense system conducted to date.
  It included an operationally configured interceptor, an operational 
radar, and operational crews.
  Critics continue to highlight reports of earlier unsuccessful missile 
defense testing, but the truth is that since 2001, we have had 23 
successful hit-to-kill intercepts against all ranges of ballistic 
missiles, from the shortrange to the longrange.
  In the past 90 days alone, we have conducted four successful 
engagements of short-, medium-, and long-range ballistic missile 
targets--using Aegis BMD, THAAD, PAC-3, and GMD. I will submit for the 
Record a letter from the Under Secretary of Defense for Acquisition, 
Technology and Logistics Kenneth J. Kreig to Congressman Ike Skelton on 
September 19, 2006, which discusses ground-based midcourse defense 
system testing. I think the letter is illustrative of the points I made 
here regarding our efforts to bring a robust missile defense system on 
line.
  While more testing is necessary and planned to ensure confidence in 
the effectiveness of the defenses we field, we should take comfort in 
the knowledge that we have demonstrated fully that we can engage 
ballistic missile targets of all ranges.
  Some editorial writers also like to remind us that the budget request 
for missile defense is close to $10 billion per year. While this is 
indeed a significant sum, we should bear in mind that this funding 
figure reflects research, development and fielding not for a single 
missile defense system, but for a number of missile defense 
capabilities based on land, on ships, on aircraft, and in space.
  These include Patriot PAC-3, terminal high altitude area defense 
system, THAAD, ship-based Aegis BMD, the ground-based midcourse defense 
system, the airborne laser, the kinetic energy interceptor, and a host 
of sensors and the command and control links necessary to tie all these 
elements together.
  In conclusion, I thank the conferees for fully supporting the 
administration's missile defense program and note the consensus within 
Congress to get on with the fielding of missile defense capabilities 
that are now demonstrating testing success and providing a measure of 
protection for our homeland and deployed forces.
  This is a consensus that stretches back at least as far as the 
National Missile Defense Act of 1999, when Congress stated that:

       it is the policy of the U.S. to deploy as soon as is 
     technologically possible an effective National Missile 
     Defense system capable of defending the territory of the 
     United States against limited ballistic missile attack. . . .

  Those of us who supported this legislation--indeed all of us in 
Congress--should be gratified to see how far we come in such a short 
time.
  Mr. President, I ask unanimous consent that the letter to which I 
referred be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               The Under Secretary of Defense,

                                   Washington, DC, Sept. 19, 2006.
     Hon. Ike Skelton,
     House of Representatives,
     Washington, DC.
       Dear Representative Skelton: Thank you for your August 29 
     letter concerning Ground-based Midcourse Defense System 
     testing. The Secretary of Defense asked that I respond.
       Since the Secretary's comments at Fort Greely and your 
     recent letter to him, the Missile Defense Agency completed a 
     successful end-to-end flight test of the long-range missile 
     defense capability on September 1.

[[Page S10807]]

     This test began with the lanch of a threat representative 
     target on a realistic trajectory across an operational, 
     upgraded, early warning radar manned by warfighters in 
     California. An intercept solution was then generated using 
     the operational command and fire control system, also manned 
     by warfighters, and an operational interceptor was launched 
     from an operational site. Given necessary range and safety 
     limitations, a 5-hour target launch window was defined, but 
     the warfighters operating the system did not receive prior 
     notice of target launch.
       The flight test was representative of an attack by a 
     single, relatively unsophisticated, but lethal, hostile 
     missile. While this test was a success, the Ballistic Missile 
     Defense System (BMDS) test program is by no means complete. 
     Later tests will involve different trajectories and 
     engagement geometries, different target characteristics and 
     countermeasures, and different raid patterns and composition. 
     Some will be successful, and some will not, but all will 
     contribute to moving the program forward.
       Each of these tests, and those of the other components of 
     the BMDS, builds on the knowledge gained from previous tests 
     and adds new and challenging objectives to demonstrate 
     enhanced capability. The goal is to devise scenarios that 
     test each system to the maximum extent possible to increase 
     knowledge of, and confidence in, system performance, while 
     maintaining safety and keeping pace with the advancing 
     threat.
       This last point is important. In July, we saw one 
     manifestation of that threat from North Korea in its effort 
     to test an advanced missile capability that could threaten 
     the United States. Iran's intentions also seem increasingly 
     clear as its missile programs progress. That is why the 
     Secretary of Defense has endorsed a capability-based 
     acquisition approach to developing missile defenses, allowing 
     us to deploy militarily useful capability while we continue 
     to enhance it.
       Over the past 2 decades, you noted the United States has 
     devoted some $100 billion to missile defense. This has 
     occurred under several Administrations and with ever-
     increasing Congressional support. A substantial portion of 
     this funding went to early research and space-based programs 
     that were cancelled in 1993. Approximately $21 billion has 
     been invested in the Ground-based Midcourse Defense program 
     over the last 10 years. '
       The remaining funds have permitted the PATRIOT PAC-3 
     capability to evolve, so that when it was employed in combat 
     during Operation IRAQI FREEDOM, it was a complete success 
     against Iraqi missiles. The funding supported the sea-based 
     Aegis Ballistic Missile Defense program, which has succeeded 
     in 7 of 8 intercept attempts, with its 18 ships programmed 
     for modification. Aegis ballistic missile defense-equipped 
     ships started operational long-range surveillance and 
     tracking patrols in the Sea of Japan almost 2 years ago. The 
     funding supported the restructured Terminal High-Altitude 
     Area Defense system, capable of intercepting threats in the 
     upper atmosphere as well as just outside the atmosphere, 
     which completed a successful intercept test in July. In 
     addition, the funds were used for sensors and C2 systems 
     integrating all of these components into a layered defensive 
     system that is much more capable than any of the individual 
     elements alone. And finally, the funds support the 
     development of future capabilities including the Airborne 
     Laser, more capable interceptors and space-based sensors to 
     enhance discrimination, and lethality across the entire 
     spectrum of missile defense.
       This latest test of the long-range interceptor increases 
     our confidence in the approach to enhance the system's 
     performance. We have a limited, but increasing, capability 
     where none existed before. Four years ago, with the Anti-
     Ballistic Missile Treaty in effect, this could not have been 
     possible. Today, the Department is on a path to provide 
     critically-needed missile defense protection for our 
     citizens, deployed forces, friends, and allies.
       Your continued support of our efforts will ensure we can 
     reach this goal.
           Sincerely,
                                                 Kenneth J. Krieg.

  Mr. McCAIN. Mr. President, I would like to commend the chairman and 
ranking member for their outstanding leadership in bringing the Defense 
authorization bill to closure and thank them for their untiring work 
concerning this most important legislation. By enacting this 
legislation, Congress will take a major step forward in ensuring that 
the defense of our Nation remains the number one priority. That is why 
I will vote for passage of the conference report on H.R. 5122, the John 
Warner National Defense Authorization Act for fiscal year 2007.
  I would like to take a moment to recognize our distinguished 
chairman, a man I have known for 33 years, my friend and mentor, the 
senior Senator from Virginia. No Member of this body has done more for 
our national security than John Warner. As a sailor, Marine officer, 
Under Secretary and Secretary of the Navy, and U.S. Senator, he has 
always answered his country's call. The dignified and evenhanded way in 
which he has presided over the business of the Committee these past 6 
years has enabled it to continue its noble tradition of being an island 
of bipartisanship in an increasingly unpleasant political era. I am 
proud that we have named this year's defense authorization act, the 
last which John Warner will manage as chairman of the Committee on 
Armed Services, in his honor, and I thank my friend for all he has done 
for our Nation.
  This legislation authorizes the funding of $462.8 billion in budget 
authority for defense programs in fiscal year 2007, which is a 3.6 
percent increase or $21 billion above the amount authorized by Congress 
last year. I am pleased to see that this measure meets the President's 
requested funding level and that the conferees focused much of their 
efforts on addressing requirements for the ongoing war on terror as 
expressed by the service chiefs in their unfunded priority lists.
  While I am pleased we are able to act on this legislation prior to 
adjourning for the elections, I am compelled to point out that once 
again, the Defense Appropriations Act has been decided prior to final 
action on the Defense Authorization Act. The Defense Authorization Act 
is intended to provide a framework for the policies and funding levels 
for the Department of Defense and its programs. The role of the 
Appropriations Committee is to allocate funding based on policies 
provided by authorization bills. A continuing trend, however, is an 
expansion of the role of the Appropriations Committee, which now 
engages in significant policy decision making. It is my hope that next 
year we will succeed in passing the authorization measure prior to the 
appropriations measure.
  An important legislative provision contained in the conference report 
is an amendment which I sponsored on the Senate bill that would require 
the regular budgeting for ongoing military operations in Iraq and 
Afghanistan. Over the years, the administration and the Congress have 
become addicted to paying for these operations through ``emergency'' 
supplemental appropriation bills. In addition, many defense-related 
activities that should have been financed through the normal 
appropriations process have been funded through these emergency 
supplementals. Additionally, nondefense-related spending has also found 
its way into these bills further undermining the budget process. This 
method of funding has unfortunately become the rule rather than the 
exception, but with this provision it will no longer be allowed. The 
next budget submission will be expected to include funding required to 
conduct ongoing operations through the following year.

  It should now be obvious that the current rate of growth in the cost 
of defense programs is reaching unsustainable levels. Over the 
intermediate term, this will pose a threat to not only our economic 
stability but also our national security. For this reason, next year I 
will propose an aggressive and comprehensive defense acquisition reform 
agenda. I have called for, and hope to obtain, the assistance of both 
the Department of Defense as well as the defense industry in this 
regard.
  The need for such an agenda is clear. Over the last few years, the 
defense acquisition process has shown itself to be broken. This has 
been shown not only by the Air Force's proposed lease of Boeing 767 
tanker aircraft, but also in the Department's procurement strategies 
for the C-130J, Future Combat Systems, Joint Primary Aircraft Training 
System, Joint Cargo Aircraft, Joint Strike Fighter, and F-22A Raptor.
  Incidentally, I remain concerned about the approach the Air Force is 
currently taking to recapitalize its tanker fleet. But I will address 
this issue at another time.
  As with past authorization bills, I have included in this year's bill 
several acquisition reform-related provisions. These provisions include 
measures that address abuses in the use of cost-type contract billing, 
financial conflicts of interest involving lead systems integrators, the 
improper payments of award and incentive fees, and excessive pass-
through charges. These provisions also subject the multi-year purchase 
of F-22 aircraft to greater congressional oversight. There is every 
expectation that this legislation will be subject to

[[Page S10808]]

further legislative efforts in the future. I am hopeful that these 
measures will be further supplemented by even more comprehensive 
reforms next year.
  The American taxpayer has a right to expect the government to 
properly manage the allocation of resources, especially at a time when 
those resources are so critical. While this legislation addresses a 
great many of the needs of our military, there is still money that is 
being diverted to unrequested projects. Unauthorized earmarks drain our 
precious resources and adversely affect our national security.
  One of the more egregious add-ons in the legislation currently on the 
floor is the addition of over $2 billion for 10 C-17 cargo planes that 
were not requested by the administration. This contradicts the 
Quadrennial Defense Review and is not in keeping with the President's 
request. So why are these additional aircraft now part of a bridge fund 
designed to provide necessary resources for our conflicts in Iraq and 
Afghanistan? Another reason I find this add-on particularly 
objectionable is that, going into conference, the House had approved 
only three additional C-17s and the Senate had approved only two. What 
we are presented in this legislation is seven more C-17s added by the 
conferees. This is completely outside the scope of the matter the 
conferees were tasked to resolve. The practice of adding unrequested, 
unauthorized, and unnecessary projects onto wartime spending bills must 
end.

  Each and every day the men and women of our Nation's Armed Forces put 
their lives on the line to protect the freedoms we cherish and it is 
imperative we provide them with the proper resources. It is our 
obligation to provide quality of life benefits for our servicemembers 
and their families. I am confident that enactment of this legislation 
will accomplish that goal. For example, this conference report 
authorizes a 2.2 percent across-the-board pay raise for all military 
personnel. Also included in the report is a provision that prohibits 
predatory practices by creditors who loan to military personnel. This 
legislation is a testament to our commitment to the brave men and women 
of our military who have answered their Nation's call.
  The ongoing war on terror has required us to become increasingly 
reliant on the men and women of our Reserve forces and National Guard. 
Approximately 40 percent of the ground troops in Iraq and Afghanistan 
are National Guard and Reserve forces. These soldiers and sailors leave 
behind friends, families, and careers to go willingly into harm's way 
for their Nation's cause. We in the Congress owe it to these patriots 
to ensure we look after their needs. Included in the conference report 
is the authorization to expand the eligibility for TRICARE to all 
members of the Selected Reserve. This provision is critical for 
providing our Reserve forces with the proper care they have earned.
  Upon returning home from tours in Iraq or Afghanistan, soldiers and 
Marines are experiencing less and less downtime before their next 
deployment. This is not good for morale nor is it good for retention 
and eventually it will become a readiness issue as recruiting is 
affected. Fortunately, this legislation authorizes significant 
increases in recruiting and retention bonuses, as well as substantial 
increases in educational funds for recruitment purposes. Also provided 
is authorization for maintaining the Army active-duty end strength of 
512,400, the Army National Guard end strength of 350,000, and an 
increase in Marine Corps end strength to a total of 180,000. This 
authorized force structure is critical to ensure proper readiness 
levels so that our military can meet its operational requirements.
  As in years past, I am disappointed that the annual ``Buy America'' 
battle has once again made its way into this legislation. It seems as 
if every year we fight the same fight in conference. What it really 
comes down to is what I have stated countless times before: we need to 
provide American servicemen and women with the best equipment at the 
best price to the American taxpayer. By following this simple 
philosophy, we will protect both the men and women in uniform, as well 
as our domestic defense industry.
  The international considerations of Buy America provisions are 
immense. Isolationist, go-it-alone approaches have serious consequences 
on our relationship with our allies. Our country is threatened when we 
ignore our trade agreements. Currently, the U.S. enjoys a trade surplus 
of $31 billion in defense and aerospace equipment. We don't need 
protectionist measures that detract from international cooperation in 
order to insulate our defense or aerospace industries. Critical 
international programs, such as the joint strike fighter and missile 
defense, could be placed in jeopardy when our allies reassess our 
defense cooperative trading relationship. If we enact laws that isolate 
our domestic defense industry, allies could potentially retaliate and 
hinder our ability to sell U.S. equipment which would in turn adversely 
affect our interoperability with NATO and other allies.
  Although there are examples of why this bill is far from perfect, I 
am putting my reservations aside to support the final passage of this 
conference report. The John Warner National Defense Authorization Act 
for fiscal year 2007 is legislation that further strengthens our 
Nation's military and gives the Department of Defense the tools it 
needs to defend our Nation's interests both at home and abroad.
  I urge my colleagues to support this important legislation.
  Mr. LEAHY. Mr. President, I would like to express my gravy 
reservations about certain provisions of the fiscal year 2007 Defense 
authorization bill conference report. This legislation poorly handles 
key provisions related to the National Guard, which--as the events 
since September 11th have highlighted--is critical to our Nation's 
defense. The final conference report drops the reforms known as the 
National Guard Empowerment Act, a bill that would have given the 
National Guard more bureaucratic muscle inside the Pentagon. It would 
have cleared away some of these administrative cobwebs and given the 
Guard the seat at the decision-making table that it needs and deserves. 
It also should concern us all that the conference agreement includes 
language that subvert solid, longstanding posse comitatus statutes that 
limit the military's involvement in law enforcement, thereby making it 
easier for the President to declare martial law. There is good reason 
for the constructive friction in existing law when it comes to martial 
law declarations.
  Combined, these moves amount to a double punch against the National 
Guard. The National Guard has done so much to protect the security and 
safety of our country. Yet the authorization bill sends the signal that 
we are not interested in truly supporting them. This conference report 
says we do not want to address glaring problems that have surfaced 
during their increasingly frequent deployments. And, incredibly enough, 
it says to the Guard that other military forces are better to carry out 
tasks here at home. In short, this bill goes in the wrong direction.
  Let's review what the 500,000 men and women of the National Guard do 
for the country. The National Guard is essential to the military's 
missions at home and abroad. More than 10,000 members of the National 
Guard are currently called up for domestic options, most along the 
border and involved in counter-drug operations.
  Almost 60,000 citizen-soldiers are deployed overseas, almost 40,000 
involved in Iraq deployments. Over 6,000 members of the Air Guard are 
deployed. And let's remember, that at the high-water mark, the Guard 
made up almost 40 percent of the troops on the ground in Iraq.
  It is also clear that we are going to need the Guard even more in the 
future. Consider the information reported in a New York Times article 
from last Friday. The active U.S. Army is being deployed at such a high 
rate that it appears increasingly likely that the National Guard is 
going to need to be tapped once again to make the troop levels.
  Any way you cut it, the National Guard is absolutely essential to our 
Nation's defense. We cannot fight our wars abroad, we cannot secure the 
country at home, and we cannot response to large-scale emergencies 
without the Guard.
  Given the fact that the National Guard is one of the country's most 
valuable and needed forces, one would think that our leaders in the 
Department of Defense would be spending significant time developing 
policies and

[[Page S10809]]

budgets plans that truly support the Guard. For example, I would think 
it logical to make the replacement of the Guard's aging and worn 
equipment a priority. I would think it logical to give the National 
Guard a stronger voice in policymaking decisions and in setting 
budgetary priorities that affect the National Guard. I clearly see the 
benefits of deferring to the Adjutants General and the Nation's 
governors, those who control and oversee the Guard, when determining 
how best to utilize Guard at home during domestic emergencies.
  Instead of these good policy goals and practices, we have only a long 
list of unfair and ill-conceived decisions from the Pentagon that do 
very little to support the Guard in reality. And these examples are 
only the tip of the iceberg.
  Last December, the Army and the Air Force decided to try to make 
precipitous cuts to the National Guard. The Army sought to cut the Army 
Guard by almost 17,000 soldiers, while the Air Force drove for 
reductions of almost 14,000 airmen. These personnel cuts were made 
without consultation with the National Guard Bureau, the States 
Adjutants General, and the Nation's Governors. While Congress was 
successful in turning those recommendations back, the fact remains that 
the active force still desired to balance its budgets at the expense of 
the Guard.
  In late Spring of last year, the Air Force forwarded a list of base 
closure recommendations the cut deeply into the Air National Guard. The 
closure list took away flying missions in States in which the Air 
National Guard is the only Air Force presence in the State. No 
consideration was made of this crucial link between local communities 
and the armed forces. Nor did the Air Force consider the Air National 
Guard's homeland security capabilities. Why were such ill-advised 
recommendations made? The reason is that the Air National Guard was not 
involved in the force structure review process.
  Similarly, in 2002, there was no consultation with the Air National 
Guard when the Air Force decided to take away the Air National Guard's 
B-1 bomber units, which, as a GAO study underscored, were cheaper to 
operate, more efficient, and more effective than their active duty 
counterparts.
  Further, since September 11, torturous debate has developed in the 
Pentagon whenever the National Guard is needed for a large-scale 
operation at home, such as during Hurricane Katrina. We have learned 
that the Guard works optimally at home when it serves under the 
command-and-control of the Nation's Governors, with Federal 
reimbursement, under title 21 of the Federal Code.
  This title 32 status ensures that locally elected officials remain in 
control of military forces operating at home. Because the National 
Guard comes directly out of these local communities, posse comitatus 
statutes do not apply. This title 32 arrangement has been used most 
recently to increase security at the border, but it has previously been 
used effectively to have the Guard provide added security at the 
Republican and Democratic National Conventions, the G8 Summit, the 
Nation's airports, and around the Capitol Building in Washington.
  There seems to be some kind of reflexive reaction within the 
Department of Defense against having the Guard and the Governors remain 
in control of operations at home. In fact, a sizeable contingent exists 
within the Pentagon to have the active duty military control the 
National Guard and other military personnel and assets. So every time 
there is a natural disaster or other emergency, the Pentagon engages in 
a lengthy debate back-and-forth about control of the Guard. To date, 
these debates have led to sensible outcomes. But it should not be so 
difficult and uncertain.
  Finally, the National Guard has little influence at the senior ranks 
within the Army and the Air Force. The number of high-ranking officers 
is completely imbalanced between the Guard and the active forces. While 
the National Guard constitutes a high percentage of our total number of 
ground troops, it has just a sliver of the overall percentage of three- 
and four-star general officers. And, while the Air National Guard 
constitutes a high percentage of the Air Force's mobility assets and a 
similarly high percent of its strike assets, the Air Guard has a 
negligible share of the high-ranking positions, where important 
decisions are made.
  The National Guard Empowerment Act seemed to be a logical response to 
these ill-advised policy positions and imbalanced bureaucratic 
structure. The entire thrust of the legislation rests in increasing the 
bureaucratic muscle of the National Guard. The idea behind it is to 
prevent some of these ill-advised policies from moving forward. More 
importantly, the legislation is designed to firmly identify the uses of 
the National Guard, ensure the force is ready and equipped for its 
critical homeland security missions by bringing its organizational ties 
in line with its real responsibilities and accomplishments.
  Specifically; the legislation, as included in the Senate's version of 
the Defense authorization bill contained four major provisions. First, 
it would elevate the Chief of the National Guard Bureau from the rank 
of lieutenant general to full general.
  Second, the Deputy Commander of United States Northern Command, the 
military headquarters designed to oversee military forces used in the 
United States operationally would be mandated to come out of the ranks 
of the National Guard. Third, the National Guard would be redefined as 
a joint bureau of the Department Defense, rather than a branch of Army 
and the Air Force, enabling the Guard to maintain its role as the 
primary military reserve, while allowing the National Guard to avoid 
bureaucracy within the Defense Department. Finally, the National Guard 
would have formally be tasked with working with the States to identify 
gaps in their resources to respond to emergencies at home.
  This proposal is not only targeted, but also modest. Our original 
legislation, S. 2658, the National Defense Enhancement and National 
Guard Empowerment Act of 2006, would have additionally placed the Guard 
Bureau chief on the Joint Chiefs of Staff and given the National Guard 
separate budget authority. Though we still believe these provisions are 
important to empowering the National Guard fully, we listened and 
understood the objections of other senators. We dropped those 
provisions in the amendment to the Defense Authorization bill to reach 
a consensus where even more members would agree to the amendment, 
beyond the already 40 senators who are cosponsoring the baseline 
legislation.
  We can all acknowledge that the National Guard is essential to our 
Nation's defense, that there has been some questionable policymaking 
affecting the Guard in recent years, and that the empowerment bill 
represents a positive step towards strengthening the Guard. Yet where 
does the final conference report on the defense authorization bill end 
up on Guard empowerment?
  Not only does this conference report unfortunately drop the 
Empowerment amendment entirely, it adopts some incredible changes to 
the Insurrection Act, which would give the President more authority to 
declare martial law.
  Let me repeat: The National Guard Empowerment Act, which is designed 
to make it more likely for the National Guard to remain in State 
control, is dropped from this conference report in favor of provisions 
making it easier to usurp the Governors control and making it more 
likely that the President will take control of the Guard and the active 
military operating in the States.
  The changes to the Insurrection Act will allow the President to use 
the military, including the National Guard, to carry out law 
enforcement activities without the consent of a governor. When the 
Insurrection Act is invoked posse comitatus does not apply. Using the 
military for law enforcement goes against one of the founding tenets of 
our democracy, and it is for that reason that the Insurrection Act has 
only been invoked on three--three--in recent history.
  The implications of changing the act are enormous, but this change 
was just slipped in the defense bill as a rider with little study. 
Other congressional committees with jurisdiction over these matters had 
no chance to comment, let alone hold hearings on, these proposals.

[[Page S10810]]

  While the Conference made hasty changes to the Insurrection Act, the 
Guard empowerment bill was kicked over for study to the Commission on 
the National Guard and Reserve, which was established only a year ago 
and whose recommendations have no real force of law. I would have never 
supported the creation of this panel--and I suspect my colleagues would 
agree with me--if I thought we would have to wait for the panel to 
finish its work before we passed new laws on the Guard and Reserve.
  In fact, we would get nothing done in Congress if we were to wait for 
every commission, study group, and research panel to finish its work. I 
have been around here over 30 years, and almost every Senator here 
knows the National Guard as well as any commission member. We don't 
need to wait, and we don't need to study the question of enhancing the 
Guard further. This is a terrible blow against rational defense policy-
making and against the fabric of our democracy.
  Since hearing word a couple of weeks ago that this outcome was 
likely, I have wondered how Congress could have gotten to this point. I 
can only surmise that we arrived at this outcome because we are too 
unwilling to carry out our article I, section 8 responsibilities to 
raise and support an Army. We have it in our constitutional power to 
organize the Department of Defense. The Goldwater-Nicholas Act that 
established a highly effective wartime command structure and the Nunn-
Cohen legislation that established the now-critical Special Operations 
Command came out of Congress.
  If the then-stale leadership of the Pentagon had its way, these two 
critical bills would never have seen the light of day. Today, however, 
the Pentagon is just as opposed to the Empowerment legislation, and 
instead of asserting its power, the Congress is punting--just kicking 
it down the field and out of play.
  Also, it seems the changes to the Insurrection Act have survived the 
conference because the Pentagon and the White House want it. It is easy 
to see the attempts of the President and his advisors to avoid the 
debacle involving the National Guard after Hurricane Katrina, when 
Governor Blanco of Louisiana would not give control of the National 
Guard over to President and the Federal chain of command. Governor 
Blanco rightfully insisted that she be closely consulted and remain 
largely in control of the military forces operating in the State during 
that emergency. This infuriated the White House, and now they are 
looking for some automatic triggers--natural disasters, terrorist 
attacks, or a disease epidemic--to avoid having to consult with the 
Governors.
  And there you have it--we are getting two horrible policy decisions 
out of this conference because we are not willing to use our 
constitutional powers to overcome leadership that ranges from the poor 
to the intemperate in the Pentagon and the White House. We cannot 
recognize the diverse ways that the Guard supports the Country, because 
the Department of Defense does not like it--simply does not like it.
  Because of this rubberstamp Congress, these provisions of this 
conference report add up to the worst of all worlds. We fail the 
National Guard, which expects great things from us as much as we expect 
great things from them. And we fail our Constitution, neglecting the 
rights of the States, when we make it easier for the President to 
declare martial law and trample on local and state sovereignty.
  The conference report was agreed to.
  (The conference report is printed in the proceedings of the House in 
the Record of September 29, 2006.)

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