[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
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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.
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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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