Congressional Record, Volume 153 Issue 139 (Wednesday, September 19, 2007)

[Congressional Record Volume 153, Number 139 (Wednesday, September 19, 2007)]
[Senate]
[Pages S11688-S11727]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of H.R. 1585, the Department of
Defense Authorization Act. The clerk will report.
The legislative clerk read as follows:

A bill (H.R. 1585) to authorize appropriations for fiscal
year 2008 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other
purposes.

Pending:

Nelson (NE) (for Levin) amendment No. 2011, in the nature
of a substitute.
Levin (for Specter-Leahy) amendment No. 2022 (to amendment
No. 2011), to restore habeas corpus for those detained by the
United States.
Warner (for Graham-Kyl) amendment No. 2064 (to Amendment
No. 2011), to strike section 1023, relating to the granting
of civil rights to terror suspects.

Amendment No. 2022

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to 60 minutes of debate prior to a vote on the
motion to invoke cloture on amendment No. 2022, offered by the Senator
from Michigan, Mr. Levin, with the time equally divided and controlled
between the leaders or their designees.
Who yields time? The Senator from Oklahoma.
Mr. INHOFE. Mr. President, I yield 15 minutes to the Senator from
South Carolina.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina is
recognized.
Mr. GRAHAM. Mr. President, I compliment Senator Inhofe in that moving
tribute to a fallen marine.
The issue we have before the Senate is one of great importance to the
country. It will affect the future of this bill. It will affect the
national security needs of our Nation for a long time to come. It is a
bit complicated, but at the end of the day, I don't think it is that
difficult to get your hands around.

[[Page S11689]]

We are talking about a habeas corpus amendment to the Defense
authorization bill that will confer upon any combatants housed at
Guantanamo Bay, and maybe other places, the ability, as an enemy
prisoner, to go to a Federal court of their choosing to bring lawsuits
against the Government, against the military--something never granted
to any other prisoner in any other war.
We had thousands of Japanese and German prisoners housed on American
territory during World War II and not one of those Germans or Japanese
prisoners were allowed to go to Federal court to sue the troops who had
caught them on the battlefield or the Government holding them in
detention as a prisoner of war.
To start that process now would be an absolute disaster for this
country and has never been done before and should not be done now.
Now, the history of this issue: Guantanamo Bay is the place where
international terrorists are sent, people suspected of being involved
in the war on terror. Shaikh Mohammed is there, some very high-value
targets are there, bin Ladin's driver. People who have been involved
with al-Qaida activity and other terrorist groups are housed at
Guantanamo Bay under the theory that they are unlawful enemy
combatants. They do not wear a uniform as did the Germans and the
Japanese, but they are very much at war with this country. They attack
civilians randomly. Nothing is out of bounds in terms of their conduct.
So they fit the definition, if there ever was one, of an unlawful enemy
combatant. What they do in the law of war is unlawful. They certainly
are enemies of this country. Shaikh Mohammed's transcript regarding his
Combatant Status Review Tribunal--take time to read it. I can assure
you he is at war with us. We need to be at war with him.
The basic premise I have been pushing now for years is that the
attacks of 9/11 against the World Trade Center, against the Pentagon,
the hijacking of the airplanes were an act of war. It would be a huge
mistake for this country to look at the attacks of 9/11 as criminal
activity. We are at war, and we should be applying the law of armed
conflict.
The people whom we are fighting very much fall into the category of
``warriors'' based on their actions and their own words. What is the
law of armed conflict? The law of armed conflict is governed by a lot
of international treaties, the Uniform Code of Military Justice, and
American case law.
What rights does an unlawful enemy combatant have? Well, our court
looked at Guantanamo Bay. Habeas petitions were filed by detainees at
Guantanamo Bay alleging that they were improperly held. The U.S.
Supreme Court in the Rasul v. Bush decision in 2004 said: There is a
congressional statute, 2241, that deals with habeas rights created by
statute.
The Government argued that Guantanamo Bay was outside the
jurisdiction of Federal courts; it was not part of the United States.
The Supreme Court said: No, wait a minute. Guantanamo Bay is
effectively controlled by the Navy; it is part of the United States.
The question for the court is, Did the Congress, under 2241, intend
to exclude al-Qaida from the statute? And the answer was that Congress
had taken no action. So the issue, 6 years after the war started here:
Does the Congress wish to confer upon enemy combatant terrorists housed
at Guantanamo Bay habeas corpus rights under section 2241, a statute we
wrote? That is the issue.
Now, imagine after 9/11 if someone had come to the floor of the
Senate and made the proposal: In case we catch anybody who attacked us
on 9/11, I want to make sure they have the right of habeas corpus under
2241 because I want to make sure their rights exceed any other prisoner
in any other war. I think you would have gotten zero votes.
Well, that is the issue.
Now, last year, Congress spoke to the courts, and the DC Circuit
Court of Appeals understood what we were saying. Congress affirmatively
struck from 2241 the ability of a noncitizen alien enemy combatant to
have access to Federal court under the habeas statute. Why is that so
important? From a military point of view, it is hugely important. Under
the law of armed conflict, if there is a question of status--is the
person a civilian? Are they part of an organized group? Are they an
unlawful combatant? There are many different categories that can be
conferred upon someone captured on a battlefield.
Under Geneva Conventions article 5, a competent tribunal should be
impaneled--usually one person--to determine questions of status, and
the only requirement is they be impartial. The question of who an enemy
combatant is is a military decision. We should not allow Federal
judges, through habeas petitions, to take away from the U.S. military
what is effectively a military function of labeling who the enemies of
America are. They are not trained for that. Our judges do not have the
military background to make decisions as to who the enemy force is and
how they operate.
So a habeas petition would really intrude into the military's ability
to manage this war because if habeas rights were granted by statute to
the prisoners at Guantanamo Bay, they could pick, through their
lawyers, any district court in this country. They could go judge
shopping and find any judge in this country they believed would be
sympathetic and have a full-blown trial, calling people off the
battlefield, having a complete trial as to whether this person is an
enemy combatant in Federal court and let the judge make that decision.
Well, that has never been done in any other war, and it should not be
done in this war. Judges have a role to play in war, but that is not
their role. The role of the U.S. military in this war, as it has been
in every other war, is to capture people and classify them based on
their activity within that war, and habeas would undo that. That is why
last year Congress said: No, that is not the way we should proceed in
this war.
This is not unknown to our courts. In World War II, there was a
habeas petition filed by German and Japanese prisoners who were housed
overseas asking the Federal courts to hear their case and release them
from American military confinement. Chief Justice Jackson said:

It would be difficult to devise a more effective fettering
of a field commander than to allow the very enemies he has
ordered to reduce to submission to call him to account in his
own civil courts and divert his efforts and attention from
the military offensive abroad to the legal defensive at home.

Justice Jackson was right. And what has happened since these habeas
petitions have been filed? Hundreds of them have been filed in Federal
court before Congress acted. Here is what they are alleging:
A Canadian detainee who threw a grenade that killed an American medic
in a firefight and who comes from a family with long-standing al-Qaida
ties moved for a preliminary injunction forbidding interrogation of him
or engaging in cruel, inhumane, or degrading treatment of him. This was
a motion made by an enemy prisoner for the judge to sit in there and
conduct the interrogation or at least monitor the interrogation. I
cannot think of anything worse in terms of undermining the war effort.
A motion by a high-level al-Qaida detainee complaining about base
security procedures, speed of mail delivery, medical treatment, seeking
an order that he be transferred to the least onerous conditions at
GITMO, asking the court to order that GITMO allow him to keep any
books, reading materials sent to him, and report to the court on his
opportunities for exercise, communications, recreation, and worship.

Hundreds of these lawsuits have been filed under the habeas statute.
That is why Congress said: No, dismiss these cases because they have no
business in Federal court.
Surely to God, al-Qaida is not going to get more rights than the
Nazis. Surely to God, the Congress, 6 years after 9/11, will not,
hopefully, give a statutory right to some of the most brutal, vicious
people in the world to bring lawsuits against our own troops in a
fashion never allowed in any other war.
Here is what we did last year: We allowed the military to determine
whether a person is an enemy combatant, whether they were an unlawful
enemy combatant through a competent tribunal called a Combatant Status
Review Tribunal made up of three officers. The legislation allows every
decision by the military to be appealed to

[[Page S11690]]

the D.C. Circuit Court of Appeals so the court can look at the quality
of the work product and the procedures in place.
There is Federal court review over activity at Guantanamo Bay where
judges review the work product of the military. To me, that is the
proper way to move forward because some people at Guantanamo Bay,
because they are so dangerous, may not be released anytime soon or may
never be released. More people have been released at Guantanamo Bay
than are still at Guantanamo Bay. They were thought not to be a threat.
Thirty of them have gone back to the fight. We have released people at
Guantanamo Bay to take up arms against us again. That is the result of
a process where you make a discretionary decision.
It would be ill-advised for this Congress to confer on American
courts the ability to hear a habeas petition from enemy prisoners
housed at Guantanamo Bay where they could go judge shopping and sue our
own troops for anything they could think of, including a $100 million
lawsuit against the Secretary of Defense. That will lead to chaos at
the jail. It will undermine the war effort.
I am urging a ``no'' vote to this amendment. We have in place Federal
court review of every military decision at Guantanamo Bay and a way to
allow the courts to do what they are best trained to do--review
documents, review procedures, review outcomes--not to take the place of
the U.S. military. I cannot think of a more ill-advised effort to
undercut what I think is going to be a war of a long-standing nature
than to turn it over to the judges and to take away the ability to
define the enemy from the military, which is trained to make such
decisions, and give it to whatever judge you can find, wherever you can
find him or her, and let them have a full-blown trial at our national
security detriment.
I urge a ``no'' vote.
I yield back the remainder of my time.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. SPECTER. Mr. President, I believe I have 10 minutes reserved at
this time.
The ACTING PRESIDENT pro tempore. The time is divided between the
leaders or their designees.
Mr. SPECTER. Mr. President, I will act as the acting designee since
no one is on this side of the aisle.
The ACTING PRESIDENT pro tempore. I see that the Senator from Vermont
is yielding 10 minutes to the Senator from Pennsylvania. The Senator
from Pennsylvania is recognized.
Mr. LEAHY. The Senator from Pennsylvania is the lead cosponsor of
this amendment. I proudly yield him 10 minutes.
Mr. SPECTER. I thank my distinguished colleague from Vermont.
Mr. President, the arguments advanced by the Senator from South
Carolina a few moments ago are outdated. The Supreme Court of the
United States has held in the Rasul case that the Guantanamo detainees
have rights under the Constitution to proceed in court in habeas
corpus. In my view, that decision was based on both constitutional and
statutory grounds. The Court of Appeals for the District of Columbia
has held that it is a matter of statutory interpretation. I believe
that will be reversed by the Supreme Court in a case now pending there.
But the existing law is governed by the Military Commissions Act, and
the question is whether the Congress should now correct the provision
in the Military Commissions Act which eliminated the right of
Guantanamo detainees to challenge their detention by habeas corpus
proceedings in Federal court.
The District of Columbia Circuit has held that the provisions of the
Combatant Status Review Tribunal are adequate. I believe that an
examination of those proceedings will show that they are palpably
deficient and obviously inadequate on their face.
The constitutional right of habeas corpus is expressly recognized in
the Constitution, with a provision that habeas corpus may be suspended
only in time of invasion or insurrection, neither of which situation is
present here. That fundamental right has been in existence since the
Magna Carta in 1215. As noted earlier, the Supreme Court, in Rasul, has
recently applied that constitutional right to Guantanamo Bay detainees.
Now, Congress has acted to legislate to the contrary. Of course,
Congress cannot legislate away a constitutional right; that can be done
only by amendment to the Constitution. That matter is now pending
before the Supreme Court, and I believe on the precedents it will be
held that it remains a constitutional right.
But the issue which we confront today is the statute, the Military
Commissions Act passed by Congress 2 years ago which eliminates habeas
corpus. The Supreme Court has held, in the case of Swain v. Pressley,
that habeas corpus in the Federal courts may be eliminated by an
adequate substitute. In that case, the substitute held to be adequate
was a proceeding in the District of Columbia courts. The Supreme Court
said: That was adequate judicial review to superintend executive
detention.
But when we take a look at the provisions of the Combatant Status
Review Board, as examined by the District Court in the District of
Columbia, in the In re: Guantanamo cases, this is illustrative. An
individual was charged with being an associate of al-Qaida individuals.
When asked to identify whom he was supposed to have associated with,
the tribunal could not identify the person. I discussed this case at
some length yesterday, and the courtroom broke into laughter. It was a
laughing matter to be detaining somebody who was allegedly associated
with someone from al-Qaida when they could not even identify who the
person was.
Now, there has been a very revealing declaration filed by LTC Stephen
Abraham, who was a member of the Combatant Status Review Tribunal and
observed the process.
This is the way Lieutenant Colonel Abraham described the process:

Those of us on the panel found the information presented to
try to uphold detention to ``lack substance.'' What were
purported to be specific statements of fact lacked even the
most fundamental earmarks of objectively credible evidence.
Statements allegedly made by witnesses lacked detail. Reports
presented generalized statements in indirect and passive
forms without stating the source of the information or
providing a basis for establishing the reliability or
credibility of the sources.

I put this in the Record yesterday, but it shows a proceeding totally
devoid of any substance. You don't have to have sufficient evidence to
go to court to detain someone at Guantanamo, but there has to be some
basis for the detention. An examination of what is happening with the
Combatant Status Review boards shows they are entirely inadequate under
the standards set down by the Supreme Court in the case of Swain v.
Pressley. Therefore, the alternative established by Congress in the
Military Commissions Act is totally insufficient to provide fair play.
The Supreme Court of the United States has laid it on the line. Even
the Guantanamo detainees are entitled to fairness. Guantanamo has been
ridiculed around the world and Guantanamo is not being closed. No
alternative has been found for it. But at a minimum, those who are
detained at Guantanamo ought to have some proceeding to establish some
basis, however slight, for their continued detention.
When Congress established the Military Commissions Act and provided
for Combatant Status Review boards, we did so with the thought that we
could have an alternative to going to Federal court, which would
provide a basic rudimentary element of fairness required by the Geneva
Conventions and required by the Supreme Court, which brushed aside the
practices from World War II, overruling the prior precedents. So now it
is up to the Congress of the United States to correct that mistake
which we made 2 years ago. I believe any fair reading of what happens
with the Combatant Status Review boards would demonstrate that we ought
to correct the 2005 legislation. This amendment ought to be adopted.
I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. LEAHY. Mr. President, I understand the Senator from New Mexico
wants 3 minutes. I yield 3 minutes to the Senator from New Mexico.
The ACTING PRESIDENT pro tempore. The Senator from New Mexico is
recognized for 3 minutes.

[[Page S11691]]

Mr. BINGAMAN. I thank the Chair. Mr. President, I rise in support of
the amendment being offered by Senators Leahy and Specter to restore
the writ of habeas corpus. I am proud to be a cosponsor of this
legislation, and it is my sincere hope that it will be adopted.
One of the most troubling aspects of the administration's onslaught
on basic civil rights, which has largely been carried out with the
acquiescence of Congress, is with regard to the suspension of habeas
corpus.
The ``great writ,'' as it is known in Anglo-Saxon jurisprudence, is
simply the basic right to challenge the legality of one's confinement
by the Government. It is based on a core American value that it is
unacceptable to give the executive branch unchecked authority to detain
whomever it wants without an independent review of the legality of the
Government's actions. The right dates back to the Magna Carta, and our
Founding Fathers included it as one of the fundamental rights
guaranteed by our Constitution.
I would like to take a moment to briefly recount how we ended up
where we are today.
In 2004, in the case Rasul v. Bush, the U.S. Supreme Court ruled that
individuals held at the Guantanamo Bay naval base have the right to
challenge the legality of their detention by filing a habeas petition
in a U.S. Federal court.
In November 2005, in response to the Supreme Court's decision, and at
the behest of the Bush administration, Senator Graham offered an
amendment to the 2006 Defense Authorization bill that sought to
overrule the Rasul decision and strip Federal courts of jurisdiction to
hear habeas claims filed by Guantanamo prisoners.
I offered an alternative amendment aimed at preserving the right to
habeas corpus. My amendment was voted on the day before the Senate
recessed for Veterans Day. No hearings had been held in either the
Senate Judiciary Committee or the Armed Services Committee regarding
the impact of eliminating this longstanding right. After very little
debate on the Senate floor, my amendment was defeated by a vote of 49-
42. The next week I offered a second amendment also aimed at preserving
habeas rights, but it was also defeated after a deal was reached as
part of what is known as the Graham-Levin compromise.
Under the Graham-Levin compromise, which was ultimately included in
the Detainee Treatment Act of 2005, habeas rights were curtailed but
the D.C. Circuit was granted very limited jurisdiction to review the
determination of a Combatant Status Review Tribunal. That compromise
was adopted 84-14. In 2006, the Supreme Court ruled in the Hamdan case
that it was unclear as to whether Congress intended to prospectively
repeal habeas rights and that the military commissions in Guantanamo
were improperly constituted in violation of the Geneva Conventions and
the Uniform Code of Military Justice.
Once again, the Senate had the opportunity to restore our Nation's
commitment to the rule of law.
Unfortunately, rather than standing up for the rights enshrined in
our Constitution, the Senate passed, by a vote of 65-34, the Military
Commissions Act of 2006, which explicitly eliminated habeas rights.
Today is almost exactly a year after the Senate voted to pass the
Military Commissions Act, and the Senate once again has the opportunity
do what is right. We have the chance to restore one of the most
fundamental rights guaranteed by our Constitution, and I hope the
Senate will take this important step in restoring our Nation's
commitment to the rule of law.
I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. KYL. Might I inquire how much time exists on both sides?
The ACTING PRESIDENT pro tempore. There is approximately 18\1/2\
minutes on both sides.
Mr. KYL. I thank the Chair.
I request the Chair to advise me when I have spoken for 15 minutes.
The ACTING PRESIDENT pro tempore. The Senator from Arizona is
recognized.
Mr. KYL. Mr. President, let me respond to some of the arguments that
have been made in support of this amendment and urge my colleagues, as
they have done in the past, to reject it. The first thing that must be
clarified is that the writ of habeas corpus is not being restored. It
can't be restored because it has never existed to question detention.
POWs and enemy combatants, detainees, have never, in the history of
English common law or American jurisprudence, had the constitutional
writ of habeas corpus to challenge their detention--never. So it is a
mistake for those who support this amendment to claim that somehow we
need to restore the right. It has never existed for this purpose; no
case in the history of English or American jurisprudence or anywhere
else in the world, for that matter.
Yesterday our distinguished friend and colleague Senator Dodd praised
and upheld the honor and wisdom of those like his father who
participated in the Nuremberg tribunals after World War II. It is well
that he should. Along with his father, Thomas Dodd, is, of course,
Robert H. Jackson, who became a Justice of the U.S. Supreme Court in
1941 and who returned to the Court after serving as chief counsel at
the Nuremberg tribunals from 1945 to 1946. The heroes of American
justice and the lions of Nuremberg did not become evil men or ignorant
in the law in the period between 1946 and 1950, the year that Johnson
v. Eisentrager was decided by the U.S. Supreme Court. It is a case in
which Justice Jackson delivered the opinion of the court that enemy
combatants have no constitutional right to habeas corpus. That was the
holding in the case by the very jurist who presided over the Nuremberg
trials. He knew what he was talking about. That precedent remains the
law of the United States to this day.
My colleague from South Carolina quoted Justice Jackson in that
decision in which he said he could think of nothing that would fetter
our commanders more than granting to enemy POWs a right to contest
their detention, a constitutional habeas corpus right to question their
detention in American courts. He said the very act of war is to subdue
your opponent and for that opponent to have the right to require you to
go into the courts of your land to defend your capturing of that enemy
would be, from the commander's standpoint, an impossible burden to
bear. He was right. It is the wisdom and correctness of that decision
and all of the precedents that we defend today.
So, first, this is not about restoration of a right. With respect to
questioning detention, that right has never existed. The reasons why
should be evident to us all.
Secondly, to the extent there needs to be a process for determining
whether an individual should be detained, this Congress has gone
further than ever in the history of our country and granted an
unprecedented process and procedure for that issue to be resolved.
After the military tribunals sort out the people who have been captured
and they determine, based upon the evidence they have, whether to
detain these individuals, what we have granted to these detainees is a
right never before granted. It is unprecedented in the history not just
of the United States; no other country has done this. We allow that
detainee to appeal that detention to a court in the United States, a
Federal court, and not just any Federal court, the U.S. Circuit Court
for the District of Columbia, the U.S. Court of Appeals for the
District of Columbia, which many view as the court directly below the
U.S. Supreme Court. And from a decision of that DC Circuit Court, the
losing side can petition for writ of certiorari to the U.S. Supreme
Court. Never has such an unprecedented legal right been granted to a
POW or a detainee. So we should not be suffering under the illusion
that by not granting habeas, they don't have any rights. They have more
rights than they have ever had.
I would briefly respond to my good friend and colleague Senator
Specter, who cited an affidavit of an individual who said, from his
perspective, the evidence of the Government was inadequate in a case or
in a series of cases, there are three remedies for that. The first is
that the tribunal says the evidence is inadequate. The detainee gets to
go. The second is for the court to ask for more evidence and say this
isn't sufficient; do you have anything else you can provide. Of course,
it is usually a question of classified information that the Government
is loathe

[[Page S11692]]

to release because frequently it is from a source to which a commitment
has been made that the source would not be revealed or that the
intelligence wouldn't be revealed, or sometimes it is from another
country that we have gotten the information from and we have also made
agreements with those countries not to air intelligence they provided
to us. So there is always a tension between how much evidence the
United States wants to reveal of a classified nature in order to keep
this person in detention. But that is the second remedy.
The third remedy is if the court nonetheless decides that there is
sufficient evidence, the individual is detained, he can appeal that
detention to the circuit court. The circuit court can make all of those
same inquiries. So you have one of the most prestigious courts in the
country making the final decision about whether the evidence is
sufficient. That is certainly adequate process.
The Congress has ratified that twice through our decisions in dealing
with the statutory right of habeas. Remember, there is the
constitutional right and a statutory right of habeas. What Congress did
2 years ago, in consideration of the Detainee Treatment Act, was to
develop a compromise that provided this procedure and make it clear, we
thought, that the statutory right of habeas did not apply to these
detainees.
A subsequent court decision said: Well, you made that clear with
respect to future cases, but for pending cases we think you have not
made it clear. So we came back and made it clear that the statutory
right applied to neither the existing cases nor future cases. Of
course, Congress has the right to limit the statutory right of habeas
corpus. So neither the statutory right nor the constitutional right has
provided a remedy for these detainees.
There is an alternative remedy that is perfectly adequate. When the
Military Commissions Act was marked up by the Armed Services
Committee--the bill that is before us--it was adopted with an even more
specific provision removing Federal court habeas jurisdiction over
enemy combatants to clear up any remaining doubt after the Supreme
Court's interpretation of the DTA in the Hamdan decision. That vote,
last September, was 15 to 9, including all the committee's Democratic
members. Were they all wrong about the Constitution at that time? After
subsequent negotiations that did not change the habeas provisions in
the bill, the MCA passed this body on a vote of 65 to 34.
We have acted on this matter. I urge my colleagues, when they vote in
a few minutes, to refer to their previous vote. It was correct at that
time. It remains correct today. If, by some reason, we are wrong, and
the case the Supreme Court has before it decides that this fall, then
there is no necessity for us to act in a statutory way now. It is not
going to change what the Court decides. The Court will say that right
exists, and nothing we do will affect that. It would be unnecessary in
any event. But if the Court confirms we are right, then it would not
only be unnecessary but wrong for us to change that law by supporting
the habeas amendment in a few minutes.
The final point I wish to make is that the consequences of granting
the habeas right would be horrendous. Justice Jackson referred to this
in the Eisentrager decision. I can be more explicit. But as he said: No
decision of this Court supports the view. None has ever even hinted
that the right of habeas existed in this case.
What would the consequences of granting habeas be?
At least 30 detainees who have been released from the Guantanamo Bay
facility have since returned to waging war against the United States
and our allies. A dozen released detainees have been killed in battle
by U.S. forces. They went right back to fighting us. Others have been
recaptured. Two released detainees later became regional commanders for
Taliban forces. One released Guantanamo detainee later attacked U.S.
and allied soldiers in Afghanistan, killing three Afghan soldiers.
Another former detainee killed an Afghan judge. One released detainee
led a terrorist attack on a hotel in Pakistan and also led a kidnaping
raid that resulted in the death of a Chinese civilian. This former
detainee recently told Pakistani journalists he plans to fight America
and its allies until the very end.
The point here is even detainees whom we have released, either
because there was insufficient evidence to hold them or because we
deemed they no longer posed a threat to us, have gone back to the
battlefield and have fought us and fought our allies, have killed and
been killed. These are dangerous killers.
This is not some law school exercise we are going through here. This
is not the American criminal justice process. This is dealing with
terrorists who are fighting us on the battlefield, and will continue to
do so if they are released improperly. That is why dealing with
something such as habeas is a very serious--very serious--matter.
I mentioned the problem of classified evidence. In a habeas trial,
there clearly would be a right of the defendant or the detainee to both
call witnesses--he would literally be able to call his captors, the
people who captured him on the battlefield and require them to verify
his identity and the reasons why he was held and why he needs to
continue to be held--totally disrupting our operations--and classified
evidence would probably be required in most of the cases because these
are people on whom we have gotten good intelligence as to their
intentions and their past activities. Much of this intelligence is
highly sensitive as it comes from foreign sources and human sources to
whom we have made commitments that we would not reveal the information
they provided to us.
It is a Hobson's choice, then, if you treat this like an American
trial, where you say either the Government has to come and make this
classified evidence available--and then it becomes public--or you have
to withhold the classified information and let the detainee go. That
cannot be the case in the case of these detainees. That is another
practical reason why you cannot have the habeas granted to allow them
to contest detention.
Again, put this in the context. What we have is a process that allows
them to contest their detention at several stages. It allows counsel to
have access to at least some of the classified information. It allows
the court--and, in fact, the court of appeals has said it has the
right--to review this information, all of the information that is
relevant to a particular detainee's case.
The process is not lacking. It is not as if you have to grant habeas
in order for these individuals to have a fair determination of their
detainee status. They have that today. What they do not have is the
extra right that habeas accords American citizens, people here in the
United States, to call the witnesses to the court who captured you, to
call up all of the classified evidence that is used against you--for
the detainee to have a right to that.
The judge who tried the 1993 World Trade Center bombing case and the
Padilla case made the point that when information was granted to the
lawyers of the detainees in that case, within 10 days the information
that was supposed to remain classified--the lawyers were not supposed
to reveal it to anyone because it was highly classified; it included
the names of coconspirators--within 10 days that information was in
Sudan and was in the hands of Osama bin Laden. He knew because his name
was on the list that we were after him. He was named as a coconspirator
in the case.
So when the habeas right exists, and you have an even greater
requirement to release this information, it is inevitable that highly
sensitive information in fighting this war on terror will find its way
into enemy hands. So the detainees can get back to the battlefield and
the highly sensitive information will be very much jeopardized.
These are reasons not to grant, for the first time, a writ of habeas
corpus. It is a reason to sustain what we have established for these
detainees--a very fair procedure. I urge my colleagues not to grant the
cloture motion, to vote ``no'' on cloture, so we do not open up this
can of worms, so we can continue to fight the war against these
terrorists.

I reserve the remainder of the time on this side.
The ACTING PRESIDENT pro tempore. The Senator from Michigan.
Mr. LEVIN. Mr. President, I ask to be yielded 2 minutes.

[[Page S11693]]

Mr. LEAHY. Mr. President, I yield 2 minutes to the senior Senator
from Michigan.
The ACTING PRESIDENT pro tempore. The Senator from Michigan is
recognized for 2 minutes.
Mr. LEVIN. Mr. President, the law we passed last Congress stripped
the Federal courts of jurisdiction to grant habeas corpus despite a
constitutional prohibition which says that habeas corpus may not be
suspended except in cases of rebellion or invasion, neither of which is
the state of affairs today.
I want to make in this 2 minutes one essential point. The Specter-
Leahy-Dodd amendment does not grant any individual the affirmative
right to go to court. It does not grant a right of habeas corpus. It
simply removes a legislative barrier to such action, restoring the law
as it was before we enacted this provision in the last Congress,
leaving it up to the courts--where it belongs and it always has been--
as to whether habeas corpus should be granted.
When we debated this provision in the last Congress, we received a
letter from three retired Judge Advocates General who urged us not to
strip the courts of habeas corpus jurisdiction. That letter, signed by
Admirals Hutson and Guter, and General Brahms, said the following:

We urge you to oppose any further erosion of the proper
authority of our courts and to reject any provision that
would strip the courts of habeas jurisdiction.
As Alexander Hamilton and James Madison emphasized in the
Federalist Papers, the writ of habeas corpus embodies
principles fundamental to our nation. It is the essence of
the rule of law, ensuring that neither king nor executive may
deprive a person of liberty without some independent review
to ensure that the detention has a reasonable basis in law
and fact. That right must be preserved. Fair hearings do not
jeopardize our security. They are what our country stands
for.

Well, we received similar letters from nine distinguished retired
Federal judges and from hundreds of law professors from around the
United States, and from many others.
I urge our colleagues to support the Specter-Leahy-Dodd amendment.
Mr. KENNEDY. Mr. President, I am cosponsoring this amendment because
I strongly support the restoration of the right to habeas corpus for
noncitizens detained as enemy combatants.
This bill will reinstate one of the cornerstones of the rule of law.
Habeas corpus protects one of our most fundamental guarantees: that the
Government may not arbitrarily deprive persons of their liberty.
President Bush and Congress undermined that guarantee last year by
enacting the Military Commissions Act, which stripped courts of
jurisdiction over habeas corpus petitions by enemy combatants. That
legislation is a stain on our human rights record and an insult to the
rule of law. It is almost surely unconstitutional.
For centuries, the writ of habeas corpus has been a core principle of
Anglo-American jurisprudence. Since the days of the Magna Carta in the
17th century, it has been a primary means for persons to challenge
their unlawful government detention. Literally, the Latin phrase means
``have the body'' meaning that persons detained must be brought
physically before a court or judge to consider the legality of their
detention.
The writ prevents indefinite detention and ensures that individuals
cannot be held in endless detainment, without indictment or trial. It
requires the Government to prove to a court that it has a legal basis
for its decision to deprive such persons of their liberty.
The Framers considered this principle so important that the writ of
habeas corpus is the only common law writ enshrined in the
Constitution. Article I, section 9, clause 2, specifically states,
``The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.''
Mr. President, 9/11 was a tragic time for our country, but we did not
set aside the Constitution or the rule of law after those vicious
attacks. We did not decide as a nation to stoop to the level of the
terrorists. In fact, we have always been united in our belief that an
essential part of winning the war on terrorism and protecting the
Nation is safeguarding the values that Americans stand for, both at
home and throughout the world.
Instead of standing by these principles, however, the Bush
administration used 9/11 to justify abandoning this basic American
value. It has consistently undermined habeas corpus, claiming that the
Constitution, statutory habeas corpus, and the Geneva Conventions,
which Alberto Gonzales described as ``quaint,'' do not apply to enemy
combatants held at Guantanamo Bay or elsewhere.
The administration even went so far as to establish detention
facilities outside the United States to avoid the reach of U.S. courts
and the application of basic legal protections such as habeas corpus.
The administration's purpose was to hold these combatants indefinitely
and try them in military commissions.
The commissions, however, have severely limited the rights of alleged
enemy combatants. The accused have no access to the evidence which the
Government claims it possesses and no ability to provide a meaningful
defense. The tribunals are a sham and an insult to the rule of law.
The administration's lawlessness failed. Last year, the Supreme Court
ruled in Hamdan v. Rumsfeld that Federal courts have jurisdiction over
habeas corpus petitions brought by detainees at Guantanamo Bay. Justice
Stevens reminded the administration that ``in undertaking to try Hamdan
and subject him to criminal punishment, the Executive is bound to
comply with the Rule of Law.''
In the face of this clear Supreme Court precedent, the administration
and Congress recklessly responded with the Military Commissions Act,
which eliminated the right of all noncitizens labeled by the executive
as enemy combatants to be heard in an Article 3 court. This bill will
repeal these disgraceful provisions of the Military Commissions Act and
restore the right to habeas corpus for detainees held at Guantanamo Bay
and elsewhere. I urge my colleagues to vote for the rule of law and to
support this amendment.
Mr. DODD. Mr. President, I rise to once again voice my support for
the Specter-Leahy-Dodd amendment to the Department of Defense
Authorization Act. This amendment will restore habeas corpus rights to
individuals held in U.S. custody.
Just as importantly, it will begin to undo the damage done by the
Military Commissions Act of 2006--legislation that undermined our
values and our commitment to the rule of law. In a struggle with
terrorism in which our credibility, our good name, is a powerful
weapon, the Military Commissions Act was not simply wrongheaded; it was
dangerous. The amendment we offer today is a first step out of that
danger and back to our moral authority.
Critics of this amendment in the Bush administration and elsewhere
have argued that restoring habeas corpus rights will clog Federal
courts and hamper our military operations in Iraq and Afghanistan. This
is simply not true.
First, in keeping with long tradition, this amendment only applies to
individuals held on clearly defined U.S. territory, including
Guantanamo--but not to individuals held in U.S. custody in Iraq and
Afghanistan. Several individuals filing habeas petitions from Iraq and
Afghanistan have already been denied. The truth is that a relatively
small number of individuals are covered by this amendment. Right now,
fewer than 500 people are held in Guantanamo Bay. It is simply not
credible to suggest that thousands or millions of petitions would
deluge our courts and grind them to a halt. From 2002 to 2006, when
detainees had the ability to file habeas petitions, the Federal courts
continued to run smoothly. Last year, a distinguished group of retired
judges wrote to Congress, stating clearly that habeas petitions from
detainees in no way tied up our courts.
Second, habeas petitions heavily favor the Government's position.
They are often decided solely by paper filings by the Government, and
Federal judges have wide discretion in determining what type of
evidence they need to make their determinations. In addition, usually
only a minimal amount of evidence is needed to justify continued
detention. Therefore, it is highly unlikely that U.S. servicemembers
will be called from the battlefield to testify before a Federal judge.

[[Page S11694]]

Finally, many of those who oppose this amendment have relied on
Justice Jackson's opinion in Johnson v. Eisenstrager to defend the
stripping of habeas rights to detainees. But Eisentrager has been
overtaken by more recent cases. Justice Jackson's opinion in that case
relied in part on the fact that the petitioners were German prisoners
of war who were imprisoned outside the United States. In 2004, however,
the Supreme Court held in Rasul v. Bush that the U.S. courts have
jurisdiction to hear challenges to the legality of detention of foreign
nationals held there because the United States had complete
jurisdiction and control over the base at Guantanamo. In other words,
the Supreme Court itself rejected the Government's reliance on
Eisentrager as it applies to individuals held in Guantanamo. That was
the very decision that prompted the President and Congress to strip
detainees of habeas rights with the Military Commissions Act.
In ignoring the most recent precedent, President Bush and his
supporters are ignoring the history of the very bill they are now
fighting to uphold. Their reliance on outdated rulings is, at best,
disingenuous. Willfully or not, they have once again distorted the
facts.
I believe that returning to the legal framework that was in place
prior to the Military Commissions Act would not undermine our security.
In fact, I believe reaffirming our commitment to the rule of law will
strengthen our efforts to combat terrorism--we can protect our security
and uphold our values at the same time. And so I ask my colleagues to
support this amendment.
Mrs. FEINSTEIN. Mr. President, I rise today to speak in favor of the
Leahy-Specter amendment to restore habeas corpus, as part of the
Defense authorization bill. This amendment is identical to S. 185, the
Habeas Restoration Act, which was introduced earlier in this Congress
and enjoys bipartisan support. I was pleased to sign onto that bill as
one of its earliest cosponsors, and I am pleased to speak in favor of
this amendment today.
I strongly disagree with the provisions in the Military Commissions
Act that were passed last fall, eliminating the jurisdiction of
American courts to consider any petition for a writ of habeas corpus
filed by an alien detained by the United States after either being
determined to be an enemy combatant or while awaiting such a
determination.
I believe the Leahy-Specter amendment would rectify this provision,
and I urge my colleagues to support it.
I firmly believe that we must do all we can to fight the war on
terrorism. But we also must preserve the core principles that create
the foundation of this country.
The right to habeas corpus is one of those fundamental principles.
Habeas corpus is the right secured in the Constitution, allowing a
person to seek relief from unlawful detention. It has roots that date
back to the Magna Carta of 1215.
Habeas corpus has been suspended only a few times in our history--and
then only temporarily, such as during our Civil War. Never in history
have we suspended habeas corpus indefinitely, for a war that has no
foreseeable end.
This is not simply a matter affecting a few hundred detainees at
Guantanamo. The Military Commissions Act went far beyond eliminating
the rights of the remaining detainees at Guantanamo--it also
potentially can reach all 12 million lawful permanent residents in the
United States, as well as visitors to our country. Under this law, any
of these people can be detained, potentially forever, without any
ability to challenge their detention in Federal court, simply based on
the Government declaring them enemy combatants.
In fact, the Government need not even find that a noncitizen is an
enemy combatant for their habeas rights to be stripped. It is enough
for someone to be ``awaiting'' a determination--of a mere accusation is
enough for a person to lose this basic right.
Here is what the Military Commissions Act says:

No court, justice, or judge shall have jurisdiction to hear
or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who
has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such
determination.

Most of the remaining detainees at Guantanamo have been held without
charges for years. While they did receive very limited due process
through DOD-sponsored administrative tribunals, designed to evaluate
whether they can continue to be classified and held as enemy
combatants, in these review tribunals, detainees can often face: secret
and hearsay evidence, evidence obtained from ``enhanced interrogation
techniques,'' and no right to counsel. Appeals from these review
tribunals are limited to the question of whether the Government
followed its own limited procedures. There are even recent reports that
when some of these tribunals found that a detainee was not an enemy
combatant, the Defense Department arranged for the tribunals to be
repeated, until Government officials got a result that they wanted.
Rather than abolishing habeas corpus, I believe the judiciary plays a
vital role in evaluating and reviewing whether due process has been
provided and whether innocent persons are being held.
This is not a partisan issue, as demonstrated by the fact that the
lead Senators are the chair and ranking member of the Judiciary
Committee. In addition, conservatives like Kenneth Starr, Professor
Richard Epstein, and David Keene of the American Conservative Union
have all called for restoration of habeas, as have a long list of
liberal and other scholars, retired Federal judges, and military
leaders such as RADM Donald Guter, former Judge Advocate General of the
Navy, who wrote that the elimination of habeas corpus rights for
detainees ``makes us weaker and impairs our valiant troops.''
The right of habeas corpus is a key component of what keeps our
system of justice fair and balanced. It is time for Congress to ensure
that it remains available. I urge my colleagues to support the Leahy-
Specter amendment to restore the rule of law at Guantanamo and
elsewhere and the Great Writ of habeas corpus to its rightful place in
our American system of justice.
I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from Alabama.
Mr. SESSIONS. Mr. President, I want to----
Mr. LEAHY. Mr. President, if I could ask the Senator from Alabama a
question.
Mr. SESSIONS. Yes.
Mr. LEAHY. Is it the Senator's intention to close for his side?
Mr. SESSIONS. Mr. President, let's see how the time looks. I think
perhaps so. How much time is left on this side?
The ACTING PRESIDENT pro tempore. Three minutes remain.
Mr. SESSIONS. Mr. President, I would utilize that 3 minutes and allow
the distinguished chairman of the Judiciary Committee to close with his
remarks.
First, I express my appreciation to Senator Lindsey Graham and
Senator Jon Kyl, who meticulously explained the origin of the situation
we find ourselves in today and why we have never provided the writ of
habeas corpus to enemy combatants and why we should not do so.
Let's back up a little bit and go to the core of it. The Senator from
New Mexico, Mr. Bingaman, I think correctly gave us the status of the
case. Congress passed section 2241, part of the United States Code, a
statutory provision of Congress dealing with habeas. At that time, I
suggest, without any doubt in my own mind, Congress had no idea that
years later the Supreme Court would conclude that language--and rightly
or wrongly on the Supreme Court ruling--that language would provide
habeas rights to combatants captured on the battlefield. OK. But the
Supreme Court ruled that based on the way the statute was written. It
was an unintended consequence. I would note, three members of the
Supreme Court dissented and did not think that statute covered that.
So after that happened, we had to ask ourselves: Is the Supreme Court
saying: You, Congress, provided habeas rights to prisoners. You did it
when you passed the statute. We are not saying the Constitution
requires it. We are not saying the Supreme Court requires it. What we
are saying is you did it when you passed the statute?
So Congress said: OK, we did not mean that. Then we passed the
amendment last year Senator Graham offered

[[Page S11695]]

that fixed it, and did not provide, for the first time in the history
of American history--or world history, for that matter--enemy prisoners
be given the right to sue the generals who have captured them.
All right. So we did that, and we passed it. The DC Circuit Court of
Appeals, in interpreting that statute, has followed it and concluded
that Congress has changed the law and that the prisoners in Guantanamo
are not entitled to habeas rights that we provide to every American
citizen.
Now, that is the right thing. This is exactly what we should do. So I
am somewhat taken aback by the suggestion of those who are promoting
this amendment that somehow Congress denied the Great Writ and changed
the law and they are here to restore it.
This is purely a matter of congressional policy and national policy
on how we want to conduct warfare now and in the future. How are we
going to do that? Are we going to do it in a way that allows those we
capture to sue us? Now you can utilize those rights if we choose to try
a prisoner of war and to lock them up or to execute them. You can use a
lot of legal rights. A prisoner can use those rights, but not in this
circumstance. This is merely to restore the historical principles of
habeas that already existed. The current law does that. The new
amendment would change it.
The PRESIDING OFFICER (Mr. Whitehouse). The Senator's time has
expired.
The Senator from Vermont.
Mr. LEAHY. Mr. President, at the beginning of this debate, I said
Congress committed a historic error when it eliminated the Great Writ
of habeas corpus because it did it not just for those detained at
Guantanamo Bay--that raises enough questions about our sense of history
and our sense of our own basic jurisprudence in this country--but
Congress also eliminated it for millions--millions--of permanent legal
residents here in the United States. Some of them are professors in our
finest schools, others are medical people in our hospitals, and some
are actually serving in our law enforcement and in our military.
Listening to the arguments these past few days of those opposed to
restoring habeas rights, it becomes ever more apparent that this was a
mistake the last Congress and the administration made based on fear. I
cannot think of a greater mistake than one based on fear in the most
powerful Nation on Earth.

Opponents make the alarmist argument that if we permit people to
challenge their detention in Federal court, we will jeopardize our
national security and place ourselves in greater danger. In fact, of
course, the opposite is true.
We have heard these kinds of arguments before during trying and
turbulent times in American history, such as when the Government
shamefully interned tens of thousands of Japanese-Americans during
World War II. We should know by now that it hurts this country, and
especially our men and women in uniform, when we allow public policy to
be guided by fear, rather than by American values and freedoms.
The critics of habeas restoration resort to scare tactics because
they know that history and the facts are against them.
The truth is that casting aside the time-honored protection of habeas
corpus makes us more vulnerable as a nation because it leads us away
from our core American values and calls into question our historic role
as the defender of human rights around the world. It also allows our
enemies to accomplish something they could never achieve on the
battlefield--the whittling away of liberties that make us who we are,
the liberties we fought during the Revolutionary War to preserve, the
liberties we fought a civil war to preserve, the liberties we defended
not only our own freedom but the freedom of much of the Western World
in two world wars to preserve.
The need for the Great Writ has never been stronger than it is today.
We have an administration that at every opportunity has aggressively
sought unchecked executive power while working to erode or to eliminate
constitutionally enshrined checks on that power by the courts and by
Congress. Stripping away habeas rights which allow people to go to
court to challenge detention by the executive is just the latest brazen
attempt in a 6-year-long effort to consolidate power in the executive
branch. You could have picked up somebody, locked them up, and all that
person wants to say is: I am not the person named here. Before we did
this, someone could at least get a writ of habeas corpus, go to the
court, and say: I am not going to contest the case or anything else,
but just the fact that you picked up the wrong person. They can't even
do that now. This is America?
The writ of habeas corpus is not some special benefit to be honored
only when it is convenient. As no less a conservative than Justice
Antonin Scalia has written, ``[t]he very core of liberty secured by our
Anglo-Saxon system of separated powers has been freedom from indefinite
imprisonment at the will of the Executive.'' Habeas has served for
centuries to protect individuals against unlawful exercises of state
power.
Habeas corpus is the only common law writ enshrined in the
Constitution. Article I, section 9 provides that the ``Writ of Habeas
Corpus shall not be suspended, unless when in Cases of rebellion or
invasion the public Safety may require it.'' The Judiciary Act of 1789
specifically empowered federal courts to issue writs of habeas corpus
``for the purpose of an inquiry into the cause of commitment.'' In more
than two centuries since then, habeas has only been suspended four
times, all of them at times of active rebellion or invasion. Even this
administration does not claim that we are at such a point now.
The Military Commissions Act of 2006 spurned centuries of tradition
and empowered the executive to detain noncitizens potentially forever,
with no meaningful check by another branch of Government. With this
act, Congress permanently eliminated the writ of habeas corpus for any
noncitizen determined to be an enemy combatant or even awaiting such
determination. If the determination hasn't been made, we are going to
spend a few years making up our minds whether you are an enemy
combatant, but you still can't contest the fact that we have picked up
the wrong person. So a mere accusation by the executive is enough to
keep a person in custody indefinitely, and that detention is not
subject to review. As our Founders knew well, no administration--no
administration, not this one, not the next one, not the one after
that--can be trusted with that kind of power.
The Specter-Leahy amendment would restore the proper balance of power
between the branches of Government by reestablishing the law on habeas
as it existed prior to the passage of the Detainee Treatment Act and
the Military Commissions Act. It creates no new legal rights. The U.S.
Supreme Court confirmed in the Rasul case that American and British
courts have routinely assumed jurisdiction over habeas claims made by
aliens.
British courts in the 18th century considered habeas claims of aliens
held as enemy combatants, as did the U.S. Supreme Court during World
War II, a war where we faced the possible destruction of democracy.
These courts considered habeas claims of alien enemy combatants who had
already received military trials--meaning even before their habeas
claims, they had already received more process than most noncitizen
detainees will ever get now. Our legendary Chief Justice, John
Marshall, in one instance granted relief to an alien enemy combatant
bringing a habeas claim. In most of these historical cases, though,
habeas petitioners lost and were not granted any relief, and indeed
most habeas petitioners have their claims dismissed with a simple, one-
page ruling from a judge. This historical record is evidence that
habeas can be relied upon as a necessary, but entirely reasonable,
check on Executive power.

As in the past, noncitizen detainees alleged to be enemy combatants
should at least have the right to go into an independent court to
assert that they are being held in error--not to have a trial but at
least to say: Hey, we read the warrant, this is not the person--I am
not the person named; you picked up the wrong person. They can't even
ask an independent court to determine that.
As in the past, a court will only grant habeas relief if the
petitioner is able to, in fact, establish this effort.

[[Page S11696]]

We are not talking about having a trial with all of these red herrings
we have heard from those on the other side, who say that somehow we
would have to bring in battlefield tactics or we would have to bring in
classified information. That is not it. That is not it. We are talking
about just being able to at least contest the fact that they have been
picked up.
If the detainees held at Guantanamo truly are the worst of the worst
of our enemies, as this administration claims, surely it will be easy
for the Government to make a baseline showing in court that they are
lawfully detained. If they are really such enemies, we ought to at
least know that and know that they were lawfully detained. Of course,
senior government and military officials have told the press a story
very different from the party line. They have told the New York Times
that the Government detained many of the Guantanamo detainees in error.
In any case, the sweep of the Military Commissions Act goes well
beyond the few hundred detainees held at Guantanamo Bay. It threatens
the civil liberties of an estimated 12 million lawful, permanent
residents of the United States. They work here, they pay taxes in this
country, and under current law, any of these people can be detained
forever without the ability to challenge their detention in Federal
court simply on the executive say-so, even if the Government made a
mistake and picked up the wrong person. As we heard from Professor
Mariano-Florentino Cuellar at the Judiciary Committee's hearing on this
issue, this is of particular concern to the Latino community, which
includes so many of the hard-working lawful permanent residents in this
country.
The cursory review process set up by Congress for detainees, called
combatant status review tribunals or CSRTs, is no substitute for habeas
corpus because, among many other deficiencies, it does not provide a
neutral arbiter--a Federal judge--to review the factual record for
error. This summer, LTC Stephen Abraham, a military lawyer who
participated in the CSRT process, said in a sworn affidavit that the
evidence presented to CSRTs ``lack[s] even the most fundamental
earmarks of objectively credible evidence.'' He also said that
superiors pressured the officers on review panels to find detainees to
be ``enemy combatants.'' That is neither just nor fair, and rigged
tribunals are not the way this country has ever dispensed justice, nor
the way it should. Court review allowed under current law that relies
on the findings of such a flawed system falls well short of the
independent review that our system of checks and balances demands.
Restoring habeas would send a clear message that when we promote
democracy and the importance of human rights to the rest of the world,
we are practicing what we preach. I have heard so many speeches on the
floor of this body--and I agree with them--criticizing other countries
for doing what we have done. How do we go to these other countries and
say: You can't do this. And they say: But you do it. And we say: Oh,
well, that was the war on terror; we are facing this great threat, so
we have to do it, but you shouldn't do it. Well, we need to listen to
our military leaders and our foreign policy specialists on this point
who disagree with what we have done.
The former Navy Judge Advocate General Donald Guter told the
Judiciary Committee in May that by stripping even our enemies of basic
rights, we are providing a pretext to those who capture our troops or
our civilians to deny them basic rights. What do we say the next time
an American civilian, lawfully in another country, is picked up and
detained and not even allowed to raise the point that they picked up
the wrong person, and we go to that country, and they say: Hey, wait a
minute, that is what you do in your country; don't preach to us. Your
American citizen is going to stay behind bars. We are just doing to you
what you are allowed to do to us.
William H. Taft IV, former Deputy Secretary of Defense under
President George H. W. Bush, and a former State Department adviser in
the current administration, told us that stripping the courts of habeas
jurisdiction sacrificed an important opportunity to enhance the
credibility of our detention system. Restoring habeas to detainees will
improve our strategic and diplomatic positions in the world and remove
a rallying point for our enemies.
The right to habeas corpus is a limited right. Habeas, as I said
before, does not give a person the right to a trial. It does not give a
habeas petitioner a right to personally appear in court. It most
certainly does not mean that U.S. service men and women will be pulled
from the battlefield to testify in such proceedings, notwithstanding
the alarmist comments made on the other side of the aisle. All the
Government must do to defeat a habeas claim is demonstrate to a judge
by a preponderance of the evidence that the detainee is being lawfully
held. That is all.
Most habeas petitions are rejected by the Federal courts without the
need to call a single witness. I certainly knew that when I was a
prosecutor. Any time I ever sent anybody to prison for more than a
year, I knew there would be half a dozen habeas petitions filed. They
would usually be denied without even ever having called a single
witness. In fact, habeas petitions can be, and routinely are, disposed
of in Federal court based on a single affidavit by a Government agent
explaining the basis for detention. I simply sent over an affidavit
showing the date and time of conviction to the court clerks. That is
all I had to do. Habeas simply provides an opportunity for a detainee
to argue to an independent Federal judge that he or she is being held
in error. If the detainee is properly held, the Government can easily
overcome that claim. The distinguished Presiding Officer was a
distinguished U.S. attorney. He understands very well that point.

Recent history makes clear that restoring habeas will not invite
habeas litigation from abroad, as some have claimed. The Supreme Court
found habeas jurisdiction at Guantanamo Bay because Guantanamo is, for
all intents and purposes, a U.S. territory. U.S. courts have found no
habeas jurisdiction in the case of enemies captured, detained, and held
in Iraq. There was no flood of international habeas petitions following
the 2004 Rasul decision validating the extension of habeas rights at
Guantanamo, and there is not going to be if habeas is restored now.
Guantanamo detainees had habeas rights until those rights were
conclusively taken away last year. Between 2002 and late 2006, these
claims were handled by judges in the U.S. District Court in Washington,
DC. The judges in that court released no detainees, and they issued no
orders compelling the Government to alter the detainees' conditions of
confinement. Habeas is a necessary and appropriate check on executive
power, but it is a far cry from a get-out-of-jail-free card.
Opponents of habeas restoration suggest other countries will not open
their courts to petitions from enemy aliens. But if a foreign country
imprisoned an American, as I said before--say an aid worker or a nurse
or a civilian contract employee--and held that person without any
charge as a combatant, or simply said: We are going to ``determine''
whether that person is a combatant because he or she has supported the
U.S. military, for example, or had a ``Support Our Troops'' sticker on
their car, the U.S. Government would surely demand that American have a
chance to go to court. Our consul would be down there immediately
demanding that. What kind of a reaction would there be in this country
if we read in the paper where another country said: No, you have no
right to challenge the fact that we picked them up; you have no right
to challenge even that we picked up the wrong person. When we screamed
about that in editorials all over this country saying how horrible that
is, they would simply answer: We are just doing what you do. By denying
basic rights to alien detainees, we encourage other nations to do the
same to American civilians, and they will. They will. That is why we
hear from so many of our military, so many distinguished people that we
should change this.
Critics of the Specter-Leahy bill also point to released detainees
who they assert went back to the battlefield, as a reason not to
restore habeas rights. But the truth is that those Guantanamo detainees
who have been released since 9/11 have been freed by the military
following its own process, not by Federal judges on habeas review.
The critics' assertions that habeas proceedings in Federal court will
somehow lead to the sharing of classified information with terrorists
is

[[Page S11697]]

cockamamie. It is merely fear-mongering. This argument demeans our
Federal judiciary. It ignores the procedures established by Congress to
ensure that classified information is safeguarded in Federal
proceedings. Federal judges have significant discretion in determining
what kinds of evidence to consider, what witnesses, if any, to allow
for a habeas claim. Many detainee habeas claims could be resolved with
no recourse to classified documents at all. Where classified evidence
is relevant, all Federal judges are cleared to view such information,
and they are well equipped to deal with it without compromising
national security.
We must not succumb to baseless, fear-driven arguments. The sky will
not fall if we vote to restore habeas. Quite the contrary: Congress
will take a positive step toward returning to our core American values
of liberty, due process, and checks and balances. In doing so, we will
increase America's security and bolster our place in the world. That is
why this amendment has support from across the political and
ideological spectrum.
I thank Senator Dodd, Senator Menendez, Senator Bingaman, Senator
Levin, and Senator Specter for coming to the floor and eloquently
calling for a return to basic American values and the rule of law.
Yesterday, 41 Republicans voted to filibuster a bill that would have
given to hundreds of thousands of residents of the District of Columbia
the fundamental right to vote for Congress--the District of Columbia,
which has roughly the same population as my own State of Vermont. I
hope they will not follow that sad day with a filibuster today of
legislation to restore the fundamental right of someone held by the
Government without any charge to at least go to court and ask why.
The most daunting challenge in the age of terrorism is to strike the
proper balance between maintaining our national security against very
real threats but also preserving the liberties that are the proudest
legacy of our Founders. It is our Founders who were willing to risk
capture and hanging to bring about a nation based on the principles
that you, Mr. President, and I have always supported and which we
supported in our oath of office.
More than ever, especially in the wake of September 11, we have to
remain vigilant against security threats, but let's never forget that
our values are the foundation that makes our Nation strong. Now is the
time to reaffirm those values, to be renewing this country's
fundamental, longstanding commitment to habeas corpus review. I urge
every Senator to support the Specter-Leahy amendment to restore habeas
corpus.
Mr. President, I wish Members would look at those who support this.
Support from this amendment goes across the political spectrum, from
the American Conservative Union to liberal groups, to some of our
leading citizens, including former Secretary of State Powell and others
who have spoken out for this. We should pass this amendment.
Mr. President, how much time remains?
The PRESIDING OFFICER. All time has expired.
Mr. LEAHY. I thank the Chair. Mr. President, if the yeas and nays
have not been ordered, I will ask for the yeas and nays.
The PRESIDING OFFICER. The yeas and nays are mandatory.
Mr. LEAHY. I thank the Chair.

Cloture Motion

The PRESIDING OFFICER. Under the previous order, pursuant to rule
XXII, the clerk will report the motion to invoke cloture.
The assistant legislative clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close the debate on amendment No.
2022, regarding restoration of habeas corpus, to H.R. 1585,
the Department of Defense Authorization bill.
Harry Reid, Dick Durbin, Carl Levin, Christopher Dodd,
Jeff Bingaman, Barack Obama, Robert Byrd, Ken Salazar,
Debbie Stabenow, Dianne Feinstein, Patrick Leahy,
Sheldon Whitehouse, Daniel K. Akaka, Russell D.
Feingold, Amy Klobuchar, Bill Nelson (FL).

The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call be waived.
The question is, Is it the sense of the Senate that debate on
amendment No. 2022, offered by the Senator from Michigan, Mr. Levin, to
amendment No. 2011 to H.R. 1585 shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. LOTT. The following Senator is necessarily absent: the Senator
from Georgia (Mr. Chambliss).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 56, nays 43, as follows:

[Rollcall Vote No. 340 Leg.]

YEAS--56

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Clinton
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Hagel
Harkin
Inouye
Johnson
Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Lugar
McCaskill
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Smith
Snowe
Specter
Stabenow
Sununu
Tester
Webb
Whitehouse
Wyden

NAYS--43

Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Graham
Grassley
Gregg
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lieberman
Lott
Martinez
McCain
McConnell
Murkowski
Roberts
Sessions
Shelby
Stevens
Thune
Vitter
Voinovich
Warner

NOT VOTING--1

Chambliss

The motion was rejected.
The PRESIDING OFFICER. On this vote, the yeas are 56, the nays are
43. Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
Mr. REID. I move to reconsider the vote.
Mr. BAUCUS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BAUCUS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I have been talking with Senator McCain,
and it is our understanding the agreement now is the Graham amendment,
which would be next in order under the previous UC, would be laid aside
temporarily--we think we are making some progress on working out that
amendment--and then we would now have Senator Webb recognized to
introduce his amendment.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I wish to thank my friend from Michigan.
We would like to get a time agreement on debate on the Webb amendment,
but I do not know how many speakers we have on our side. We will be
proposing an amendment that has been put together by my other colleague
from Virginia, Senator Warner, as a sort of side-by-side effect.
I thank the Senator from Virginia, Mr. Warner, for working on an
amendment that I think expresses very clearly we all want all our
troops home. We understand the stress and the strain that has been
inflicted on the men and women in the military--and the Guard and
Reserves--and we admire the motivation and the commitment of Senator
Webb from Virginia. We are, obviously, in opposition to his amendment
and think his colleague from Virginia has an alternative idea that
expresses the will of practically all of us to relieve this burden on
the men and women in the military.

[[Page S11698]]

So I wish to thank my friend from Michigan, and I also wish to say
again, hopefully, within a relatively short period of time we can get a
time agreement on debate and vote as soon as possible on this issue.
This same amendment has been debated before in the Senate and it is
pretty well known to our colleagues, although it is very clear that
many want to speak on it because of its importance.
So I thank my friend from Michigan and both Senators from Virginia,
for whom I have the greatest respect, and we will look forward to a
rather unusual situation here in the Senate--a vote on a resolution by
one Senator from Virginia and a resolution from another Senator from
Virginia on the same issue. I look forward to this debate. I know it
will be both educational and, I hope, enlightening and informative not
only to our colleagues but to the American people.
Mr. LEVIN. Mr. President, I now ask unanimous consent that the
pending amendments be set aside and that Senator Webb be recognized to
offer his amendment.
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. Reserving the right to object, and I would not object,
but I ask my friend from Michigan, will the vote on this amendment have
a 60-vote requirement?
Mr. LEVIN. I think that is the intention, as part of a unanimous-
consent agreement. It is my understanding that is the intent, however,
that will be part of a larger UC.
The PRESIDING OFFICER. Is there objection?
Hearing no objection, it is so ordered.
The Senator from Virginia.
Mr. WEBB. Mr. President, I assume you are calling on this particular
Senator from Virginia.
I rise to offer, along with Senator Hagel, as the lead Republican
cosponsor, and 35 of my colleagues a bipartisan amendment that speaks
directly to the welfare of our servicemembers and their families.
I have learned from Senator McCain's comments that Senator Warner
will be offering a side-by-side amendment that goes to the sense of the
Congress rather than the will of the Congress, and I would like to
state emphatically at the outset this is a situation that calls for the
will of the Congress. It calls for the Congress to step in and act as,
if nothing else, an intermediary in a situation that is causing our men
and women in uniform a great deal of stress and which again calls for
us in the Congress to do something about this.
We have been occupying Iraq for more than 4 years--more than 4\1/2\
years. During that time, it is sensible to assume our policies could
move toward operational strategies that take into account the number of
troops who are available rather than simply moving from one option to
another, one so-called strategy to another, and continually going to
the well and asking our troops to carry out these policies. This
amendment would provide a safety net to our men and women in uniform by
providing a minimum and more predictable time for them to rest and
retrain before again deploying.
If you are a member of the regular military, this amendment basically
says that as long as you have been gone, you deserve to have that much
time at home. This is a 1-to-1 ratio we are trying to push. Many of our
units and our individuals are below that, even when the Department of
Defense's stated goal and the restated goal of the Commandant of the
Marine Corps not long ago was to move back to 2 to 1. In other words,
our troops right now are being deployed in environments, many of them,
where they are spending more time in Iraq than they are spending at
home, when traditionally they should have twice as much time in their
home environments to refurbish their units, retrain, get to know their
families, and then continue to serve their country. For the Guard and
Reserve, we have a provision in here that would require that no member
or unit be deployed to Iraq or Afghanistan within 3 years of a previous
deployment.
I would like to emphasize this amendment is within the Constitution.
There have been a number of Members, including the Senator from
Arizona, who have stated publicly this is blatantly unconstitutional.
It is well within the Constitution, and I read from article I, section
8:

The Congress has the power to make rules for the government
and regulation of the land and naval forces.

This constitutional authority has been employed many times in the
past, most significantly during the Korean war, when the administration
in charge at the time was sending soldiers to Korea before they had
been adequately trained. The Congress stepped in under that provision
of article I, section 8 and mandated that no one be deployed overseas
until they had at least 120 days of training. We are doing essentially
the same thing in terms of a protective measure for the troops of our
military but on the other end. We are saying, as long as you have been
deployed, you deserve to have that much time at home.
This amendment is responsible. It has been drafted with great care.
We have put waivers that would apply to unusual circumstances into it.
The President can waive the limitations of this amendment in the event
of an operational emergency posing a threat to vital national security
interests. People who want to go back, can go back. It does not stop
anyone from volunteering to return if they want to waive this
provision.
I have spoken with Secretary Gates, spoken with him at some length
last week. I listened to his concerns. We put in two additional
provisions in this amendment to react to the concerns the Secretary of
Defense raised. The first is a 120-day enactment period, which is
different from the way this amendment was introduced in July. In other
words, the Department of Defense would have 120 days from the passage
of this legislation in order to make appropriate plans and adjust to
the provisions.
I also have a provision in this bill that would exempt the special
operations units from the requirements of the amendment. Special
operations units are highly selective, their operational tempos are
unpredictable, and we believe it is appropriate they be exempted.
This amendment is not only constitutional, not only responsible, but
it is needed. It is needed in a way that transcends politics. After
4\1/2\ years in the environment in Iraq, it is time we put into place
operational policies that sensibly take care of the people we are
calling upon to go again and again.
That is one reason why the Military Officers Association of America
took the unusual step to actually endorse this amendment. The Military
Officers Association of America is not like the Veterans of Foreign
Wars, not like the American Legion. They rarely step into the middle of
political issues. But this organization, which comprises 368,000
members, military officers, took the step of sending a letter of
endorsement for this amendment, calling upon us in the Congress to
become better stewards of the men and women who are serving.
It is beyond politics in another way. We are asking our men and women
in uniform to bear a disproportionate sacrifice as the result of these
multiple extended combat deployments with inadequate time at home. We
owe them greater predictability.
This is this week's issue of the Army Times. The cover story in the
Army Times this week talks about brigade redeployments, who has gone
the most, who has gone the least, who is going next. At least eight of
the Army's active combat teams have deployed three or four times
already. These are year or 15-month deployments. Another six, including
three from the 101st Airborne, leave this month for either round three
or round four.
There is one brigade in the 10th Mountain Division, which is now
nearing the end of its 15-month deployment, that is on its fourth
deployment. When these soldiers return in November, they will have
served 40 months since December 2001. That is about two-thirds of the
time we have been engaged since December 2001. This amendment is needed
for another reason, and that is that it has become clearer since the
testimony of General Petraeus and Admiral Crocker that the debate on
our numbers in Iraq and our policy in Iraq is going to continue for
some time. We have divisions here in the Senate. We have divisions
between the administration and the Congress. We are trying to find a
formula, the right kind of a formula that can undo

[[Page S11699]]

what I and many others believe was a grave strategic error in going
into Iraq in the first place. But we have to have this debate sensibly.
In the meantime, because this debate is going to continue for some
time, we need to put a safety net under our troops who are being called
upon to go to Iraq and Afghanistan.
I noted with some irony on Monday, as I was presiding, when the
Republican leader expressed his view that it would not be an unnatural
occurrence for us to be in Iraq for the next 50 years. This comparison
to Korea and Western Europe is being made again and again.
I go back to 5 years ago this month when I wrote an editorial for the
Washington Post, 6 months before we invaded Iraq. One of the comments I
made in this editorial 5 years ago was that there is no end point,
there is no withdrawal plan from the people who have brought us to this
war, because they do not intend to withdraw.
I said that 5 years ago. It is rather stunning to hear that ratified
openly now by people in the administration and by others who have
supported this endeavor. We need to engage in that debate. We need to
come to some sort of agreement about what our posture is going to be in
the Middle East. And, as we have that debate, it is vitally important
that we look after the well-being of the men and women who are being
called upon, again and again, to serve.
We are seeing a number of predictable results from these constant
deployments. We are seeing fallen retention among experienced combat
veterans. We are seeing soldiers and marines--either retained on active
duty beyond their enlistments in the ``Stop Loss'' program or being
recalled from active duty after their enlistments are over--being sent
again to Iraq or Afghanistan. We are seeing statistics on increased
difficulties in marital situations and mental health issues.
There was a quote in this week's Army Times by one Army division's
sergeant major who was saying:

After the second deployment, it's hard to retain our
Soldiers. They have missed all the first steps, they've
missed all the birthdays; they've missed all the
anniversaries.

I have seen that again and again with people I have known throughout
their young lifetimes. One young man who is a close friend of my son
just returned with an army unit, back for his second tour in Iraq. One
of his comments at his going-away party was: 15-month deployments mean
two Thanksgivings, two Christmases, two birthdays.
What we are trying to do with this amendment is to bring a sense of
responsibility among the leadership of our country in terms of how we
are using our people. It is an attempt to move beyond politics as the
politics of the situation are sorted out. Again, it is constitutional,
it is responsible, it has been drafted with care, it is needed beyond
politics. I hope those in this body will step forward and support it to
the point that it could become law.
I note my colleague, the Senator from Nebraska, has arrived, my
principal cosponsor, for whom I have great regard. He and I have worked
on many issues over nearly 30 years. I am grateful to be standing with
him today and I yield my time and hope the Senator from Nebraska is
recognized.

Amendment No. 2909 to amendment no. 2011

Mr. President, I had assumed the amendment was called up by the
chairman. I erred. I ask amendment No. 2909 be called up.
The PRESIDING OFFICER (Mr. Casey). The clerk will report.
The legislative clerk read as follows:

The Senator from Virginia [Mr. Webb] for himself, Mr. Reid,
Mr. Hagel, Mr. Levin, Ms. Snowe, Mr. Smith, Mr. Obama, Mrs.
Clinton, Mr. Byrd, Mr. Kennedy, Mr. Salazar, Mr. Harkin, Mr.
Brown, Mrs. Lincoln, Ms. Klobuchar, Mr. Dodd, Mr. Biden, Mr.
Lautenberg, Mr. Kerry, Mr. Durbin, Mr. Tester, Mrs.
McCaskill, Mr. Schumer, Mr. Pryor, Mr. Sanders, Ms. Mikulski,
Ms. Cantwell, Ms. Stabenow, Ms. Landrieu, Mr. Johnson, Mr.
Carper, Mr. Rockefeller, Mrs. Murray, Mrs. Feinstein, Mr.
Akaka, and Mr. Menendez, proposes an amendment numbered 2909.

Mr. WEBB. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To specify minimum periods between deployment of units and
members of the Armed Forces deployed for Operation Iraqi Freedom and
Operation Enduring Freedom)

At the end of subtitle C of title X, add the following:

SEC. 1031. MINIMUM PERIODS BETWEEN DEPLOYMENT FOR UNITS AND
MEMBERS OF THE ARMED FORCES DEPLOYED FOR
OPERATION IRAQI FREEDOM AND OPERATION ENDURING
FREEDOM.

(a) Findings.--Congress makes the following findings:
(1) Congress expresses its grateful thanks to the men and
women of the Armed Forces of the United States for having
served their country with great distinction under enormously
difficult circumstances since September 11, 2001.
(2) The all-volunteer force of the Armed Forces of the
United States is bearing a disproportionate share of national
wartime sacrifice, and, as stewards of this national
treasure, Congress must not place that force at unacceptable
risk.
(3) The men and women members of the Armed Forces of the
United States and their families are under enormous strain
from multiple, extended combat deployments to Iraq and
Afghanistan.
(4) Extended, high-tempo deployments to Iraq and
Afghanistan have adversely affected the readiness of non-
deployed Army and Marine Corps units, thereby jeopardizing
their capability to respond quickly and effectively to other
crises or contingencies in the world, and complicating the
all-volunteer policy of recruitment, as well as the
retention, of career military personnel.
(5) Optimal time between operational deployments, commonly
described as ``dwell time'', is critically important to allow
members of the Armed Forces to readjust from combat
operations, bond with families and friends, generate more
predictable operational tempos, and provide sufficient time
for units to retrain, reconstitute, and assimilate new
members.
(6) It is the goal of the Armed Forces of the United States
to achieve an optimal minimum period between the previous
deployment of a unit or member of a regular component of the
Armed Forces and a subsequent deployment of such a unit or
member that is equal to or longer than twice the period of
such previous deployment, commonly described as a 1:2
deployment-to-dwell ratio.
(7) It is the goal of the Department of Defense that units
and members of the reserve components of the Armed Forces of
the United States should not be mobilized continuously for
more than one year, and that a period of five years should
elapse between the previous deployment of such a unit or
member and a subsequent deployment of such unit or member.
(8) In support of continuous operations in Iraq,
Afghanistan, and other contested areas, the Army has been
required to deploy units and members to Iraq for 15 months
with a 12-month dwell-time period between deployments,
resulting in a less than 1:1 deployment-to-dwell ratio.
(9) In support of continuous operations in Iraq,
Afghanistan, and other contested areas, the Marine Corps
currently is deploying units and members to Iraq for
approximately seven months, with a seven-month dwell-time
period between deployments, but it is not unusual for
selected units and members of the Marine Corps to be deployed
with less than a 1:1 deployment-to-dwell ratio.
(10) In support of continuous operations in Iraq,
Afghanistan, and other contested areas, the Department of
Defense has relied upon the reserve components of the Armed
Forces of the United States to a degree that is unprecedented
in the history of the all-volunteer force. Units and members
of the reserve components are frequently mobilized and
deployed for periods beyond the stated goals of the
Department.
(11) The Commander of the Multi-National Force-Iraq
recently testified to Congress that he would like Soldiers,
Marines, and other forces have more time with their families
between deployments, a reflection of his awareness of the
stress and strain placed on United States ground forces, in
particular, and on other high-demand, low-density assets, by
operations in Iraq and Afghanistan.
(b) Minimum Period for Units and Members of the Regular
Components.--
(1) In general.--No unit or member of the Armed Forces
specified in paragraph (3) may be deployed for Operation
Iraqi Freedom or Operation Enduring Freedom (including
participation in the NATO International Security Assistance
Force (Afghanistan)) unless the period between the deployment
of the unit or member is equal to or longer than the period
of such previous deployment.
(2) Sense of congress on optimal minimum period between
deployments.--It is the sense of Congress that the optimal
minimum period between the previous deployment of a unit or
member of the Armed Forces specified in paragraph (3) to
Operation Iraqi Freedom or Operation Enduring Freedom and a
subsequent deployment of the unit or member to Operation
Iraqi Freedom or Operation Enduring Freedom should be equal
to or longer than twice the period of such previous
deployment.
(3) Covered units and members.--The units and members of
the Armed Forces specified in this paragraph are as follows:
(A) Units and members of the regular Army.
(B) Units and members of the regular Marine Corps.
(C) Units and members of the regular Navy.

[[Page S11700]]

(D) Units and members of the regular Air Force.
(E) Units and members of the regular Coast Guard.
(c) Minimum Period for Units and Members of the Reserve
Components.--
(1) In general.--No unit or member of the Armed Forces
specified in paragraph (3) may be deployed for Operation
Iraqi Freedom or Operation Enduring Freedom (including
participation in the NATO International Security Assistance
Force (Afghanistan)) if the unit or member has been deployed
at any time within the three years preceding the date of the
deployment covered by this subsection.
(2) Sense of congress on mobilization and optimal minimum
period between deployments.--It is the sense of Congress
that--
(A) the units and members of the reserve components of the
Armed Forces should not be mobilized continuously for more
than one year; and
(B) the optimal minimum period between the previous
deployment of a unit or member of the Armed Forces specified
in paragraph (3) to Operation Iraqi Freedom or Operation
Enduring Freedom and a subsequent deployment of the unit or
member to Operation Iraqi Freedom or Operation Enduring
Freedom should be five years.
(3) Covered units and members.--The units and members of
the Armed Forces specified in this paragraph are as follows:
(A) Units and members of the Army Reserve.
(B) Units and members of the Army National Guard.
(C) Units and members of the Marine Corps Reserve.
(D) Units and members of the Navy Reserve.
(E) Units and members of the Air Force Reserve.
(F) Units and members of the Air National Guard.
(G) Units and members of the Coast Guard Reserve.
(d) Inapplicability to Special Operations Forces.--The
limitations in subsections (b) and (c) shall not apply with
respect to forces that are considered special operations
forces for purposes of section 167(i) of title 10, United
States Code.
(e) Waiver by the President.--The President may waive the
limitation in subsection (b) or (c) with respect to the
deployment of a unit or member of the Armed Forces specified
in such subsection if the President certifies to Congress
that the deployment of the unit or member is necessary to
meet an operational emergency posing a threat to vital
national security interests of the United States.
(f) Waiver by Miliary Chief of Staff or Commandant for
Voluntary Mobilizations.--
(1) Army.--With respect to the deployment of a member of
the Army who has voluntarily requested mobilization, the
limitation in subsection (b) or (c) may be waived by the
Chief of Staff of the Army (or the designee of the Chief of
Staff of the Army).
(2) Navy.--With respect to the deployment of a member of
the Navy who has voluntarily requested mobilization, the
limitation in subsection (b) or (c) may be waived by the
Chief of Naval Operations (or the designee of the Chief of
Naval Operations).
(3) Marine corps.--With respect to the deployment of a
member of the Marine Corps who has voluntarily requested
mobilization, the limitation in subsection (b) or (c) may be
waived by the Commandant of the Marine Corps (or the designee
of the Commandant of the Marine Corps).
(4) Air force.--With respect to the deployment of a member
of the Air Force who has voluntarily requested mobilization,
the limitation in subsection (b) or (c) may be waived by the
Chief of Staff of the Air Force (or the designee of the Chief
of Staff of the Air Force).
(5) Coast guard.--With respect to the deployment of a
member of the Coast Guard who has voluntarily requested
mobilization, the limitation in subsection (b) or (c) may be
waived by the Commandant of the Coast Guard (or the designee
of the Commandant of the Coast Guard).
(g) Effective Date.--In order to afford the Department of
Defense sufficient time to plan and organize the
implementation of the provisions of this section, the
provisions of this section shall go into effect 120 days
after the date of the enactment of this Act.

Mr. WEBB. I yield the floor.
The PRESIDING OFFICER. The Senator from Nebraska is recognized.
Mr. HAGEL. Mr. President, I wish to acknowledge my friend, the junior
Senator from Virginia, and also recognize his leadership, not just on
this issue that he has framed over the last few minutes on which the
Senate will be voting, as we did in July, but his years of
contributions to this country--specifically his efforts on behalf of
our military. I think most of us recognize the distinguished record of
Senator Jim Webb, that service to his country. We appreciate that, and
in particular his leadership on this amendment is important.
Senator Webb and I wrote this amendment many months ago. We
introduced it on the floor of the Senate in July. We received 56
bipartisan votes for it. As Senator Webb has noted in his explanation
of what this amendment does, it is relevant to our Armed Forces, to our
country, and to our future. I wish to take a little time to expand on a
couple of the points Senator Webb has made.
First, a democracy of 300 million people, the greatest democracy in
the world, the oldest living democracy in the world, finds itself in a
situation today where we are asking about 1 percent of our citizens to
carry all the burden, make all the sacrifices. We will be dealing with
this issue for many years to come, because the consequences of what has
been going on are that we are doing great damage to our military force
structure, great damage to our Army and our Marines.
Senator Webb noted some examples. These are not isolated episodes.
The fact is, you cannot grind down your people, you cannot grind down
your force structure as we have been doing to our force structure over
the last years--redeployment after redeployment, and longer and longer
deployments.
We know, because our generals and admirals tell us, that this will
come to an end sometime next spring, the rate of redeployments. Why is
that the case? That is the case because we can't sustain the force
structure we have assigned in Iraq today. It is not because I say it or
Senator Webb says it, but our professional military leaders say it.
It doesn't do us much good to go back and review the mistakes we have
made over the last 5 years, first when we invaded and occupied a
country. The fact is, we never had enough force structure in that
country. Many Senators, including the distinguished ranking Republican
on the Armed Services Committee, our friend John McCain, noted that. He
still talks about it, as many of us do. This administration refused to
take the counsel of the then Chief of Staff of the U.S. Army, General
Eric Shinseki, when he, in open hearing before the Senate Armed
Services Committee, was asked the question: What will it take, General,
to invade, occupy, and help stabilize Iraq? He said it would take
hundreds of thousands of American forces.
He was right. He was right. But this administration chose not to
listen to the Chief of Staff of the Army, who knew far more about the
details of manpower requirements than anyone in the White House.
We are not going to go back and unwind all that series of bad
decisions. We are where we are, and we are in a mess in Iraq today by
any dynamic, any measurement, any qualifications. We heard about that,
I think in some detail, as we probed General Petraeus and Ambassador
Crocker's testimony last week--two distinguished Americans. General
Petraeus and Ambassador Crocker are two of our best. But the military
doesn't set policy. The civilian leadership sets policy. So we hand
that off to the military. They salute; they say, Yes, sir. Now, you go
implement the policy.
What we are addressing in this amendment is not only a basic
component of fairness in how you treat your people--because, after all,
as we know, it is people who represent the greatest resource of an
institution, of a country, of a society. When you grind those people
down to a point where they just cannot be effective, but when the
morale is gone, when they leave the institution as we are seeing happen
in the Army and Marines, when you are 15,000 short of Army captains and
lieutenant colonels and majors, and senior enlisted, and story after
story--every Senator in this body can relate these specific stories
like I had in my office yesterday. A Marine Corps officer, couple of
years in Iraq, 14 years in the Marines, got out. He loved the Marines.
It pulled his heart out to leave the Marines.
I said, Why did you leave?
He said, Sir, I tried to balance my family life. The last time I got
back from Iraq my youngest daughter said, Daddy, I am going to tape you
to the refrigerator so you don't have to leave again.
The Chairman of the Joint Chiefs of Staff, Admiral Mullen, said in
his confirmation hearing a few months ago, and I quote from Admiral
Mullen, Chairman of the Joint Chiefs of Staff:

I am concerned about the number of deployments, the time
when they're home--in fact, even when they are home, there's
training associated with that, so they spend

[[Page S11701]]

weeks, if not months, out of their own house, again, away
from their families, and I believe we've got to relieve that.

That is the end of the quote from the new Chairman of the Joint
Chiefs of Staff. So, are we really asking so much here when we say that
our brave fighting men and women, who are bearing all the burden,
carrying all the sacrifice for this country, that 1 percent of our
society, that we say they ought to have at least the same amount of
downtime off as they serve in a war zone in combat? Is that outrageous?
We in this town are very good at abstractions. We talk about
policies. We act like moving men and brigades in combat--that somehow
this is a chess game. Somehow these people are objects.
No, humanity is always the underlying dynamic of the world and life
and it always will be. As Senator Webb has often said: Who speaks for
the military? The National spokesmen.
Their leaders are appointed by the President. They have spokesmen,
they are Governors, if no one else. But who speaks for the rifleman?
Who speaks for the people whom we ask to go fight and die and their
families?
Now, let's be very clear about another issue. As Senator Webb has
noted, this certainly is within the constitutional authority and
responsibility of the Congress of the United States. Senator Webb said
article I of the Constitution is about the Congress. Section 8 of the
Constitution, in article I, speaks specifically to Congress's
responsibilities. We can have disagreements about policies and
strategies, and that is appropriate, should be, absolutely, in a
democracy. But let's not be confused about our responsibilities as
well.
The fact is, as General Shinseki warned us in his comments before the
Senate Armed Services Committee before we invaded Iraq, that it would
take hundreds of thousands of American soldiers.
What has happened is we have a mission that does not match our
manpower capabilities. So what is this administration's answer? Keep
grinding down the people out there who have been fighting and dying.
Keep grinding them down more because we do not have any choice. Are you
going to suit the Boy Scouts up on the weekends?
Where is the manpower going to come from? So the easy answer is--
because who speaks for the rifleman? Who speaks for the military? You
keep asking them to do more. You keep pushing more down on them.
By the way, the so-called surge the President of the United States
announced to America in January--by the way, I do not find the term
``surge'' in any military manuals. Surge is not a policy, it is not a
strategy, it is a tactic.
But the President said: This is temporary. That escalation of troops,
that 30,000 more troops on top of the 130,000 troops they already had
over there, that is temporary. Because we are going to buy time for the
Iraqi Government to find an accommodation so there can be political
reconciliation. In the end, that is all that counts. As General
Petraeus and everybody, every one of our great generals has said, there
is no military solution in Iraq.
General Petraeus and every general has said that. They know it better
than anyone knows it. The only solution in Iraq is going to come from,
must come from, some political accommodation resulting in a political
reconciliation.
So let's buy more time, let's grind those guys down more. Well, it
will automatically come to some kind of an end. But in the process,
what are we doing to our society, to our country, to our Armed Forces,
that is going to take years to rebuild, just as General Schwarzkopf and
General Powell and other great generals after Vietnam, they stayed in
the military and rebuilt the military after what we had done to it
during Vietnam.
This is a very modest step forward, of clear thinking. This is
relevant. It is rational. This has at least a modicum of humanity in
it. If we do not take these steps, the consequences we are going to
continue to face are going to be severe.
I know the questions, the concerns on the other side of this issue
are appropriate. Is this not a back-door way of trying to micromanage
the war, micromanage our force structure? Well, the fact is, as I have
already noted, we have inverted the logic. In order to carry out a
mission or a policy or strategy, you have to match the resources for
that. Those resources were never matched to that mission.
So the easy answer for all of us in Washington, and 99 percent of the
American people, is: Well, let those guys over there do more. So we
have 15-month deployments, in some cases they are 18-month deployments,
in some cases they are longer than that. So what if they go over there
three times.
That is not a good enough answer. That is a failed answer. That is
irresponsible.
So I hope our colleagues take a hard look at this, and I hope they
would give some intense thought to what we are doing, not only for the
immediate term but for the long term. This is essential for our
country. This has ramifications, societal implications that go far
beyond our force structure.
I am very honored to be the original cosponsor and coauthor of this
amendment with my distinguished colleague, the Senator from Virginia.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, before I begin my comments on the pending
amendment, I think--I hope it is appropriate to mention our colleague
from Nebraska, Senator Hagel, has announced his intentions not to seek
reelection in this body.
I have the highest degree of affection and respect for my friend; we
have adjoining offices in the Russell Senate Office Building. He has
served this Nation in many capacities, including in combat during the
Vietnam War. I think he has been an outstanding Member of this body and
a dear friend. I will say a lot more about him in many venues, but I
wish to express my appreciation for his outstanding service in the
Senate, to the people of Nebraska, and to this country.
On July 11 of this year, I spoke against Senator Webb's amendment on
dwell time, as it is now called. The amendment has not changed
substantially since then. I thought the debate at the time was
comprehensive and adequately addressed the merits of the proposal. But
here we are again. Here we are again. Why?
In July, Senator Webb said:

This is an amendment that is focused squarely on supporting
our troops who are fighting in Iraq and Afghanistan; it
speaks directly to their welfare and the needs of their
families by establishing minimum periods between deployments.

More recently, he has called it a ``safety net for the troops.'' I
have no doubt of Senator Webb's sincerity and his concern for our
ground troops and their families. No one in this body has served his
family more honorably than Senator Webb.

I share Senator Webb's concerns for the well-being of our troops and
their families, as I know all Senators do. But let me be clear: Senator
Webb's amendment is not a litmus test for whether you care about the
troops. Would it not be great if our choices were that easy.
I argued back in July, and I repeat today, that the amendment would
do more harm than good and should not pass. But the question remains:
Why are we arguing again? Why are we arguing again about this proposal?
Unfortunately, the reason is obvious. It was spelled out in a New
York Times article on September 15, by David Herszenhorn and David
Cloud, who stated:

The proposal by Senator Webb has strong support from top
Democrats who say that the practical effect would be to add
time between deployments and force General Petraeus to
withdraw troops on a substantially swifter timeline than the
one he laid out before Congress this week.

Senator Biden was quoted in the article as calling the proposal the
``easiest way for his Republican colleagues to change the war
strategy,'' to change the war strategy. The reporters referred to the
amendment as a ``backdoor approach'' aimed at influencing the conduct
of the war. That is what this amendment is about.
I say to my colleagues, I will say it again and again, the
President's present strategy is succeeding. If you want the troops out,
support the present mission, support the mission that is succeeding.
Don't say you support the troops when you do not support their mission.
Excuse me, I support you but not the mission you are

[[Page S11702]]

embarking on today as you go out and put your life and limb on the line
in a surge that is succeeding--that is succeeding.
We will have a lot of discussion on the floor of this body about the
Maliki Government and the national police and the other challenges we
have, but the military side of this is succeeding. This goes at the
heart, this goes at the heart of the surge that is showing success in
Anbar Province, in Baghdad, and other parts of Iraq.
Now, maybe someone does not agree with that. Maybe that is the point.
But the effect of this amendment--the effect of this amendment--would
be to emasculate this surge. That is why the Secretary of Defense, Mr.
Gates, sent a letter to my colleague, Senator Graham, which I intend to
quote from in a minute. So what is this debate about? This debate is
about whether we will force, as Senator Biden was quoted, as the
easiest way for his Republican colleagues to change the war strategy,
this backdoor approach aimed at influencing the conduct of the war.
Not only that, it is blatantly unconstitutional. Are we going to
have, in conflicts the American people engage in--if it is unpopular
with the American people, the way the Korean war was unpopular--and
somehow designate who should stay and who should not and how long?
That is a micromanagement of the military that is very difficult to
comprehend. The President is the Commander in Chief because he is the
Commander in Chief. Nowhere in the Goldwater-Nickles bill, nowhere in
the Constitution do I see the role for Congress to play in determining
the parameters under which the men and women who have enlisted and are
serving in the military, in an enterprise which the majority of this
body voted to support, being embarked on.
Secretary Gates echoed this assessment last weekend in various
interviews, stating the Webb amendment is:

Really pretty much a backdoor effort to get the President
to accelerate the drawdown so that it is an automatic kind of
thing, rather than based on conditions in Iraq.

So I would say to my colleagues, let's not conceal or fail to mention
the intended effect or purpose of this amendment. I wish to repeat,
every one of us, every one of us cares about the men and women who are
serving in the military, every single one of us on an equal basis. It
is clear that in the wake of General Petraeus's report, the majority
has brought this back in order to reduce the numbers of fully trained
and combat-experienced troops available to our military commanders and
thus to force an accelerated drawdown of troops and units in Iraq and
Afghanistan.
Why don't we be clear about that? Let's consider the impact of this
amendment on the force. The effect of the amendment would be to exclude
fully trained, combat-experienced officers, NCOs, soldiers, and marines
from military units that need them to perform in combat. I think we
should ask the question: Will an unintended consequence of this
amendment be to cause harm to our troops? I argued in July, as did
various other Senators, that the amendment would cause harm to the
mission, the units, and members who would have to succeed in combat
despite the obstacle this amendment would impose.
Now we have the view of Secretary Gates to consider in a letter
regarding the Webb amendment, which without objection, Mr. President, I
ask unanimous consent to have printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

The Secretary of Defense,

Washington, DC, September 18, 2007.
Hon. Lindsey Graham,
U.S. Senate,
Washington, DC.
Dear Senator Graham: Thank for your recent letter
requesting my views on the Webb amendment.
I understand that the specifics of this amendment may be
changing so my comments are based on the version filed for
Senate consideration in July (the only version available
publicly).
As drafted, the amendment would dramatically limit the
nation's ability to respond to other national security needs
while we remain engaged in Iraq or Afghanistan. Although the
amendment language does provide the President a waiver for
``operational emergencies,'' it is neither practical nor
desirable for the President to have to rely on waivers to
manage the global demands on U.S. military forces. Moreover,
the amendment would serve to advance the dangerous perception
by regional adversaries that the U.S. is tied down and
overextended.
Further, the amendment, if adopted, would impose upon the
President an unacceptable choice: between 1) accelerating the
rate of drawdown significantly beyond what General Petraeus
has recommended, which he and other senior military
commanders believe would not be prudent and would put at real
risk the gains we have made on the ground in Iraq over the
past few months, and 2) resorting to force management options
that would damage the force and its effectiveness in the
field.
The first choice is not acceptable. The latter choice would
require one or more of the following actions for units
deployed or deploying to Iraq and Afghanistan:
Extension of units already deployed beyond their current
scheduled rotation.
Creating ``gaps'' in combat capability as units would
rotate home without a follow-on unit being available to
replace them. Rearranging schedules to close such gaps would,
even if possible, further limit the ability to continue the
sound practice of overlapping unit rotations to achieve
smooth hand-offs and minimize casualties.
Increase in the use of ``in lieu of'' units that are either
minimally or not normally trained for the assigned mission.
We will always deploy trained units, but the quality, depth
of experience and thus combat capability associated with the
broader use of ``in lieu of'' forces will invariably degrade
combat readiness.
Return to the cobbling together of new units from other
disparate units or unassigned personnel. We have discouraged
this practice by adopting a unit rotation policy.
As the options for and availability of active duty units is
constrained, the broader and more frequent mobilization of
National Guard and Reserve units would be inevitable.
I am told that one of the possible modifications to the
original amendment is to allow a transition period of a few
months before its requirements are binding. While transition
periods are generally helpful, such a modification would not
alleviate the damaging impact this amendment would have on
our military force and our efforts against violent
extremists.
In sum, the cumulative effect of the above steps necessary
to comply with Senator Webb's amendment, in our judgment,
would significantly increase the risk to our service members.
It would also lead to a return to unpredictable tour lengths
and home station periods that we have sought to eliminate for
our service members and their families.
The above impacts on managing the flow of military units
pale in comparison to the disruptive and harmful effects the
amendment would have if we have to comply with its
requirements at the level of each individual service member.
Such an approach would make it exceedingly difficult to
sustain unit cohesion and combat readiness.
Finally, the amendment would unreasonably burden the
President's exercise of his Constitutional authorities,
including his authority as Commander in Chief. In particular,
the amendment would hinder the President's ability to conduct
diplomatic, military, and intelligence activities and limit
his ability to move military forces as necessary to secure
the national security.
I believe that the intent of those who support this
amendment is honorable and motivated by a desire to advance
the welfare of our service members. Unfortunately, I also
believe the amendment would in fact result in the opposite
outcome while restricting our nation's ability to respond to
an unpredictable and increasingly dangerous world.
Sincerely,
Robert M. Gates.

Mr. McCAIN. He said:

As drafted, the amendment would dramatically limit the
nation's ability to respond to other national security needs
while we remain engaged in Iraq or Afghanistan.

He said the amendment would cause the Army and Marine Corps to resort
to force management options that would further damage the force and its
effectiveness on the field and would result in the following actions
for units deploying to Iraq and Afghanistan:

Extension of units [in Iraq and Afghanistan] already
deployed beyond their current scheduled rotation.
Creating ``gaps'' in combat capability as units would
rotate home without a follow-on unit being available to
replace them.

This, in turn, would squeeze ``the ability to continue the . . .
practice of overlapping unit rotations to achieve smooth hand-offs and
minimize casualties.'' And minimize casualties. That seems important,
minimizing casualties.
Secretary Gates goes on. The Webb amendment would:

Increase the use of `in-lieu of' units that are either
minimally or not normally trained for the assigned mission.
[Would] return to the cobbling together of new units from
other disparate units or unassigned personnel.

A practice discouraged by the adoption of a unit rotation policy. As
a result of the Webb amendment, it would

[[Page S11703]]

result in the ``broader and more frequent mobilization of National
Guard and Reserve units [which] would be inevitable.''
Secretary Gates, in his letter, said the Webb amendment would impose
an unacceptable choice upon the President and our military to either,
one, accelerate the rate of drawdown significantly beyond what General
Petraeus has recommended, which he and all of our military commanders
believe would not be prudent and would put at real risk the gains we
have made on the ground in Iraq in the last few months; two, resorting
to force management options that would further damage the force and its
effectiveness in the field.
Not surprisingly, Secretary Gates has stated unequivocally that if
this amendment were included in the authorization act, he would
recommend the President veto it. I urge my colleagues to reject, again,
the Webb amendment.
My friend from Nebraska, Senator Hagel, pointed out accurately--and
he has played an incredible role--the terrific mistakes made in the
conduct of this conflict under Secretary Rumsfeld and other leaders.
This strategy, the Senator from Nebraska and I knew, was doomed to
failure. As far back as 2003, we came back from Iraq and said: This
strategy has to change or it is doomed to failure. As I have said, it
was very much like watching a train wreck. Those mistakes and errors in
the strategy have been well chronicled in a number of books that have
been written, among them, and which I strongly recommend, ``Fiasco'' by
Tom Ricks and ``Cobra II'' by General Trainor and Michael Gordon But we
are where we are.
I would be glad, along with my friends from Nebraska and Virginia, to
chronicle those many mistakes. Those mistakes were made with
expressions of optimism which were, on their face, not comporting with
the facts on the ground in Iraq: a few dead-enders, stuff happens, last
throes, on and on. The fact is, the American people became frustrated,
and they have become saddened and angry. Nothing is more moving than to
know the families and loved ones of those who have sacrificed, nearly
4,000 in this conflict, not to mention the tens of thousands who have
been gravely wounded. But we have a new strategy. We have success on
the ground.
As I said earlier, all of us are frustrated by the fact that the
Maliki government has not functioned with anywhere near the
effectiveness we need. We also acknowledge that there are portions of
the national police which are ``corrupt,'' which is a kind word, a kind
description. But the facts were made very clear last week by the
President of Iran, the President of a country that has dedicated itself
to the extinction of Israel, a country that is developing nuclear
weapons, a country that is exporting explosive devices of the most
lethal kind into Iraq today that are killing young Americans. He said:
When the United States of America leaves Iraq, we will fill the void.
That is what this conflict is now about. It may not have been that when
we started. The President of Iran has made Iranian intentions very
clear. The Saudis will feel that the Sunnis have to be helped. Syria
continues to try to destabilize the Government of Lebanon and continues
to arm and equip Hezbollah. By the way, there is a standing United
Nations Security Council resolution that calls for the disarmament of
Hezbollah. Has anybody seen any effect of that lately? Jordan has
750,000 refugees in their small country.
The situation as regards Afghanistan, as far as Pakistan is
concerned, is certainly murky at best, and perhaps we could see a
nuclear-armed country, which Pakistan is, in the hands of people who
may not be friendly to the United States or interested in controlling
the Afghan-Pakistan border areas which are not under control now.
As Henry Kissinger wrote in the Washington Post over the weekend, a
precipitous withdrawal would have profound consequences. As GEN Jim
Jones testified, on the results of his commission, his last words were,
a precipitous withdrawal would cause harm to America's national
security interests, not only in Iraq but in the area.
The reason I point this out is because the effect of the Webb
amendment--and whether it is intended by the Senator from Virginia or
not but it is interpreted by many, including others whom I have
quoted--would be to force precipitous withdrawal before the situation
on the ground warranted.
I hope we understand that America is facing a watershed situation. We
have grave challenges in Iraq. I believe if we set a date for
withdrawal or, through this backdoor method, force a date for
withdrawal, we will see chaos and genocide in the region, and we will
be back.
I fully acknowledge to my friends and colleagues that we have paid a
very heavy price in American blood and treasure because of failures for
nearly 4 years. I understand their frustration. I understand their
anger. But I am also hearing from the men and women serving in Iraq as
we speak. Always throughout this long ordeal, the most professional and
best- equipped and best-trained and bravest military this Nation has
ever been blessed with were doing their job. They were doing their job
under the most arduous conditions of warfare that any American, Army
and Marine Corps and military, has ever been engaged, ever.
But now in the last few months, we are hearing a different message
from these brave people; that is, they believe they are succeeding.
They believe they are succeeding. In Anbar Province, the marines are
walking in downtown Ramadi, which used to be Fort Apache. Neighborhoods
in Baghdad are safer. They are not safe, but they are safer. Al-Qaida
is being rejected in many areas. I pointed out the difficulties in the
other part of it, but I also believe, from my study of history, that
when you have a condition of military security, it is very likely and
much more possible that the commercial, social, and political process
moves forward in a successful fashion. I keep saying over and over: We
have not seen that with the Maliki government, and we have every right
to see it. But I believe the conditions have been created, if they
seize it, that we will also see political progress in that country.
I believe the people of Iraq, not wanting to be Kurds or Sunni or
Shia but Iraqis, harbor the same hopes and dreams and aspirations to
live in a free and open society where they can send their kids to
school and live in conditions of peace and harmony. That can be
achieved over a long period of time.
Let me finally say that success in Iraq is long and hard and
difficult, but I also believe the options are far worse than to pursue
what has been succeeding.
This amendment will probably define our role in Iraq as to how this
whole conflict will come out. I question no one's patriotism. I
question no one's devotion to this country. I am sure there are Members
on the other side of this issue, supporting this amendment, who are
more dedicated than I am, perhaps. But the fact is, this is a watershed
amendment. We need to defeat it. We need to make sure these brave young
men and women who are now serving and succeeding have more opportunity
to succeed and come home with honor. We all want them home. We don't
want to see the spectacle of another defeated military. Overstressed,
overdeployed, weary, but not defeated--that is our military today. The
Webb amendment could easily bring about their defeat.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WEBB. Mr. President, I would like to yield further time to the
Senator from New Jersey, but before doing so, I would like to respond
to some of the things the Senator from Arizona said in his statement,
just to clarify the intention of this amendment and the environment in
which it is being offered.
Contrary to what the Senator from Arizona said, this amendment has
been changed since July. There is a 120-day implementation provision in
it, after my discussion with Secretary Gates. There is also an
exclusion of special operations units from the requirements of the
amendment. There are, as always, clear waiver provisions in here which
would address a number of the situations Secretary Gates mentioned.
The Senator from Arizona may believe the impact of this amendment
would be to alter the strategy in Iraq, and he has made a few
implications

[[Page S11704]]

that people cannot support our military people unless they support a
political mission. I don't believe that is correct. I believe it is the
role in American society to question missions when one believes they
are heading in the wrong direction. I believe many of our troops have
that option and also exercise it. You can look at poll after poll on
that.
The one thing we can say about the U.S. military is that it has
always controlled the tactical battle space into which it has been put.
We can clearly say that in Iraq today. We can say that about other
engagements. That is the job the military is being called upon to do.
When the Senator from Arizona talks about what is this debate really
about, to characterize this as a debate about defeat is inappropriate.
The narrow purpose of this amendment is not to question so much whether
the strategy is working but how do you feed troops into an operational
environment. Where do we draw the line? I suppose we could have a
decision from an administration that we would put all of American
forces in Iraq until the war was over. When does the Congress decide
that the policies of the executive branch have reached an imbalance?
This is a very modest amendment.
With respect to the constitutional implications, this is a tired old
argument. I addressed it in July. I addressed it again today. There is
a third provision in article I, section 8, which clearly gives Congress
the authority to make these sorts of decisions.
Senator McCain rightly talks about the loss of qualified officers and
NCOs. My experience, looking at the U.S. military today, is that we are
now losing them permanently. If you look at the retention rates from
West Point, they are clearly on a marked downside. That is the canary
in the bird cage.
With respect to the letter of Secretary Gates, I respect Secretary
Gates. I talk with him. He is a political appointee. We can expect
political answers to a number of these questions.
When Senator McCain speaks of the implications of withdrawal, we are
in a box, I agree. The same implications being addressed right now for
withdrawal were the implications that people such as myself, General
Zinni, General Scowcroft, General Hoar, and many others with long
national security experience were warning about if we went in in the
first place. We have a region that is on the edge of chaos. We have oil
now at $82 a barrel. We have a situation with the Turks, who once were
our greatest supporters in the region, being roundly critical of the
United States, complaining about guerilla activities emanating out of
the Kurdish areas. We need to get the Saudis to the table. We need to
address Iran. The only way for us to do that on a permanent basis is
through aggressive diplomacy.
I, too, read Henry Kissinger's article last Sunday. A big portion of
it at the end was about the need to move forward more strongly with
diplomacy.
All of those issues are legitimate. They are all going to be
thoroughly debated. The purpose of this amendment, again, is to put a
safety net under our Active-Duty military and our Guard and Reserve
while these debates are taking place.
With that, I yield the floor and note the Senator from New Jersey
wishes to speak. Perhaps the Senator from Arizona wants to speak.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I thank the Senator from Virginia for his
comments. I would like to point out that the Senator from Virginia says
his amendment has a waiver associated with it, so, therefore, it should
be acceptable to us. I would like to quote from Secretary Gates's
letter to Senator Graham. He says:

Although the amendment language does provide the President
a waiver for ``operational emergencies''--

``Operational emergencies''--not just a waiver, but there has to be
an operational emergency--

it is neither practical nor desirable for the President to
have to rely on waivers to manage the global demands on U.S.
military forces. Moreover, the amendment would serve to
advance the dangerous perception by regional adversaries that
the U.S. is tied down and overextended.

So I think we ought to understand what this waiver really means. Of
course, Secretary Gates is a political appointee. That is the way the
Government functions. But to somehow, therefore, question his judgment
because he is a political appointee is inappropriate, I say to the
Senator from Virginia.
GEN Brent Scowcroft, whom the Senator from Virginia referred to,
said: The costs of staying are visible. The costs of getting out are
almost never discussed. If we get out before Iraq is stable, the entire
Middle East region might start to resemble Iraq today. Getting out is
not a solution.
Now, that is the view of one of the most respected men in America. He
also was a political appointee at one time as the President's National
Security Adviser. He believed very strongly we should not have gone to
Iraq, and I would be glad someday, along with Senator Webb and Senator
Hagel, to talk about all the reasons why we should or should not have.
But the fact we are where we are today, in his view, is very clear.
Now, on the issue of constitutionality, it clearly violates the
principles of separation of powers. Congress has no business in wartime
passing a law telling the Department of Defense which of its fully
trained troops it can and cannot use in carrying out combat operations.
As we all know, this dwell time provision, as I said, has been tried
before. The President, when it was included in the Emergency
Supplemental Appropriations Act, said:

[T]he micro-management in this legislation is unacceptable
because it would create a series of requirements that do not
provide the flexibility needed to conduct the war.
This legislation is unconstitutional because it purports to
direct the conduct of operations of the war in a way that
infringes upon the powers vested in the Presidency by the
Constitution, including as Commander in Chief of the Armed
Forces.

The Senator from Virginia referred to article I, section 8 of the
Constitution, which gives Congress the power ``to make Rules for the
Government and Regulation of the land and naval Forces.'' Well, clearly
that applies to pay, equipment, end strength, basing, and most of the
training, equipping, and organizing functions that are vested in the
services under the Goldwater-Nichols Act. But the article I power
cannot be employed to accomplish unconstitutional ends, and that would
include restricting the President's authority as Commander in Chief in
wartime to direct the movement of U.S. forces.
Justice Robert Jackson, who served as President Franklin Delano
Roosevelt's Attorney General, said:

The President's responsibility as Commander in Chief
embraces the authority to command and direct the armed forces
in their immediate movements and operations, designed to
protect the security and effectuate the defense of the United
States.

I submit that current policies regarding combat unit rotations, tour
length, and dwell time that affect our brave men and women in uniform
fall squarely under that authority.
In his letter, as I mentioned before, Secretary Gates addressed this
constitutional question. He said:

The amendment would unreasonably burden the President's
exercise of his Constitutional authorities, including his
authority as Commander in Chief. In particular, the amendment
would hinder the President's ability to conduct diplomatic,
military, and intelligence activities and limit his ability
to move military forces as necessary to secure the national
security.

Let's consider other legislation--the Goldwater-Nichols Act of 1986--
which fundamentally reorganized the Department of Defense and reflected
some serious thought about how wars ought to be conducted. The act
says:

Unless otherwise directed by the President, the chain of
command to a unified or specified command runs--
from the President to the Secretary of Defense; and
from the Secretary of Defense to the commander of the
combatant command.

I see no mention of Congress in that chain of command.
The Goldwater-Nichols Act also has a section titled
``Responsibilities of the Combatant Commanders'' that says: The
commander of a combatant command is responsible to the President and to
the Secretary of Defense for the performance of missions assigned to
that command by the President or by the Secretary with the approval of
the President. Again, no mention of Congress in that chain of command.
I want to clarify to my friend from Virginia, I have--again, I
repeat, and I

[[Page S11705]]

am sure I will repeat several times in the conduct of this discussion--
I have no doubt that the intent of the Senator from Virginia is to
relieve this terrible burden of service that is being laid upon a few
Americans. He and I both know people who have been to Iraq and
Afghanistan three and four times--an incredible level of service. The
National Guard has never, ever that I know of in my study of history
borne the burden they have today. These citizen soldiers have performed
not only at the same level but sometimes at a higher level of our
professional standing Army, Marine Corps, Air Force, and Navy. But the
fact is, the amendment of the Senator from Virginia--I believe and am
convinced from my study of the Constitution, my view of the role of the
Commander in Chief, what is at stake in Iraq, as I pointed out--will
have the effect of reversing what has been a successful strategy
employed by General Petraeus, General Odierno, and the brave men and
women. I have no doubt of the intention of the Senator from Virginia in
this amendment, but I have great concerns and conviction that the
effect of this amendment would have impacts that would lead to greater
consequences and require, eventually, over time, because of chaos in
the region, greater sacrifice of American blood and treasure.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. MENENDEZ. Mr. President, I rise in strong support of the Webb-
Hagel amendment. Both of our colleagues have served our country not
only in the Senate but also in uniform, and they have done so
honorably. So they speak from experience, and I, for one, do not
question their sincerity of purpose. I do not know how every Member of
the Senate will decide on how they will cast their vote, but I do not
question their sincerity or the purpose of what they are driving at.
This is about preserving our troops, enhancing their ability, and in
the long term being able to continue to enlist people who want to serve
their country, who bear the overwhelming burden of the national
security of the United States by a small percentage of the population.
That is what I believe Senator Webb is doing, and that is why I join
him strongly in support of his and Senator Hagel's amendment.
This amendment provides an important opportunity to recognize the
courageous efforts of our men and women in uniform. This amendment
provides a critical opportunity to ensure the care and safety of our
troops--the care and safety of our troops--now, but I would argue not
only now but for the long term. To those who believe this amendment is
only about now, to change the current course of events, I believe the
amendment has longstanding import now and for the long term. It sets
our policy as to where we are going to be headed in the deployment of
troops--the respites they need, the ability for us to sustain a
voluntary Army under all of the circumstances.
This amendment provides a great opportunity for us in the Senate to
ignore politics and work together on behalf of our troops. This
amendment simply says that our troops should have at least--at least--
the same time at home as they spend deployed abroad. It ensures that no
unit, including the National Guard, which is clearly citizen soldiers
who have been asked to do far beyond what many of them thought they
were ever going to be called upon to do on behalf of their Nation--they
would get the same treatment.
This amendment simply says that after 4\1/2\ years of bravely
fighting for our country, we must honor the sacrifice of the troops and
their families. This amendment simply says we must make sure we are
taking care--underline ``taking care''--of our troops. We believe we
must protect our troops fighting in combat now, just as we must take
care of our veterans when they return home from combat.
Let me be clear. I do not believe this amendment ties the hands of
the administration in the case of a clear threat to our national
security. Senator Webb has been responsive in providing a fair and
reasonable waiver for the President, as well as a waiver for those
individuals in service who want to volunteer to return early. If they
want to return, if they feel they are ready to return, they will be
able to do so and provide the continued leadership they have been
providing. I am sure many may. But the bottom line is, there are many
who may not feel they can do that. So, therefore, their ability to
perform at the optimum is not being preserved under the present
circumstances.
This amendment also responds to specific concerns raised by the
Secretary of Defense and other military leaders. It allows the
Department of Defense time for a transition period, for an
implementation period that is well within the scope that is necessary.
It also provides a specific exemption for special operations forces
since the nature of their deployment schedule is much different.
So I think Senator Webb has listened and responded since the last
time he offered this amendment, as has Senator Hagel.
Now, unfortunately, the war in Iraq has taken a terrible toll on our
military. I am deeply concerned about our ground forces. I am deeply
concerned about severe mental health issues, such as post-traumatic
stress syndrome, which comes out of extended and repeated deployments.
I am deeply concerned about our ability to retain experienced
servicemembers and our ability to recruit new forces.
Clearly, if someone is looking at whether to be engaged, in addition
to their great desire to serve their country, especially if they have
family, they are going to be looking at: Well, how are these
deployments taking place? Are they taking place in a way to respond to
my desire to serve but also to be able to sustain my family? That is
why we have to adopt this amendment. It is about now and the long term.
Some here have argued that Congress should not interfere. But the
Founding Fathers put it right up there early in the Constitution. They
did not wait for various later articles; they put it right up there in
article I. Article I, section 8 of the Constitution is where they gave
the Congress the right, the power ``to make Rules for the Government
and Regulation of the land and naval Forces.''
I have heard other statutory references here, but none of those
statutory references have the power to undermine the Constitution. The
Constitution is supreme. It comes first above all other acts. So,
therefore, the Founders understood how important it was for the
Congress to have the role ``to make Rules for the Government and
Regulation of the land and naval Forces,'' and they put it up early in
the Constitution to make it very clear. Those who wish to ignore or
reject that provision of the Constitution, in my mind, undermine the
Constitution by doing so.
This President often acts as if the only role for the Congress is to
provide a blank check for his failed war policy. I believe he is
definitely wrong in believing that Congress's only role is to provide a
blank check. That is not the role of the Congress. As a matter of fact,
that would be an abdication of the duties and responsibilities of the
Congress in its role under the Constitution. We have a fiduciary
responsibility to the American people, both in national treasures and,
most importantly, in lives. We have a responsibility to the men and
women in uniform.
This amendment before us reflects the reality on the ground and the
will of the American people, but most importantly the welfare of those
sacrificing the most. I have heard a lot from our colleagues in the
time I have been in the Senate, and before in the House, about
supporting our troops. Well, we are providing here a plan to fully
support our troops who volunteer to put their lives on the line for our
country. Senator Webb has referred to the Military Officers
Associations' unusual movement or action of supporting this amendment.
I think we need to listen to those who serve, especially when they act
out of the norm and say: We believe this is in the interests of those
men and women who serve. And it comes from the association of those men
and women who are actively engaged in serving. I have so often heard
our colleagues say: Let's listen to those on the ground. Well, this is
a reflection of those in boots in service. Our brave troops have
answered the call of duty. Let us now answer the call to do what is
right by them.

[[Page S11706]]

I urge all of our colleagues to support this amendment. It goes to
the heart of how we truly honor those people who are serving our
country, sacrificing for our country, and in my mind, when we talk
about supporting the troops, making sure our long-term security can be
preserved and enhanced goes to the very core of how we are going to
treat them in their service. That is why I strongly support Senator
Webb's and Senator Hagel's amendment, and I hope all of our colleagues
will do so as well.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina is recognized.
Mr. GRAHAM. Mr. President, I rise in opposition to the Webb
amendment. I guess if I can pick up where my colleague from New Jersey
left off, what is the best thing for the Congress to do in terms of
supporting our troops? What are our duties? What are our obligations? I
would argue the worst thing the Congress can do at a time of war is to
start taking over operational control of deployments.
Many of us are up for reelection next year. This Iraq war has become
one big political commercial. There are commercials being run out
there--I don't know if they are on the air right at this moment, but
every time there is a vote in this body, a Republican in a tough State
will have an ad run in their State saying: Senator so-and-so has voted
six times not to withdraw from Iraq. There are political commercials
being run around every policy debate we have regarding this war. This
is a political consultant's dream, this war.
Well, this war is not about the next election; this war is about
generations to come. The commercials will keep coming. Every time we
have a vote like this, somebody is going to take a work product, turn
it into a political ad, and try to get some political momentum from the
dialog we have on the floor.
None of us question each other's patriotism. That is great. To those
who have served in combat, my hat is off to you. But we all have our
independent obligation to make our own decisions here, and those who
have never worn the uniform, you are just as capable of understanding
this issue as I think anybody else. If you have been to Iraq, you
understand how tired people are. They are tired. If you visit the
military on a regular basis, you know they are stressed.
Let me give my colleagues some numbers here. The 1st Cavalry
Division, their retention rates are 135 percent; The 25th ID, 202
percent; the 82nd Airborne, 121 percent retention rates. Recruiting and
retention is very good because people who are in the fight now
understand the consequences of the fight and they don't want to lose. I
was in Baghdad on July 4. We had 680-something people reenlist in
theater.
The troops are tired. That is not the problem. They understand the
war. They understand the enemy because they deal with the enemy face-
to-face, day-to-day. They realize that if we don't get this right--and
in spite of the mistakes we have made, we can still get it right--if at
the end of the day we don't get it right in Iraq, their kids are going
to go back. The No. 1 comment I get from the troops after having been
there many times is: I want to do this, Senator Graham, so that my
children do not have to come over here and fight this war. Let's get it
right now.
Well, let's help them get it right. I think we are not helping them
if the Congress mandates troop rotations that will undercut the ability
for the surge to continue.
Everyone cares about the troops, but the politics of this amendment
are such that it would get--the bill would be vetoed. The President has
said that if this amendment gets to be part of the underlying Defense
authorization bill, he would veto it. I think any President would veto
this bill. The Secretary of Defense's letter to me is a chilling
rendition of what would happen to the force if this amendment was
adopted. So we know the Defense authorization bill would get vetoed,
and all the good things in it we do agree on--about MRAPs, support for
the troops, better health care--all that gets lost.
Now, why are we doing this? Some people have a very serious concern
that the force is stressed, and they want to take pressure off the
force by giving them as much time at home as they have in the theater.
Some people want to use this amendment to make sure the surge can't go
forward because that would be the effect of it. People are all over the
board. The consequence to the Defense authorization bill is it would
get vetoed over this provision. Now, if that is what my colleagues want
to happen, this is a way to make sure it happens.
The idea of telling the Department of Defense how long someone can
stay in combat once they are trained and ready to go to the fight is
probably the most ill-advised thing any Congress could do in any war.
The Congress is a political body that is driven, appropriately, by the
moment, by the next election, the voices of constituents, concerns of
the public. Wars are not fought that way. Decisions in wars are not
poll-driven--I hope. Decisions of politicians appropriately incorporate
political consequences to the Member. Let's not make military policy
based on the political consequence to the Member of Congress. That is
what you would be opening a can of worms to.
If we take on this responsibility of managing troops from a
congressional point of view, setting their rotation schedules, how many
can go and how long they can go, then their presence in whatever
battlefield or theater we are talking about in the future is very much
tied to the political moment back home. Think about that. If we begin
to adopt this way of managing a war where the Congress takes this bold,
unknown step of saying: You can only go in theater this long and you
can't do A and you can't do B, but you can do C, what happens in the
next war? Is it wise for political people who worry about their own
reelection--which is an appropriate, rightful thing to be worried about
if you are in politics--to have this much power? Is it good for the
military for the Congress--535 people--to have this much power over
military deployments? Our Constitution gives them a political Commander
in Chief--a single person--who has to answer to the public at the
ballot box.

The Congress can, as part of our constitutional responsibilities,
terminate any war because our constitutional role allows us to fund
wars. So to my colleagues on the other side and those on this side who
want to support this amendment, you would be doing the country a
service and eventually, I think, the troops a service by trying to stop
this war by cutting off funding, if that is your goal. If you think the
war is lost and you believe it is the biggest foreign policy mistake in
a generation and that it is a hopeless endeavor and that Iraq will
never get any better, then just come to the floor and offer an
amendment on the appropriations bill to say we will not continue to
fund this war and create an orderly withdrawal. If you do that, I will
disagree with you, but you will have followed a constitutional path
that is well charted, and if you believe all the things I have just
said, you will be doing the troops a great service because you will not
create a precedent in the future where some other politician may take
up your model and use it in a way you never envisioned.
Once we legitimize politicians being able to make rotation deployment
schedule decisions, once we go down that road, we have opened up
Pandora's box where the politics of the next war could dramatically
affect the ability to operate on the battlefield. If we limit our
actions to cutting off funding, that will be a sustainable way for
Congress to engage in terms of wars they believe have been lost.
Now, the majority leader, Harry Reid, said the war was lost in April
and the surge has failed. If you really believe that, let's have a
debate not about micromanaging troop schedules and deployment
schedules; let's have a debate that would be worthy of this Congress
and this Nation. Let's come back onto the floor and put an amendment on
the desk to be considered that would end the war by stopping funding
for the war. That is not going to happen. The reason that is not going
to happen is because the surge has been somewhat successful and the
politics of ending this war--everybody is trying to hedge their bet a
little bit now. The politics of the next election are affecting the
politics of this body when it comes to war policy in a very unhealthy
way.
We have a side-by-side alternative to Senator Webb that puts
congressional

[[Page S11707]]

voice behind the idea that we would like the policy of Secretary Gates
to be implemented of ensuring the dwell time at home is consistent with
the amount of time one is in theater. It is a sense-of-the-Senate that
gives voice to Secretary Gates's goal and policy of dwell time without
retreating into the Commander in Chief's functions, without getting out
of our constitutional lane. Senator McCain has introduced this side-by-
side. It will be called up at an appropriate time, and I can talk about
it later on. It is a sense-of-the-Congress where we all agree that it
would be a great policy to have if the conditions on the ground would
warrant it, to give our troops a little bit of rest.
But what our troops need more than anything else is a commander who
knows what he is doing and who can carry out his mission unimpeded by a
bunch of politicians who are scrambling to get an advantage over each
other. This whole debate is unseemly. It is destructive to our
constitutional system. It brings out the worst in American politics.
You have an ad being run against the very general in charge of our
troops that is sickening and disgusting, and we are just absolutely
going to a new low as a nation over this war.
So if you think all the things I said before--the war is lost,
hopeless, stupid; the worst decision ever made in terms of U.S. foreign
policy--end the thing. End it. Cut off funding. Don't play this game of
having 535 people become generals who have no clue of what they are
talking about. I respect everybody in this body, and those who have
served, I respect you, but there is not one person here who I think has
anywhere close to the knowledge of General Petraeus in how to fight a
war. You could dig up Audie Murphy, and he could come back and tell me
to vote for this amendment, and I would respectfully disagree. To those
who have been in battle: God bless you. You deserve all the credit and
honor that comes your way.
This is about winning a war we can't afford to lose. This is about
who should run this war--a group of politicians who are scared to death
of the electorate and who will embrace almost anything to get an
advantage over the other, who is at 14 percent approval rating in the
eyes of their fellow citizens? You want to scare the military? You want
to give them something to be afraid of? Let them read in the paper
Congress takes over operational control of Iraq. We would have some
retention problems then. Anybody in their right mind would get out.
There are a lot of choices to be made in our constitutional democracy
about war and peace. The one choice we have never made before is to
allow the Congress to set rotation schedules, deployment schedules, and
if we do it now, not only will we hurt this war effort, we will make it
impossible for future commanders and future Presidents to protect us.
Mr. McCAIN. Mr. President, will the Senator yield for a question?
Mr. GRAHAM. Yes.
Mr. McCAIN. It is my understanding that Senator Graham, the senior
Senator from South Carolina, is a member of the Air Force Reserve and
the JAG Corps; is that correct?
Mr. GRAHAM. Yes, sir.
Mr. McCAIN. I understand you just spent a couple of weeks in Iraq
serving in active duty and in your capacity as an Air Force colonel?
Mr. GRAHAM. Yes, sir.
Mr. McCAIN. And despite the mistake that was made in the promotion
system, you did form impressions over there from the day-to-day
interface with the men and women who are serving there?
Mr. GRAHAM. Yes.
Mr. McCAIN. I think it might be appropriate, given the Senator's
recent probably longer stay than any Member of Congress has ever had in
Iraq, maybe he can talk to us a bit on the record not only about where
the troops' morale is, what they believe in, and about the issue that
was the reason he went there, and that is this enormous challenge of
the rule of law, and whether we are making progress in that area, and
what he expects, particularly in the area of the prisoner situation.
Mr. GRAHAM. Mr. President, I will try my best. No. 1, my time in the
service has been as a military lawyer. I am not a combat operational
guy. If you want to talk about my experiences in the military, I am
glad to talk about them, but they are limited, and I know how far they
should go--not very. As a JAG colonel, I cannot tell you how to deploy
troops. I don't know. That is out of my line. I have to make a decision
as a Senator when the general comes, as Senator McCain says, as to
whether it makes sense to me. I would not advise any Member of this
body to follow a four star general's recommendation just because of the
number of stars.
Here is what I would advise the Members of this body to do. Listen to
what the general says. Use your own common sense. Go in theater and see
if it makes sense. For 3\1/2\ years, we went to Iraq and we were told
by the generals in the old strategy that things were fine. On about the
third trip with Senator McCain, I would say we were in a tank. I am a
lawyer, so I don't understand military deployments and how to deploy
combat troops. But I can tell you this from a lawyer's perspective and
from good old South Carolina common sense: After the third visit to
Iraq, if you thought things were getting better, you were crazy. We
blamed it on the Republican side. The media doesn't tell the story
right. It wasn't the media's fault. We were losing operational control
of Iraq because we didn't have enough troops. You could see it if you
wanted to look. If you were blinded by the partisanship that exists in
this building, you will find some other group to blame it on. But it
was there to be seen.
I have been seven times--twice in uniform--working on issues where I
think I have a little bit to offer. My contribution is insignificant,
inconsequential, but I am honored to have been able to be allowed to
go, because I am cheering on people over there and I am still in
uniform and I am the only one left, and I wish I could stay over there
longer because I feel an obligation to do so.
Here is the morale as I see it this time around. A year ago, I was in
Iraq--maybe a little bit longer--sitting at lunch across the table with
a sergeant. I asked him: Sergeant, how is it going? He said: Senator, I
feel like I am driving around waiting to get shot. Not going very well.
This last tour, when I was there for 11 days, I got to have three
meals a day with them in Baghdad and meet folks with different missions
and responsibilities, including combat guys coming in from the field. I
sat down with them every night and I asked: How is it going? I was
told: Colonel, we are kicking their ass.
Morale is high because of the new strategy. They are fighting and
living with the Iraqi troops out in the field. Their army is getting
better. When you talk to the marines in Anbar, they will tell you with
pride: Look at what we did here.
For us politicians to deny what they did is an insult to their hard
work. They liberated Anbar Province because there were enough of them
this time around to join up with the Sunnis in Anbar to make a
difference and drive out al-Qaida. This new strategy--and everybody has
been asking for something new for a long time--is working. It is
working. There are areas in Iraq, as Senator McCain described, that are
liberated from a vicious enemy.
On the rule-of-law front, judges have a new level of security because
of the surge that they have never known before. The first thing General
Petraeus did when he went in theater was create a rule-of-law green
zone for judges. We have taken an old Iraqi base and built housing for
judges and created a perimeter of security. We have a jail inside the
complex, judge housing, a police station, and a brandnew courtroom, so
that the judges can implement the law without fear of assassination. I
have never seen such growth in an area as I have in the rule of law
since the surge began. The judges now are able to do their job without
their families being assassinated, and we have seen dramatic
improvements.
I will give you two examples. There was a Shia police captain accused
of torturing Sunnis at the police station he was in charge of. He is
now facing a long-term prison sentence because the Iraqi legal system
didn't listen to the fact that he was a Shia and the people he abused
were Sunni. They gave a verdict based on what he did, not who he did it
to. It is sweeping the whole legal system.
Judges are going into areas that al-Qaida operated from just months
ago

[[Page S11708]]

and they are rendering justice, but not based on what sect you come
from; it is based on what the person was accused of. I witnessed a
trial downtown Baghdad where two people of the three were Shia police
officers in the Iraqi police force. There was a raid on the house they
were living in by the American forces. Coalition troops were the only
witnesses and these two defendants who were in a house full of IED
material, rocket-propelled grenades, explosive devices that were meant
to kill Americans. The defense said: Who are you going to believe, us
or the invader? The lawyers in the trial looked the judge in the eye
and started citing one verse of the Koran after another to tell the
judge he had a duty to stand beside his Muslim brothers and reject the
testimony of the infidels. I was there; I saw it.
The three judges conducted a trial that everybody who witnessed that
trial would have been proud of. They asked hard questions. They
separated the defendants, and rather than listening to dictates from
the Koran coming out of the mouth of their lawyer, they asked questions
such as how were they in the house, and how could they not have known
the weapons were there? They did a great job proving these guys were
lying through their teeth. When they reconvened, they got convicted,
getting 6 years in jail.
There is progress going on in Iraq. There are people in Iraq who are
bigger than sectarian differences. There are judges, lawyers, and
average, everyday people who are risking their lives to make their
country better. One of the biggest problems they have had is that we
screwed up early on and let security get out of hand. With better
security, people are beginning to engage in a way I have never seen
before.
This idea of pulling back now, reducing our military footprint, at a
time when we have made a real difference, is too disheartening to the
troops. They are watching what we are doing. I was stopped every 30
feet with questions such as: What are we going to do? Is the war going
to go on? Are they going to cut it short? The people fighting want one
thing, and that is the ability to finish the job. Do they want to come
home? Yes, God knows they want to be home. Are they tired of going
over? Yes. But above all others, they want to win.
Senator McCain said he met people for the third and fourth time.
Well, nobody stays in this military unless they volunteer, to begin
with, and when their enlistment is up, there are stop-loss problems,
but there is an end to this war for them; it is an end of their
choosing. This force, unlike others, chooses when to end the war for
them when their enlistment comes. What they are choosing to do we need
to understand. They are choosing to reenlist at numbers greater than
any other area of the military. Why can't this body sit down and think
for a moment; what do they see about this war that I don't see? Why do
they keep leaving their families and going to a dangerous place time
and time again, in numbers larger than any other group in the military?
Do you know why they do it? I think they do it because they interact
with the judges I have just described to you. They see hope. They
understand the enemy. They know an enemy that will take a 5-year-old
child and put that child in front of their parents, douse him with
gasoline and set him on fire, is an enemy to their family. They
understand that Iran is trying to drive us out of Iraq because they
want to be stronger. And they understand that will mean they are likely
to have to fight a bigger war.
From the troops' perspective, from my view, they want to come home,
and they want a lot of things; but they want, above all others, the
chance to win a war they believe they can win and one we cannot afford
to lose.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the author
of the amendment, Senator Webb, be recognized, and that following his
comments, Senator Warner from Virginia be recognized, Senator Vitter be
recognized, and that I follow Senator Vitter.
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. Mr. President, at this point, I have to object, unless
the Senator from Georgia will agree that if there is a person on the
other side who wants to speak in opposition, we can go back and forth.
If we can modify the request that a speaker in support of the amendment
may be interjected into that lineup, if there is a speaker in support
of the amendment, I will not object. Is that agreeable to the Senator
from Virginia?
Mr. WEBB. That is agreeable.
Mr. CHAMBLISS. I say to my friends, I already discussed that with
Senator Webb. I agree to that.
The PRESIDING OFFICER. Without objection, the request, as modified,
is agreed to.
Mr. McCAIN. Mr. President, can I hear the unanimous consent request
again, please?
Mr. CHAMBLISS. Yes. I ask unanimous consent that the Senator from
Virginia, Senator Webb, be recognized; that following him, Senator
Warner be recognized; that following him, Senator Vitter and myself be
recognized; that if there is a member of the other side of the aisle
who comes in after Senator Warner or after Senator Vitter, they be
given the opportunity to be interjected into the rotation.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.

Vote Explanation

Mr. CHAMBLISS. Mr. President, I neglected to vote on rollcall vote
No. 340. Had I voted, I would have voted negatively.
The PRESIDING OFFICER. The Senator from Virginia is recognized.
Mr. WEBB. Mr. President, I want to take a few minutes and clarify,
from my perspective, the intention of this amendment in the context of
a number of the things the Senator from South Carolina spoke about.
That was quite a lengthy speech. There was a lot of material in it.
This amendment is a very narrow amendment. It is talking about a
minimal adjustment in terms of troop rotation ratios. That is all this
amendment is doing.
When the Senator from South Carolina mentioned we should not have the
politics of the next election being the driving force in these sorts of
situations, I hasten to clarify that my election occurred last year. It
is going to be a while before that decision is faced again. The
principal cosponsor on the Republican side, Senator Hagel, has
indicated he is retiring from the Senate. These issues we are
attempting to put before the Senate have nothing to do with the
politics of being reelected.
Another point that I think needs to be made is that no one I know of
is trying to push a precipitous withdrawal from Iraq. The Senator from
South Carolina made a lot of comments about if you want to end the war,
if you believe it is the worst strategic error we have ever made, we
should call for cutting off the funding. There are a lot of us,
including myself, who believe this was a huge strategic blunder and
said so before we went in. As I said to General Petraeus when he was
testifying: That was then, this is now.
We have to find a way out of Iraq, for those of us who want to remove
our residual forces eventually. That doesn't include everybody in this
body. For those of us who want to remove all residual forces
eventually, we have to do so in a way that will not further increase
the instability in the region and will allow us to focus on
international terrorism and our other strategic interests around the
world. There is no debate on that. That is not what this amendment is
about. We must do that through a proper, regionally based diplomatic
solution. That will only take place with the right sort of leadership
out of the administration. But that is not on the table. That is not
what we are trying to address in this amendment.

There have been questions on the constitutional issues. Again, I go
to article I, section 8. The Congress has the power ``To make Rules for
the Government and Regulation of the land and naval Forces. . . .''
There has been some discussion about how this should not apply to
movement of forces during a time of war. I don't see this as a movement
of forces in a time of war, and I do see precedent, again, from the
Korean war. This is a very similar situation; it is on the other end of
it.
In the Korean war, an administration was sending our troops into
combat before they had been properly trained.

[[Page S11709]]

The administration would say that is proper. The Secretary of Defense
would come in and say that is proper, we need these troops in Korea.
But the Congress decided it was not proper, that once our people step
forward and take the oath of enlistment or oath of office, there is
some protection that should come if there is a belief from the Congress
that the executive branch has not used them properly.
This is an intrinsically limited power. It is limited by the nature
of this process. All one has to do is take a look at the votes we need
today to move it forward. But it is a power that belongs in the
Congress when the right vote is taken.
Senator McCain and Senator Graham had a lengthy colloquy about
service. Believe me, I am indebted to both of them and to the others
who have served our country for the service they have given. Thirty
years ago this year, I started as a committee counsel in the Congress.
I was the first Vietnam veteran to work as a full committee counsel. At
that time, two-thirds of the Members in the Congress had served in the
military. That number is a very small percentage today. So it affects,
in some cases, the ability of people to understand the movements on the
ground, but it also increases the importance of people such as Senator
McCain and Senator Graham, both of whom I respectfully disagree with on
this particular amendment, but it increases the importance of what they
are saying and the insight they are bringing. I greatly respect both of
them for their service.
I know there is going to be a sense of the Senate submitted after our
vote is taken--I assume after our vote is taken. I wish to say again
this is basically a figleaf. This is not a time for the Congress to be
giving advice. It is a time for the Congress to step in and put a floor
under those people who are serving us.
This is a very minimal adjustment, but it is, in my view and in the
view of others, an essential adjustment in terms of how we are handling
the welfare and well-being of people who are going again and again.
On that point, I again remind the Senate that for the first time in
all the years we have been involved in Iraq, we are seeing people from
the administration and from the other party openly saying they expect
we might be in Iraq for the next 50 years. I was warning 5 years ago
this month, in an editorial in the Washington Post, that there was no
exit strategy from the people who wanted us to go into Iraq because
they didn't intend to leave. Now we are seeing graphic evidence of
that. That is a debate we are going to have. That is a debate we are
going to have separate from this amendment. The only purpose of this
amendment is to provide some stability in the rotational cycles,
particularly of our traditional ground forces in the Army and Marine
Corps, so we can have that debate in a way that calms down the
instability in the forces.
I yield the floor.
The PRESIDING OFFICER (Mr. Menendez). The Senator from Arizona.
Mr. McCAIN. Mr. President, while my friend from Virginia is on the
floor--my other friend from Virginia--I apologize to him for
misspeaking this morning about his sponsorship of any amendment. I know
he has a number of proposals he may bring before the Senate in the
course of this debate, and I apologize to him for assuming he hadn't
had any of those ready at that particular time.
Again, I thank him for the enormous input he has made in this debate
and his wisdom and knowledge, and his leaving will create a void around
here. Voids are always filled, but I think it may exist for a long time
because of the many years of leadership on national security issues he
has provided to this body, the State of Virginia, and the Nation. I say
to the Senator, please accept my apologies.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I thank my colleague. The factual basis
that this follows--I wish to thank him and I wish to indicate to my
colleague from Virginia the exact background. I first saw the
amendment, prepared by, I believe, Senator McCain and Senator Graham,
yesterday when it was circulated to the members of the Armed Services
Committee. At that time, I promptly suggested a change in the amendment
or, more specifically, an addition that a waiver be put in. I suggested
the President. The draft now has the Secretary of Defense.
I say to my good friend--and, indeed, Senator Webb and I share a very
strong bond of friendship. It actually goes back over 30 years, when I
was in the Navy Secretariat. Senator Webb, at that time, a young--still
young but anyway a bit younger--Marine captain who, fortunately for me
and others in the Secretariat, was assigned to our staff. He had just
finished his tour in Vietnam, where he displayed a measure of courage
few in uniform in the history of our country can equal. For that he
received our Nation's second highest decoration.
I stand in awe of his military career. My modest career pales in
comparison to his. Nevertheless, we did form at that time a friendship
and resumed it once he came here.
I would like to also say, Senator Webb and I were both privileged to
serve as Secretaries of the U.S. Navy. As I look back on the good
fortune I have had in life, that was a chapter--5 years, 4 months, 3
days as Secretary of the Navy--that I cherish as the very foundation
for whatever I have achieved thereafter in life. It was the
association, the learning I had from men and women of the Armed Forces,
that gave me a certain sense of confidence and inner strength that has
enabled me to go on and do other things, most humbly, I say, to serve
Virginia for now my 29th year in this chamber.
I have come to know Senator Webb, of course, in the perspective of
being a Senator. I said to others that he possesses the intellectual
ability, the sincerity, the feeling about people to make him a great
Senator. His career is before him; my career is behind me. When I leave
some 14 months from now, having finished 30 years in the Senate, I
leave with a sense of confidence that this fine young Senator will
represent Virginia well, and they can take righteous pride in his
leadership.
But the amendment by Senator Graham is one I somewhat disagree with
my colleague on. It embraces the principles he put forth in his
amendment, principles which led me to join him when he first laid down
his amendment and vote for that amendment. So the question arises: Why,
at this point in time, would I go into a very intense deliberative
process of reconsidering that process? I will enumerate those reasons.
But I wish to go back again to the service we both had as Secretary
of the Navy. It was the management of a force of men and women in
uniform. During my period, it was somewhat larger in number than when
Senator Webb was Secretary of the Navy. But nevertheless, we both
learned the difficulty, the challenges of managing under the all-
volunteer force the men and women of our Armed Forces.
One of the reasons I joined my good friend was the all-volunteer
force. I was in the Department of Defense, as I stated, from 1969
through 1974, serving under three Secretaries of Defense, Melvin Laird
being the first. He had the concept of going to the all-volunteer
force. That concept was not by any means readily accepted. There was
considerable and, I think, justified doubt among the uniform ranks at
that time, in the White House, and elsewhere, that this daring concept,
this unique concept would be able to adequately serve America, given
the troubled world, not only at the time of Vietnam but subsequently
and particularly at that time in the midst of the Cold War when the
Soviet Union, in many respects, had challenged us potentially in terms
of their military prowess. Nevertheless, in the wisdom of the executive
branch, we went forward, and the Congress subsequently endorsed it.
Senator Webb's amendment, I say without any equivocation, is designed
to help protect the concept of the all-volunteer force. It was for that
reason that I joined him because I felt, having been in the Department
of Defense at the period of time when the formative stages of that
concept were developed, I had a stake in it.
I have said many times on this floor it is a national treasure that
the members of today's Armed Forces, every one of them, are men and
women who have raised their hands and volunteered. They were not
subjected, as

[[Page S11710]]

previous generations had been, to a draft and compelled to go into
uniform. They were there, every one of them, because they wanted to be
there, they wanted to be a part of the Armed Forces that would protect
our country.
If we add up all the men and women in the Armed Forces today and
include the very valuable Reserve and Guard--because the Reserve and
Guard are as much a part of our defense structure, more so than they
have ever been--and how magnificently the Reserve and Guard have proven
throughout the conflicts in Iraq and Afghanistan, their ability to take
on in every way responsibilities, dangers, and personal risk equal to
the regular force.
I come back to that little chapter when both of us served as
Secretary, and then he subsequently served in the Department in other
capacities where Senator Webb gained a basic knowledge of personnel
management, management of not only the Navy Secretariat but prior
thereto, when he was looking at all the force structures of the
Department of Defense. I readily acknowledge he is an expert and, in
some ways, more current than I am, in terms of the management of our
forces in uniform.
We have a difference, Senator Webb and I, and I will spell it out,
with regard to the amendment. I endorsed it. I intend now to cast a
vote against it. The reasons are as follows:
I went forward some months ago and informed the Senate and, indeed,
informed the country, having returned from my 10th trip to Iraq, that I
was gravely concerned about the situation over there and gravely
concerned about the turbulence here at home, gravely concerned that the
U.S. Army and the U.S. Marine Corps were being pushed to the limits,
greatly concerned that our Guard and Reserves were being pushed to the
limit. Furthermore, I felt that the surge--although I did not fully
support the surge, and the record of this body, the Senate, clearly
reflects my concerns--at that time, I felt that far more of the
responsibility should be borne by the Iraqi forces. In January of this
year, 2007, when the President announced his policy regarding the
surge, I believed that Iraqi forces should take on a far greater role,
particularly as it related to the sectarian violence--the criminal
elements that are striking against our forces, and for nothing more
than a few bucks undertaking, to put at risk the lives of our great
soldiers, airmen, marines, and sailors. I thought that the Iraqi force
should take on that and we should concentrate more on the security of
that nation, to maintain the sovereignty and integrity of its borders
and tighten the borders.

I won't go into the details, but the record is clear that I
questioned the surge. Once the decision was made, I think I felt, like
most Senators, that I should support the President, and I have tried to
do so.
But back again to the force structure problem. At that time, I felt
that we should send a signal to the Iraqi Government by putting some
teeth in what the President had repeatedly said; namely, we are not
going to be there forever. Our Ambassador in Iraq at that point in time
had said something to that same effect. At the time that I announced
the recommendation to reduce the forces and have that reduction take
place so they could be home by Christmas, Ambassador Crocker had said:
We are not giving you a blank check. They were just verbal statements
directed at the Maliki government and all levels of the Iraqi
Government to say that we are not going to be there forever, but you
had to put teeth in it.
I felt if we first announced that we were going to take the first
group home--and I carefully said that the President should consult with
the ground commanders before he accepted any recommendation from me or
anybody else to reduce force levels and begin to send people back such
that they would be back home with their families before Christmas, and
the President obviously did that. In his message of a week or so ago,
he indicated--not necessarily agreeing with me--that he agreed with the
concept; that after consultation with General Petraeus and other on-
scene commanders, that they could now, based on certain successes of
the operation of the surge and visible successes that the intelligence
community verified. Indeed, Senator Levin and I, on our trip a few
weeks ago, saw with our own eyes, where there had been measurable
success of the surge--but consequently the President agreed with the
thought that troops could begin to depart Iraq ahead of schedule and
come home. There are further details of that well-known to Members of
this body.
So first and foremost, I asked for that, the administration and the
uniformed side agreed with it, and it was done. That put me in a
different posture because I felt my thought that it was time to bring
some people home was accepted, and therefore I could then turn to the
Webb amendment and the need to go back and get a clear understanding
from the U.S. military, the uniformed side, of the consequences of the
well-intentioned principles of the Webb amendment.
I would like to also digress momentarily to talk about politics. The
Senator felt challenged. I wasn't here for the earlier debate. I was
holding a briefing with senior members of the military from the
Department of Defense on this very subject--the Webb amendment. And I
can tell you without any equivocation whatsoever, knowing Senator Webb
as I do, that politics is not a factor in his judgment. He honestly
believes--he honestly believes--based on his long experience and his
current knowledge of the readiness of the situation of our Armed Forces
today that we need a policy, and we need it now, of a 1-month home for
every month served abroad in a combat zone.
As I said, I agreed with him. But in that subsequent period of time,
I have had consultations with a lot of senior military officers and
just concluded a briefing with Lieutenant General Ham, the Director of
Operations of the Joint Staff and Lieutenant General Lovelace, the
Deputy Chief of Staff for Operations for the U.S. Army. Two respected
three-star generals, whom I invited to come over here and further brief
me and several other Senators who were present. They are not
politically motivated. They are motivated by what they have to do to be
fair to those serving in Iraq today.
It is their professional judgment that if this amendment were to be
adopted and become law--and I will put aside all the other issues of a
possible veto, and I just don't want to see another veto scenario here
right in the middle of the war, and that is another reason--but they
are absolutely convinced, and have now convinced me, that they cannot
effectively put into force that amendment at this time, without causing
severe problems within the existing forces and those who are serving
there.
One of the consequences that could change in some fashion could be
the very thing I advocated--namely, let us bring some of the troops
home by Christmas. That might not be feasible if this amendment were
adopted. The announced schedule of withdrawals--bringing the force
structure down by July 2008 to what we call the pre-surge level,
announced by the President and General Petraeus that might not be
achievable, the reason being that on any day, if you look at the
totality of the U.S. Army, about one-third of it is globally deployed
beyond our shores--some 250,000 men and women in uniform. There is a
rotation in and out of Korea of roughly 20,000 a year and rotation in
other areas of concentration. You just cannot simply look at Iraq or
Afghanistan; you have to look at the totality of the Army.

A soldier coming out of, say, Korea, having spent a year over there
and expecting to have a year back at home, joins a unit for further
training, and that unit is suddenly called to go to Iraq. Well, the
only recourse is to begin to pull that soldier and some others out
because of their need to have 12 months back here. In fairness, that
soldier should have 12 months back here, but that unit has to deploy.
These generals, again putting all politics aside, they have not been
ordered to do this; they are simply trying to manage the U.S. Army
today in a way that is equitable to every single soldier, and they have
convinced me they cannot manage it in this time period. If this
amendment were changed to be effective at, say, the beginning of fiscal
year 2009--starting in October of 2008--they feel they could manage it,
certainly with regard to the combat units that are going over. But they
still have a problem with--for example, in Iraq today there are some
50,000 soldiers who are in what we call combat support roles, not just
cooks and bakers,

[[Page S11711]]

although they are essential, but the people who are performing the
removal of the IEDs over which the combat trucks roll to go forward to
the front. If there is any single front in Iraq, and I don't think
there is, the concept being they are deployed there to different parts
of Iraq. Iraq is a 360-degree battle zone, in my judgment. And how well
we know that the IED is causing the most severe damage to our soldiers
in terms of loss of life and limb in Iraq today. They explained to me
that the persons, the explosives experts who know how to go in and
detect and remove these lethal weapons, are in short supply. The Army
is doing everything it can, the Marine Corps everything it can, to
train sufficient numbers of these individuals to come in and do these
jobs, but they, too, have to be treated with a sense of fairness. They
cannot be subjected to having to stay there maybe 15 months, maybe even
longer, because we have no replacement for them.
So at another time, because I don't want to go into greater detail
here--there was point after point these generals made in our briefing
and that I have studied that clearly documents the difficulty, the
unfairness, to others now serving in Iraq if this amendment were to
become law.
Now, to the credit of Senator Webb and in my conversations with him--
although I don't know that I was the one who persuaded him--he went
ahead and added an extension to his amendment, so that it goes into
effect 120 days after the authorization bill is signed into law. Well,
that still does not carry it anywhere near the October 2008 date, which
is the earliest date that the Army feels it can now follow the Webb
amendment and its goals. These generals told me there is no one who
wants to move to the 1-to-1 ratio with any greater fervor or desire
than the senior military staff of the U.S. Army and, indeed, others in
the Department of Defense. They want it. They would do everything
within their realm of professional responsibility to make it happen.
But they simply cannot make it happen in the time frame as it is now
couched in the provisions of the Webb amendment.
Mr. President, for those reasons and others--and I know I am taking
generously of the time of others here--I feel I will have to cast a
vote against my good friend's amendment. It is a change of vote for me,
I recognize that, but I change that vote only after a lot of very
careful and analytical work with the uniformed side of the Department
of Defense.
The Secretary of Defense has written me on this subject, in a very
detailed letter. I have a great deal of respect for him. I traveled
with him this week and talked to him, and I tried to explain that
possibly there are changes which could be made to the Webb amendment
which would enable us to go forward and enact it into law, as opposed
to a sense of the Senate, which I do hope we vote on later, but that
was not achievable. I did my very best, but it was not achievable.
So I say to my good friend from Virginia, I agree with the principles
you have laid down in your amendment, but I regret to say that I have
been convinced by those professionals in uniform that they cannot do it
and do it in a way that wouldn't invoke further unfairness to other
soldiers now serving in Iraq.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I want to thank the Senator from Virginia
for his knowledge, his wisdom, and his in-depth analysis of the
situation. All of us who know him are appreciative of the very
difficult process he has gone through as he has attempted to balance
the needs of the military, America's national security, and the
frustration and sorrow and anger that is felt by many Americans over
our failures in this war. I thank him for the consultation process he
has gone through. I have never known the Senator from Virginia to
arrive at a decision without a thorough and complete analysis of it. He
has used the wisdom he has acquired since World War II, when he served
as a brave marine.
Mr. WARNER. Sailor, you rascal. How could you forget that?
Mr. McCAIN. Excuse me--sailor, and later in the Marine Corps. He went
wrong--I mean he did very well by serving both in the U.S. Navy and the
U.S. Marine Corps, and then, of course, as Assistant Secretary of the
Navy and as an outstanding chairman of the Armed Services Committee. So
I thank him for his in-depth analysis, I thank him for his leadership
and guidance to all of us and to all of our citizens, and for a very
thoughtful and persuasive discussion.
As we move forward on this issue, no matter what happens with the
Webb amendment, we will be faced with the situation in Iraq. I hope the
situation improves and these debates can be eliminated over time. I am
not sure they can. I hope and pray they can, but in the meantime we
will rely on the judgment and guidance of our friend from Virginia.
Mr. WARNER. Mr. President, if I might ask the Senator a question
because, indeed, the Senator has a career of active-duty service to the
country that cannot be paralleled, certainly by this humble Senator or
many others. But don't you believe in your heart of hearts the Webb
concept of 1 to 1 is a good one, and if it were possible for the
military to achieve it they would do so, and we would all vote for this
amendment?
Mr. McCAIN. I say to my friend, he is exactly right. He is exactly
right. Among the many failures, as my friend from Virginia knows very
well, is that at the onset of this conflict it was believed by the then
Secretary of Defense and others in the administration, including the
President of the United States, this was going to be quick, it was
going to be easy, it was going to be over.
There were people such as the Senator from Virginia--and, I might
add, and me--who said you have to have a bigger Army. You have to have
a bigger Marine Corps. The Army and Marine Corps is one-third smaller
than it was at the time of the first gulf war. We should have paid
attention to our friend and comrade, General Powell, and the Powell
doctrine, and we obviously should have understood the requirements in
the postinitial combat phase, which I think would have relieved this
terrific burden we have laid on the men and women in both the Active
Duty and the Guard and Reserve. God bless them for being able to
sustain it. It is a remarkable performance on their part.
Mr. WARNER. Mr. President, on that point, I grilled these officers
today very intensely. You may recall that in January, subsequent to the
President's announcement of the surge, the Secretary of Defense stepped
up and said: Hold everything. I am going to put in place a callup
policy for the Reserve and the Guard which will enable them to have a
clearer understanding of how much active service they will be called
upon to do and, more important, once that active service is completed,
how much time they can remain home.
Now, a reservist has to maintain two jobs, in a way: his Reserve job
and his job with which he puts, basically, the bread on the table for
his family, in the private sector. So they are different than the
regulars.
I was told today that, if the Webb amendment became law, they would
have to go back and revisit and change that policy that the Secretary
of Defense enunciated for the Guard and Reserve in January, this year.
Is that your understanding?
Mr. McCAIN. That is my understanding, I would say to the Senator from
Virginia, and I also say that is why I think we need to have a Sense-
of-the-Senate resolution, to reflect the overall opinion of the Senate
that we need to fix this situation. Obviously, the unintended
consequences of putting it into law at this time are myriad. The
Senator from Virginia has, in the most articulate fashion, described
those. I agree with the Senator from Virginia.
Mr. WARNER. Mr. President, I conclude my remarks by saying--others
are waiting to speak--the reason I brought up Senator Webb's
distinguished career as former Secretary of the Navy, and indeed in the
Department of Defense in an earlier assignment, is he understands these
arguments. He has looked at them. I respect his views. We have a
personal difference of opinion on the professional viewpoints, that it
can or cannot be done.
He believes honestly it can be done. I believe, based on what I
related this

[[Page S11712]]

morning and that my ranking member has stated--we feel it can't be
done. Therein is the problem.
I, in no way, in any way denigrate what Senator Webb is trying to do.
It is just that we have an honest difference of opinion, mine based on
basically the same facts that have been given to him. He has a
different analysis than do I.
Mr. McCAIN. Mr. President, I wish to add one additional point,
though, that I think is important. I also believe that it is
unconstitutional for this body to dictate the tours of duty and the
service of the men and women in the military and how that is conducted.
I am absolutely convinced, from my reading of history and of the
Constitution, that to enact such an amendment would be an encroachment
on the authority and responsibility of the Commander in Chief which
could have significant consequences in future conflicts, particularly
if those conflicts at some point may be unpopular with the American
people. So I have additional reasons, besides our desire to--the
impracticability, as the Senator has so adequately pointed out.
I see my friend from Illinois is waiting.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. OBAMA. Mr. President, let me begin by expressing my utmost
support for Senator Warner. I am absolutely convinced of his commitment
to our troops. I do not think there are many people in this Senate
Chamber who understand our military better or care more deeply about
our military. So I have the highest regard for him.
I have to say I respectfully disagree on this issue and must rise in
strong support of the amendment offered by Senator Webb to require
minimum periods between deployments for members of our armed services
who are serving in Iraq and Afghanistan. This amendment protects our
brave men and women in uniform and ensures that our Armed Forces retain
their ability to meet any challenge around the world. That is something
that ultimately all of us have to be concerned about. I am proud to be
a cosponsor of this amendment.
I opposed the war in Iraq from the beginning and have called
repeatedly for a responsible end to the foreign policy disaster that
this administration has created. Over 3,700 American service men and
women have died in this war. Over 27,000 have been seriously wounded.
Each month, this misguided war costs us a staggering $10 billion. When
all is said and done, it will have cost us at least $1 trillion.
There are different views of the war in this Chamber, but there is no
disagreement about the tremendous sacrifice of the men and women who
are serving in Iraq and Afghanistan. They have performed valiantly
under exceedingly difficult circumstances. They have done everything we
have asked of them. But they have also been stretched to the limit. The
truth is, we are not keeping our sacred trust with our men and women in
uniform. We are asking too much of them, and we are asking too much of
their families. We owe it to our troops and their families to adopt a
fair policy that ensures predictable rotations, adequate time to be
with their families before redeployment, and adequate time for
realistic training for the difficult assignments we are giving them.

Our service men and women will always answer the call of duty, but
the reality is extended deployments and insufficient rest periods are
taking their toll. The effects of the strain are clear: Increasing
attrition rates, falling retention rates among West Point graduates,
increasing rates of post-traumatic stress disorder and unprecedented
strain on military families.
This amendment is a responsible way to keep our sacred trust while
restoring our military to an appropriate state of readiness. It ensures
that members of our Armed Forces who are deployed to Iraq or
Afghanistan have at least the same amount of time at home, before they
are redeployed. It would also ensure that members of a Reserve
component, including the National Guard, cannot be redeployed to Iraq
or Afghanistan within 3 years of their previous deployment.
After 4\1/2\ years of fighting in Iraq and almost 6 years of fighting
in Afghanistan, we owe it to our troops and their families to provide
them with a more predictable schedule with sufficient time home between
deployments. As the Military Officers Association of America, which
represents 368,000 members, has stated:

If we are not better stewards of our troops and their
families in the future than we have been in the recent past,
the Military Officers Association of America believes
strongly that we will be putting the all-volunteer force at
unacceptable risk.

There are scores of anecdotes that bear out the strain on our
families. One woman from Illinois recently wrote my office telling me
how her husband was facing his fourth deployment in 4\1/2\ years. She
described how her husband had spent so much time in Iraq that, in her
words: ``He feels like he is stationed in Iraq and only deploys home.''
That is not an acceptable way to treat our troops. That is not an
acceptable way to treat their families.
This amendment is not only important for military families, it is
also important for our national security. Our military simply cannot
sustain its current deployments without crippling our ability to
respond to contingencies around the world.
This is all the more important since the administration has
squandered our resources on the war in Iraq and neglected to address
serious threats to our safety. According to the National Intelligence
Estimate in July, al-Qaida has ``protected or regenerated key elements
of its homeland attack capability,'' including a safe haven in
Pakistan's tribal areas, operational lieutenants, and its top
leadership.
Ensuring the readiness and capabilities of our troops will be crucial
to confronting the threat of al-Qaida in Afghanistan and other parts of
the world and deterring other threats to America's national security.
Over the coming months, I will continue to push for a new course in
Iraq that immediately begins a safe and orderly withdrawal of our
combat troops, that changes our military mission to focus on training
and counterterrorism, that puts real pressure on the Iraqis to resolve
their grievances, and that focuses our military efforts on the real
threats facing our country.
I believe this amendment is an important part of that new course. I
strongly urge my colleagues to support this proposal.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I was on the floor when the Senator
from Virginia, Senator Warner, made his comments a little bit earlier.
I hope a lot of the American people were listening to what Senator
Warner had to say because there is nobody in this Senate who has more
respect, not just on military issues but principally on military
issues, than does Senator Warner. He not only has a lot of expertise,
and great experience, but he is known to be very thoughtful in his
deliberations. He doesn't arrive at decisions of major importance very
easily or very quickly. For him to come to the floor and to make the
statement he made earlier this afternoon, having thought through this
issue and having now decided to change his vote on this particular
amendment, is of monumental importance. It is the type of decision that
makes all of us proud to serve in this great institution.
I rise in opposition to the Webb amendment. This amendment is about
restricting the President and his military leaders' ability to
prosecute a war we have asked them to execute and which we unanimously
confirmed General Petraeus to carry out. It is an unwise and harmful
effort to limit the ability of the President and his military
leadership and to handicap their use of personnel and resources
available to them.
Senator Webb's amendment would preclude deployment of certain Active
and Reserve Forces based on the number of days they have spent at home.
Keep in mind, these restrictions would apply to the Nation's most
experienced and capable troops during a time of war, when we face an
unpredictable and highly adaptive enemy.
That statement is very similar to what Senator Warner said a little
bit earlier.
There is no one in this body who would not like to see every single
one of our troops come home tomorrow. There is nothing pretty about a
military conflict. There have been times in

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the history of our country when we have had to bow our backs and when
we have had to stand up to an enemy that sought to destroy what America
stands for. That is exactly what we are doing in Iraq today.
What Senator Warner said is that if we make a decision in this body
to micromanage the war, let's make no mistake about it, if this
amendment passes, what we are really going to be doing is subjecting
our men and women to greater harm and to the possibility of even
greater inflicting of injuries and greater numbers, possibly, of making
the ultimate sacrifice. This amendment says there are 435 Members of
the House of Representatives and 100 Members of the Senate who have
determined that this is the rotation that should be carried out by our
military leadership relative to the conflict in Iraq, and that is a
micromanagement of the war from the Halls of Congress versus the
management of this conflict on the ground in theater by our military
leadership in Iraq.
If we do micromanage this war, exactly what Senator Warner said is
what is going to happen, and that is, today in Iraq, the most dangerous
weapon that is being fired at our brave men and women who wear our
uniform and are protecting the freedom is what we call the IED and the
EFPs. These particular weapons are inflicting injuries on our men and
women, and are inflicting death on our men and women, requiring them to
make the ultimate sacrifice for our sake. We have a very limited number
of trained military personnel who are experts in the area of detecting
and defusing IEDs and EFPs. If we put those men and women on a
mandatory rotation, then we are setting our men and women in uniform up
for failure.
I have had a policy since I have been elected to Congress of not
trying to make decisions on military issues relative to my personal
feelings and my personal beliefs. My decisions have been based upon
information I have received from our military leadership, both inside
and outside the Pentagon, some civilian folks as well as men and women
in uniform, who are more expert in these areas than I am.
In this case, I listened very closely last week as General Petraeus
and Ambassador Crocker came to Congress and spent the whole day Monday
with the House of Representatives, the whole day Tuesday in the Senate,
testifying, answering every question that was propounded to them about
what is going on relative to the new vision and the new strategy on the
ground in Iraq. What I heard from those men who are the leaders from a
diplomatic standpoint as well as from the military standpoint is we are
seeing great progress made on the ground by our military that is unlike
any progress we have seen during the last 4\1/2\ years. That is
significant.
If you are not impressed by that, then you simply did not hear what
they had to say. So I think now to say to them: Well, we appreciate the
great job you have done leading our troops, but we are going to take
the decision-making process out of your hands, and we are now going to
decide how the war is going to be prosecuted, that, I think would be a
huge mistake.
The Pentagon and the civilian side have responded to the Webb
amendment and said this, that if the Webb amendment passes:

Operations and plans would need to be significantly
altered. Units or individuals without sufficient dwell time
would need a waiver to deploy based on threat. This waiver
process adds time, cost, and uncertainty to deployment
planning.

Secondly:

In emergency situations, the waiver process could affect
the war fight itself by delaying forces needed in theater.

Thirdly:

Units would need to be selected for deployment based on
dwell criteria that may in fact cause significant disruption
to needed reset, planned transformation or unit training
schedules.

Fourthly:

The Department routinely deploys units at less than a one-
to-one deployment-to-dwell ratio if the individuals within a
unit meet minimum dwell requirements.

The proposed language stipulates minimum periods between deployments
for both units and individuals. The requirement to meet both criteria
for unit and individuals before deployment could severely limit the
options for sourcing rotations.
And more specifically and directly to the point, in a letter dated
September 18, 2007, from the Secretary of Defense, Robert Gates, to
Senator Lindsey Graham, I quote a comment made by the Secretary. He
says:

The cumulative effect of the above steps [and he had
outlined the Webb amendment] necessary to comply with Senator
Webb's amendment, in our judgment, would significantly
increase the risk to our servicemembers.

Now, this is one of the military experts in the United States of
America, the chief civilian military officer, saying: If this amendment
passes, it could significantly--it would significantly increase the
risk to our servicemembers. And yet some folks are going to vote in
favor of this amendment in spite of the fact that the chief civilian
military leader of the United States says it has the potential to
significantly increase the risk to our men and women in uniform.
The power of Congress under article I of the Constitution to make
rules for the Government and the regulation of the land and naval
forces is well understood, as is the President's authority under
article II, to command our military forces as commander-in-chief. This
amendment, however, is an unprecedented wartime attempt to limit the
authority of the President and the military leaders by declaring a
substantial number of troops and units unavailable.

Now, again, let me close by saying I wish we could bring everybody
home tomorrow and that this conflict would be over. We know we are
going to be in this conflict for a long time. The President could not
have been clearer on that issue when, on September 17, 2001, in a
statement to a joint session of both the House and the Senate, he said:

This is going to be a long and enduring war.

He was right then, and he is right now. This is a long and enduring
war. It is not dictated by the brave and professional job our men and
women are doing, but it is dictated by a vicious enemy that seeks to
destroy everything that is good about America.
We have men and women who are serving today in an all-volunteer Army,
Navy, Air Force, Marine Corps. They are very dedicated men and women.
They know the mission they have to carry out in Iraq. I know because I
have been there five times. I have talked with them with their boots on
the ground, including about 3 months ago when I had an opportunity to
visit with a number of soldiers in an area that had just been cleaned
out, an area in Al Anbar Province called Ramadi.
Ramadi, a year ago this month, was the self-declared capital of al-
Qaida in Iraq by al-Qaida itself. Today, because of the great job and
the professional job our men and women, fighting side by side with
members of the Iraqi Army and other coalition forces, is clear of al-
Qaida. But if we seek to limit the ability of our leadership, if we
seek to micromanage the war from the Halls of Congress versus on the
ground by our leadership in Iraq, then the potential is certainly there
for an immediate return of al-Qaida in Iraq to places such as Ramadi.
There is no more important time in the history of our country than
the present. That has been the case in so many situations. Certainly
this is a very critical time in the history of our country from the
standpoint of the ability of future generations to live in the same
safe and secure America every previous generation has enjoyed. There is
no better way to ensure that, than to make sure we prevail and we win
in Iraq.
It is my opinion and the opinion of military leadership, the passage
of this amendment leads this nation down a trail of exposure to those
who seek to do us harm, when what we need to be doing is listening
those men and women who are serving proudly to secure our future
generations from the enemy.
I yield the floor.
The ACTING PRESIDENT pro tempore (Mr. CARDIN). The Senator from
Maryland.
Ms. MIKULSKI. Mr. President, I rise as a supporter of the Webb
amendment. I want to compliment the Senator from Virginia for offering
that amendment. Although he is a freshman Senator, he certainly is no
stranger to war a combat veteran, a warrior's warrior, and he

[[Page S11714]]

is fully aware of the stresses the men and our military are facing
along with their families.
I support the Webb amendment, and I support it for several reasons.
One, I want to talk about the surge. I called it an escalation. The
escalation was to send more troops to give the Iraqis more time to come
up with a political solution.
Well, I wish to salute our troops. For those who are on the ground,
the basic number, for those who were part of the escalation, we want to
support them for doing their duty, and doing their duty so well. I
think by every account, regardless of how one feels about the war, one
is very proud of the men and women who are part of our military, who
have been on the ground, and have been on the job. They have done their
part. And that is what the two reports we got last week are, that if
you send in more people, the violence will temporarily come down. But
what happens when you do not keep that level? Well, that is a point of
discussion.
Let's go back to why they went. They went this summer, in blazing
heat, with blazing guns, to give the Iraqis more time. And what did the
Iraqis do while our guys and gals were out there in 100-pound armor,
trying to avoid IEDs? The Iraqis took a vacation. More time. More time.
More time. What is wrong with this picture? So what did more time get
us? It got us nowhere. With their 2-month break, they still did not go
anywhere near a political solution. Now we are told we have got to keep
this up, and we could be there indefinitely because of what? The Iraqis
need more time.
Well, I think we are out of time. I think we are genuinely out of
time. This is why I support the Webb amendment, because I think we need
a different direction. I think we need a different direction in Iraq to
do what we can to contain the violence and also to move ahead with a
political solution. I am going to support the Webb amendment because I
am never going to vote to cut off money. I will vote to protect our
troops, and the best way is at least to give them more time while we
are giving the Iraqis more time.
How about giving our troops more time to be at home? I am really hot
about this. One hundred six degrees in July, they took a break; 110
degrees in Baghdad, our troops are there, they took a break--they, the
Iraqis, took a break.
I am also going to be supporting the Biden amendment, because if the
Iraqis will not come up with a political solution, now with the so-
called soft position, it is time to go to the international community
and see if there needs to a hard solution.
I am beginning to explore and believe that perhaps Iraq needs to be
partitioned. Part of our solution, though, is while the Iraqis want
more time, I want more time for our troops. I want more time for our
troops to be at home. That is why I am supporting this brilliant
amendment by Senator Jim Webb, for our men and our women in the
military.
We know what his amendment says is that they have to be at home for
at least as long as the length of their last deployment. So if they
were there for 15 months, they should be home for 15 months. Then, for
the National Guard and for the Reserves, no one would be redeployed
within 3 years of their previous deployment.
Why is that important? It is not only important for the Guard and the
Reservists, but as the Presiding Officer knows, when a National Guards
person goes to meet their duty, their employer in many instances is
required to keep that job open, or they at least have that as a
commitment of honor.
That used to be 6 months. Now it is 15 months, and home again, back
again, while the Iraqis want more time. Our employers are wondering how
they can keep those jobs open because they don't want to turn their
backs on the military.
We have to get real here. A $20,000 bonus for a quick fix, quickly
trained military doesn't cut it. Jim Webb is really onto something. Our
military is overstretched. Our troops are exhausted. Their families are
living with tremendous stress. Every day they wonder what is happening.
Every day a family that hears a news report about another attack
wonders if their loved one was in it. Every time they are at home and
they hear: CNN, breaking, 4 U.S. military killed, 10 killed, 4 killed,
they first listen; is it in the zone where my husband or my wife or my
son or daughter is? Then when they hear that, they think: Is it the
Army or the Marines? They want to know because what they are doing is
wondering how close to home it is.
Then they hear that news. For some, it is unbearable news. But all of
the news is unbearable for the families at home. We are crushing the
very spirit these families have to keep them going. It is not that they
went once; it is that they go again. And no sooner do they come back
and say: Hello, honey, I think your name is Mary Beth, than they have
to go back out again. What are we doing to our families?
I want more time for the troops. I want to give them more time the
way the Iraqi politicians want more time. When we think about our
troops, we know what they are laboring under. You have heard me say it
before. I check the temperature every day in Baghdad. Yesterday, it was
102 degrees. For us, it was 73, a beautiful day. What a day to be out
on the bay. I know a lot of our National Guard already deployed would
love to be there. I think about our troops, carrying 100 pounds of
armor in brutal heat, being shot at, being attacked by IEDs, while we
have a policy that is going to give the Iraqis more time, while they
are there doing their duty. Let's talk about these families.
In World War II, the military would say: If the Army wanted you to
have a wife, we would have issued you one. It was primarily a single
military. That is not true today. For our families, the stress of
maintaining a family during all of this while a spouse is at war is an
enormous stress. Not only are they facing traumatic stress, but so is
the spouse at home. They are trying to protect their children. They are
trying to shield their children. The children wonder: How is daddy
doing; how is mommy doing? The children learn e-mail. They e-mail mom.
They e-mail dad. I know how they communicate. Mom and dad will
communicate by e-mail. The little guys and gals will often read the
first paragraph, but the last two paragraphs are spouse-to-spouse
talking about what is going on. The tension, the fear, the anxiety and,
I might add, the financial stress as well is amazing. We are talking
about 19-year-olds, 21-year-olds. We are talking about people with two
and three children. But we have to give the Iraqis more time.
Well, we are out of time. I know my time is up on the floor, but I
will tell you, I am going to vote for this Webb amendment because I am
going to give our troops more time. I am going to vote to give our
troops more time at home.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, I ask unanimous consent that the next
speaker on our side be Senator Kyl. He has asked to be in line on this
side.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. BOND. Mr. President, I last came to the floor to speak on the
subject of the way ahead in Iraq. Since that time, significant events,
both good and bad, have occurred. First and foremost, General Petraeus
has presented to the Congress a candid and encouraging assessment that
the new strategy in Iraq has shifted the momentum in our favor. The
testimony by the general and by Ambassador Crocker reinforced what I
and my congressional delegation in May saw in Iraq and what I have
heard directly from troops on the ground. The Petraeus
counterinsurgency strategy, which is clear an area, move in with local
forces, hold it, and then help them build their community, enlisting
the locals in fighting the terrorist and showing them security is
working--this is the strategy which, last year, I and many of our
colleagues were asking for. The old strategy without enough people,
without a permanent presence in the community, was not working. Well,
it is starting to work now. But General Petraeus has proposed minor
immediate withdrawals, withdrawals that are based on the commander's
recommendations and security conditions, not Washington politics or
micromanaging from this wonderful air-conditioned building.
The President used the term ``return on success.'' That is the term I
hope we

[[Page S11715]]

will embrace. These brave men and women went over there as volunteers
to accomplish a mission. We need to allow them to work with the
commanders to accomplish that mission. Even General Petraeus testified
that the new strategy had reversed the trajectory of the war. He said:
``Al Qaeda is on the run. Security incidents'' since the surge began
have fallen in 8 of the last 12 weeks. Civilian deaths have decreased
by 45 percent. Ethno-sectarian deaths are down 55 percent, and attacks
in Al Anbar are down 85 percent.

For all the attempts by the antiwar movement to discredit General
Petraeus--and I will address that--he demonstrated enough military
progress from his new counterinsurgency strategy to conclude that ``we
have a realistic chance of achieving our objectives in Iraq.''
Secretary Gates on Monday gave a speech in which he said:

For America to leave Iraq and the Middle East in chaos
would betray and demoralize our allies there and in the
region, while emboldening our most dangerous adversaries. To
abandon an Iraq where just two years ago 12 million people
quite literally risked their lives to vote for a
constitutional democracy would be an offense to our interests
as well as our values, a setback for the cause of freedom as
well as the goal of stability.
We must realize and recognize that the institutions that
underpin an enduring free society can only take root over
time.

Secretary Gates was absolutely right. One only needs to look at our
own history to understand this. After a long, bloody revolution, a
civil war, a struggle for women's suffrage, and a civil rights
movement, some 150 years later, democracy is still a work in progress.
Just as Ambassador Crocker testified:

Iraq is experiencing a revolution, not a regime change.

Difficult challenges remain. Political progress in Iraq has been too
slow. They have done some things. Actually, they have passed a few
bills. In this body, we haven't passed an appropriations bill or a
Defense authorization bill yet. We took August off ourselves. It is
kind of tough for us to claim that the Iraqi Parliament is not doing
its job when we can't seem to get our job done.
On the political front in Iraq, the Government is already sharing oil
revenues among provinces. They are reaching out to former Baathists,
allowing them to participate in the army and the Government. As I said,
millions turned out to vote. It will take time for them, just as
America's revolution did, but the benefits of a stable Iraq as an ally
to the United States in the most volatile region of the world would be
a major blow to terrorism, al-Qaida, and Iran's religious extremists.
Let me be clear: Our national security interest for the near and
intermediate term is preventing chaos, genocide, and a regionwide war.
That is our interest there, that is why our troops are there, because
if they left, we could be facing far greater challenges, likely attacks
on the United States and potentially a regionwide war. Our Intelligence
Committee has long warned that precipitous withdrawal would create
chaos and those impacts. If we were to be driven out of Iraq on the
terms of terrorists and political timelines, terrorists from the Middle
East to Southeast Asia to Europe to Africa would be emboldened to
spread their fear, oppression of women, death and destruction, just as
they were emboldened when we failed to respond appropriately to
bombings of the USS Cole, Khobar Towers, embassies in Iraq, and the
1993 attack on the World Trade Center--all instances in which civilians
and servicemembers were murdered.
Despite General Petraeus's testimony, despite our intelligence
community warnings, and despite Secretary Gates's recent remarks, some
war opponents continue to want to cede defeat. They refuse to listen to
the advice of commanders. They ignore the consequences of a political
withdrawal and the problems about which the Intelligence Committee
warned.
I am very concerned about the amendment before us. I urge my
colleagues to think about it and then vote against it. This is an
amendment which would micromanage the war. Even a few of its supporters
have been forthright enough to admit that it is a backdoor way of
achieving what they want, which is defeat in Iraq by a premature
withdrawal, because they know the chaos this would spread. They know
what would happen if we tried to implement this into law. As Secretary
Gates said on FOX News, such congressional meddling would mean force
management, make problems that would be extremely difficult, and affect
combat effectiveness and perhaps pose greater risk to our troops. He
said when lawmakers intrude into this process, they could produce gaps
during which one unit pulling out would not be immediately replaced by
another, and as a result, they would have an area of combat operations
with no U.S. forces, and the troops coming in would be at greater risk.
Contrary to the notion of its supporters that the measure would give
the Armed Forces relief, it actually might force greater use of the
National Guard and reservists. I am concerned about the National Guard
and Reserve; they have been overstressed. I am concerned about our
military; they have been overstressed. You know what happened? After
the first gulf war in the 1990s, we slashed the size of our military.
We slashed it far too much. The President recommended; the Congress
went along with it. We slashed it too far. We are starting to rebuild.
We have a very dangerous world. We need to have a military ready to
respond.
Let me talk about the troops. I hear from a lot of them. I hear from
my son, who is on his second tour in Iraq. He is a sniper platoon
commander. He says he can only speak for 30 or 40 marines, but the one
thing they understand is they want to complete their mission. They want
to come home. Sure, they would like to be home. But they signed up for
a mission. They don't want to withdraw, see all their contributions and
sacrifices go for naught. They know that meddling in the war strategy,
cut and withdrawal, cut and jog, or tying up the management of the war
would be a disaster. They know that al-Qaida and the enemy is hoping
that will happen.
This amendment is not as straightforward as cutting funding or
withdrawing the troops, but it is perhaps more dangerous. That is why I
urge my colleagues to stand up for the men and women who might be put
at greater risk, and our national security interests, by refusing the
amendment.
I want to talk about another part of this debate that is very
shameful. MoveOn.org's attack depicting General Petraeus as ``Betray
Us'' should be condemned, period.
It was an attack on the integrity of an intellectual, distinguished,
and patriotic officer serving his Nation during a time of war, with the
confidence of his troops behind him.
Make no mistake about it, discussing and condemning MoveOn.org's ad
is not a sideshow or a distraction. In fact, it is paramount in a time
of war we condemn the trashing of decorated military officers highly
respected by their troops, and this one unanimously approved by this
body, in order to achieve a political objective.
Marty Conaster, commander of the American Legion said:

As Americans, we all have a duty to speak up when our
uniformed heroes are slandered.

He went on to say:

The libelous attack on a general is not the American
Legion's primary concern about the anti-war movement. Our
concern is for the private, the sergeant, the lieutenant and
the major. If a distinguished general could be attacked in
such a manner, what can the rank-and-file soldier expect when
he or she returns home?

Sadly, the MoveOn.org ad is emblematic of a broader struggle by
opponents of the war to muzzle other experts and discredit their views.
It is this tactic of desperation and, ironically, one that attempts
to distract the American people from the realities of the threat our
Nation and our allies face from terrorism.
Sadly, Mr. Presiident, this effort is being used to attack another
distinguished military man approved by this body. It has to do with the
field of intelligence, and this is another area we learned is
critically important on our Intelligence Committee delegation to Iraq
in May.
When we were in Iraq, one of our key generals expressed his great
frustration that old provisions of the FISA law were blocking him from
keeping our troops in the field safe. Well, I have some good news on
that front, and I

[[Page S11716]]

thank the Members of this body on both sides of the aisle who, on a
bipartisan basis, approved the Protect America Act on August 3 and
August 4. That has opened up the lines of communications, the lines of
intelligence for our troops in the field, for our safety here at home
and homeland security. It has been very important and it eliminated a
blockage that was critical.
Now, after we passed it, I have heard some critics, most recently,
notably, in the House who have been trying to rewrite history and say
the law did things it did not do. They have tried to discredit ADM Mike
McConnell, the Director of National Intelligence. I am compelled to set
the record straight.
As vice chairman of the Senate Intelligence Committee and sponsor of
the Protect America Act, I was the lead negotiator during the final
hours as Congress acted to pass a critical short-term update to our
Nation's law governing terrorist surveillance. As one who was there, I
dispute the misinformation being spread by some, and largely those who
were not there, and I will outline the events as they occurred. For my
colleagues and members of the press who are interested in the other
side of the story, here is what happened.
First, the timeline of events:
In January, the President announced his Terrorist Surveillance
Program was being put under the FISA Court, the Foreign Intelligence
Surveillance Act Court. Our Director of National Intelligence, the DNI,
subsequently stated that after that time the intelligence community
lost a significant amount of its collection capability because of the
fact that the law, as interpreted, did not square with the technology
now in place and it was imposing unwarranted limitations we had not had
when we were collecting radio communications, and he asked the Congress
to modernize FISA sooner rather than later.
As I said, when we toured Iraq in May, our Joint Special Operations
Commander, LTG Stan McChrystal, told us the blockage in electronic
surveillance by FISA was substantially hurting his ability to gain the
intelligence he needed to protect our troops in the field and gain an
offensive advantage.
On April 12, the DNI sent his full FISA modernization proposal to
Congress. On May 1, DNI McConnell presented it in open session to the
Senate Intelligence Committee. Immediately following the admiral's
testimony, I urged that our committee mark up FISA legislation. The
reply was until the President turned over certain legal opinions from
the surveillance program, Congress would not modernize FISA.
That Congress would hold American security hostage to receiving
documents from a program that no longer existed was disheartening. We
have received an inordinate amount of documents from the Department of
Justice and the DNI. Yet I do not dispute the desire or the right of
Members to seek a few important documents from the executive branch. In
fact, I have joined in requesting those. But I did disagree with
holding up FISA modernization when those documents are not necessary to
do that. Now, despite the urging from the DNI and knowing this outdated
law was harming our terrorist surveillance capabilities, for more than
3 months Congress chose to do nothing.
In late June, Admiral McConnell briefed Members of the Senate again
urging us to modernize FISA. Finally, his pleadings began to gain
traction.
In mid-July, Members of Congress agreed to discuss a short-term,
scaled-down version of FISA to protect the country for the next few
months before we could address comprehensive reform this fall. Admiral
McConnell immediately sent Congress his scaled-down proposal.
Over the next week, Admiral McConnell was given nearly a half dozen
versions of unvetted proposals from various congressional staffs across
Congress and then pressed for instant support of these proposals. The
admiral returned a compromise proposal, including some of the
provisions requested.
Finally, we in this body on August 3 and in the House on August 4
passed, on a bipartisan basis, the Protect America Act.
I am pleased that the admiral and I could include in the measure we
passed several important changes suggested by members of the majority
party. We recognized this legislation still needs to be clarified, but
it allowed the intelligence community to collect very important foreign
intelligence targeted at foreign sources to keep our troops and
Americans here at home safe.
After the passage of the act, I spoke with a number of members of the
Senate Intelligence Committee, and I am confident now that we will be
able to craft an improved, permanent version of FISA. So there is good
news on that front. But now that I have laid out the timeline of sorts,
I do need to address some recent attempts, primarily in the other body,
to discredit our Director of National Intelligence, Admiral McConnell.
As I said with General Petraeus, unfortunately, the M.O. for some is
attacking military leaders. Here, as others attacked Petraeus, they are
attacking personally another honorable man. I am disappointed with
those who are charging Admiral McConnell with partisanship and
duplicity for their own political gains.
Despite accusations to the contrary, Admiral McConnell never agreed
to any proposal he had not seen in writing by congressional staff.
There were indeed several dialogs where concepts were discussed, but I
noted that Admiral McConnell at the end of every discussion said he
needed to see and review with these leaders the congressional language
in writing before he could support it. It is a good thing he objected
because I was present when several elements of FISA were agreed to that
the DNI and I wanted but subsequently and notably were absent from
congressional proposals later sent to the admiral.

Unfortunately, this bait-and-switch during negotiations was not the
only disappointment. There were efforts by some to circumvent the
committee process and craft legislation behind closed doors without
input from the relevant committee or from the minority side of the
aisle. Even as the vice chairman of the Intelligence Committee, I was
excluded from most of the key meetings. Not only was I excluded, but
most members of the Intelligence Committee, Republicans and Democrats,
were left out of the process. Despite attempts to leave out key Members
of Congress during the last negotiations, I think we are on the right
track. I am confident the Senate Intelligence Committee can pass
comprehensive FISA reform, and we have engaged in very positive and
encouraging talks, not just--obviously, I have talked with the
chairman, Chairman Rockefeller. The Democrats and Republicans in the
Senate are making great progress. We are working on the issue, and I
have confidence that colleagues on both sides of the aisle can come
together on this issue.
Unfortunately, again, today, another Member of the House is trying to
demonize to the American public the Protect America Act that we passed
in August, saying the bill went too far and was a power grab of
executive power. They wrongly claim the law allows warrantless searches
of Americans' homes, offices, and computers and reduces the FISA Court
to a rubberstamp. That is absolutely flat dead wrong.
While I agree, as I said earlier, the law can be improved, clarified,
nothing could be further from the truth. Quite the opposite, the law
gave the FISA Court a greater role than it was ever meant to have when
FISA was passed in 1978. This Protect America Act in no way allows for
warrantless physical searches of Americans' homes, offices, and
computers. This sort of inaccurate fear-mongering should have no place
in this debate.
I am counting on cooler heads to prevail in the Senate Intelligence
Committee, and in the committee we are making real progress. I think
with the members we have on our committee, we have a great chance to
get an even better bill forging bipartisan solutions that will deal
with some questions probably not contemplated when the initial proposal
came up to us. We have a lot of different opinions, but all our members
want to do what is best for national security and best ensures privacy
protections. The key is working out just the right balance, and I am
optimistic we will do so.
As we saw in the strong bipartisan support for the Protect America
Act,

[[Page S11717]]

we can act in a bipartisan manner to protect terrorist surveillance--a
critical early warning system--while protecting the civil liberties of
ordinary Americans.
Mr. President, I ask unanimous consent to have a brief editorial from
Investor's Business Daily called ``Mettle Vs. Meddle,'' referring
essentially to the amendment before us, printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Mettle Vs. Meddle

After last year's elections gave them a slim majority,
Senate Democrats enthusiastically endorsed President Bush's
choice of Robert Gates to replace Donald Rumsfeld as
secretary of defense--with not a single one of them voting
against his nomination.
As Senate Armed Services Chairman Carl Levin, the Democrat
from Michigan, wished Gates well at that time, he said he
hoped the new Pentagon chief would ``speak truth to power.''
Gates certainly did that on Fox News Sunday--telling the
powers that be in Congress the truth about their impending
attempts at micromanaging the war in Iraq. Gates called the
Democrats' plan to require that troops spend as much time at
home as in the field ``pretty much a back-door effort to get
the president to accelerate the drawdown so that it's an
automatic kind of thing, rather than based on the conditions
in Iraq.'' While on Fox News, Gates also said:
``The president would never approve such a bill,'' and the
secretary would personally recommend a veto.
Such congressional meddling would ``force management
problems that would be extremely difficult and . . . affect
combat effectiveness and perhaps pose greater risk to our
troops.''
Intrusions by lawmakers would produce gaps during which ``a
unit pulling out would not be immediately replaced by
another, so you'd have an area of combat operations where no
U.S. forces would be present for a period, and the troops
coming in would then face a much more difficult situation.''
Contrary to the Democrats' notion that the measure would
give the armed forces relief, it actually might force greater
use of the National Guard and reservists.
Gates stressed that ``the consequences of getting this
wrong--for Iraq, for the region, for us--are enormous.''
He added: ``The extremist Islamists were so empowered by
the defeat of the Soviet Union in Afghanistan, if they were
to be seen or could claim a victory over us in Iraq, it would
be far, far more empowering in the region than the defeat of
the Soviet Union.''
Compare that sober warning with House Defense
Appropriations Subcommittee Chairman John Murtha's appearance
at the National Press Club on Monday, in which the
Pennsylvania Democrat blustered that Iraq would cost as many
as 50 House Republican seats in the 2008 elections.
Gates and his boss are obviously interested in America and
the rest of the free world winning the global war on terror.
The war Murtha and so many of his fellow top Democrats seem
interested in winning is the political one being waged in
Washington.

Mr. BOND. Mr. President, I thank the Chair and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Virginia is
recognized.
Mr. WEBB. Mr. President, I would like to emphasize yet again the very
minimal adjustment this amendment is asking for in terms of policy and
to also emphasize again it is well within the Constitution and within
precedent--article I, section 8.
The precedent is a similar phenomenon as to the issues that are
facing us today, just on the other side of the deployment schedule,
from the Korean war. When our troops were being sent into harm's way
without proper training, the Congress stepped in. It overruled an
administration that was doing that. It set a minimum standard of
deployment. We are attempting to do the same thing on the other end.
There seems to be a great deal of question in our national debate as
to what exactly ``dwell time'' means. I was in a discussion with
Lieutenant Colonel Martinez, who is an Army fellow in the Senate who
has extensive command experience at all levels up to the battalion
level, as I recall, in many different theaters, just trying to put
together notionally what goes on when military units are home after
deployment.
So I have an outline, Mr. President, which I ask unanimous consent to
have printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Major Tasks That Occur During A One Year Dwell Time

Month 1: One week-two weeks to redeploy the BCT from
theater; ``Re-integration'' training; normally 2-3 weeks
long; Single Soldier Barracks reassignments.
Month 2: 21 days to 30 days ``Block Leave''; Activation of
Headquarters; Rear-Detachment Headquarters disbanded; Begin
recovery of equipment that was shipped from OIF or OEF.
Months 3-5: Recovery operations of equipment; Personnel
receive orders (if they haven't already) for reassignment--
needs of the Army (Recruiting, Drill Instructor, Instructors
at Training Centers); for individual requirements; and to
fulfill reenlistment options; Newly assigned personnel
arrive--intent is to create a one-for-one equation for
losses.
Month 6: Individual training, crew training, team training,
squad-level training; very limited platoon level training;
Major reset and refit of major pacing items of equipment--
major weapon systems are enrolled into maintenance;
Leadership and key personnel receive plans and operational
guidance for pending deployment (D-180); Small core of
personnel deploy to Iraq or Afghanistan for a 10-day
reconnaissance; logisticians deploy to Kuwait to inspect
pending stocks; Deployment orders lock in personnel.
Month 7: Platoon and company level training--limited
resources to conduct quality training; 2-3 weeks deployed in
the field; Deployment training continues--key leaders deploy
to a National Training Center (Fort Polk, Fort Irwin,
Hoensfel, GE); 2-3 weeks deployed to these centers;
Maintenance of critical weapon systems and equipment
continues.
Month 8: Leadership and Key Leaders tied into Command and
Control exercises and begin interfacing directly with units
in Iraq or Afghanistan--reverse training cycle (evenings) to
stay in touch with Baghdad and Kabul times-zones; Units begin
reporting combat readiness and deployment issues to DA;
Battalion (minus) collective training--2-3 weeks deployed to
the field; Maintenance of critical weapon systems and
equipment continues.
Month 9: Ship equipment to a National Training Center for
Mission Rehearsal Exercise; Ship equipment to theater; Short
block leave period (2 weeks).
Month 10: Brigade and Battalion level Mission Rehearsal
Exercise--3-4 weeks deployed (units at 75% strength, at
best).
Month 11: Advanced Party Personnel pack equipment and
depart; Final Non-deployment personnel are identified--unit
request for fills is submitted; other divisional units and
the Army begin to provide replacements; Main Body Personnel
pack equipment; Limited individual to squad level training
continues; Major equipment systems return to unit; inspected,
packed, shipped to theater as required or will be taken with
Main Body.
Month 12: Active Rear Detachment; Replacements continue to
arrive; Begin final packing; Deployment Training
(Administrative Tasks); Begin Deployment.

Mr. WEBB. But I would like to mention some points out of this
outline. It is a very good survey of the types of things our soldiers
have to do.
So put yourself in the mind of a soldier who has just finished a 15-
month deployment in Iraq. When they come home for a year, which is all
they get now after a 15-month deployment, they do not sit around and
get to know their family and have rest time. There is a little bit of
that, but month by month during these 12 months of dwell time before
they have to redeploy, these are the types of things they do:
In the first month, they have 1 to 2 weeks of redeployment from the
theater back home. That is a part of that first month. They have what
is called reintegration training for a couple weeks.
In the second month, there is ``block leave,'' but then they activate
the headquarters. They begin recovery of equipment that was shipped.
In the third through the fifth months, they have recovery operations
of their equipment. They have the requirement of bringing in newly
assigned people, the typical adjustment at the top and at the bottom
which requires a great deal of command supervision in terms of bringing
these people and assimilating them into the units.
In the sixth month, they have individual training, crew training,
team training, squad-level training, and begin platoon training. A
small core of their personnel at the top actually have to deploy back
to Iraq or Afghanistan for 10-day reconnaissance.
In the seventh month, they have more platoon and company-level
training, and 2 to 3 weeks out of that 1 month are out in the field.
In the eighth month, they have command and control exercises. They
have units beginning to report their readiness status to the Department
of the Army. They do collective training, just below the battalion
level. And 2 to 3 weeks, again, out of that month are in the field.
In the ninth month, they start shipping equipment, which is a 24/7
process, shipping equipment to a national training center, shipping
equipment back to

[[Page S11718]]

theater. The 10th month, they have rehearsal exercises, brigade and
battalion level. These are 3 to 4 weeks out of that one month where
they--and at this point these units are approximately 75 percent full
strength. So what happens then? You have a unit which is 75 percent
full strength which is going to deploy, and they start bringing people
in. They call it backfill. It is also predominant in the Marine Corps.
They start bringing people in who have been home, in many cases, less
than even the people in this unit.

The 11th month, you have the advanced party personnel leaving,
packing their gear and going. You have your final personnel being
selected. You go back to individual training, major equipment systems
returning to the unit, inspected, packed, and shipped to theater.
The 12th month, you activate rear detachments, you assimilate your
final replacements, and you deploy.
So that is the year, which is called dwell time after a 15-month
deployment. Obviously, what occurs after that 12-month cycle of dwell
time is another combat deployment.
So that is the situation we are addressing. That is the situation
that, in my view, we need to bring the Congress in as a referee. Why? I
will give you one example. When the Chief of Staff of the Army called
me to tell me they were going to 15-month deployment cycles several
months ago, moving from 12- to 15-month deployment cycles, I was
stunned. I said: How can you do this? How can you not stand up and
resist the notion that your troops are going to be deployed for 15
months with only 12 months at home? He said: Senator, I only feed the
strategy; I don't make the strategy. Yet when we had General Petraeus
before the Armed Services Committee and Senator Nelson of Florida asked
him about this dwell-time problem, he basically said: Talk to the Chief
of Staff of the Army. He is the person who gives us our people.
So when you have that kind of a situation, and this sort of activity
that goes on when people are arguably out of theater, we need a result.
We need a resolution. We need people who are going to stand up and say,
basically, however long you have been gone, you get that much back.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Arizona is
recognized.
Mr. McCAIN. Mr. President, I will take a minute to say to my
colleagues we have several speakers lined up, and if Senators would
come over and speak and also call as to whether you wish to speak and
how much time, because we, I think, are close to entering into an
agreement on speakers and also a time agreement so we can set a time
for the vote on the Webb amendment.
Mr. President, I ask unanimous consent that following the disposition
of the Webb amendment, that a side-by-side alternative to the Webb
amendment be considered, which is in keeping with the agreement--well,
I withdraw my request because I will wait until Senator Levin comes so
there is no misunderstanding, except to say we do intend, after the
disposition of the Webb amendment, to propose a side-by-side amendment
which then we, I hope, could act on quickly because it is basically the
debate we have been having. There is also the habeas amendment pending,
as I understand it, and negotiations I think are still going on with
regard to that issue. I hope we could get that resolved, and then we
will try to nail down the number of amendments so we can address the
issue of Iraq and associated amendments so we can then move forward
with the rest of the DOD authorization bill.
I will very soon have conversations with Senator Levin, but in the
meantime, if there are those on either side who wish to speak on this
amendment, please make their wishes known, and the length of their
statement, so we can begin to put together a unanimous consent
agreement, which would then allow for a vote on the Webb amendment. I
say this after having had discussions with Senator Webb on the issue.
I wish to make one additional comment. Dr. Kissinger had a piece in
the Washington Post on Sunday which I had printed in yesterday's
Record. I also commend to my colleague an article by Frederick W. Kagan
entitled ``A Web of Problems.''
Mr. McCAIN. I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Arizona is
recognized.
Mr. KYL. Mr. President, I will be brief. I know there are others who
wish to speak. I would like to reiterate what Senator McCain and
Senator Warner have said with regard to the pending amendment. All of
us have the utmost regard for the junior Senator from Virginia and his
intentions with respect to this amendment, but it is also true that
despite those best intentions, there would be very unfortunate
consequences should his amendment be adopted. It has been well
presented by a number of my colleagues as to what those consequences
are. Secretary Gates himself has personally responded to the
possibility of such an amendment being adopted by noting the adverse
consequences for his ability and those of the military commanders to
deal with the constraints that such an amendment would place on their
ability to deal with individuals and units being deployed.
Part of the problem, as I understand it, is the amendment applies not
just to the units of military combat but the individuals within those
units because it relates to the specific amount of time those
individuals spend back home either in training or at rest while they
are not deployed. Part of the problem, as Secretary Gates personally
related to me, is the fact that when you get ready to send a unit
abroad into theater, especially for a combat mission, you want them to
be not only trained together but prepared to do everything our military
does in the middle of combat with a unit-cohesive approach to
protecting their friends and carrying out their mission. They do this
by training together and fighting together.
The concern expressed was that if you get into a situation where
Congress imposes a law on the Executive, which is then binding on the
military commanders about the exact amount of time that is permitted
for troop rotation, that the individuals responsible for putting these
units together are going to have to review each and every member within
that battalion, for example, to determine whether the appropriate
amount of time back home has been spent as opposed to in theater and,
therefore, to the extent they do not meet the criteria, pull them out
of the units so others then can be plugged in. This may be on the eve
of deployment. It could be at any point. The result is you do not have
the kind of unit cohesiveness you would otherwise. You have people who
have been plugged into military units who should have been training
with them all along, so when they go into combat, they fight as one.
That could put forces at risk.
In addition to that, because you will have to draw people from other
places, the concern is it could put greater strain on the Guard and on
the Reserve, filling in for slots that are vacant from Active-Duty
personnel. The Secretary has spoken to this, as I said. It has been
well presented by Members on the floor as to what his concerns are.
The last point I would mention, and it is not a small point, is the
attempt by Congress to dictate very specific terms of operational flow
of individual members of our military, which is clearly not within the
purview of Congress's jurisdiction. I know there has been an attempt to
make an argument that the Constitution does not prohibit this. You have
to stretch pretty far as a lawyer to make that argument. It is clear
under the Constitution the Founders thought it would be best if the
President, the Executive, be the Commander in Chief of the military
forces. If anything should fall within his purview as Commander in
Chief, and then within the chain of command to his military commanders,
it should be the individual soldiers, sailors, airmen, and marines
fighting in theater, it should be the individual--the decision of those
commanders with respect to the deployment of those individuals. That is
about as specific and personal as you can get with respect to a
Commander in Chief's jurisdiction over these fine men and women who
serve for us.
To suggest that Congress actually has the authority to override or to
bind any future Commander in Chief in this

[[Page S11719]]

regard I think is to stretch the Constitution way beyond what the
Founders thought and way beyond what makes sense. Somebody has to be in
charge. You can't have all of us, as smart as we are, as ``armchair
generals'' deciding all of these details of deployments with respect to
the members of our military. It does not make sense. As Secretary Gates
said, it could put our folks at risk. Why would we want to do anything
that might put them at risk? I know this isn't the intent of the author
of the amendment, but it is very clear that one of the unfortunate
consequences of this is the indirect--the backdoor--influence on the
amount of time we can spend in this surge.
It is probably true that as a result, were this amendment to be
adopted, the way the surge is carried out, the time within which troops
could be redeployed home will be adversely affected. That is an
unfortunate consequence of the amendment.
So for all these reasons, I hope my colleagues will be very careful
about binding future Presidents, about getting very close to the line
in terms of constitutional policy--I think going over the line--and
intruding into an area that could put our forces at risk. Take the
concerns of the Secretary of Defense--whom I think all of us have a
great deal of confidence in--take those concerns into account. Don't
dismiss them. They are very real. I think he has expressed them in a
most serious way.
The ACTING PRESIDENT pro tempore. The Senator from Arizona is
recognized.
Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator
from Washington be recognized for 14 minutes and then followed by the
Senator from Kentucky for 12 minutes; and then I see the Senator from
Montana on the floor, so the Senator from Montana for 5 minutes,
followed by the Senator from Connecticut--this is going back and forth
on both sides--for 14 minutes. I hope by then we will have been able to
have the speakers and their times together so we could set a limit on
this debate when everybody is heard.
The ACTING PRESIDENT pro tempore. Is there objection? Without
objection, it is so ordered.
Mr. McCAIN. I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Washington is
recognized.
Mrs. MURRAY. Mr. President, I thank the Senator from Arizona for
helping us work through that.
More than 4\1/2\ years into this war in Iraq, our troops are
stretched thin, we all know the equipment is deteriorating, and the
patience of the Nation is wearing out. We have now seen 3,700 of our
servicemembers die and thousands and thousands more have been injured.
Month after month, our fighting men and women are pushing harder and
harder and our troops are leaving their loved ones behind for months
and years and putting their lives on the line without complaint. We owe
them the best treatment and the best training possible. Unfortunately,
the Bush administration has continually fallen short in doing that.
Our country is home to some of the finest fighting forces in the
world, and we can all be very proud of that. We need our military to
remain the best trained, the best equipped, and most prepared force in
the world. Tragically, however, the war in Iraq and the President's use
of extended deployments are now undermining our military's readiness.
The current deployment schedule hampers our ability to respond to
threats around the world. We know it causes servicemembers to leave the
military service early. It weakens our ability to respond to disasters
at home. It unfairly burdens family members and intensifies the combat
stress our servicemembers experience.
We do need to rebuild our military, and the first step is giving our
fighting men and women the time they need at home to prepare and train
for their next mission. So that is why I am on the floor today, to
speak to the readiness challenges that threaten our military strength
and ultimately our Nation's security.
Two months ago, I came to the floor and spoke those very same words
in my effort to support the Webb amendment--virtually the same measure
we are now, this afternoon, considering. Member after Member did the
same, pleading with our colleagues to join us in this most basic effort
to truly support our troops. Unfortunately, even though 56 Senators
voted in favor, it was blocked by the Republican Senators. Now since
that time, 2 months later, more of our troops have died, more have been
wounded, and more have been subjected to 15-month deployments, without
hope for the same amount of time at home. Meanwhile, the administration
has told us 15-month deployments will continue, and they have
maintained their plan to keep 130,000 troops in Iraq.
Today we have another chance--another chance to support our troops,
to support their families, and to return some common sense to our troop
rotations. We need a few more courageous Senators to join us. Today I
hope they will.

Sadly, our forces are being burned out. Many of our troops are on
their third and even fourth tours in Iraq and Afghanistan. Months ago,
the Department of Defense announced that tours would be extended from
12 months to 15 months. On top of all that, they are not receiving the
necessary time at home before they are sent back to battle.
This is not the normal schedule. It is not what our troops signed up
for. And we in Congress--those of us who represent these people--should
not simply stand by and allow our troops to be pushed beyond their
limits like this.
Traditionally, active-duty troops are deployed for 1 year and then
they rest at home for 2 years. National Guard and Reserve troops are
deployed for 1 year and they rest at home for 5 years. But that, as we
know, is certainly not the case today. Currently, our active-duty
troops are spending less time at home than they are in battle, and
Guard and Reserve forces are receiving less than 3 years rest for every
year in combat.
With the increasing number and length of deployments, this rest time
is even more critical for our troops. Unfortunately, though, our forces
are not receiving the break they need, and that increases the chances
that they become burned out. But this administration has decided to go
in the other direction, pushing our troops harder, extending their time
abroad, and sending troops back time and again to the battlefield.
The current rotation policy not only burns out servicemembers, but it
hurts our military's ability to respond to other potential threats.
For the first time in decades, the Army's ``ready brigade,'' that is
intended to enter troubled spots within 72 hours, cannot do so; all of
its troops are in Iraq and Afghanistan.
The limited time period between deployments also lessens the time to
train for other threats. Numerous military leaders have spoken to us
about this problem.
GEN James Conway said:

. . . I think my largest concern, probably, has to do with
training. When we're home for that seven, eight, or nine
months, our focus is going back to Iraq. And as I mentioned
in the opening statement, therefore, we're not doing
amphibious training, we're not doing mountain-warfare
training, we're not doing combined-armed fire maneuvers, such
as would need to be the case, potentially, any other type of
contingency.

Those were not my words; those were the words of GEN James Conway,
who spoke before the Senate Armed Services Committee in February of
this year.
GEN Barry McCaffrey said that because all ``fully combat ready''
active-duty and Reserve combat units are now deployed in Iraq and
Afghanistan, ``no fully-trained national strategic Reserve brigades are
now prepared to deploy to new combat operations.''
This current deployment schedule is making us less ready for other
contingencies we need to be ready for. It is also making us less secure
at home. The current rotation policy has left our Guard units short of
manpower and supplies, and it has severely hindered their ability to
respond to any kind of disaster they might face here at home.
For years, those kinds of problems were the exception, not the rule.
But I fear that the balance has shifted. Recently, USA Today reported
that National Guard units in 31 States say 4 years of war in Iraq and
Afghanistan have left them with 60 percent or less of their authorized
equipment. Last month, LTG Steven Blum said the National Guard units
have 53 percent of the equipment they need to handle

[[Page S11720]]

State emergencies, and that number falls to 49 percent once Guard
equipment needed for war, such as weapons, is factored in. In fact,
Blum said:

Our problem right now is that our equipment is at an all-
time low.

That is deeply concerning to a lot of us who worry about national
disasters in our States. Out in the West, where I live, we face forest
fires; along the gulf coast, we have seen the destruction of hurricanes
this season; and in the Midwest, entire towns can be decimated by
tornadoes in minutes. So we are deeply concerned about our Guard and
Reserve being ready for a disaster here at home.
This problem is about more than equipment. It is about retention
rates. It is about real people and real families. We all know military
life can be very tough on our troops and their families. They go for
months, and sometimes years, without seeing each other. Our troops--
these men and women--need adequate time at home to see their newborns,
to be a part of their children's lives, to spend time with their
husbands or wives, and to see their parents. This current rotation
policy decreases the time families are together, and that places a
tremendous strain on everyone. Our troops, who are facing these early
deployments and extended tours today, have spoken out. When the tour
extensions and early deployments were announced, our troops themselves
expressed their displeasure.
In Georgia, according to the Atlanta Journal-Constitution:

Soldiers of a Georgia Army National Guard unit were hoping
to return home in April, but instead they may be spending
another grueling summer in the Iraqi desert. At least 4,000
National Guard soldiers may spend up to 4 extra months in
Iraq as part of President Bush's troop increase announced
last month.
SGT Gary Heffner, a spokesman for the 214th, said news of
the extension came as a ``little bit of a shock'' to the
Georgians.

In the 1st Cavalry Division, according to the Dallas Morning News:

Eighteen months after their first Iraqi rotation, the 2nd
Battalion, 5th Cavalry regiment, and the last of the Fort
Hood, Texas-based 1st Cavalry Division, returned to Iraq in
mid-November.

These are the words of Brandon Jones, a veteran from my State of
Washington. He testified before a field hearing on mental health care
that I held in Tacoma last month. He said:

In November 2003, I was called to full-time duty with the
81st Brigade. I was given very short notice that my unit was
being mobilized. In that time, I had to give up my civilian
job--an income loss of about $1,200 a month--and my wife had
to drop out of classes at Olympic College to care for our
children.
I went from living at home and seeing my children on a
daily basis to living on base--just a mile from home--and
visiting my children periodically. To my kids, I went from
being their dad to the guy who drops by the house for a
visit once in a while.
The 3 months of mobilization before my deployment were very
stressful. We struggled financially. Although we reached out
for help, we were told that the only financial resources
available were strictly for active duty soldiers at Fort
Lewis. It wasn't until we were threatened with eviction and
repossession of our car that my wife was able to obtain a
small amount of assistance generally reserved for active duty
soldiers. Our families helped us make up the rest--about 60
percent of what we were in need of.
The stress made it difficult for my wife to keep a positive
attitude, for our children to feel comfortable, and for me to
concentrate on the mission ahead of me. When my wife and I
reached out for marriage counseling prior to my deployment,
we were made to feel that the few sessions we were given were
a favor to us and that we were taking up a resource meant for
active duty soldiers from the base.
Let me remind you that all of this happened before I was
even deployed.

As Brandon said, that was before he was even deployed. Just imagine
the sacrifice these families have made when they go through these 15-
month deployments. To me, it is very clear that we need to pass the
Webb amendment. We hear a lot of rhetoric on the floor about supporting
our troops, but I believe this amendment is the opportunity we need to
end the rhetoric and start with action.
Troops should be at home for the same amount of time as they are
deployed. That seems to me like a basic commonsense requirement. I
applaud our colleague from Virginia for being a champion for our troops
and for crafting this bipartisan measure that he and the entire Senate
can be proud of.
Our troops have sacrificed a lot. They have already gone above and
beyond the call of duty. We need to institute a fair policy for the
health of our troops, for the health and well-being of their families,
and for our Nation's security and our ability to respond to disasters
here at home. This amendment does all of those things. I urge our
Senators to support this amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Arizona is
recognized.
Mr. McCAIN. Mr. President, the Senator from Michigan, the chairman,
will be recognized to point out that we will have a side-by-side
amendment, which I will be prepared to introduce soon. We also wish to
move forward with speakers so we can set a time for a vote on the Webb
amendment, in keeping with the wishes of the respective leaders.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Michigan is
recognized.
Mr. LEVIN. Mr. President, I discussed this with the Senator from
Arizona. I ask unanimous consent that after the current lineup of
speakers, Senator Brown be recognized for up to 10 minutes, Senator
Stabenow be recognized for up to 10 minutes, and then, as the Senator
from Arizona mentioned, we will try to see if in the next few minutes
we are able to come up with an agreement to schedule a vote--probably,
I guess, around 5 o'clock, for the convenience of Senators.
The ACTING PRESIDENT pro tempore. The Senator from Kentucky is
recognized.
Mr. BUNNING. Mr. President, I rise today to voice my strong objection
to the Webb amendment. I voted against this amendment when it was
offered 2 months ago, and I will vote against it again today.
I will not support this slow-bleed strategy from Iraq. It ties the
hands of our commanders. I cannot remember a time in history when the
Congress of the United States has dictated to our commanders on the
ground how to conduct their mission to this extent.
This is an extremely dangerous amendment. The junior Senator from
Virginia would like for you to believe it helps our troops and that a
vote in support of his amendment is a vote to support our troops.
Wrong. Nothing can be further from the truth.
This amendment would be a nightmare to execute. It says a soldier
must spend 1 day at home for every day the soldier is deployed. That
may sound reasonable on its face, but anyone who knows how the military
plans its missions knows it will be a logistical roadblock for our
military planners.
The problem is when a unit returns from a deployment, its personnel
are often reassigned to other units and other assignments. Divisions,
brigades, battalions, and units don't stay together forever. In a
military of millions of people, there are a lot of people reassigned
each day.
This amendment would essentially require the Army and Marine Corps
staff to keep track of how long each service man or woman has spent in
Iraq or Afghanistan, how long they have been at home, how long their
unit was deployed, and how long it was home. This is absurd. This would
mean pulling soldiers out of units scheduled to deploy if the
servicemembers did not have enough dwell time.
This breaks up leadership and soldier teams, the formations of which
are the purpose of the Army and Marine training system. Requiring the
President to issue a certification to Congress to waive this
requirement for every individual servicemember who might be affected by
this is even more absurd.
This amendment takes tools and flexibility away from our commanders
on the ground, such as General Petraeus. That is why it is being
offered today.
Commanders make estimates about the forces they need based on
assumptions about current and future threats. If a commander in Iraq or
Afghanistan concludes that some event might require the deployment of
additional forces to his theater, this amendment would restrict the
units and personnel that could be sent.
The junior Senator from Virginia claims to be concerned for the
welfare of our troops. Not one Member of this body is opposed to troops
getting rest after a long deployment. But we need to be equally
concerned about the dangers our soldiers face when they do not

[[Page S11721]]

have the necessary resources and reinforcements available to do their
mission. This is the true purpose of this amendment. It cripples the
ability of Secretary Gates, General Petraeus, and our other commanders
on the ground to accomplish their mission and forces a drawdown of our
troops in Iraq and Afghanistan.
I will not support this strategy out of Iraq. It puts troops in
harm's way, restricting the resources and reserves they need to
successfully accomplish their mission.
This is not supporting our troops. It is wrong to cloak a troop
pullout amendment in language that relates to troop rest, but that is
exactly what this amendment does.
This week I had the pleasure of visiting with two brave Kentuckians
who recently served in Iraq. They came to me directly to ask me to vote
against the Webb amendment. These Kentuckians know the sacrifices their
fellow soldiers and families make. They know and understand the
importance of rest back home. They know the strains of war. They have
experienced the heat of Iraq and the tragedy of knowing that some of
their fellow soldiers never made it home.
But these two Kentuckians also know the intent of this amendment.
They know why it was offered, and they do not want to tie the hands of
the military so we are forced to leave Iraq and Afghanistan before the
mission is completed. That is why they came from Lawrenceburg, KY, and
Hebron, KY, to ask me to oppose the Webb amendment.
It is not Congress's role to mandate individual soldiers and unit
deployments. I know the Democrats like to try to micromanage the war,
but I am not the Commander in Chief and neither are any of my
colleagues across the aisle. I want to remind everyone in this body of
this fact.
If you want to truly support our troops, then vote against the Webb
amendment. It was defeated 2 months ago on the Senate floor, and I can
only hope it will be defeated again today.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Montana is
recognized.
Mr. TESTER. Mr. President, I rise in support of the Webb amendment. I
am pleased to be a cosponsor of this amendment. Much has been made
about this amendment and the well-being of our troops and their
families. Make no mistake, this amendment is about ensuring that we do
not do permanent damage to the military's most valuable asset--its
people.
Congress must make the health and well-being of our men and women
overseas a priority. We know multiple deployments with short periods of
rest back home raise the incidence of PTSD. Studies have shown that the
likelihood of a soldier being diagnosed with PTSD rises by 50 percent
when he or she is on a second or third deployment.
We know multiple deployments are causing a massive strain on our
junior officer corps. Earlier this year, the Army's Deputy Chief of
Staff told Congress these officers are getting out of the Army at
nearly double the rate that the Army says is acceptable. That is why
until this war, we have always given our active-duty soldiers a ratio
of 2 days at home for every day in combat, and we have always given the
National Guard and Reserve 5 days at home for every day in combat. That
has been the standard until this war.
That is why the National Military Families Association supports this
amendment. That is why the Military Officers Association of America
supports this amendment. The Military Officers Association says:

If we are not better stewards of our troops and their
families . . . we will be putting the all-volunteer force at
unacceptable risk.

I urge my colleagues to listen to what our officers and their
families are saying through their support of the Webb amendment.
As my colleagues know, I am a farmer; I am not a military expert. But
I believe and the people of my State believe in no uncertain measure
that we need to continue to have the strongest military in the world,
not only today, not only 6 months from now, but 6 years from now as
well.
The good news is we have a strong military. I represent 3,500 Air
Force personnel, more than 300 of whom are serving in Iraq and other
places around the world today. I represent another 3,600 Guardsmen,
many of whom have spent a tour or two in Iraq. I can tell my colleagues
that these people are the best in the world at what they do, and I am
proud to represent them.
But the bad news is what I am hearing is we are in danger of losing
too many young leaders in our military today who are leading a platoon
but whom we will be relying on to lead brigades and entire divisions in
the future.
I know some people on both sides of the aisle have raised the
question of how this measure will impact the schedule for the surge
General Petraeus has outlined. The fact is, even if this amendment
becomes law, the Pentagon would still have another 4 months to prepare
for the change in policy, and if there is a national emergency, there
is an opportunity for even more time. The fact is, this amendment will
have a much greater impact on tomorrow's military than it will impact
on the military surge.
I believe we need the Webb amendment to ensure that we maintain a
strong military today, tomorrow, and for years to come.
I congratulate Senator Webb for this amendment. This has been a good
debate. For the most part, it has been thoughtful and respectful. There
have been differences of opinion, but it is time to allow this measure
to have an honest vote before the Senate. Let's not simply debate
whether to debate this amendment. Let's have an up-or-down vote on the
measure. Our troops, their families, and the American people deserve
nothing less.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Sanders). The Senator from Connecticut has
14 minutes.
Mr. LIEBERMAN. Mr. President, I rise to respectfully speak against
the amendment offered by my colleague from Virginia.
Let me put this in context, as I see it. One week ago, the commander
of our military forces in Iraq and our top diplomat in Baghdad returned
to Washington to address the Members of this Congress. What General
Petraeus and Ambassador Crocker offered us last week was not hype or
hyperbole but the facts. They offered us the facts. What we heard from
them was reality--hard evidence of the progress we have at last begun
to achieve over the past 8 months--progress against al-Qaida, progress
against sectarian violence, progress in standing up the Iraqi Army,
progress that all but the most stubborn of ideological or partisan
opponents now acknowledge is happening.
What we also heard from General Petraeus last week was a plan for the
transition of our mission in Iraq which he has developed, together with
our military commanders on the ground, that builds on facts on the
ground, not on opinions over here, that builds on the successes our
troops have achieved on the ground which will allow tens of thousands
of American troops to begin to return home from Iraq starting this
month.
So the question now before the Senate is not whether to start
bringing some of our troops home. Everyone agrees with that point.
Beginning this month, some of our troops will be coming home. The
question before the Senate now is whether we are going to listen to the
recommendations of our commanders and diplomats in Iraq, or instead
whether we will reject them and try to derail the plan they have
carefully developed and implemented and that is working. The question
is whether we build on the success of the surge and the strategy of
success led by General Petraeus, or instead whether we impose a
congressional formula for retreat and failure.
I believe the choice is clear because we have too much at stake for
our national security, our national values, and most particularly, of
course, freedom is on the line and the outcome in Iraq. Are the victors
going to be the Iraqis with our support and the hope of freedom and a
better future for them or are the victors going to be al-Qaida and Iran
and Iranian-backed terrorists? That is the choice. It is in that
context that I believe the Webb amendment is a step in precisely the
wrong direction. That is its effect.
The sponsors of the amendment say they are trying to relieve the
burden on our men and women in uniform. I, of course, take them at
their word. They

[[Page S11722]]

have an honorable goal that all of us in this Chamber share. It is not,
however, what the real-world consequences of this amendment will be.
On the contrary, Secretary of Defense Bob Gates has warned us in the
most explicit terms that this amendment, if enacted, would have
precisely the opposite effect that its sponsors say they desire. It
would create less security, more pressure on more soldiers and their
families than exists now.
As many of my colleagues know, Secretary Gates is a man who chooses
his words carefully. He is a former member of the Iraq Study Group. He
is a strong believer in the need for bipartisan consensus and
cooperation when it comes to America's national security, particularly
in Iraq and Afghanistan. He does not practice the politics of
polarization or partisan spin. So when he tells us this amendment would
do more harm than good, so much harm, in fact, that he, as Secretary of
Defense, would feel obliged to recommend to the President that if this
amendment is adopted, the President veto the entire underlying
Department of Defense authorization bill, well, then, when Bob Gates,
Secretary of Defense, says that, I think we have a responsibility to
listen and to listen to his words very carefully.
The reason for Secretary Gates' opposition to this amendment is not
political, it is practical. As he explained in a letter to Senator
Graham of South Carolina earlier this week, the Webb amendment ``would
significantly increase the risk to our servicemembers''--significantly
increase, not decrease, the risk to our servicemembers--and ``lead to a
return to unpredictable tour lengths and home state periods and home
station periods.'' Exactly the opposite of the intention of the
amendment.
By injecting rigid inflexibility into the military planning process,
this amendment would force the Pentagon to elevate one policy--the
amount of time individual members of the military spend at home--above
all other considerations, above the safety and security of those same
soldiers and their colleagues when they are deployed abroad, above the
impact of implementing that policy would have on our prospects for
success in Iraq and all that means to our country and, I add, to our
soldiers. Secretary Gates also described a range of grim consequences
that would result if this amendment is adopted.

To begin with, it would likely force the Pentagon to extend the
deployments of units that are already in Iraq and Afghanistan beyond
their scheduled rotations. So some of those units which are now
scheduled to be there for 15 months might have to be extended beyond
that because of the provision in this amendment that says you have to
have an equal amount of time at home as deployed. Why? Because there
aren't enough capable units to replace them that meet the inflexible
requirements imposed by this amendment.
Far from relieving the burden on our brave troops in battle deployed
overseas, this amendment would actually add to their burdens and keep
our soldiers away from their families, certainly a goodly number of
them, for even longer. It would also mean more frequent and broader
callups of our National Guard and Reserve units, pulling forces into
the fight that would otherwise be able to remain at home.
In other cases, this amendment will require the Pentagon to deploy
units trained for one mission to go fight another mission, not because
it makes military sense to do so but because they are the only ones
left that meet this amendment's inflexible dwell-time rule. In plain
English, we are going to be forced by this amendment to send less-
capable units into combat.
In addition to imposing greater dangers thereby on our individual
service men and women, this amendment would also have other baneful
effects on our national security. At a time when our military is
stretched and performing brilliantly, it would further shrink the pool
of units and personnel available to respond to events, crises, not just
in Iraq and Afghanistan but around the world. In doing so, this
amendment--and again I quote Secretary Gates--``would dramatically
limit the Nation's ability to respond to other national security needs
while we remain engaged in Iraq or Afghanistan.'' Is that what any one
of us desire? Is that what the men and women who serve us in uniform
desire? No.
All of us recognize the extraordinary services our troops are giving
our country and the burden that places on their family in this time of
war. All of us want to do something to help relieve the burden they
bear. But the answer is not to impose a legislative straitjacket on our
men and women in uniform. The answer is not to impose an inflexible
one-size-fits-all rule that will endanger their safety and hobble our
military's ability to respond to worldwide threats. The answer is not,
in our frustration, to throw an enormous wrench into the existing,
well-functioning personnel system of the U.S. military. The answer is
most definitely not to make it harder for us to succeed in Iraq.
I know there has been some disagreement among the supporters of this
amendment about whether it is intended to be a backdoor way to
accelerate the drawdown of our troops from Iraq, for which there is not
adequate support in this Senate Chamber, fortunately, and thus discard
the recommendations of General Petraeus and, if I may say so, put us on
a course for failure instead of the course of success we are on now. My
friend, the Senate majority leader, said he does not see this as a
backdoor way to accelerate the drawdown. On the other hand, Congressman
Murtha said that is exactly what it is supposed to do and he hopes it
will do.
The fact is many in this Chamber have argued honestly and openly for
months that General Petraeus and his troops were failing to make
meaningful progress in Iraq and that Congress should, therefore, order
them to begin to withdraw. That could be done by cutting off funding or
mandating a congressional deadline for withdrawal.
I have argued against those recommendations, as my colleagues know.
But I must say I respect the fact that those arguments by opponents of
the war accept the consequences of their beliefs, and they are real and
direct. Those in the Chamber who want to reject the Petraeus
recommendations and his report of progress and impose on him their own
schemes for the withdrawal of our troops from Iraq, I think ought to do
it in the most direct way, rather than any attempt to derail this now
successful war plan by indirection.
The fact is, regardless of the intention of its sponsors, the Webb
amendment, if enacted, will not result in a faster drawdown of U.S.
troops from Iraq. The fact is the Commander in Chief and the military
commander in Iraq are committed to the success of this mission. On the
contrary, therefore, it would only make it harder for those troops,
along with their brothers and sisters in uniform in Afghanistan, to
complete their mission successfully, safely, and return home but to
return home with honor to their families and their neighbors.
Yesterday, a couple of Connecticut veterans from the Iraq war were in
town and came to see me. At the end of a good discussion, in which they
did urge me to vote against the Webb amendment, one of them said to me:
Senator, we want to win in Iraq, and we know we can win. I said to
them: Thanks to your bravery and skill--and now a good plan--and with
the help of God, you are going to win, so long as the American people
and their representatives in Congress don't lose their will. That
victory will not only secure a better future for the people of Iraq and
more stability and an opportunity for a course in the Middle East that
is not determined by the fanatics, the haters, the suicide bombers of
al-Qaida and Iranian-backed terrorism but is determined by the people
themselves who pray every day and yearn every day for a better future.
I will say something else. There are different ways to burden men and
women in uniform. One is the stress of combat, another is to force them
into a position where they fail. I have had many conversations with
soldiers from Connecticut and elsewhere who have served in Iraq, and I
have had the conversations in Iraq and here. I don't want to mislead my
colleagues in what I am about to report. I don't get this in 100
percent of those conversations, but in an overwhelming number of those
conversations, they are proud of what they are doing, they believe in
their mission, they believe they are part of a battle that can help
make the future of

[[Page S11723]]

their families and our country more secure. They are proud. They are
reenlisting at remarkable numbers. That is the best indicator of this
attitude.
If you want to burden them and their families in a way we can never
quite make up for, then take us from the road of success, leading to
the road of victory, and force us directly, force them directly or
indirectly, to a retreat and defeat. That can break the will of an
army. We don't have to do it, we must not do it, and I believe this
Senate will not allow this to happen. I, therefore, urge my colleagues
to vote against the Webb amendment.

I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio is recognized for 10
minutes.
Mr. BROWN. I thank the Chair, and I thank Senator Webb for his
leadership on this important issue as I rise in support of the Webb
amendment.
This amendment, first and foremost, is about supporting our troops.
It is about supporting the military families. Every Member of this
body, some even more than others, talk about their support for our
troops. Many put the yellow ribbon magnets on their cars, many wear
other kinds of clothing to show their support for the troops. They talk
about it at home, they talk about it here. This vote will put that
support for our troops into action.
This amendment ensures that our military gets the rest at home they
deserve; that our military readiness gets the support it needs. This
amendment will ensure that our National Guardsmen will stay at home for
at least 3 years after returning from deployment, the men and women of
the Guard who leave businesses, jobs, and families on hold while
bravely serving our Nation.
The current Iraq policy is overextending our troops and placing
unacceptable burdens on families back home, with spouses often acting
as single parents, doing their very best, in sometimes worse economic
times, to keep their families together.
I have met with these families for 4 years, going back as early as
2003, soon after tens of thousands of American troops were deployed in
Iraq. They would talk frequently about the shortage of body armor. They
talked frequently about the shortage of bottled water, about hygiene
products, and all kinds of things our troops needed as our Government
rushed into war in 2003 without adequately supplying them. Families
would raise money at events to provide the body armor and to send
bottled water and hygiene products or whatever their loved ones needed
in Iraq.
Our Government didn't do what it should have done back then because
of the poor civilian leadership and its lack of preparation for this
war in Iraq. I heard comments over and over about the difficulty of
adjusting, as those troops came back home, due to the lack of foresight
and the lack of planning on the part of the civilian leadership of our
military.
Our Armed Forces have served bravely and honorably again and again,
deployment after deployment, often without, as I said, the proper body
armor, proper vehicle protection, proper training, and dwell time
between deployments. We fought in this body and in the House for more
body armor, we fought for more MRAPS, the triangular-bottomed vehicles.
We shouldn't have to fight to allow our soldiers the proper amount of
time between deployments.
The requirement in this amendment for dwell time is something the
military has voluntarily done for decades because they know that serves
the troops well, they know it serves the families well, and they know
principally it serves the military well to have that dwell time between
deployments. The 1-to-1 standard in the Webb amendment is actually
below the historic standard of the Department of Defense for dwell
time. We could do even better than this.
We can debate about our role in Iraq's civil war, we can debate
timelines for ending our involvement, we can debate how much money we
should spend in Iraq, but we shouldn't need to debate how much rest,
preparation, and training our troops get before they go back off to
war. Everyone in this Chamber talks about supporting our troops, even
as our President failed to provide body armor and MRAPs, failed to
provide support and supplies, and even as our President has failed to
provide enough money for medical care for the Veterans' Administration
for when our troops return home. Everyone in this Chamber talks about
supporting our troops, but this amendment puts the soldiers and their
families first.
They have done their job. It is time we do ours.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan is recognized for 10
minutes.
Ms. STABENOW. Mr. President, I wish to thank my colleague from
Michigan, whom we are so proud of, for all his efforts in supporting
our troops and leading our efforts as it relates to the defense of our
country and for once again leading this very important bill on the
Defense reauthorization.
It is time to put aside for a brief moment the overall debate of the
war and focus on the troops. Regardless of whether you supported going
into Iraq or, as I did, voted no on going into that war, we come
together and we hear frequently from colleagues on both sides of the
aisle that, of course, we support our troops. We want what is best for
the brave men and women who are fighting in harm's way, who didn't take
that vote and didn't decide the policy but who are, in fact, stepping
up to defend that policy and defend our country.
The question is, What is best for the troops on the ground right now,
in the middle of these conflicts that have gone on now for over 4\1/2\
years? We are here today to talk about what is best for our military,
our troops, and for their families.
We are not here to debate the merits of the mission. I certainly am
willing to do that and do that with other amendments. But this
particular amendment, the amendment of Senator Webb, is an effort to
determine what makes sense when it comes to deploying our armed
services, what is best for those who have been willing to put their
lives on the line for our country, who follow the leadership of the
Department of Defense and operate under the policies that have been set
by this Congress and this President.
What is very clear is that the current system is broken for our
troops. We are forcing our troops into longer and longer combat
deployments and giving them shorter and shorter rest periods. We are
demanding multiple combat deployments over very short periods, with
many units on their second, their third, or even their fourth
redeployment in the war in Iraq. We are denying the men and women who
put their lives on the line for America the time they need off from the
front lines to recuperate, to retrain, to prepare themselves physically
and mentally to return to combat and, just as important, to spend time
with their families, to be able to reconnect with the loved ones they
have left behind when they have gone into this war.
We are placing an unfair and unreasonable burden on those military
families, families who are willing to sacrifice, who have sacrificed;
families who count on us to be there for them, representing their
interests and the interests of their loved ones who are on the front
lines. They are doing all of it in the name of a policy that the
military itself has indicated is not only unreasonable but unsafe. The
Department of Defense itself has said that the conditions under which
they are operating have been unreasonable and unsafe.
Historically, the Department of Defense, as has been said, has
mandated a combat-to-rest ratio of 1 to 2--1 month on, 2 months off as
an example; 1 year in combat, 2 years at home--to rest, retrain, and
prepare for the next deployment. In fact, the historic 1-to-2 ratio is
currently the stated policy of the DOD. We are hearing from colleagues
on the other side of the aisle as if this is some outrageous idea, that
we put some parameters around the deployment and redeployment of our
troops. Yet it is the stated policy of the Department of Defense: 1
month or 1 year on, 2 months or 2 years here at home.
The Webb amendment merely sets a 1-to-1 ratio, a floor that only gets
us halfway to the standard the Department of Defense itself has called
for. The policies pursued by this administration have stretched our men
and women in uniform to the breaking point. Our Armed Forces are
getting the job done under the most extreme

[[Page S11724]]

and trying conditions imaginable. Most of us have had an opportunity,
firsthand, to see them in action, to see what they are doing and the
conditions under which they are operating. They are getting the job
done. No one is surprised because we have the best and the brightest,
but they are under extreme and trying conditions. They face an enemy
who often cannot be identified. They face an environment that is harsh
and hot and unbearable. They do their jobs with pride, with honor, with
dignity, and most certainly with excellence.
The current deployment schedule places an unfair burden not only on
our soldiers and sailors and airmen and marines but on the families
they leave behind. Military families have, in their own way, been
called to serve this country, been called to sacrifice. They demand our
respect and support for the sacrifices they are making. What we are
currently asking of them is simply unreasonable. When our troops go
into combat, the people they leave behind shoulder the burden of
keeping the family together while mom or dad--mother, father, sister,
brother--is fighting in service to their country. They are left to face
not only the practical problems that come with having a family member
gone for long stretches of time but also the constant uncertainty and
stress of simply not knowing what is happening to their loved one. Are
they safe? Will they come home safely? Our troops and their families
have done everything we have asked of them. They have been there for
America. And now the answer to the question must be that we will be
there for them.
The young Americans who volunteer to put on the uniform and fight for
our country are truly our best. They are the best-trained, the best-
equipped, the bravest fighting forces in the world, and they are one of
the Nation's most valuable assets and greatest resources. Current
administration policy is abusing their willingness and desire to serve.
This has to stop. By straining and stretching our military, we are
undercutting our own national security. We are compromising everything
we have done to build up a force that can defend America and properly
respond to the dangers we face in today's uncertain world.
Senator Webb has crafted an amendment that addresses the concerns of
our military leaders. It includes reasonable waivers in the face of
unexpected threats to America. It includes a transition window that
will allow a shift in the deployment schedule without a disruption of
our fighting forces. We have worked with the military to develop a
policy that makes sense. I commend Senator Webb for his foresight and
his willingness to work with the Secretary of Defense and others to
make the changes, to make this even more workable. We compromised where
it makes sense to strengthen the legislation, but we will not
compromise on the safety of our troops or on the support for their
families.
This amendment is not about where we stand on the war. It is not
about partisan politics. It is about doing the right thing for our
troops and for their families. I urge my colleagues to stand up and
vote for the Webb amendment. Stand with the people we have sent to war
and their families waiting at home, and stand with all Americans who
want us to have the right kind of policy to support our troops and to
keep us safe for the future.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CARDIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARDIN. Mr. President, I take this time first to thank Senator
Webb for bringing forward his amendment that I strongly support. I
believe it is in the best interests of our troops, their families, our
military readiness, and the proper deployment of our troops.
I also thank Senator Levin and Senator Reid for their efforts in
allowing us the opportunity to try to change our mission in Iraq. I
believe it is not only in the best interest of the United States to do
that but also the Iraqi people.
I also compliment Senator Biden for his efforts to bring forward an
amendment that would give us a more realistic and achievable political
game plan in Iraq. As has been recently reported, the Iraqi Government
is dysfunctional, and the only way we are going to be successful in
Iraq is if we can have a political solution to their problems.
On September 3, 2007, President Bush told troops at Al-Asad Air Base
that the troop buildup has strengthened security--and that the military
successes are ``paving the way for the political reconciliation and
economic progress'' in Iraq. ``When Iraqis feel safe in their own homes
and neighborhoods,'' said President Bush, ``they can focus their
efforts on building a stable, civil society.''
I believe that the last part of that statement, when an Iraqi can
walk into the street without fear of being attacked, blown up, or
bribed, of having family harmed, his house or his business taken, when
he is confident that his children will have enough food and water and
be able to attend school in peace, he will be able to focus on building
a more stable civil society.
But what I don't see is any independent evidence that the increased
U.S. troop presence has, as promised, led to greater civilian security,
let alone paved the way for political and economic success.
The 2007 emergency supplemental appropriations bill required
President Bush to report to Congress and the American people in July
and September on the progress Iraqis are making toward achieving
certain critical benchmarks put forward by the Iraqi Government and
affirmed by President Bush in his January ``New Way Forward'' speech.
These were not benchmarks established by Congress. These were
benchmarks established by the Iraqis, in this legislation. That same
legislation asked the independent Government Accountability Office to
undertake the same investigation and chartered the Independent
Commission on the Security Forces of Iraq to investigate the progress
those institutions are making toward independence. We now have each of
those reports.
Not even President Bush claims that substantial progress toward
political or economic benchmarks has occurred. As reported by his
administration in July and September there has been little progress on
debaathification reform, oil revenue sharing, provincial elections, or
amnesty laws.
The GAO reports that the Iraqi Government has met only \1/8\ of the
legislative benchmarks. The rights of minority party political parties
in the Iraqi legislature are protected, though the same is not true for
the Iraqi population whose ``rights are often violated.''
Any prospects for further progress toward these goals have been
dashed by the withdrawal of 15 of the 37 members of the Iraqi cabinet.
The Congressional Research Service reported that the boycott has left
``the Iraqi Government in essential collapse.''
That is another reason why we need The Biden amendment, and more
important, for us to move forward implementing a new strategy in Iraq.
Just as important, there is no independent evidence that increased
troop presence has created the security necessary to foster future
political and economic progress in Iraq.
The GAO reports that it is not clear whether sectarian violence has
been reduced and that the average number of daily attacks aqainst
civilians has remained about the same.
The August National Intelligence Estimate reports that the level of
overall violence in Iraq, including attacks on and casualties among
civilians, remains high and will remain high over the next 6 to 12
months.
According to figures compiled by the Associated Press, Iraqis are
suffering double the number of war-related deaths throughout the
country compared to this time last year.
In an August op-ed, seven non-commissioned officers wrote:

[T]he most important front in the counterinsurgency,
improving basic social and economic conditions, is the one on
which we have failed most miserably. . . . Cities lack
regular electricity, telephone services and sanitation. . . .
In a lawless environment where men with guns rule the
streets, engaging in the banalities of life has become a
death-defying act. . . . When the primary preoccupation of
average Iraqis is when and how they are likely

[[Page S11725]]

to be killed, we can hardly feel smug as we hand out care
packages. As an Iraqi man told us a few days ago with deep
resignation, ``We need security, not free food.''

Even if we assume a decline in violence, in certain regions in Iraq
it is far from clear that increased U.S. troops are responsible. There
are over 2 million refugees that have fled Iraq.
Internally displace persons are estimated at 2 million and are
increasing by 80,000 to 100,000 each month. At that rate, Washington,
DC would be empty by March.
The United Nations High Commissioner for Refugees found that 63
percent of those displaced moved because of threats to their security.
Sixty-nine percent left homes in Baghdad. Baghdad is undergoing
sectarian cleansing. If the death toll in a Sunni district falls
because its residents have fled, the resulting reduction in violence is
not attributable to increased troops, and that kind of development is
not ``progress.''
The bottom line: the GAO report found the Iraqi Government has not
eliminated militia control over local security or political
intervention in military operations. It has not ensured evenhanded
enforcement of the law or increased the number of army units capable of
independent operations.
Are Iraqis more secure? For me, the 100,000 people fleeing their
homes each month in fear for their safety answer the question. The
truth, as everyone acknowledges, is that the security that Iraqi man
wanted instead of free food will only come with political
reconciliation.
Those same seven NOC's explained that:

political reconciliation in Iraq will occur, but not at our
insistence or in ways that meet our benchmarks. It will
happen on Iraqi terms. . . .
[I]t would be prudent for us to increasingly let Iraqis
take center stage in all matters, to come up with a nuanced
policy in which we assist them from the margins but let them
resolve their differences as they see fit.

President Bush predicted that increased U.S. troop levels taking a
more visible--rather than marginal--role would stabilize the country so
that its national leaders could reach political agreement. They would
enable us to accelerate training initiatives so that Iraqi army and
police force could assume control of all security in the country by
November 2007. President Bush sent over 28,000 more soldiers into Iraq
to fulfill these goals.
The reports before us in September, like the reports before us in
July, show us that President Bush's troop escalation is ineffective. It
has failed to make Iraq more secure, failed to stem the civil war going
on in Iraq, and failed to lead to political reconciliation. That
failure was clear when I last came to the floor to discuss this issue
in July, and it is clear today.

Since July, 150 more American soldiers have died; nearly 5,000 more
have been wounded. My home State of Maryland has lost three more of its
bravest citizens. One of those seven NOC's, whose wisdom and insight I
have quoted at length, was shot through the head and, just last week,
two others were killed. Every month in 2007 has seen more U.S. military
casualties over the same month in 2006.
Six years after 9/11, our policy in Iraq has distracted us from
confronting the weaknesses those attacks revealed. Terrorist attacks
around the world continue to rise. No progress has been made on the
Arab-Israeli conflict. Our military might has been stretched thin.
The most recent intelligence analysis reports that al Qaeda in
Afghanistan and Pakistan is stronger now than at any other time since
September 11, 2001. Iran is as dangerous as ever.
Thomas H. Kean and Lee H. Hamilton, cochairs of the 9/11 Commission,
wrote that ``we face a rising tide of radicalization and rage in the
Muslim world--a trend in which our own actions have contributed.'' Last
week, Senator Warner asked General Petreaus whether continuing the
strategy the general laid before Congress would make our country safer.
General Petreaus responded, ``Sir, I don't know actually.''
He didn't know because he has been ``focused on . . . how to
accomplish the mission of the Multi-national Force in Iraq.'' That is
what he should be focused on. That is his job. But the people focused
on our Nation's safety and our overall strategy in the Middle East
agree with Kean and Hamilton.
Admiral Fallon, chief of the U.S. Central Command, which oversees
Middle East operations, has argued for accepting more risks in Iraq in
order to have the necessary forces available to confront other
potential threats. The Joint Chiefs have been sympathetic to Admiral
Fallon's view.
In order to bolster our military and refocus attention on the global
terrorist threat, this Congress has attempted to change the mission of
our operation in Iraq. But President Bush and a minority in Congress
have rebuffed the effort.
We cannot wait any longer to change the mission in Iraq. The cost of
further delay in lives, materiel, treasure, and our standing in the
world is too great. President Bush's strategy has put this Nation at
greater risk--a risk that metastasizes each day that we sit by and
wait.
A new policy starts by removing our troops from the middle of a civil
war and giving them a more realistic mission: counterterrorism,
training, and force and border protection.
The Independent Commission on the Security Forces of Iraq, chaired by
retired GEN James L. Jones, and composed of prominent senior retired
military officers and chiefs of police, suggests that:

Coalition forces begin to be adjusted, realigned, and re-
tasked . . . to better ensure territorial defense . . .
concentrating on the eastern and western borders and the
active defense of the critical infrastructures essential to
Iraq.

The Commission also emphasized the importance of transferring
responsibility to Iraqis, noting the ``fine line between assistance and
dependence.'' Iraqi citizens turn to our military for protection and
the basic services the government has failed to provide. We want Iraqis
to become loyal to their government, not to the local U.S. military
commander.
We must begin to extricate ourselves and hand responsibility to the
Iraqis themselves.
As the bipartisan Iraq Study Group noted, ``There is no action the
American military can take that, by itself, can bring about success in
Iraq.'' But any effort must include stepped-up diplomacy--a
``diplomatic surge,'' if you will. Iraq's neighbors have a stake in
Iraq's stability. The war in Iraq means the spread of fundamentalist
insurrection and sectarian violence, and an increase in basic crime and
lawlessness, and not just in Iraq.
We must begin to have a broader diplomatic and economic vision in the
Middle East. Currently, all of Iraq's neighbors are involved in the
conflict, but they operate under the table. Iran supports the Shiite
militias. Saudi Arabia supports the Sunni militias. Turkey plays a role
in the North, Syria exerts control over Iraq's western border.
The United States engaged all of Afghanistan's neighbors at the
highest levels and secured their cooperation at the beginning of that
conflict. We must engage in that same high level effort with Iraq's
neighbors no matter how much we wish circumstances or the current
balance of power in the region were different.
We need our Nation's most senior officials engaged in bringing other
nations and international entities such as the United Nations and the
Organization for Security and Cooperation in Europe to the table.
The various agencies of the United Nations are well-suited to tackle
matters of economic and community development and providing
electricity, water, and sanitation service. OSCE could assist Iraq with
collective border security, police training, and immigration and
religious tolerance efforts.
A change of mission, an increased diplomatic effort, and a movement
to engage international entities presents the best chance of helping
the Iraqis build a government that has their confidence and would
strengthen our own national security and military readiness.
The world has an interest in a safe and secure Iraq. We can no longer
ignore the overwhelming evidence or recoil from the cold reality the
facts on the ground reveal. It is time to change the mission, step up
our diplomatic efforts with a realistic and workable game plan,
recognize the limits of deployment of our troops and internationalize
the effort to bring stability to the country and to the Middle East.

[[Page S11726]]

The PRESIDING OFFICER. The Senator from Virginia.
Mr. WEBB. Mr. President, I wish to take the opportunity, since it
looks as if there are no other Senators who wish to speak at this
moment, to clarify a few items in this amendment with respect to some
of the criticisms that have been leveled against it.
Again, let me emphasize, this is a minimum amendment. It wants to
make a small adjustment to our operational policy that is needed
because of these continuous rotations that have been going on for the
last 4\1/2\ years.
With respect to the constitutionality issue which has been mentioned
a number of times, my staff has put together a fact sheet, which I ask
unanimous consent to have printed in the Record at the conclusion of my
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. WEBB. I have mentioned many times the situation in Korea during
the Korean War, where the Congress passed legislation to provide that
every person inducted into the military would receive full and adequate
training for a period of not less than 4 months, and that no personnel
during that 4-month period would be assigned duty overseas. This was
the Congress stepping in to correct a situation that had been created
by the executive branch in sending people to Korea before they were
trained.
In 1940, the Selective Training and Service Act stipulated that
people inducted into the land forces of the United States would not be
sent beyond the limits of the Western Hemisphere, except in U.S.
territories.
The Congress acted in similar ways multiple times prior to World War
II. In 1915, the Army Appropriations Act restricted Army tours of duty
in the Philippines to 2 years, and tours in the Canal Zone to 3 years.
There are a number of other examples here. This is a matter that is
clearly within the constitutional prerogative of the Congress should it
choose to act.
There was a comment earlier by the junior Senator from Arizona
regarding Secretary Gates's concern about the strain on the Guard and
Reserve if this amendment were to pass. Again, let me reiterate that
this amendment addresses the Guard and Reserve. It specifically states
that National Guard and Reserve units that have been deployed will not
be redeployed for a period of 3 years. This is not going to result in a
greater strain on the Guard and Reserve if this amendment passes.
There was also some comment about individuals being difficult to
manage if the amendment were passed, because we do single out in this
amendment that not only units being deployed should be protected, but
also individuals. The reason that language was inserted into this
amendment is because there is a common practice now to backfill
individuals who may have returned from a tour of duty much more
recently than the unit they have been assigned to.
At the same time, we do have this goal, a laudable goal, of having
units train together and then deploy together. But even under today's
circumstances--for instance, in the data sheet that Lieutenant Colonel
Martinez has put together for us--and I have heard this from many
people, that even by month 10, on a 12-month dwell time back here, the
units are still putting people together.
So you want them to train together, but it is a fallacy to say they
have been training for this entire period before they are deployed.
Most importantly, this is not difficult to manage. Everyone in the U.S.
military has a service record book of some sort, and in that record
book, there are indications of when they have served overseas. In
today's computer age, it is not very difficult to figure out who has
come back and what period of time. Units are tagged to deploy at least
6 months before they deploy. So you know who in your unit has recently
been returned and who has not. It is not a difficult problem to fix.
I wanted to make these clarifications.

Exhibit 1

Fact Sheet: Constitutionality of Senator Webb's Bipartisan Dwell-Time
Amendment

(1) There is clear constitutional authority and extensive
legislative precedent for Congress to impose minimum periods
between operational deployments. As then-Acting Secretary of
the Army Geren stated during his confirmation hearing before
the Senate Committee on Armed Forces earlier this year,
``Article I of the Constitution makes Congress and the Army
full partners.''
(2) Among the many congressional authorities the
Constitution delineates with regard to the armed forces and
the nation's common defense, Article I, Section 8 empowers
Congress ``to make rules for the government and regulation of
the land and naval forces.'' The Congress has exercised this
authority to regulate land and naval forces many times with
regard to military training and operational assignments. The
most noteworthy example occurred during the height of the
Korean War, when Congress passed legislation to require all
service members to receive no less than 120 days of training
before being assigned overseas.
(a) Despite pressing wartime exigencies in Korea, Congress
amended the Selective Service Act in 1951 to provide that
every person inducted into the Armed Forces would receive
``full and adequate training'' for a period not less than 4
months and no personnel, during this 4-month period, would be
assigned for duty at a land installation located outside the
United States, its territories, or possessions.
(b) This Korean-War legislation had as its precedent
similar congressional action before and after World War II.
In 1940, for example, the Selective Training and Service Act
stipulated that persons inducted into the land forces of the
United States under the Act would not be employed beyond the
limits of the Western Hemisphere, except in U.S. territories
and possessions. In 1948, the Selective Service Act provided
that 18- and 19-year-old enlistees for 1-year tours could not
be assigned to land bases outside the continental United
States.
(c) Congress acted in similar ways multiple times prior to
World War II. In 1915, for example, the Army Appropriations
Act restricted Army tours of duty in the Philippines to 2
years and tours in the Canal Zone to 3 years--unless the
service member requested otherwise or in cases of
insurrection or actual or threatened hostilities.
(d) Congress has continued to exercise its constitutional
authority to pass laws to govern and regulate the armed
forces. In 1956, a public law prohibited the assignment of
female service members to duty on combat aircraft and all
vessels of the Navy. Congress subsequently saw the wisdom of
repealing this legislation.
(e) Later, during the 1980s and 1990s, Congress invoked the
War Powers Resolution in the ``Multinational Force in Lebanon
Resolution'' to authorize Marines to remain in Lebanon for 18
months. In 1993, the House used a section of the War Powers
Resolution to stipulate that U.S. forces should be withdrawn
from Somalia by March 1994. Congress also prohibited the
expenditure of funds to support personnel end-strength levels
above specific limits in NATO countries and other nations
outside the United States during the post-Cold War era of the
1990s. Other examples also exist.

The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, we hope to be able in the next few moments,
perhaps after Senator Martinez has gone, to enter into a unanimous
consent agreement which would hopefully schedule votes on both the Webb
amendment and on the McCain amendment. We expect those votes would
begin at approximately 5:15. We do not have a unanimous consent locked
in yet, but we do expect, perhaps after Senator Martinez has completed,
to be able to offer a unanimous consent agreement.
Mr. McCAIN. Mr. President, I mention to my friend, I think by 4:40 we
would know for sure. That is when the meeting the principals are in now
is over. But we fully anticipate that at 5:15 a vote would be agreed
to.
If there are other Senators who want to speak between now and about
5:00, please come down and do so. But my understanding is that this
agreement is, following the Webb amendment vote, there would be 10
minutes equally divided and a vote after that.
Mr. LEVIN. That is the expectation. So two votes and 10 minutes
interviewing between the two, and then move on to other amendments.
The PRESIDING OFFICER. The Senator from Florida.
Mr. MARTINEZ. Mr. President, I rise today to speak in opposition of
the current amendment, the Webb amendment, to the fiscal year 2008
National Defense authorization bill.
The fact is that this amendment, in its good intentions to think
about the care and condition of our men and women in uniform who have
so bravely served us, in fact is very much misguided in that it
attempts to dictate to the military leaders exactly what type and how
troop rotations should take place.
I think it is a dangerous amendment because it could also interfere
with the ability of our country to respond in times of a national
emergency, even

[[Page S11727]]

though it has a waiver provision in the amendment for the President's
ability to respond to the dangerous situations that can occur in the
very dangerous world in which we live.
The fact is--I know it has been mentioned, but I reiterate--the
Secretary of Defense, the person charged with the constitutional
responsibility of deployment of the Armed Forces, has foursquare
clearly stated that this amendment, while well intended, is certainly
not a good amendment. It would dramatically limit the Nation's ability
to respond to other national security needs while we remain engaged in
Iran and Afghanistan. Secretary Gates, in a letter of September 18 to
Senator Graham, indicated clearly his concern. He goes on to mention
some other concerns.
General Petraeus announced--and the President affirmed--that there
would be troop drawdowns in Iraq in the upcoming weeks. In fact, this
amendment could have the effect of extending the tours of duty of
troops in Iraq beyond their currently scheduled rotation.
There is another thing that bothers me. I think we also need to think
about our constitutional scheme, how our Government is organized and
ordered. Constitutionally to enact an amendment such as this would
clearly be an encroachment on the constitutional duties of the
Commander in Chief. This is not an area where the Congress is welcomed
to dictate. We have one Commander in Chief, not 535. We only elect one
at a time. This Commander in Chief has a Secretary of Defense. It is
their responsibility under our form of Government to determine what our
troop rotations should be.
There are other very practical considerations of why this should not
happen, why this is a bad idea. The Secretary of Defense goes into
several items in his letter. But it does make sense, when you look at
it, that units do not always stay together. Following an individual
rather than a unit and following the deployment of an individual rather
than that of a unit is something that would be cumbersome, difficult,
and, in fact, not a way in which we would be, in this very dangerous
time, having to run our military. The fact is, there is something here
which is maybe the most underlying and important reason of all why this
amendment is not a good idea, which is the clear desire and design of
the amendment to limit the options of our military forces to maintain
the current policy in Iraq. We ought to not use the good intentions and
the good ideas about our soldiers, about our troops and their
rotations, to have an underlying mission of simply saying, they can't
keep this up so they will have to pull troops out. We will change
policy by dictating how troops are rotated in and out of the
battlefield. The fact is, that could have serious consequences for our
Nation as other nations would view this as a vulnerability. It would be
viewed as a weakness, as a fact that the United States is overextended
and incapable of responding to crisis. It is these kinds of
misperceptions and misunderstandings that can lead irresponsible states
to take irresponsible actions that could lead to frightening scenarios
in the very dangerous world in which we live.
It is important to also note that many of the members of our Armed
Forces consider it a privilege and an honor to serve this Nation at
this difficult time. My recent trip to Iraq was in Tikrit. While there,
I visited with a number of troops, some of them Floridians, all proud
of their service. Over 90 percent of those troops had already
reenlisted, knowing full well of our involvement in Iraq, knowing what
the expectations of their service would be during their time of
reenlistment, and they had voluntarily reenlisted. Reenlistment rates
of those serving in the theater are larger than those of any other. It
is a testament to their courage, valor, and sense of duty to their
country. We would demean their service if we were to say to them that
there had to be parity between the time in service out of the country
and the time at home.
The goal ought to be for us not to have 15-month deployments. The
hope would be that these would never be necessary. But a mandate from
Congress that this is how we must operate our Armed Forces is ill-
conceived. It is dangerous and does not serve either the national
interest of the Nation or the interest of the soldiers on the field
whom it is intended to serve. We should not have a subterfuge of policy
to change direction in Iraq heaped on the backs of our brave men and
women in uniform. If, in fact, there is the thought that this policy is
wrong and it should be changed--and I know many Members feel that way;
there has been plenty of debate about this issue--there ought to be the
courage to say: We will not fund the troops. If you can't do that, you
shouldn't do it this way. This is unnecessary. It is cumbersome, and it
will be detrimental to the national security of the country.
I yield the floor.
The PRESIDING OFFICER (Mrs. McCaskill). The Senator from Michigan.

____________________