[Congressional Record Volume 154, Number 9 (Tuesday, January 22, 2008)]
[Senate]
[Pages S54-S57]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008

  The PRESIDING OFFICER. The clerk will state the bill by title.
  The legislative clerk read as follows:

       A bill (H.R. 4986) to provide for the enactment of the 
     National Defense Authorization Act for fiscal year 2008, and 
     for other purposes.

  Mr. FEINGOLD. Mr. President, I oppose the fiscal year 2008 Defense 
authorization bill because it authorizes $189.5 billion for the war in 
Iraq but does nothing to end the President's misguided, open-ended Iraq 
policy. That policy has overburdened our military, weakened our 
national security, diminished our international credibility, and cost 
the lives of thousands of brave American soldiers.
  There are certain provisions of the bill that I support strongly, 
including a pay raise for military personnel, Senator Webb's amendment 
creating a Commission on Wartime Contracting to examine waste, fraud, 
and abuse in Iraq and Afghanistan, and Senator Lautenberg's amendment 
to create a Special Investigator General for Afghanistan 
Reconstruction.
  But on balance, I cannot vote to support a bill that defies the will 
of so many Wisconsinites--and so many Americans--by allowing the 
President to continue one of the worst foreign policy mistakes in the 
history of our Nation.
  Mr. LAUTENBERG. Mr. President, I rise to applaud the chairman and 
ranking members of the Senate Armed Services Committee, Senators Levin 
and McCain, respectively, on passage of the National Defense 
Authorization Act for fiscal year 2008.
  Specifically, I would like to express my gratitude to the bill 
conferees for their inclusion of four amendments that I authored and 
which were unanimously adopted by the Senate during its initial 
consideration of this bill. These provisions will increase oversight of 
our country's economic and security assistance to Afghanistan by 
creating a Special Inspector General for Afghanistan Reconstruction, 
section 1229; help victims of state sponsored terrorism to achieve 
justice through the U.S. courts, section 1083; prevent military health 
care fees through the TRICARE program from rising, sections 701 and 
702; and increase accountability and planning for safety and security 
at the Warren Grove Gunnery Range in New Jersey, section 359.
  First, I was proud to be joined by my cosponsors, Senators Coburn, 
Dodd, Hagel, Feingold, Webb, and McCaskill, in creating a Special 
Inspector General for Afghanistan Reconstruction. I wrote this 
legislation because I believe that while a democratic, stable, and 
prosperous Afghanistan is important to the national security of the 
United States and to combating international terrorism, I am concerned 
that we are not achieving all of our goals there. The United States has 
provided Afghanistan with over $20 billion in reconstruction and 
security assistance. However, repeated and documented incidents of 
waste, fraud, and abuse in the utilization of these funds have 
undermined reconstruction efforts. I therefore believe that there is a 
critical need for vigorous oversight of spending by the United States 
on reconstruction programs and projects in Afghanistan.
  I would like to emphasize that the Government Accountability Office 
and the departmental Inspectors general have provided valuable 
information on these activities. However, I believe that the 
congressional oversight process requires more timely oversight and 
reporting of reconstruction activities in Afghanistan. Oversight by 
this new Special Inspector General would encompass the activities of 
the Department of State, the Department of Defense, and the U.S. Agency 
for International Development, as well as other relevant agencies. It 
would highlight specific acts of waste, fraud, and abuse, as well as 
other managerial failures in our assistance programs that need to be 
addressed.
  This new position will monitor U.S. assistance to Afghanistan in the 
civilian and security sectors, as well as in the counternarcotics 
arena, and will help both Congress and the American people better 
understand the challenges facing U.S. programs and projects in that 
country. I am pleased that this provision has been included in this 
final bill.
  Second, this bill includes my legislation to provide justice for 
victims of state-sponsored terrorism, which has strong bipartisan 
support. I believe this legislation is essential to providing justice 
to those who have suffered at the hands of terrorists and is an 
important tool designed to deter future state-sponsored terrorism. The 
existing law passed by Congress in 1996 has been weakened by recent 
judicial decisions. This legislation fixes these problems.
  In 1996, Congress created the ``state sponsored terrorism exception'' 
to the Foreign Sovereign Immunities Act, FSIA. This exception allows 
victims of terrorism to sue those nations designated as state sponsors 
of terrorism by the Department of State for terrorist acts they commit 
or for which they provide material support. Congress subsequently 
passed the Flatow Amendment to the FSIA, which allows victims of 
terrorism to seek meaningful damages, such as punitive damages, from 
state sponsors of terrorism for the horrific acts of terrorist murder 
and injury committed or supported by them.
  Congress's original intent behind the 1996 legislation has been 
muddied by

[[Page S55]]

numerous court decisions. For example, the courts decided in Cicippio-
Puleo v. Islamic Republic of Iran that there is no private right of 
action against foreign governments--as opposed to individuals--under 
the Flatow Amendment. Since this decision, judges have been prevented 
from applying a uniform damages standard to all victims in a single 
case because a victim's right to pursue an action against a foreign 
government depends upon State law. My provision in this bill fixes this 
problem by reaffirming the private right of action under the Flatow 
Amendment against the foreign state sponsors of terrorism themselves.
  My provision in this bill also addresses a part of the law which 
until now has granted foreign states an unusual procedural advantage. 
As a general rule, interim court orders cannot be appealed until the 
court has reached a final disposition on the case as a whole. However, 
foreign states have abused a narrow exception to this bar on interim 
appeals--the collateral order doctrine--to delay justice for, and the 
resolution of, victim's suits. In Beecham v. Socialist People's Libyan 
Arab Jamahiriya, Libya has delayed the claims of dead and injured U.S. 
service personnel who were off duty when attacked by Libyan agents at 
the Labelle Discotheque in Berlin in 1986. These delays have lasted for 
many years, as the Libyans have taken or threatened to take frivolous 
collateral order doctrine appeals whenever possible. My provision will 
eliminate the ability of state sponsors of terrorism to utilize the 
collateral order doctrine. My legislation sends a clear and unequivocal 
message to Libya. Its refusal to act in good faith will no longer be 
tolerated by Congress.
  Another purpose of my provision is to facilitate victims' collection 
of their damages from state sponsors of terrorism. The misapplication 
of the ``Bancec doctrine,'' named for the Supreme Court's decision in 
First National City Bank v. Banco Para El Comercio Exterior de Cuba, 
has in the past erroneously protected the assets of terrorist states 
from attachment or collection. For example, in Flatow v. Bank Saderat 
Iran, the Flatow family attempted to attach an asset owned by Iran 
through the Bank Saderat Iran. Although Iran owned the Bank Saderat 
Iran, the court, relying on the State Department's application of the 
Bancec doctrine, held that the Flatows could not attach the asset 
because they could not show that Iran exercised day-to-day managerial 
control over Bank Saderat Iran. My provision will remedy this issue by 
allowing attachment of the assets of a state sponsor of terrorism to be 
made upon the satisfaction of a ``simple ownership'' test.

  Another problem is that courts have mistakenly interpreted the 
statute of limitations provision that Congress created in 1996. In 
cases such as Vine v. Republic of Iraq and later Buonocore v. Socialist 
People's Libyan Arab Jamahiriya, the court interpreted the statute to 
begin to run at the time of the attack, contrary to our intent. It was 
our intent to provide a 10-year period from the date of enactment of 
the legislation for all acts that had occurred at anytime prior to its 
passage in 1996. We also intended to provide a period of 10 years from 
the time of any attack which might occur after 1996. My provision 
clarifies this intent.
  My provision also addresses the problems that arose from overly 
mechanistic interpretations of the 1996 legislation. For example, in 
several cases, such as Certain Underwriters v. Socialist People's 
Libyan Arab Jamahiriya, courts have prevented victims from pursuing 
claims for collateral property damage sustained in terrorist attacks 
directed against U.S. citizens. My new provision fixes this problem by 
creating an explicit cause of action for these kinds of property 
owners, or their insurers, against state sponsors of terrorism.
  Finally, in several cases the courts have prevented non-U.S. 
nationals who work for the U.S. Government and were injured in a 
terrorist attack during their official duties from pursuing claims for 
their personal injuries. My provision fixes this inequity by creating 
an explicit cause of action for non-U.S. nationals who were either 
working as an employee of the U.S. Government or working pursuant to a 
U.S. Government contract.
  I also want to make special mention of the inspiration for this new 
legislation. On October 23, 1983, the Battalion Landing Team 
headquarters building in the Marine Amphibious Unit compound at the 
Beirut International Airport was destroyed by a terrorist bomb killing 
241 marines, sailors, and soldiers who were present in Lebanon on a 
peace-keeping mission. In a case known as Peterson v. the Islamic 
Republic of Iran, filed on behalf of many of the marine victims and 
their families, the U.S. District Court ruled in 2003 that the 
terrorist organization Hezbollah was funded by, directed by, and relied 
upon the Islamic Republic of Iran and its Ministry of Information and 
Security to carry out that heinous attack. The judge presiding over 
this case, Judge Royce Lamberth, referred to this as ``the most deadly 
state sponsored terrorist attack made against United States citizens 
before September 11, 2001.'' In September of this year Judge Lamberth 
found that Iran not only is responsible for this attack but also owes 
the families of the victims a total of more than $2.6 billion for the 
attack. Congress's support of my provision will now empower these 
victims to pursue Iranian assets to obtain this just compensation for 
their suffering. This is true justice through American rule of law.
  However, President Bush's veto of the initial version of the National 
Defense Authorization Act for fiscal year 2008, H.R. 1585, on New 
Year's Eve required that my provision to provide justice for victims of 
state-sponsored terrorism be amended. The President chose to take this 
extraordinary action without warning after asserting that he had not 
been aware of the provision's potential impact on the Government of 
Iraq. The President contended that this provision would hinder Iraqi 
reconstruction by exposing the current Iraqi government to liability 
for terrorist acts committed by Saddam Hussein's government and vetoed 
the entire Defense Authorization bill on that basis.
  To address the President's concerns that the Government of Iraq could 
be made liable, the revised provision grants the President the 
authority to waive the terror victim's provision only for cases in 
which Iraq or its agencies, instrumentalities, or governmental actors 
are named defendants. The provision does not give the President the 
authority to waive any part of the provision for any case in which a 
government, its agencies, instrumentalities, or governmental actors are 
named defendants other than Iraq.
  By insisting on being given the power to waive application of this 
new law to Iraq, the President seeks to prevent victims of past Iraqi 
terrorism--for acts committed by Saddam Hussein--from achieving the 
same justice as victims of other countries. Fortunately, the President 
will not have authority to waive the provision's application to 
terrorist acts committed by Iran and Libya, among others.
  In addition, my new provision includes a Sense of the Congress that 
the Secretary of State should work with Iraq, on a state-to-state 
basis, to resolve the meritorious claims made against Iraq by terror 
victims. It is crucial that the victims of these terrorist acts be 
included in such discussions. Their approval of agreements made between 
the two governments on their behalf is critical to ensuring that 
justice is served.
  Third, this Defense authorization bill includes my provision to 
prevent proposed increases in enrollment fees, premiums, and pharmacy 
copayments for TRICARE, the military community's health plan. The 
principal coauthor of this provision is Senator Hagel.
  Both career members of the uniformed services and their families 
endure unique and extraordinary demands and make extraordinary 
sacrifices over the course of 20-year to 30-year careers in protecting 
freedom for all Americans. I believe they deserve the best retirement 
benefits that a grateful nation can provide. Proposals to compare cash 
fees paid by retired military members and their families to fees paid 
by civilians fails to adequately recognize the sacrifice of military 
members. We must be mindful that military members prepay the equivalent 
of very large advance premiums for health care in retirement through 
their extended service and sacrifice.
  The Department of Defense and our Nation have a committed obligation 
to

[[Page S56]]

provide health care benefits to Active Duty, National Guard, Reserve, 
and retired members of the uniformed services, their families, and 
survivors, that considerably exceed the obligation of corporate 
employers to provide health care benefits to their employees. 
Ultimately, the Department of Defense has options to constrain the 
growth of health care spending in ways that do not disadvantage current 
and retired members of the uniformed services, and it should pursue any 
and all such options as a first priority. Raising fees excessively on 
TRICARE beneficiaries is not the way to achieve this objective.
  Finally, I thank the conferees for including my amendment to require 
increased oversight and accountability, as well as improved safety 
measures, at the Warren Grove Gunnery Range in New Jersey. I wrote this 
provision with Senator Menendez because a number of dangerous safety 
incidents caused by the Air National Guard have repeatedly impacted the 
residents living nearby the range.
  On May 15, 2007, a fire ignited during an Air National Guard practice 
mission at Warren Grove Gunnery Range, scorching 17,250 acres of New 
Jersey's Pinelands, destroying 5 houses, significantly damaging 13 
others, and temporarily displacing approximately 6,000 people from 
their homes in sections of Ocean and Burlington Counties in New Jersey.
  My provision will require that an annual report on safety measures 
taken at the range be produced by the Secretary of the Air Force. The 
first report will be due no later than March 1, 2008, and two more will 
be due annually thereafter. My provision will also require that a 
master plan for the range be drafted that includes measures to mitigate 
encroachment issues surrounding the range, taking into consideration 
military mission requirements, land use plans, the surrounding 
community, the economy of the region, and the protection of the 
environment and public health, safety, and welfare. I believe that 
these studies will provide the type of information that we need to 
ensure that there is long-term safety at the range, both for the 
military and the surrounding communities.
  Mr. SPECTER. Mr. President, I have sought recognition to address the 
pay raise given to members of the U.S. military. On December 28, 2007, 
President Bush vetoed the National Defense Authorization Act for Fiscal 
Year 2008 because of a disagreement over a provision in the Justice for 
Victims of State Sponsored Terrorism Act of 2007.
  The disagreement over language in the Justice for Victims of State 
Sponsored Terrorism Act has affected far more individuals than the 
legislation itself addresses. By holding up the signing of the National 
Defense Authorization Act for Fiscal Year 2008, it jeopardized the pay 
raise which was promised to our Nation's servicemen and servicewomen.
  On January 4, 2008, the President issued Executive Order 13454, which 
gave all members of the military a 3-percent pay raise effective 
January 1, 2008. I commend the House for its January 16, 2008, decision 
to make retroactive to January 1, 2008, a 3.5-percent pay raise for 
members of the uniformed services. This was the number that the House 
and the Senate agreed upon before we sent the bill to President Bush in 
December; I think it is only fair this be the number we return to when 
we again submit the bill to the President. The men and women of the 
military should not be made to suffer for disagreements between the 
Congress and the White House.
  Mr. REID. Mr. President, in a few minutes, I am going to ask 
unanimous consent to take up the authorization bill for the Department 
of Defense for fiscal year 2008. But before we proceed to consider and 
pass this important legislation, I want to take just a moment to advise 
my colleagues of the unfortunate and troubling path that this 
legislation has taken since the Senate last voted to pass it on 
December 14.
  On December 19, the same day the other body adjourned its first 
session, the Congress sent to the President legislation, H.R. 1585, 
that was identical to the bill we are about to take up and pass, with 
one substantive difference regarding section 1083 and several 
associated technical corrections necessary due to the delay of the 
bill's enactment.
  What I want to focus on today is the manner in which the President 
chose to exercise his veto prerogative. As the Chair and our colleagues 
are well aware, the Framers of our Constitution deliberately gave the 
President only a limited or qualified veto power, one that could be 
overridden by Congress if it could muster a two-third vote in both 
Houses--a formidable challenge. But President Bush was not satisfied 
simply to veto the bill and risk an override, as contemplated under our 
constitutional process.
  Rather, on December 28, the President issued a memorandum of 
disapproval stating that, because the other body had adjourned its 
first session, while the Senate remained in session to protect its 
advise-and-consent prerogative, he considered the bill pocket vetoed, 
relying upon the constitutional provision that protects against the 
Congress's adjourning in order to prevent the President from exercising 
his veto power. But the President did not actually pocket the bill. 
Instead, using the mechanism provided in the rules of the other body 
for such periods as the December holidays, the White House returned the 
bill, with the President's veto message, to the Clerk of the House, for 
transmission to the full body when it reconvened last week. The 
President said that he was returning the bill ``to avoid unnecessary 
litigation'' and ``to leave no doubt'' that he was vetoing the bill.
  The Constitution does not provide for double vetoes: A bill is vetoed 
either by being returned or, if return is prevented by Congress's 
adjournment, by being pocketed. Here, the President returned the bill 
to the other body through delivery to the Clerk. Obviously, the 
adjournment did not prevent the bill's return. Accordingly, the bill 
was not subject to a pocket veto. Had the President not returned the 
bill within the 10 days--excluding Sunday--prescribed by the 
Constitution, the bill would have become law without his signature. 
That fact explains why the President returned the bill.
  Indeed, in 1983, President Reagan attempted to pocket veto a military 
aid appropriations measure during an analogous adjournment--the break 
between the first and second sessions of the 98th Congress. On a 
bipartisan basis, the Senate joined a group of Members of the other 
body to challenge that attempted misuse of the pocket veto in a Federal 
court case called Barnes v. Kline. Although the decision was 
subsequently vacated because the fiscal year for the military aid bill 
had expired in the meantime, thereby mooting the case, the Court of 
Appeals for the District of Columbia Circuit rejected the Executive's 
attempt to pocket veto the bill and held that, because it could have 
been returned to the House, under the Constitution the bill had become 
law. The court held that three factors, when taken together, establish 
that adjournment of the first session of a Congress does not prevent 
the President from returning a bill under the Constitution: First, 
``[t]he existence of an authorized receiver of veto messages''; second, 
``the rules providing for carryover of unfinished business'' in the 
second session of a Congress; and third, ``the duration of modern 
intersession adjournments.''

  In that decision, the court of appeals built upon the foundation laid 
by our colleague, the senior Senator from Massachusetts, who, a decade 
earlier personally had argued and won the case Kennedy v. Sampson in 
the same court, thereby establishing the President's duty to return 
bills to Congress, through its appointed officers, during intrasession 
adjournments. As the court made clear, during both types of 
adjournments, the application of the pocket veto clause has necessarily 
been guided from the beginning by its ``manifest purpose.'' And that 
purpose is solely to ensure that the Congress cannot deprive the 
President of his right to exercise the qualified veto, not to permit 
the President to accomplish what the Framers of our Constitution denied 
him--by transforming the qualified veto into an absolute veto.
  I have gone into some detail in explicating the background and 
history of the pocket veto controversy because of its importance to our 
constitutional system of separation of powers and checks and balances 
between the branches. The President should abandon the strange and 
unseemly practice

[[Page S57]]

of maintaining that he cannot return a bill to Congress, while 
simultaneously returning the bill. Such game-playing is unworthy of the 
Office of the President and breaks faith with the brilliant, carefully 
crafted system that the Founders bequeathed to us and future 
generations.
  However, much as part of me would like to see Congress take the 
opportunity provided by the President's action here to establish 
definitively the Congress's constitutional power to override a veto 
exercised during its adjournment, the Nation's security and the care of 
our troops and wounded warriors demands that we get this bill signed 
into law as soon as possible. This bill provides important 
congressional authorizations and guidance for the Nation's defense 
budget, a 3.5-percent 9 pay raise and key bonuses for the troops, 
legislation to improve the system of care for our wounded warriors, and 
authorization to establish a war profiteering commission. The 
President's veto of this bill in December has already delayed these 
provisions for too long.
  I also want to reiterate that it is my belief that the Government of 
Iraq should take responsibility for what has taken place there in years 
past, including the brutal torture of American POWs. Congress has gone 
on record repeatedly--most recently, in overwhelmingly passing section 
1083 of the conference report to H.R. 1585 last year in both the House 
and Senate and sending it to the President--to support the efforts of 
these Americans who have suffered so much for their country to hold 
their torturers accountable. This administration has been fighting for 
years to oppose efforts to win compensation for these American 
soldiers, which is, frankly, a disgrace.
  In light of the President's veto over this issue, I call on him and 
his administration to work with the POWs and their family members to 
facilitate negotiations with the Government of Iraq. It is my 
understanding that the administration has been working with Iraq to 
settle gulf war commercial debts with foreign corporations such as 
Mitsubishi of Japan and Hyundai of Korea through issuance of Iraqi 
bonds. This mechanism takes no funds from the reconstruction of Iraq. 
It is beyond me why the administration would refuse to do at least that 
for the POWs. The administration needs to make this right.
  The bill (H.R. 4986) was ordered to a third reading and was read the 
third time.
  Mr. LEVIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on passage of the bill.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from New Jersey (Mr. Menendez), and the Senator from 
Illinois (Mr. Obama) are necessarily absent.
  I further announce that, if present and voting, the Senator from New 
Jersey (Mr. Menendez) would vote ``yea.''
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Arizona (Mr. McCain), the Senator from South Dakota (Mr. Thune), 
and the Senator from Virginia (Mr. Warner).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 91, nays 3, as follows:

                       [Rollcall Vote No. 1 Leg.]

                                YEAS--91

     Akaka
     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feinstein
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCaskill
     McConnell
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Vitter
     Voinovich
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--3

     Byrd
     Feingold
     Sanders

                             NOT VOTING--6

     Clinton
     McCain
     Menendez
     Obama
     Thune
     Warner
  The bill (H.R. 4986) was passed.
  The PRESIDING OFFICER. The motion to reconsider is considered made 
and laid on the table.
  The majority leader is recognized.

                          ____________________