[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
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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
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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.
____________________