[Congressional Record Volume 154, Number 147 (Tuesday, September 16, 2008)]
[Senate]
[Pages S8814-S8821]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2009

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 3001, which the clerk will 
report.
  The bill clerk read as follows:

       A bill (S. 3001) to authorize appropriations for fiscal 
     year 2009 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:

       Reid amendment No. 5290, to change the enactment date.
       Reid amendment No. 5291 (to amendment No. 5290), of a 
     perfecting nature.
       Motion to recommit the bill to the Committee on Armed 
     Services with instructions to report back forthwith, with 
     Reid amendment No. 5292 (to the instructions of the motion to 
     recommit), to change the enactment date.
       Reid amendment No. 5293 (to the instructions of the motion 
     to recommit to the bill), of a perfecting nature.
       Reid amendment No. 5294 (to amendment No. 5293), of a 
     perfecting nature.

  Mr. WARNER. Mr. President, I would like now to address the Senate 
with regard to my interpretation of the many constructive efforts that 
have gone on with the chairman and myself and other colleagues to try 
to move this bill forward. As I speak for a few minutes, I urge my 
distinguished chairman to engage me in any questions or colloquy if he 
has views that could be at variance to what I express.
  I have an amendment at the desk. It is No. 5569. I shall not call it 
up at this time. The history of that amendment is as follows:
  As many of our Senate colleagues are aware, this past January 29, the 
President of the United States issued Executive Order No. 13457 
instructing the executive branch that agency heads should not base 
funding decisions on language in a committee report or conference 
report or any other nonstatutory statement of the views of Congress. 
The President took this unprecedented step because he believes--and to 
some extent I share his concern--that it is necessary to reduce the 
number and cost of what we refer to as earmarks substantially; that is, 
to reduce them substantially and to make the origin and purpose of the 
earmark more transparent. To accomplish these objectives, the Executive 
order requires that henceforth earmarks, as well as any other funding 
direction from Congress in its exercise of the power of the purse, must 
be included in the text of the bill voted on by Congress and presented 
to the President.
  In response to the Executive order, I offered an amendment during 
committee markup, on behalf of Senator McCain and myself and others, 
which would have put the committee's funding tables in the text of the 
bill. This was the most simple and direct way to comply with the 
Executive order. My amendment, after deliberation in committee, was 
defeated on a 12-to-12 vote. As a result, as reflected in section 1002 
of the bill, the committee decided to incorporate our funding tables 
into the bill by reference; that is, by a provision that states that 
each funding table in the committee report is incorporated into the act 
and is made a requirement of law to the same extent as if the funding 
table was included in the text.
  Once our bill reached the Senate floor for consideration by the full 
Senate, a colleague, Senator DeMint, filed amendment No. 5405 which, 
again, takes up the same issue.
  Senator DeMint's amendment would strike section 1002 in its entirety 
from the bill, thereby removing the funding tables from the bill. The 
result, as I interpret it, of adoption of the amendment would be that 
our funding tables would remain only in the committee

[[Page S8815]]

and conference report, setting up a conflict with the Executive order. 
Direction by Congress on the specific funding levels throughout the 
defense budget would be advisory only.
  The President's Executive order, on the other hand, would continue to 
require agency heads to ignore congressional funding directions unless 
it is in the text of bills enacted into law.
  While I appreciate the efforts by our distinguished colleague from 
South Carolina and his concern about the use of the incorporation-by-
reference technique which I opposed during committee markup, I am just 
as concerned about striking the reference to the funding tables in the 
bill and leaving them only in the committee and conference report, 
given the President's Executive order. While the DeMint amendment would 
have the positive impact of making earmarks advisory only, it would 
also undercut the legal authority of every other congressional funding 
decision which differed from the President's budget. In short, the 
DeMint amendment would seriously impair the ability of the Senate and 
Congress to meaningfully exercise the power of the purse. The Armed 
Services Committee and the Senate and Congress as a whole would lose 
the ability to direct and enforce cuts in funding, additions to funding 
that were, in our discretion, required in the President's budget, or to 
restructure programs that are part of the defense budget.
  The amendment I have offered and wish to offer as an alternative to 
Senator DeMint is No. 5569. My amendment takes the same approach which 
I argued during the committee markup. It takes the funding tables from 
our committee report and puts them directly into the bill text. The 
amendment is extraordinarily long. It goes on for 225 pages, but it 
complies with the Executive order in the most direct way possible. As a 
result, all of our funding decisions are transparent, and each item of 
funding is subject to further debate and amendment by the full Senate. 
If the funding decisions are adopted by the Senate and sustained 
through the conference between the two Houses, they will be included in 
the text of the bill as passed by Congress and presented to the 
President. Changes to the funding decisions recommended by the 
committee are subject to the normal process of amending a bill under 
the Senate rules and procedures.
  I am aware if my amendment was adopted, it would increase the burden 
of producing our bill and conference report by several days. Many 
people would be involved in that rather arduous process. We are 
informed that the best estimate is that about 4 additional days would 
be required for the committee staff, the Government Printing Office, 
and supporting House and Senate staff offices to process the detailed 
data that appears in the funding tables, if they were incorporated into 
the bill, assuming the Government Printing Office could prioritize its 
attention and resources on our bill. By ``prioritize,'' I mean what 
other work from other committees of the Congress, House and Senate, 
would be before those various administrative sections.

  Given the time constraints we face, these 4 additional days add 
significantly to the challenges of completing a conference between the 
House and Senate and passing a conference report in both Chambers 
before the target date for adjournment. While I acknowledge these 
challenges, I believe my amendment will best comply with the Executive 
order and its laudatory purposes. We must not simply ignore the 
Executive order and trust the executive branch to follow congressional 
funding directions, when the President has emphatically said the 
Congress must express its direction in the text of bills enacted into 
law.
  When Congress exercises its constitutional power of the purse, it 
should do so in a transparent, open way subject to full debate and 
amendment. When Congress speaks on its funding priorities, it should do 
so decisively, and its pronouncement should have the binding force of 
law subject only to the President's veto.
  The current posture is, this is an important issue. The distinguished 
chairman and I, together with our staffs, have worked on it. We have 
recognized the precarious nature of the bill in terms of its ability to 
be put together, brought to the desk of Senators, and then, 
subsequently, the conference report, and likewise that being properly 
put together to comply with this amendment and others. It is a 
challenge. I have discussed it with the chairman. I guess perhaps being 
an optimist, I believe if my amendment were adopted, it would reach the 
result of many colleagues, and we could go forward and do our very best 
to shorten the time normally in the history of these bills that is used 
by the conference.
  This is our 30th bill. Senator Levin is chairman of the conference 
this year. I would try in every way to support him, if he so desired to 
try to move, subject to the adoption of this amendment, this bill 
through the conference. This bill is so important to our country. It is 
so important to so many Members of our body. We have pending a 
managers' amendment which Senator Levin and our staffs have been 
working on for the last 4 or 5 days. It is close to 100 amendments 
which we have reconciled in such a way that, subject to UC, they could 
be adopted and immediately become a part of the bill prior to any 
cloture action that will take place as scheduled at 3 o'clock today. 
That embraces the work and the desires and the objectives of so many 
Members.
  I am not here to fault the fact that a hold or objection is put on a 
UC to move that package; it is to state the fact. But that objection 
largely emanates from the issue which I have tried to describe in a 
very pragmatic and forthright way to help colleagues better understand 
the current procedural dilemma that faces the body with regard to the 
bill.
  The committee and my distinguished colleagues will work as hard as we 
can to get this bill through. This is one roadmap; there may be a 
better one.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I thank my friend from Virginia for 
outlining the history of this issue in which we are involved. I am 
particularly gratified that he now agrees the DeMint amendment will be 
a significant abdication of legislative power to the executive branch. 
The reason that would be true is, there would be no reference to the 
line items we have worked so hard on in law or by reference in law, and 
that would mean the only thing that would be remaining would be a 
committee report that has all the work of our committee, not just the 
earmarks which we have added but also the lines we have added or 
subtracted to what the President has requested. That is the essential 
point relative to the DeMint amendment. It would be an absolutely 
revolutionary change in the powers of the purse, shifting a great deal 
of that power to the executive branch.
  I am delighted the Senator from Virginia has stated it exactly that 
clearly, or approximately that clearly, so that, hopefully, we can, if 
not unanimously but on a bipartisan basis defeat the DeMint amendment, 
if it is offered. Then the question comes up: How can we then 
incorporate all our effort in committee into the law? There is a lot of 
problems with doing it, which we pointed out during the committee 
debate, including the lack of flexibility that this would result in for 
the President in terms of reprogramming because now every line becomes 
a program, and that means it would be harder to shift money than it is 
now because it is easier to shift money within a program through 
reprogramming than it is between programs. That was an argument which 
we used in committee. We believe it is true that the executive branch 
will have less flexibility when it comes to reprogramming if every 
single line is in law. However, if that is what this body wishes to 
do--to make it less flexible for the President to offer reprogramming 
suggestions--that is a problem the executive branch should have, not 
ours.

  Our problem is it would be difficult, if not impossible, to get a 
conference report--first of all, it is difficult enough to get to 
conference, but then it would be extremely difficult, if not 
impossible, to bring a conference report back in the next couple weeks. 
We have gone through these numbers with the minority. We have a clear 
assessment by the Government Printing Office that it would add about 
4\1/2\ days to their work if every single line were made part of the 
bill rather than being

[[Page S8816]]

simply incorporated by reference in the bill, as it now is. We should 
not take a chance on jeopardizing this bill. This bill is too important 
to be jeopardized.
  The difference between incorporating all these lines by reference in 
the bill and actually printing them in the bill is either minor, minute 
or nonexistent legally. What this bill does is incorporate by reference 
all these lines. They are incorporate into the bill. They are 
transparent--as transparent as though they were printed in the bill. 
This green document is no less transparent than this white document. 
They are both equally transparent. The work of our committee is laid 
out in the moment in the green document. In this white document, which 
is the bill, we incorporate by reference in the bill all the line items 
so they are in the bill, and they can be changed by an amendment which 
says no money will be spent or less money will be spent for a 
particular item. It is very readily addressable by the Senate on the 
floor. The transparency issue is the same. They are both transparent 
and should be.
  So then the question becomes: Is the nonexistent or minute difference 
between incorporating all these charts in here by law or actually 
printing them in here, should that risk the passage of this bill? They 
can be addressed by amendment on the floor of the Senate, even though 
they are incorporated by reference.
  Now, this bill, as my good friend from Virginia says, is too 
important for us not to pass. We have never not passed an authorization 
bill, and this should not be the first year, when we have troops in 
harm's way, when we do not pass a Defense authorization bill. There are 
hundreds of provisions in here which directly affect the troops and 
their families. It would be unconscionable for us not to pass a Defense 
authorization bill. The reason for jeopardizing it simply does not hold 
water.
  So that is the dilemma we are in. If the Warner amendment is adopted, 
it would seriously jeopardize the chances of being able to pass a bill, 
even if we can get to conference in the next couple of days. That 
assessment was made over the weekend in terms of the number of days' 
delay that would result. That assessment was made by the Government 
Printing Office. They spent 700 person hours over the weekend at the 
Government Printing Office to give us this assessment. This is not some 
casual assessment off the back of an envelope; this is a very serious 
assessment that was made at huge expense over the weekend in order to 
give us the most accurate idea as to what the delay would be if we had 
to print each one of those thousands of lines in the bill itself, 
instead of incorporating them in the bill by reference. We should not 
jeopardize the passage of this bill.
  That is the only difficulty I now have as a legislator with the 
Warner amendment. The other difficulty, which we pointed out in 
committee, has to do with the lack of flexibility that would result to 
the executive branch in their reprogramming requests. That is a problem 
the executive branch needs to face, I would think, but as a legislator, 
what we have to protect is the power of our purse, the power of this 
Congress to make changes. That is protected in the Warner amendment.
  What the Warner amendment does is put at risk this bill, as it may be 
physically impossible to get to conference, the conference completed, 
and a conference report back by the end of next week. If we knew there 
was going to be a lameduck, there would be no problem because we could 
do this in a lameduck session no matter how much time it took between 
now and then, but we don't know that there will be a lameduck session.
  So the question is whether we are willing to take this risk. I, for 
one, cannot in good conscience risk the passage of this bill. Although 
I don't have any problem now with the Warner amendment in terms of its 
substance, it is what it would result in, in terms of the bill not 
being able to be adopted as a practical matter.
  My problems with the DeMint amendment are very serious and severe. I 
hope that amendment is not offered, and if it is, I would hope, on a 
bipartisan basis, it would be rejected by a Senate which has the 
responsibility to abide by the Constitution of the United States and 
maintain the power of the purse.
  The ACTING PRESIDENT pro tempore. The Senator from Virginia is 
recognized.
  Mr. WARNER. Mr. President, I am looking at a memorandum prepared by 
our staff, and I presume it has been shared with the chairman's staff. 
We should state to colleagues that what we learned by virtue of a long 
process that many people were involved in over the weekend is as 
follows:
  In summary, incorporation of the funding tables into the bill would 
add about 4 days to the process: About a half day for committee staff 
to prepare the files for the GPO, although much could be done during 
the conference; 3 days for the GPO to convert the files and proofread 
them; and about half a day for the committee staff to proofread them 
when GPO returns the bill in printed form.
  Let's sort of chart out a calendar. Today, we are, at the present 
time, scheduled to have a cloture vote, and if cloture comes about, 
there is an entirely different scenario, if it is voted in, by which we 
continue to address the bill. But if by any chance we could reconcile 
our differences--and we would want Members to know that last night the 
majority presented to the minority a draft UC that is now being 
reviewed by my leadership. I am at this moment unable to give the 
details of what decisions will be made or what options, other than what 
was presented to us, may be returned back by way of compromise. That is 
to take place in the coming hours, before 3 o'clock. But there is still 
the possibility that we could get a UC through that would resolve much 
of this problem. Then, if we took final passage, say, even late 
tonight--I mean if we can get the managers' package through, we will 
have close to 100 amendments in addition to those already handled, and 
that package is basically equally divided with Republican and 
Democratic amendments--let's say we have final passage tonight or 
tomorrow. How does the chairman then plot the timetable by which he 
used pretty strong language, that this amendment of mine jeopardizes 
the bill not being passed? Would the chairman give us his basic 
schedule?
  Mr. LEVIN. I thank the Senator. Before I do that, Senator Webb came 
to the floor when I assured him he would be able to discuss his 
amendment, and I am wondering if we could ask unanimous consent that 
Senator Webb be recognized as soon as our colloquy is completed and 
then that Senator Collins be recognized after Senator Webb.
  Mr. WARNER. I was not present when either of these Senators appeared. 
I am being advised by our cloakroom staff that Senator Collins came 
early this morning, at which time the assurance was given to her by 
someone that she could have 11:30. Now, I don't know quite how to sort 
this out.
  Mr. LEVIN. I wonder if I could inquire of the Senator from Maine how 
much time she would be using.
  Ms. COLLINS. Ten minutes.
  Mr. LEVIN. If I could inquire of the Senator from Virginia how much 
time he would be using.
  Mr. WEBB. About 10 minutes.
  Mr. LEVIN. If either had said 9 minutes, they would have had a better 
case.
  I wonder if the two Senators whom we referred to could get together 
and resolve this issue for us as to who would go first and who would go 
second. Could we ask the two Senators to perhaps help us out on that, 
and then I would ask that after we talk, if we could have a UC as to 
that procedure.
  In terms of the schedule, assuming we could get the bill passed by 
tomorrow, which would probably be lucky because there are a number of 
amendments that are in that unanimous consent agreement that are 
referred to specifically that have time connected to them--if we could 
get this bill passed by tomorrow, or cloture invoked, then there is 30 
hours of postcloture. We don't know whether that would be used by any 
of our colleagues. They have a right to do that, and around here, as we 
know, frequently that 30-hour period is used. If it is not used, we 
would then have to name conferees, which hopefully would be done fairly 
quickly. Then the House reviews the Senate bill and determines the 
committee jurisdiction and names their conferees. That, at a minimum, 
is

[[Page S8817]]

2 to 3 days for the House to do that--to go through that process to see 
what committees have jurisdiction over the language in our bill, other 
than the Armed Services Committee. Then the House and the Senate staffs 
have to match up these provisions for conference. That usually takes 2 
days--usually takes 2 days. So if we are lucky, we could start 
conference 3 to 4 days after passage of this bill, although it usually 
takes a longer period of time. So if we pass this bill tomorrow, that 
would take us to the end of the--that would take the House to the end 
of the week to be ready for conference, if we started conference on 
Monday. Whatever period the conference takes, even if it took 2 or 3 
days, it is the middle of next week. That is before the 4-day period is 
triggered.
  Mr. WARNER. Mr. President, if the Senator will yield, the chairman 
and I jointly agreed to ask our staffs to begin to preconference this 
bill. There has been a considerable amount of work done in the form of 
preconferencing a number of issues.
  Mr. LEVIN. There has.
  Mr. WARNER. Once the House sees the finality of the Senate bill, I am 
of the view that the balance can come together fairly swiftly. So I 
think we have somewhat of a difference of opinion as to the ability of 
all people of good intention to get together and crunch this time so we 
can meet the projected deadline of adjournment on the 26th, as I 
understand it.
  Mr. LEVIN. I don't think we have any difference on that, in terms of 
the ability of people of good faith to get things done.
  Mr. WARNER. Yes.
  Mr. LEVIN. This assumes maximum crunch, what I specified for the 
Senator from Virginia. This is an optimistic view of the timetable, 
where everybody is using 24/7, to the extent that human bodies permit. 
We don't have any difference in terms of that.
  I am wondering if our two friends from Virginia and Maine have 
resolved who would go first. Could we then allow them to proceed in the 
order they have agreed upon, and then the Senator from Virginia and I 
could pick this up after that.
  Mr. WARNER. Let's do that. Mr. President, couldn't we just do this 
informally? Once we ask unanimous consent, we are in a whole new 
framework of procedures. I think we recognized that, I believe, Senator 
Collins--and my distinguished colleague from Virginia has graciously 
allowed her to go first, and she would be followed by the Senator from 
Virginia.
  Mr. LEVIN. Mr. President, I ask unanimous consent----
  Mr. WARNER. We are back to UC. The word triggers----
  Mr. LEVIN. It shouldn't trigger a problem. We use it all day around 
here. I am simply stating the order for the two Senators to know.
  I ask unanimous consent that the Senator from Maine be recognized for 
10 minutes, and the Senator from Virginia then be recognized for 10 
minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Maine is recognized.
  Ms. COLLINS. Mr. President, I thank my colleagues for finally working 
this out.
  I rise today in strong support of the Fiscal Year 2009 National 
Defense Authorization Act. Let me begin by thanking the committee's 
distinguished chairman, Senator Levin, for his leadership, and also 
Senator Warner, who is taking on double duty, acting as the ranking 
Republican on the committee in the absence of Senator McCain. I want to 
take this opportunity to thank the senior Senator from Virginia for his 
years of service on the committee. He has been a true friend to me and 
to the members of our committee and the armed services of this Nation, 
and his guidance, wisdom and, above all, his civility in all matters 
will be greatly missed. I deeply admire him, and I thank him for his 
leadership on this bill and on so many other issues.
  Mr. WARNER. Mr. President, I humbly thank my distinguished colleague 
and longtime friend. I am certain she can take my place.
  Ms. COLLINS. I thank the Senator.
  Mr. President, this legislation will provide essential training, 
equipment, and support to our troops as they engage in combat overseas 
and in exercises at home. It also offers an important opportunity for 
continued debate as to our Nation's strategy in Iraq, especially the 
cost of reconstruction in Iraq.
  I am particularly pleased the legislation we are now debating 
contains an amendment that Senators Ben Nelson, Evan Bayh, and I 
offered to alleviate the burden on the American taxpayers of our 
operations in Iraq. It is time for the Iraqis to pay more of the costs 
of securing, rebuilding, and stabilizing their own country. During the 
Armed Services Committee markup, I joined Senators Nelson and Bayh in 
authoring the provisions that are in this bill which shift to the Iraqi 
Government the costs of securing and rebuilding Iraq in order to lift 
that burden from the shoulders of the American taxpayers.
  While our country is struggling with a soaring deficit, the Iraqi 
Government is awash in oil revenues. The Special Inspector General for 
Iraq Reconstruction has estimated that Iraq's oil profits will reach 
$70 billion this year. That is far more than the Government of Iraq 
anticipated when it established its budget of $47 billion.
  Similarly, on August 5, the Government Accountability Office issued a 
report that provided an in-depth examination of Iraqi revenues, 
expenditures, and surpluses. This GAO report underscores the need for 
our amendment requiring the Iraqi Government to assume greater 
responsibility for its own costs. The report verifies the stronger 
financial position of the Iraqis due to the unanticipated windfall 
brought about by record-high oil revenues. According to the GAO, Iraq 
is likely to receive between $67 billion and $79 billion in revenues 
from oil sales in 2008 alone--twice the average of revenues between 
2005 and 2007. Yet the Iraqis still have not adequately invested in 
reconstruction efforts in their own country. In fact, they have spent 
just 28 percent of the $12 billion investment budget.
  In addition, the Iraqis had approximately $29 billion in surplus 
funds that actually went unused during the past 2 years. When Americans 
are struggling with the high cost of energy, a weakening economy, and a 
burdensome deficit, there is simply no reason for the American 
taxpayers to continue paying for the major reconstruction projects, for 
the salaries, training, and equipping of the Iraqi security forces, or 
the cost of fuel in a country that has the second largest oil reserves 
and a burgeoning budget surplus.
  Our bipartisan amendment would shift these costs to the Iraqis. 
Specifically, our amendment prohibits America's tax dollars from being 
spent on major reconstruction projects in Iraq. It requires the Iraqis 
to assume the responsibility of paying for the salaries, training, and 
equipping of Iraq's security forces, including the army, the police, 
and the Sons of Iraq; it initiates negotiations between our Government 
and the Iraqi Government on a plan to cover other expenses, such as the 
fuel used by American forces when they are in-country.
  Our proposal was approved unanimously by the Senate Armed Services 
Committee, and it represents a significant bipartisan change in our 
policy in Iraq.
  The fact is, the American taxpayers cannot wait for the 
administration to act. We must require this significant reform by 
changing the law. Asking the Iraqis to take more responsibility for 
their own security and for the reconstruction of their own country will 
give them a sense of ownership, and it makes common sense given Iraq's 
growing budget surplus. That is the purpose of our provision, and I 
urge my colleagues to support the proposal that we have incorporated 
into the Defense authorization bill.
  The legislation before us also includes a strong commitment to 
strengthening Navy shipbuilding by including more than $14 billion for 
shipbuilding programs. It fully supports the Navy's shipbuilding 
priorities. The declining size of our naval fleet is of great concern 
to me. This legislation is an important step toward reversing that 
troubling decline.
  The Chief of Naval Operations, Admiral Roughead, has put forth a plan 
for a 313-ship Navy. It would address longstanding congressional 
concerns that naval shipbuilding has been inadequately funded. The 
instability and

[[Page S8818]]

inadequacy of previous naval shipbuilding budgets has had a number of 
troubling effects on our shipbuilding industrial base and has 
contributed to significant cost growth in the Navy's shipbuilding 
programs. The 313-ship plan, combined with more robust funding by 
Congress, will begin to reverse the decline in Navy shipbuilding.
  This bill authorizes funding for construction of a third Zumwalt 
class destroyer. The DDG-1000 represents a significant advancement in 
Navy surface combatant technology.
  It is critical that the construction of the first two DDG-1000 
destroyers continue on schedule without further delay. It is equally 
important that Congress provide full funding for the third ship.
  The dedicated and highly skilled workers at our Nation's surface 
combatant shipyards, such as the Bath Iron Works in my great State of 
Maine, are simply too valuable to jeopardize with any cuts or delays in 
this program. To date, the Navy has spent more than $11 billion on 
research, development, detailed design, and advanced procurement for 
this program. In addition, industry, including not just our shipyards 
but also a multitude of vendors in over 48 States, has made significant 
investments in preparation for building this new class of ship. It is 
critically important in these tight budget times that we not throw away 
the investment our country has made as the Navy prepares to build the 
destroyer for the 21st century. That is why I am so concerned that the 
House version of the Defense authorization bill eliminates funding for 
the construction of a third ship, and even more troubling, does not 
provide sufficient funding for the construction of any surface 
combatant.
  Mr. President, as the threats from around the world continue to grow, 
it is vitally important that the Navy have the best fleet available to 
counter those threats, keep the sealanes open, and to defend our 
Nation.
  Bath Iron Works and the shipyards of this country are ready to build 
whatever ships the Navy needs. But it is vitally important that there 
not be a gap in shipbuilding that jeopardizes our industrial base. I am 
pleased with the funding provided in this bill. I look forward to 
resolving this important issue in conference.
  Earlier this year, the Navy proposed to truncate the DDG-1000 program 
after just two ships. In July, after further evaluation, the Navy 
realized the terrible effect that such a decision would have on the 
industrial base and on our shipyards, in particular. It would have 
created a gap in work for Bath Iron Works because of the delays and 
costs inherent in restarting the DDG-51 line.
  It is important to note that Bath Iron Works is prepared to build 
whatever ships the Navy needs, but that there must be a stable work 
plan to sustain the industrial base. The best way to achieve that goal, 
and to take advantage of the billions of dollars already invested in 
the DDG-1000, is to proceed with the third ship at this time even if 
the Navy ultimately decides to build more DDG-51s.
   The House version of this bill would also require that the next-
generation class of amphibious ships be powered by nuclear propulsion 
systems, even though the shipyard that currently builds those ships 
does not have either the facilities or certifications required to 
construct nuclear-powered ships. This provision could dramatically 
increase the costs of future amphibious force vessels, with some 
estimates stating it could be as much as $800 million more per ship. 
This would reduce the overall number of ships that could be built at a 
time when the Navy is seeking to revitalize and modernize its fleet. It 
is completely contradictory to the Chief of Naval Operations 313-ship 
plan.
  I am pleased that our Senate bill also includes funding for 
additional littoral combat ships. While this program has suffered a 
number of setbacks, the Navy, with the help of Congress, has taken 
significant steps in order to begin to get this program under control. 
These ships are important for the Navy in order to counter new, 
asymmetric threats, and the Navy needs to get these ships to the fleet 
soon.
  I am pleased that the Senate Armed Services Committee also agreed to 
my request for $25 million in additional funding to continue the 
modernization program for the DDG-51 Arleigh Burke class destroyers. 
This program provides significant savings to the Navy by applying some 
of the technology that is being developed for the DDG-1000 destroyer 
and back fitting the DDG-51, which may reduce the crew size by 30 to 40 
sailors.
  The Senate's fiscal 2009 Defense authorization bill also includes 
funding for other defense-related projects that benefit Maine and our 
national security.
  The bill also authorizes $20.6 million for construction of a new 
drydock support facility at the Portsmouth Naval Shipyard in Kittery, 
ME. This drydock, and its accompanying support facility, are essential 
for the shipyard's future work on Virginia-class submarines, the Navy's 
newest attack submarine.
  Funding is provided for machine guns and grenade launchers, both of 
which are manufactured by the highly skilled workers at Saco Defense in 
Saco, ME.
   In addition, the legislation provides $1.5 million to the University 
of Maine for the continued research and development of modular 
ballistic tent insert panels. These panels provide crucial protection 
to servicemembers in temporary dining and housing facilities in mobile 
forward operating bases in Iraq and Afghanistan.
  The bill also authorizes an additional $1.5 million for the 
University of Maine's work on high temperature sensors that is 
important to the Air Force. These sensors are capable of sensing 
physical properties such as temperature, pressure, corrosion and 
vibration in critical aerospace components.
  The legislation also provides $3.5 million for further development of 
the ripsaw ground vehicle, an innovative unmanned tank-like vehicle, 
manufactured by Howe and Howe Technologies in North Berwick, ME. This 
technology will have the ability to provide force security for our 
troops by taking them directly out of harm's way.
  Finally, I am pleased that this bipartisan Defense bill also 
authorizes a 3.9 percent across-the-board pay increase for 
servicemembers, half a percent above the President's budget request.
  This bill provides the necessary resources to our troops and our 
Nation and recognizes the enormous contributions made by the State of 
Maine. The bill provides the necessary funding for our troops, and I 
offer it my full support.
  Mr. WARNER. Mr. President, if I might ask my colleague for 30 
seconds. I listened carefully to the Senator's thoughts on the Iraqi 
funding issue. I commend the Senator for that. We have amendments that 
address it. In the managers' package are certain amendments that the 
Senator from Maine put in. That is a very important issue. We owe no 
less responsibility to the American taxpayers but to assure that every 
single dollar going into that area at this time is absolutely essential 
for the purpose of the mission of our troops and otherwise, and that 
the Iraqi Government be made aware that they are a sovereign government 
now and such expenses as can be should be borne by that Government.
  Ms. COLLINS. I thank the chairman. I agree with his comments. I am 
delighted with the support he and the chairman have given to this 
effort. I thank the Senator.
  The ACTING PRESIDENT pro tempore. The junior Senator from Virginia is 
recognized.
  Mr. WEBB. Mr. President, I ask unanimous consent to speak for up to 
15 minutes on amendment No. 5499.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. WEBB. Mr. President, I will begin by associating myself with many 
of the remarks made by the Senator from Maine. As someone who served as 
the Secretary of the Navy, along with the senior Senator from Virginia, 
I have strong feelings about the strength of the Navy and the size of 
our fleet.
  I introduced an amendment on Friday that I would like to urge my 
colleagues to examine and support. We are in an odd situation in the 
business of Government at the moment in that the international 
authority for the United States to be operating in Iraq will expire at 
the end of this year. The U.N. mandate, through the U.N. Security 
Council, expires at that time.
  Since last November, this administration has been negotiating what is 
called a Strategic Framework Agreement that is intended to replace the

[[Page S8819]]

international authority of that U.N. mandate. Two questions have come 
up, however, with respect to what the administration is doing. The 
first is the timeline. This is an agreement that, by all accounts, has 
not yet been fully negotiated. It is being negotiated by the 
administration without the participation of the Congress, and there are 
indications from Iraq that the Iraqi Government negotiators themselves 
have serious questions that had not been anticipated at the beginning 
of this process. So we have a potential, with the timeline, that the 
U.N. mandate will run out at the end of the year and there will not be 
an agreement in place that authorizes the presence of our forces in 
Iraq under international law.
  The larger question is constitutional. What entity of the Federal 
Government has the authority to enter the United States into a long-
term relationship with another government? Both of these are serious 
issues. I submit that the conditions under which we will continue to 
operate in Iraq militarily, diplomatically, economically, and even 
culturally, are not the sole business of any administration. These 
questions involve the legal justification under domestic and 
international law for the United States to operate militarily--and 
quasi-militarily, by the way, given the hundreds of thousands of 
independent contractors that are now essentially performing military 
functions in that country.
  There are questions about the process by which the U.S. Government 
decides upon and enters into long-term relations with another nation--
any nation. In that regard, there are serious questions about the very 
working of the constitutional system of our Government.
  This administration has claimed repeatedly since last November that 
it has the right to negotiate and enter into an agreement that will set 
the future course of our relations with Iraq without the agreement, the 
ratification, or even the participation of the Congress.
  The administration claims the justification for this authority can be 
found in the 2002 congressional authorization for the use of force in 
Iraq or, as a fallback position, the President's inherent authority, at 
least from the perspective of this administration, as Commander in 
Chief.
  Both of these justifications are patently wrong. The 2002 
congressional authorization to use force in Iraq has nothing to do with 
a negotiation of a government which replaced the Saddam Hussein 
government which did not exist in October of 2002, as to the future 
relations culturally, economically, diplomatically, and militarily 
between our two countries.
  On the other hand, we are faced with the reality that the U.N. 
mandate will expire at the end of this year and that this expiration 
will terminate the authority under international law under which the 
United States is operating in Iraq at a time when we have hundreds of 
thousands of Americans on the ground in that country.
  I and several other colleagues have been warning of this serious 
disconnect for 10 months. Many of us were trying to say last November 
that apparently the intention of this administration has been to 
proceed purely with an Executive agreement to drag this out until the 
Congress was going out of session, as we are about to do, and then to 
present essentially a fait accompli in the sense that with the 
expiration of the international mandate from the United Nations at the 
end of the year, something would have to be done, and that something 
would be an Executive agreement that to this point the Congress has not 
even been allowed to examine. We have not been able to see one word of 
this agreement.
  We tried to energize the Congress. We met with all of the appropriate 
administration officials. There have been hearings. There have been 
assurances from the administration that they will consult at the 
appropriate time, as they define it. We have seen nothing. And so we 
are faced with a situation that is something of a constitutional coup 
d'etat by this administration.
  I say to my colleagues that we all should be very concerned. At risk 
is a further expansion of the powers of the Presidency, the result of 
which would be to affirm in many minds that the President--any 
President--no longer needs the approval of Congress to enter into long-
term relations with another country, in effect committing us to 
obligations that involve our national security, our economic well-
being, and our diplomatic posture around the world without the direct 
involvement of the Congress. This is not what the Constitution 
intended. It is not in the best interest of the country.
  This amendment, which I offered on Friday, is designed to prevent 
this sort of imbalance from occurring and at the same time it 
recognizes the realities of the timelines that are now involved with 
respect to the loss of international authority for our presence in Iraq 
at the end of this year.
  The amendment is a sense of the Congress. On the one hand, it is a 
sense that we should work with the United Nations to extend the U.N. 
mandate up to an additional year, giving us some additional 
international authority for being in Iraq, if needed, taking away the 
pressure of this timeline that could be used to justify an agreement 
that the Congress has not had the ability to examine, but also saying 
that an extension of the U.N. mandate would end at any time where a 
Strategic Framework Agreement and a Status of Forces Agreement between 
the United States and Iraq would be mutually agreed upon.
  The amendment also makes the point that the Strategic Framework 
Agreement now being negotiated between the United States and Iraq poses 
significant, long-term national security implications for this country, 
and this would be the sense of the Congress. We need to be saying that. 
The Iraqis need to hear it from the Congress.
  The amendment also puts Congress and the administration on record 
regarding the many assurances that the Bush administration has made to 
fully consult with the Congress with respect to all the details of the 
Strategic Framework Agreement and the Status of Forces Agreement and 
that copies of the full text of these agreements will be provided to 
the chairmen and ranking minority members of the appropriate committees 
in the House and the Senate prior to the entry into either of these 
agreements.
  It is important to say that the Strategic Framework Agreement that 
has been mutually agreed upon by the negotiators from our executive 
branch and the Iraqi Government officials will cease to have effect 
unless it is approved by the Congress. This amendment states that 
within 180 days of the entry into force of that agreement, the Congress 
would approve it. We are not calling for the full and complicated 
procedures of a treaty, but we are saying a majority of the Congress 
should approve any agreement that has been entered into.
  On the one hand, this agreement recognizes the realities of where we 
are in terms of timelines, but on the other it protects the 
constitutional processes by which we are entering into long-term 
relations with other countries, whether it is Iraq or any other country 
around the world.
  We need, as a Congress, to preserve this process. It does not operate 
in a way that would disrupt our operations in Iraq. I urge my 
colleagues to join me on this amendment and protect the prerogatives of 
the Congress under the Constitution.
  I understand this amendment will be included in the unanimous consent 
request that will come for a vote later today. I hope my colleagues 
will support me on it.
  Mr. President, I yield the floor.
  Mr. WARNER. Mr. President, if I may say, I have been viewing the two 
drafts of the UCs. Momentarily, I expect the chairman and I will decide 
how to deal with it. But I assure the Senator that the Webb amendment 
is in both drafts of UCs.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I commend Senator Webb for this sense-of-
the-Senate resolution. We have the assurance of the administration that 
they will share the text with the leadership of the Congress and with 
the chairmen and ranking members of the Senate and House Armed Services 
Committees and Foreign Relations Committees. But this goes beyond it 
and takes an essential step beyond that commitment.
  We should be involved in this kind of a long-term relationship. I 
commend

[[Page S8820]]

the Senator from Virginia for his drafting of this amendment. It is 
very careful. I believe, based on the assurance of Senator Warner, that 
it will be included in any UC that is propounded. I hope that UC--any 
UC--can be adopted and that, indeed, it will include the Webb amendment 
as having the assurance of a vote.
  Mr. WEBB. I thank the chairman and the senior Senator from Virginia.
  The ACTING PRESIDENT pro tempore. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I ask the Chair to notify me when I 
have reached the 1-minute mark.
  Mr. President, I first want to say, as I rise to support the National 
Defense Authorization Act of 2009 and honor all of our service members 
and their families who continue to serve and sacrifice for the sake of 
the country, that I am very appreciative of the leadership of both 
Chairman Levin and Senator Warner and, obviously, Senator McCain who 
has been absent some and Senator Warner has so ably filled in.
  Chairman Warner will always be chairman to me. He has been my dear 
friend through many years. What a great service to our country this 
great American has provided in the true Virginia gentleman tradition. 
He has always been such an asset to this body and such an asset to our 
men and women in uniform. I thank Senator Warner for his great service, 
I thank him for his friendship, and I thank him for what he does every 
day for our men and women in uniform.
  Mr. WARNER. Mr. President, I humbly acknowledge the gracious remarks, 
and I express my appreciation.
  Mr. CHAMBLISS. Mr. President, last week marked the seventh 
anniversary of the day our country was attacked by terrorists, 
resulting in the deaths of approximately 3,000 innocent people. Since 
that day and for the past 7 years, our Nation has devoted itself to 
winning the global war on terrorism.
  It is astonishing how the commitment of our soldiers, airmen, 
sailors, and marines has inspired the Afghan and Iraqi people to build 
their own political framework, improve their security and 
infrastructure, and promote human rights, freedom, and democracy in 
their respective countries. I am proud to say that our commitment to 
and investment in the global war on terrorism is now bearing fruits 
that are leading to a safer and more democratic world.
  All of our accomplishments in this area start with our servicemembers 
and their families who every day face the challenges, sacrifices, and 
dangers inherent in the profession of arms. Congress is entrusted with 
providing the necessary resources, policies, and programs for our 
servicemembers and military departments in order to ensure their 
success.
  This year's National Defense Authorization Act serves as the vehicle 
to do just that and provides the resources and policies to carry out 
the missions we ask of our military.
  Specifically, the bill provides the following:
  An increase of 7,000 soldiers, 5,000 marines, and 3,371 full-time 
personnel for the Army National Guard and Army Reserve over the 2008 
force structure levels; a 3.9-percent pay raise for all military 
personnel; a total of $125 billion for military personnel to improve 
allowances, bonuses, permanent change of station moves, and death 
benefits; reauthorization of over 25 types of bonuses and special pay 
to promote enlistment and continued military service; more rigorous 
oversight procedures for military housing privatization projects; and a 
report to Congress on the implementation of the Yellow Ribbon 
Reintegration Program.
  I also have several amendments to the bill, all of which I understand 
will be included in a manager's package. I wish to discuss these 
amendments very briefly.
  First, last year, I worked with many of my colleagues to include a 
provision in the National Defense Authorization bill allowing for 
members of the Guard and Reserve who deploy in support of a contingency 
operation to receive their retired pay early based on how much time 
they deploy. This year, Senator Kerry and I, along with 15 other 
Senators, have offered an amendment that would make this provision 
retroactive to include any duty performed after September 11, 2001.
  This amendment recognizes a significant sacrifice that members of the 
Guard and Reserve and their families have made since 9/11 in answering 
the call of duty. It is only right that their duty and support of the 
global war on terrorism since September 11 be recognized and included 
when considering when they should receive retired pay. It is my hope we 
can keep this provision in conference and included in the final version 
of the bill.
  Also for the Guard and Reserve, I have offered an amendment, 
cosponsored by my colleague Mark Pryor from Arkansas, which would 
provide 180 days of transitional health care for members leaving active 
duty who agree to affiliate with the Guard and Reserve. An identical 
provision was sponsored and included in the House bill by my good 
friend Congressman Sanford Bishop from Georgia. This amendment provides 
a powerful incentive for members leaving active duty to join the Guard 
and Reserve and could result in several thousand more people entering 
the Guard and Reserve each and every year.
  I ask unanimous consent to have printed in the Record a letter of 
support for this amendment from the Reserve Officers Association.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 Reserve Officers Association,

                               Washington, DC, September 15, 2008.
     Hon. Saxby Chambliss,
     Chairman of the Senate Reserve Caucus, Russell Office 
         Building, Washington, DC.
       Dear Senator Chambliss: The Reserve Officers Association, 
     representing 65,000 Reserve Component members, supports 
     Amendment 5356 of the Senate Defense Authorization bill, S. 
     3001, which grants transitional health care to active duty 
     personnel as they become a member of the armed forces reserve 
     component.
       It is important to reduce the barriers that prevent people 
     from joining the National Guard or Reserve. Providing 
     transitional TRICARE health coverage permits serving members 
     and their families to continue with the same coverage they 
     received while on active duty, and allow them time to qualify 
     for TRICARE Reserve Select. Your amendment provides a 
     recruiting incentive that helps the individual, his or her 
     family and the armed forces.
       Thank you for your efforts on this key issue, and other 
     support to the military that you have shown in the past. 
     Please feel free to have your staff call ROA's legislative 
     director, Marshall Hanson with any question or issue you 
     would like to discuss.
           Sincerely,

                                           Dennis M. McCarthy,

                                Lieutenant General USMC (Retired),
                                               Executive Director.

  Mr. CHAMBLISS. Mr. President, another amendment I have offered to the 
bill, along with my colleague from Georgia, Senator Isakson, provides a 
sense of the Senate on the care of wounded warriors. Last year's 
Defense Authorization bill contained the Wounded Warrior Act which went 
a long way to helping DOD and Department of Veterans Affairs establish 
a network of recovery care coordinators who would work to manage and 
coordinate care for recovering servicemembers. This is a powerful 
program and stands to make a huge impact in the lives of our wounded 
warriors. My amendment calls on DOD and the VA to expedite the 
recruiting, training, and hiring of these personnel, and also to 
partner with civilian institutions, such as the Medical College of 
Georgia School of Nursing, to help train these personnel and ensure 
they have access to the most up-to-date research and skills in order to 
best serve our wounded warriors.
  Two other amendments I will mention briefly are first a sense of the 
Senate that the Air Force should conduct a robust demonstration of the 
SYERS system on the Joint STARS aircraft. SYERS would provide an 
expanded combat identification capability for Joint STARS and the Air 
Force should fully explore its utility and the possibility of 
incorporating SYERS on the entire Joint STARS fleet.
  Second, I have offered an amendment that would require DOD to report 
to Congress on the requirement for Non-dual status National Guard 
technicians. These personnel are often used to backfill deploying Guard 
personnel, and due to the large number of deployments, we need to look 
at expanding the number of Non-dual status technicians as a means of 
ensuring the Guard's home State missions are not neglected.

[[Page S8821]]

  The National Defense Authorization Act is designed to strengthen our 
military, provide the required resources to the Department of Defense 
to carry out the responsibilities our Nation asks of them, and to 
improve our servicemembers' and their families' quality of life. The 
proposed legislation and the funding priorities will ensure that our 
Nation maintains an adept and quality force to defend our country and 
allow us to continue to be an ambassador for a prosperous and peaceful 
world. I commend the chairman, the ranking member, and committee staff 
for their hard work on the bill and their diligence in bringing it to 
the floor.
  Unfortunately, the bill does have several problematic provisions, 
including an unnecessary limitation on the role of private security 
contractors and an unnecessary prohibition on trained and qualified 
personnel conducting lawful interrogations. I hope we can address and 
resolve these issues in conference in a way that best serves our 
military personnel and allows them to effectively carry out their 
responsibilities.
  I also hope the Senate can complete action on this very important 
piece of legislation and proceed to a House-Senate conference and 
passage of a conference report prior to the end of this month.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California is 
recognized.
  Mrs. FEINSTEIN. I thank the Chair.
  (The remarks of Senator Feinstein pertaining to the introduction of 
S. 3493 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mrs. FEINSTEIN. Mr. President, I yield the floor.
  Mr. LEVIN. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. 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 ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

                          ____________________