[Congressional Record Volume 156, Number 173 (Wednesday, December 22, 2010)]
[Senate]
[Pages S10936-S10938]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  IKE SKELTON NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011

  Mr. LEVIN. Mr. President, in legislative session and in morning 
business, I ask unanimous consent that the Senate proceed to the 
immediate consideration of Calendar No. 717, H.R. 6523, the Department 
of Defense authorization bill, that a Levin-McCain amendment that is at 
the desk be agreed to, the bill, as amended, be read the third time and 
passed, the motions to reconsider be laid upon the table, with no 
intervening action or debate, and that any statements related to the 
bill be printed in the Record.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. McCAIN. Reserving the right to object, and I will not object, a 
lot of people may not understand that unanimous consent request that 
was just made by the chairman of the Armed Services Committee.
  Am I correct, I ask my friend from Michigan, that this is in order to 
pass the National Defense Authorization Act? We have gone, I believe, 
48 years and passed one, and there are vital programs, policies, and 
pay raises for the men and women in the military and other policy 
matters that are vital to successfully carrying out the two wars we are 
in and providing the men and women who are serving with the best 
possible equipment and capabilities to win those conflicts. Am I 
correct in assuming that is what this agreement is about?
  Mr. LEVIN. The Senator from Arizona is correct. It is the bill--
slightly reduced to eliminate some of the controversial provisions, 
which would have prevented us from getting to this point, but this is 
the Defense authorization bill, and 90 to 95 percent of the bill is the 
bill we worked so hard on in committee on a bipartisan basis. I am very 
certain that our men and women in uniform, as this Christmas season 
comes upon us, will be very grateful indeed that we did this in the 
49th year--and if the House will move swiftly today and pass this bill, 
as we have done in the previous 48 years--passed an authorization 
bill--which is so essential to their success.
  Mr. McCAIN. I will not object.
  Finally, I thank the chairman of the Senate Armed Services Committee. 
I assure my colleagues that the controversial aspects of this 
legislation have been removed, and only the essential parts remain. I 
thank the Senator from Michigan. I hope we will move forward and get 
this done today so that we can again provide our men and women who are 
serving with the best capability to defend this Nation.
  The ACTING PRESIDENT pro tempore. Is there objection? Without 
objection, it is so ordered.
  The amendment (No. 4921) was agreed to, as follows:

                    (Purpose: To strike title XVII)

       Strike title XVII and the corresponding table of contents 
     on page 18.

  The amendment was ordered to be engrossed and the bill to be read a 
third time.
  The bill (H.R. 6523), as amended, was passed.


                        kc-x tanker competition

  Ms. CANTWELL. Mr. President, I rise to enter into a colloquy with the 
esteemed chairman of the Senate Armed Services Committee, Senator 
Levin.
  Mr. President, I recognize that there are objections to bringing up a 
bill dealing with the Air Force KC-X tanker competition requiring the 
Secretary of Defense to take into account any unfair competitive 
advantages given to any of the competitors for the contract. This 
provision has passed twice on the House side now by overwhelming 
majorities and I am shocked that the same language cannot be included 
in the Defense authorization bill or passed as a stand-alone bill. 
These are legitimate concerns being brushed under the rug rather than 
dealt with head on. I recognize that with such a short amount of time 
left in this Congress we will have trouble convincing our colleagues 
that we are allowing a terrible precedent to be set and an expensive 
injustice is being done to American workers and taxpayers. In the last 
competition, GAO found multiple instances of uneven treatment that when 
compiled showed a pervasive bias in support of EADS/Airbus. 
Unfortunately, we now are seeing a similar pattern of behavior emerging 
and I have concerns about the conduct of the competition by the 
Pentagon for this U.S. taxpayer-funded $35 billion contract. At every 
turn, it seems the Pentagon has gone out of its way to advantage EADS/
Airbus for example, the Pentagon has structured the competition in ways 
that minimize the cost advantages of an American-made tanker; extended 
deadlines to accommodate EADS/Airbus; adjusted analytical models in the 
competition in ways that favor only the EADS/Airbus tanker; and, most 
recently decided to continue using the so-called IFARA war scenario 
model in the competition despite having inadvertently released 
proprietary information that disclosed Boeing's scores to EADS/Airbus. 
In recent press stories EADS/Airbus officials claimed they did not look 
at Boeing's proprietary information but it has now come out that in 
fact EADS/Airbus did look at it. This type of behavior is unacceptable.
  In light of the serious national security and economic implications 
of the KC-X Tanker competition, I am respectfully requesting that the 
chairman of the Armed Services Committee initiate an investigation into 
these issues--in particular the inadvertent release of proprietary 
data--to determine whether or not laws and fair competition regulations 
have been appropriately followed. Further, I am seeking the chairman's 
assurance today that he intends to call departmental witnesses before 
the Armed Services Committee to ensure that the committee is fully 
informed on the progress, status, and conclusions regarding the 
aforementioned investigation and any other DOD investigations into this 
and related matters.
  Mr. LEVIN. I am prepared to direct staff immediately to initiate an 
investigation into the release of proprietary data to determine if laws 
and fair competition regulations have been appropriately followed. I 
also intend to hold one or more hearings by February 1 to consider 
these issues and to review the propriety of the procurement process of 
the KC-X tanker competition as it relates to this issue.


                       Pay For Nonregular Service

  Mr. CHAMBLISS. Mr. President, I rise to comment on a provision in the 
fiscal year 2011 NDAA which the Senate passed today.
  Section 635 of H.R. 6523, The Ike Skelton National Defense 
Authorization Act for fiscal year 2011, contains a sense of Congress 
concerning age and service requirements for retired pay for nonregular 
service. The sense of Congress serves to clarify a provision which I 
authored and which is contained in section 647 of the fiscal year 2008 
National Defense Authorization Act. I appreciate the committee's desire 
to clarify the intent of that provision and ensure proper credit is 
given to members of the Reserve.
  As can be inferred from the title of the provision in the fiscal year 
2008 NDAA, the intent of the provision is to provide earlier retired 
pay to members of the Ready Reserve who serve in active Federal status 
or perform active

[[Page S10937]]

duty for significant periods. The sense of Congress in the fiscal year 
2011 NDAA notes that the intent of the original provision was for 
reservists to begin receiving retired pay according to time spent 
deployed, by 3 months for every 90-day period spent on active duty over 
the course of a career, rather than limiting qualifying time to such 
periods wholly served within the same fiscal year. I agree with this 
sense of the Congress to the extent that reservists should receive 
credit for each 90-day period of continuous duty even though that duty 
may span 2 different fiscal years.
  However, the original intent of the provision, as I authored it, was 
not to give credit for any 90 days of duty served anytime in one's 
career, regardless of whether or not that duty was served 
consecutively. This would not be ``active Federal status or active duty 
for significant periods,'' it would just be the normal accumulation of 
days served over the course of a reservists career.
  My intent in the original provision was to reward reservists who were 
deploying or serving an active duty tour for a significant period of 
time. It was not to allow for early receipt of retired pay simply 
because, over the course of a reservist's career, the number of days 
served added up to 90.
  I would like to yield to the honorable ranking member of the 
committee, the Senator from Arizona, and solicit his perspective on 
this matter.
  Mr. McCAIN. I thank the Senator from Georgia and appreciate his 
desire to clarify this provision.
  I agree, as the title of the provision in the fiscal year 2008 NDAA 
makes clear, that the intent of the change to the law was to expand 
eligibility for earlier retired pay to members of the Ready Reserve who 
deploy on active duty in support of contingency operations for 
significant periods. It is unfortunate that some reservists who perform 
90 days of deployed, consecutive duty or more that has spanned two 
fiscal years have not received credit under this provision. The sense 
of the Congress in section 635 of the fiscal year 2011 NDAA seeks to 
clarify this, and I agree with the Senator from Georgia that the duty 
needs to be ``for significant periods''--it should not simply be the 
accumulation of 90 days of duty over the course of a reservists' 
career.
  Mr. CHAMBLISS. I thank the ranking member for his comments and I 
appreciate his willingness to clarify this issue.


                             Land Transfer

  Mr. PRYOR. Mr. President, I rise today to speak about an issue 
related to the fiscal year 2011 National Defense Authorization Act. 
Chairman Levin has worked incredibly hard to get this bill passed by 
unanimous consent, and I appreciate his efforts, the efforts of Senator 
McCain and the efforts of rest of the Armed Services Committee members.
  In the fiscal year 2010 National Defense Authorization Act, the 
chairman helped me to include language that would allow for a land 
exchange between Camp Joseph T. Robinson, which is an Army National 
Guard facility, and their neighbor, the city of North Little Rock, AR. 
This land conveyance is in the best interest of the military for a 
couple of reasons. First, the land that the Arkansas National Guard is 
giving up is so steep that it cannot be used for mounted or dismounted 
training. Second, the land cannot be totally secured due to extremely 
rugged terrain. Lastly, due to the lack of complete security, there is 
a possibility that a civilian could enter the property and be seriously 
injured. The land that would be gained by the Arkansas National Guard 
is well suited for mounted and dismounted training and able to be 
secured.
  As all entities were working in good faith toward executing this land 
exchange, it was brought to my attention that we need one minor 
adjustment to this language. This adjustment would be a technical 
correction that would specify that the land exchange is to occur 
between the city of North Little Rock, AR, and the Military Department 
of Arkansas, rather than between the city of North Little Rock, AR, and 
the United States of America. This clarification is necessary since 
Camp Joseph T. Robinson is an entity of the State of Arkansas rather 
than an entity of the United States of America.
  I understand that there was a timing issue this year and a need to 
pass the bill by unanimous consent in the Senate so we did not have a 
formal amendment process during consideration of the bill. However, 
this technical correction is important to Arkansas. I would ask for the 
chairman's assistance in addressing this issue at the first opportunity 
next year.
  Mr. LEVIN. I appreciate the Senator from Arkansas bringing this issue 
to my attention, and I will work with him next year to find a 
resolution.
  Mr. PRYOR. I appreciate the remarks of the chairman and thank him for 
his help on this matter. His leadership on military issues is 
invaluable in the U.S. Senate.
  Mr. LEAHY. Mr. President, I am deeply disappointed that H.R. 6523, 
the National Defense Authorization Act for Fiscal Year 2011, includes a 
section to prohibit the transfer of terrorism suspects at Guantanamo 
Bay to the United States to face prosecution. This section takes away 
one of the greatest tools we have to protect our national security--our 
ability to prosecute terrorism defendants in Federal courts. The result 
is to make it more likely that terrorists will not be brought to 
justice.
  Current law allows for the transfer of these terrorist suspects for 
prosecution in the Federal courts. This is a policy that I strongly 
support. I want to see those who have committed acts of terrorism 
convicted in our justice system and sentenced to long terms in prison.
  Our Federal judges and Federal prosecutors have extraordinary 
experience dealing with complex terrorism and conspiracy cases. The 
record speaks for itself. Since September 11, 2001, over 425 persons 
have been convicted on terrorism related charges in the Federal 
courts--including more than 70 defendants since President Obama took 
office in January 2009.
  And yet, despite this strong record, Congress continues to try to tie 
the hands of law enforcement and other security agencies. The 
prohibition contained in section 1032 of H.R. 6523 is a complete bar on 
transfers of terrorism suspects at Guantanamo Bay to the United States. 
There are no exceptions to this prohibition for Federal prosecutions. 
Rather than addressing the question of how to close the prison facility 
at Guantanamo Bay once and for all, Congress is obstructing efforts to 
bring these criminals to justice.
  In a letter to the Senate leadership dated December 9, 2010, Attorney 
General Eric Holder warned that this provision would ``set a dangerous 
precedent with serious implications for the impartial administration of 
justice.'' The Attorney General further stated that, by restricting the 
discretion of the executive branch to prosecute terrorists in Article 
III courts, Congress would ``tie the hands of the President and his 
national security advisers'' and would be ``taking away one of our most 
potent weapons in the fight against terrorism,'' Accordingly, this 
provision is short-sighted and unwise.
  This prohibition language also sets a dangerous political precedent. 
Once the Senate votes in favor of a total bar to transfers, even for 
criminal trial, we will see it offered again and again. This is a door 
that, once opened, will not easily be closed.
  I can think of only two possible motivations for including this ban 
of all transfers to the United States. One is to ensure that the 
detainees being held at Guantanamo Bay, some for years without charge, 
can only be tried by military commissions. The other is to ensure that 
these suspects are simply held in military detention at Guantanamo Bay 
indefinitely. The very strict restrictions on transfers of suspects 
from Guantanamo Bay to other nations in section 1033 of H.R. 6523 
suggests that indefinite detention is, in fact, the goal of these 
provisions.
  For those who wish to see terrorism suspects tried only in military 
commissions, I urge them to study the record. The military commissions 
devised by the prior administration were plagued with problems and 
repeatedly overturned by the U.S. Supreme Court. The Obama 
administration has worked hard to revise the military commissions to 
make sure they meet constitutional standards. However, the new system 
is still largely untested, and the rules for these commissions were 
only just released earlier this year.
  Military commissions have achieved only five convictions since the 
September 11, 2001, attacks. Four of the

[[Page S10938]]

five resulted from pleas. The sentences handed down in these five cases 
have been much shorter than those meted out in Federal court 
convictions. In contrast, our Federal courts have a long and 
distinguished history of successfully prosecuting even the most 
atrocious violent acts, and our judicial system is respected throughout 
the world.
  The vital role of the rule of law and our judicial system in the 
fight against terrorism is also strongly supported by leaders of our 
military who served honorably to protect our nation and uphold the 
Constitution. On December 10, 2010, a group of retired generals and 
admirals voiced their opposition against restricting law enforcement's 
ability to try terrorists in Federal criminal courts, and wrote that, 
``By trying terrorist suspects in civilian courts we deprive them of 
the warrior status they crave and treat them as the criminals and thugs 
they are. As long as Guantanamo is open it offers America's enemies a 
propaganda tool that is being used effectively to recruit others to 
their cause and undermines U.S. efforts to win support in the 
communities where our troops most need local cooperation to succeed.''
  I believe strongly, as all Americans do, that we must do everything 
we can to prevent terrorism, and we must ensure severe punishment is 
imposed upon those who do us harm. As a former prosecutor, I have made 
certain that perpetrators of violent crimes receive serious punishment. 
I also believe strongly that we can ensure our safety and security, and 
bring terrorists to justice, in ways that are consistent with our laws 
and values. Congress should not limit law enforcement's ability to do 
just that.
  Mr. LEVIN. Mr. President, the proud tradition our committee has 
maintained every year since 1961 continues with the Senate's passage of 
this, the 49th consecutive national defense authorization bill. We 
always have to work long and hard to pass this bill, but it is worth 
every bit of the effort we put into it because it is for our troops and 
their families as well as, obviously, our Nation. I thank all Senators 
for their roles in keeping this tradition going.
  Our bipartisanship on this committee makes this moment, as late as it 
is, possible. I am proud to serve with Senator McCain and am grateful 
for his partnership.
  I thank all our committee staff members. With their extraordinary 
drive and many personal sacrifices to get this bill done--and we had to 
get it done twice because we had to modify the bill that was originally 
presented to the Senate, as everybody here knows. Our staff has given 
another meaning to this season of giving. Led by Rick DeBobes, our 
committee's staff director, and Joe Bowab, our Republican staff 
director, they have given everything imaginable, and some things 
unimaginable, to get this bill passed. So we thank all of them.
  I ask that, as a tribute to the professionalism of our staff, and our 
gratitude, their names be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Richard D. DeBobes, Staff Director; Joseph W. Bowab, 
     Republican Staff Director; Adam J. Barker, Professional Staff 
     Member; June M. Borawski, Printing and Documents Clerk; Leah 
     C. Brewer, Nominations and Hearings Clerk; Christian D. 
     Brose, Professional Staff Member; Joseph M. Bryan, 
     Professional Staff Member; Pablo E. Carrillo, Minority 
     Investigative Counsel; Jonathan D. Clark, Counsel; Ilona R. 
     Cohen, Counsel; Christine E. Cowart, Chief Clerk; Madelyn R. 
     Creedon, Counsel; Gabriella E. Fahrer, Counsel; Richard W. 
     Fieldhouse, Professional Staff Member; Creighton Greene, 
     Professional Staff Member; John W. Heath, Jr., Minority 
     Investigative Counsel; Gary J. Howard, Systems Administrator; 
     Paul C. Hutton IV, Professional Staff Member; Jessica L. 
     Kingston, Research Assistant; Jennifer R. Knowles, Staff 
     Assistant.
       Michael V. Kostiw, Professional Staff Member; Michael J. 
     Kuiken, Professional Staff Member; Kathleen A. Kulenkampff, 
     Staff Assistant; Mary J. Kyle, Legislative Clerk; Christine 
     G. Lang, Staff Assistant; Gerald J. Leeling, Counsel; Daniel 
     A. Lerner, Professional Staff Member; Peter K. Levine, 
     General Counsel; Gregory R. Lilly, Executive Assistant for 
     the Minority; Hannah I. Lloyd, Staff Assistant; Jason W. 
     Maroney, Counsel; Thomas K. McConnell, Professional Staff 
     Member; William G.P. Monahan, Counsel; Davis M. Morriss, 
     Minority Counsel; Lucian L. Niemeyer, Professional Staff 
     Member; Michael J. Noblet, Professional Staff Member; 
     Christopher J. Paul, Professional Staff Member; Cindy 
     Pearson, Assistant Chief Clerk and Security Manager; Roy F. 
     Phillips, Professional Staff Member; John H. Quirk V, 
     Professional Staff Member.
       Robie I. Samanta Roy, Professional Staff Member; Brian F. 
     Sebold, Staff Assistant; Russell L. Shaffer, Counsel; Travis 
     E. Smith, Special Assistant; Jennifer L. Stoker, Security 
     Clerk; William K. Sutey, Professional Staff Member; Diana G. 
     Tabler, Professional Staff Member; Mary Louise Wagner, 
     Professional Staff Member; Richard F. Walsh, Minority 
     Counsel; Breon N. Wells, Staff Assistant; Dana W. White, 
     Professional Staff Member.

  Mr. LEVIN. I yield the floor and 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. KERRY. 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.

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