Congressional Record, Volume 157 Issue 181 (Tuesday, November 29, 2011)

[Congressional Record Volume 157, Number 181 (Tuesday, November 29, 2011)]
[Senate]
[Pages S7943-S7956]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 1867, which the clerk will
report.
The legislative clerk read as follows:

A bill (S. 1867) to authorize appropriations for fiscal
year 2012 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:

Levin/McCain amendment No. 1092, to bolster the detection
and avoidance of counterfeit electronic parts.
Paul/Gillibrand amendment No. 1064, to repeal the
Authorization for Use of Military Force Against Iraq
Resolution of 2002.
Merkley amendment No. 1174, to express the sense of
Congress regarding the expedited transition of responsibility
for military and security operations in Afghanistan to the
Government of Afghanistan.
Feinstein amendment No. 1125, to clarify the applicability
of requirements for military custody with respect to
detainees.
Feinstein amendment No. 1126, to limit the authority of
Armed Forces to detain citizens of the United States under
section 1031.
Udall (CO) amendment No. 1107, to revise the provisions
relating to detainee matters.
Landrieu/Snowe amendment No. 1115, to reauthorize and
improve the SBIR and STTR programs, and for other purposes.
Franken amendment No. 1197, to require contractors to make
timely payments to subcontractors that are small business
concerns.
Cardin/Mikulski amendment No. 1073, to prohibit expansion
or operation of the District of Columbia National Guard Youth
Challenge Program in Anne Arundel County, MD.
Begich amendment No. 1114, to amend title 10, United States
Code, to authorize space-available travel on military
aircraft for members of the Reserve components, a member or
former member of a Reserve component who is eligible for
retired pay but for age, widows and widowers of retired
members, and dependents.
Begich amendment No. 1149, to authorize a land conveyance
and exchange at Joint Base Elmendorf-Richardson, Alaska.
Shaheen amendment No. 1120, to exclude cases in which
pregnancy is the result of an act of rape or incest from the
prohibition on funding of abortions by the Department of
Defense.
Collins amendment No. 1105, to make permanent the
requirement for certifications relating to the transfer of
detainees at U.S. Naval Station Guantanamo Bay, Cuba, to
foreign countries and other foreign entities.
Collins amendment No. 1155, to authorize educational
assistance under the Armed Forces Health Professions
Scholarship Program for pursuit of advanced degrees in
physical therapy and occupational therapy.
Collins amendment No. 1158, to clarify the permanence of
the prohibition on transfers of recidivist detainees at U.S.
Naval Station Guantanamo Bay, Cuba, to foreign countries and
entities.
Collins/Shaheen amendment No. 1180, relating to man-
portable air-defense systems originating from Libya.
Inhofe amendment No. 1094, to include the Department of
Commerce in contract authority using competitive procedures
but excluding particular sources for establishing certain
research and development capabilities.
Inhofe amendment No. 1095, to express the sense of the
Senate on the importance of addressing deficiencies in mental
health counseling.
Inhofe amendment No. 1096, to express the sense of the
Senate on treatment options for members of the Armed Forces
and veterans for traumatic brain injury and post-traumatic
stress disorder.
Inhofe amendment No. 1097, to eliminate gaps and
redundancies between the over 200 programs within the
Department of Defense that address psychological health and
traumatic brain injury.
Inhofe amendment No. 1098, to require a report on the
impact of foreign boycotts on the defense industrial base.
Inhofe amendment No. 1099, to express the sense of Congress
that the Secretary of Defense should implement the
recommendations of the Comptroller General of the United
States regarding prevention, abatement, and data collection
to address hearing injuries and hearing loss among members of
the Armed Forces.
Inhofe amendment No. 1100, to extend to products and
services from Latvia existing temporary authority to procure
certain products and services from countries along a major
route of supply to Afghanistan.
Inhofe amendment No. 1101, to strike section 156, relating
to a transfer of Air Force C-12 aircraft to the Army.
Inhofe amendment No. 1102, to require a report on the
feasibility of using unmanned aerial systems to perform
airborne inspection of navigational aids in foreign airspace.
Inhofe amendment No. 1093, to require the detention at U.S.
Naval Station Guantanamo Bay, Cuba, of high-value enemy
combatants who will be detained long-term.
Casey amendment No. 1215, to require a certification on
efforts by the Government of Pakistan to implement a strategy
to counterimprovised explosive devices.
Casey amendment No. 1139, to require contractors to notify
small business concerns that have been included in offers
relating to contracts let by Federal agencies.
McCain (for Cornyn) amendment No. 1200, to provide Taiwan
with critically needed U.S.-built multirole fighter aircraft
to strengthen its self-defense capability against the
increasing military threat from China.
McCain (for Ayotte) amendment No. 1066, to modify the
Financial Improvement and Audit Readiness Plan to provide
that a complete and validated full statement of budget
resources is ready by not later than September 30, 2014.
McCain (for Ayotte) modified amendment No. 1067, to require
notification of Congress with respect to the initial custody
and further disposition of members of al-Qaida and affiliated
entities.
McCain (for Ayotte) amendment No. 1068, to authorize lawful
interrogation methods in addition to those authorized by the
Army Field Manual for the collection of foreign intelligence
information through interrogations.
McCain (for Brown (MA)/Boozman) amendment No. 1119, to
protect the child custody rights of members of the Armed
Forces deployed in support of a contingency operation.
McCain (for Brown (MA)) amendment No. 1090, to provide that
the basic allowance for housing in effect for a member of the
National Guard is not reduced when the member transitions
between Active Duty and full-time National Guard duty without
a break in Active service.
McCain (for Brown (MA)) amendment No. 1089, to require
certain disclosures from postsecondary institutions that
participate in tuition assistance programs of the Department
of Defense.
McCain (for Wicker) amendment No. 1056, to provide for the
freedom of conscience of military chaplains with respect to
the performance of marriages.
McCain (for Wicker) amendment No. 1116, to improve the
transition of members of the Armed Forces with experience in
the operation of certain motor vehicles into careers
operating commercial motor vehicles in the private sector.
Udall (NM) amendment No. 1153, to include ultralight
vehicles in the definition of aircraft for purposes of the
aviation smuggling provisions of the Tariff Act of 1930.
Udall (NM) amendment No. 1154, to direct the Secretary of
Veterans Affairs to establish an open burn pit registry to
ensure that members of the Armed Forces who may have been
exposed to toxic chemicals and fumes caused by open burn pits
while deployed to Afghanistan or Iraq receive information
regarding such exposure.
Udall (NM)/Schumer amendment No. 1202, to clarify the
application of the provisions of the Buy American Act to the
procurement of photovoltaic devices by the Department of
Defense.
McCain (for Corker) amendment No. 1171, to prohibit funding
for any unit of a security force of Pakistan if there is
credible evidence that the unit maintains connections with an
organization known to conduct terrorist activities against
the United States or U.S. allies.
McCain (for Corker) amendment No. 1172, to require a report
outlining a plan to end reimbursements from the Coalition
Support Fund to the Government of Pakistan for operations
conducted in support of Operation Enduring Freedom.
McCain (for Corker) amendment No. 1173, to express the
sense of the Senate on the North Atlantic Treaty
Organization.
Levin (for Bingaman) amendment No. 1117, to provide for
national security benefits for White Sands Missile Range and
Fort Bliss.
Levin (for Gillibrand/Portman) amendment No. 1187, to
expedite the hiring authority for the defense information
technology/cyber workforce.
Levin (for Gillibrand/Blunt) amendment No. 1211, to
authorize the Secretary of Defense to provide assistance to
State National Guards to provide counseling and reintegration
services for members of Reserve components of the Armed
Forces ordered to Active

[[Page S7944]]

Duty in support of a contingency operation, members returning
from such Active Duty, veterans of the Armed Forces, and
their families.
Merkley amendment No. 1239, to expand the Marine Gunnery
Sergeant John David Fry Scholarship to include spouses of
members of the Armed Forces who die in the line of duty.
Merkley amendment No. 1256, to require a plan for the
expedited transition of responsibility for military and
security operations in Afghanistan to the Government of
Afghanistan.
Merkley amendment No. 1257, to require a plan for the
expedited transition of responsibility for military and
security operations in Afghanistan to the Government of
Afghanistan.
Merkley amendment No. 1258, to require the timely
identification of qualified census tracts for purposes of the
HUBZone Program.
Leahy amendment No. 1087, to improve the provisions
relating to the treatment of certain sensitive national
security information under the Freedom of Information Act.
Leahy/Grassley amendment No. 1186, to provide the
Department of Justice necessary tools to fight fraud by
reforming the working capital fund.
Wyden/Merkley amendment No. 1160, to provide for the
closure of Umatilla Army Chemical Depot, Oregon.
Wyden amendment No. 1253, to provide for the retention of
members of the Reserve components on Active Duty for a period
of 45 days following an extended deployment in contingency
operations or homeland defense missions to support their
reintegration into civilian life.
Ayotte (for Graham) amendment No. 1179, to specify the
number of judge advocates of the Air Force in the regular
grade of brigadier general.
Ayotte (for McCain) modified amendment No. 1230, to modify
the annual adjustment in enrollment fees for TRICARE Prime.
Ayotte (for Heller/Kirk) amendment No. 1137, to provide for
the recognition of Jerusalem as the capital of Israel and the
relocation to Jerusalem of the U.S. Embassy in Israel.
Ayotte (for Heller) amendment No. 1138, to provide for the
exhumation and transfer of remains of deceased members of the
Armed Forces buried in Tripoli, Libya.
Ayotte (for McCain) amendment No. 1247, to restrict the
authority of the Secretary of Defense to develop public
infrastructure on Guam until certain conditions related to
Guam realignment have been met.
Ayotte (for McCain) amendment No. 1246, to establish a
commission to study the U.S. force posture in East Asia and
the Pacific region.
Ayotte (for McCain) amendment No. 1229, to provide for
greater cyber security collaboration between the Department
of Defense and the Department of Homeland Security.
Ayotte (for McCain/Ayotte) amendment No. 1249, to limit the
use of cost-type contracts by the Department of Defense for
major defense acquisition programs.
Ayotte (for McCain) amendment No. 1220, to require
Comptroller General of the United States reports on the
Department of Defense implementation of justification and
approval requirements for certain sole-source contracts.
Ayotte (for McCain/Ayotte) amendment No. 1132, to require a
plan to ensure audit readiness of statements of budgetary
resources.
Ayotte (for McCain) amendment No. 1248, to expand the
authority for the overhaul and repair of vessels to the
United States, Guam, and the Commonwealth of the Northern
Mariana Islands.
Ayotte (for McCain) amendment No. 1250, to require the
Secretary of Defense to submit a report on the probationary
period in the development of the short takeoff, vertical
landing variant of the Joint Strike Fighter.
Ayotte (for McCain) amendment No. 1118, to modify the
availability of surcharges collected by commissary stores.
Sessions amendment No. 1182, to prohibit the permanent
stationing of more than two Army brigade combat teams within
the geographic boundaries of the U.S. European Command.
Sessions amendment No. 1183, to require the maintenance of
a triad of strategic nuclear delivery systems.
Sessions amendment No. 1184, to limit any reduction in the
number of surface combatants of the Navy below 313 vessels.
Sessions amendment No. 1185, to require a report on a
missile defense site on the east coast of the United States.
Sessions amendment No. 1274, to clarify the disposition
under the law of war of persons detained by the Armed Forces
of the United States pursuant to the Authorization for Use of
Military Force.
Levin (for Reed) amendment No. 1146, to provide for the
participation of military technicians (dual status) in the
study on the termination of military technician as a distinct
personnel management category.
Levin (for Reed) amendment No. 1147, to prohibit the
repayment of enlistment or related bonuses by certain
individuals who become employed as military technicians (dual
status) while already a member of a Reserve component.
Levin (for Reed) amendment No. 1148, to provide rights of
grievance, arbitration, appeal, and review beyond the
adjutant general for military technicians.
Levin (for Reed) amendment No. 1204, to authorize a pilot
program on enhancements of Department of Defense efforts on
mental health in the National Guard and Reserves through
community partnerships.
Levin (for Reed) amendment No. 1294, to enhance consumer
credit protections for members of the Armed Forces and their
dependents.
Levin amendment No. 1293, to authorize the transfer of
certain high-speed ferries to the Navy.
Levin (for Boxer) amendment No. 1206, to implement
commonsense controls on the taxpayer-funded salaries of
defense contractors.
Chambliss amendment No. 1304, to require a report on the
reorganization of the Air Force Materiel Command.
Levin (for Brown (OH)) amendment No. 1259, to link domestic
manufacturers to defense supply chain opportunities.
Levin (for Brown (OH)) amendment No. 1260, to strike 846,
relating to a waiver of ``Buy American'' requirements for
procurement of components otherwise producible overseas with
specialty metal not produced in the United States.
Levin (for Brown (OH)) amendment No. 1261, to extend
treatment of base closure areas as HUBZones for purposes of
the Small Business Act.
Levin (for Brown (OH)) amendment No. 1262, to clarify the
meaning of ``produced'' for purposes of limitations on the
procurement by the Department of Defense of specialty metals
within the United States.
Levin (for Brown (OH)) amendment No. 1263, to authorize the
conveyance of the John Kunkel Army Reserve Center, Warren,
OH.
Levin (for Leahy) amendment No. 1080, to clarify the
applicability of requirements for military custody with
respect to detainees.
Levin (for Wyden) amendment No. 1296, to require reports on
the use of indemnification agreements in Department of
Defense contracts.
Levin (for Pryor) amendment No. 1151, to authorize a death
gratuity and related benefits for Reserves who die during an
authorized stay at their residence during or between
successive days of inactive-duty training.
Levin (for Pryor) amendment No. 1152, to recognize the
service in the Reserve components of the Armed Forces of
certain persons by honoring them with status as veterans
under law.
Levin (for Nelson (FL)) amendment No. 1209, to repeal the
requirement for reduction of survivor annuities under the
Survivor Benefit Plan by veterans' dependency and indemnity
compensation.
Levin (for Nelson (FL)) amendment No. 1210, to require an
assessment of the advisability of stationing additional DDG-
51 class destroyers at Naval Station Mayport, Florida.
Levin (for Nelson (FL)) amendment No. 1236, to require a
report on the effects of changing flag officer positions
within the Air Force Materiel Command.
Levin (for Nelson (FL)) amendment No. 1255, to require an
epidemiological study on the health of military personnel
exposed to burn pit emissions at Joint Base Balad.
Ayotte (for McCain) amendment No. 1281, to require a plan
for normalizing defense cooperation with the Republic of
Georgia.
Ayotte (for Blunt/Gillibrand) amendment No. 1133, to
provide for employment and reemployment rights for certain
individuals ordered to full-time National Guard duty.
Ayotte (for Blunt) amendment No. 1134, to require a report
on the policies and practices of the Navy for naming vessels
of the Navy.
Ayotte (for Murkowski) amendment No. 1286, to require a
Department of Defense inspector general report on theft of
computer tapes containing protected information on covered
beneficiaries under the TRICARE program.
Ayotte (for Murkowski) amendment No. 1287, to provide
limitations on the retirement of C-23 aircraft.
Ayotte (for Rubio) amendment No. 1290, to strike the
national security waiver authority in section 1032, relating
to requirements for military custody.
Ayotte (for Rubio) amendment No. 1291, to strike the
national security waiver authority in section 1033, relating
to requirements for certifications relating to transfer of
detainees at U.S. Naval Station Guantanamo Bay, Cuba, to
foreign countries and entities.
Levin (for Menendez/Kirk) amendment No. 1414, to require
the imposition of sanctions with respect to the financial
sector of Iran, including the Central Bank of Iran.

The ACTING PRESIDENT pro tempore. The Senator from Michigan is
recognized.
Mr. LEVIN. Mr. President, I ask unanimous consent that the time
between now and 12:15 be equally divided between myself, working with
Senator McCain in opposition to the Udall amendment, and controlled by
Senator Udall.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. LEVIN. I understand there is a pending UC that Senator Udall is
to be recognized.
The ACTING PRESIDENT pro tempore. Yes. Under the previous order, the
Senator from Colorado is recognized.

Amendment No. 1107

Mr. UDALL of Colorado. Mr. President, I rise this morning to speak in

[[Page S7945]]

favor of amendment 1107. First, let me say that I know how hard
Chairman Levin and Ranking Member McCain have worked to craft a Defense
Authorization Act to provide our Armed Forces with the equipment,
services, and support they need to keep us safe. I also thank my
colleagues from the Armed Services Committee, a number of whom I see on
the floor this morning, for their diligence and dedication to this
important work.
With that, let me turn to the amendment itself. I want to start by
thanking the cosponsors of the amendment. They include the chairwoman
of the Intelligence Committee, Senator Feinstein; the chairman of the
Judiciary Committee, Senator Leahy; and Senator Webb, a former
Secretary of the Navy, someone whom I think we all respect when it
comes to national security issues.
I also point out that this amendment is bipartisan. Senator Rand Paul
joined as a cosponsor this morning and gave a very compelling floor
speech a few minutes ago. Senators Wyden and Durbin have also recently
cosponsored it. I recognize their leadership as well.
Let me turn to the amendment itself. A growing number of our
colleagues have strong concerns about the detainee provisions in this
bill. At the heart of our concern is the concern that we have not taken
enough time to listen to our counterterrorism community and have not
heeded the warnings of the Secretary of Defense, Director of National
Intelligence, and the Director of the FBI, who all oppose these
provisions. Equally concerning, we have not had a single hearing on the
detainee matters to fully understand the implications of our actions.
My amendment would take out these provisions and give us in the
Congress an opportunity to take a hard look at the needs of our
counterterrorism professionals and respond in a measured way that
reflects the input of those who are actually fighting our
enemies. Specifically, the amendment would require that our Defense
intelligence and law enforcement agencies report to Congress with
recommendations for any additional authorities or flexibility they need
in order to detain and prosecute terrorists. My amendment would then
ask for hearings to be held so we can fully understand the views of
relevant national security experts.

In other words, I am saying let's ask our dedicated men and women who
are actually fighting to protect Americans what they actually need to
keep us safe. This is a marked departure, in my opinion, from the
current language in the bill, which was developed without hearings, and
seeks to make changes to the law that our national security
professionals do not want and even oppose, as I pointed out.
Like other challenging issues we face here in the Senate, we should
identify the problem, hold hearings, gather input from those affected
by our actions, and then seek to find the most prudent solution.
Instead, we have language in the bill, which, while well intended--of
that there is no doubt--was developed behind closed doors and is being
moved rather quickly through our Congress. The Secretary of Defense is
warning us we may be making mistakes that will hurt our capacity to
fight terrorism at home and abroad. The Director of National
Intelligence is telling us this language will create more problems than
it solves. The Director of the FBI is telling Congress these provisions
will erect hurdles that will make it more difficult for our law
enforcement officials to collaborate in their effort to protect
American citizens. And the President's national security staff is
recommending a veto of the entire Defense authorization bill if these
provisions remain in the bill.
With this full spectrum of highly respected officials and top
counterterrorism professionals warning Congress not to pass these
provisions, we are being asked to reject their advice and pass them
anyway--again, without any hearings or further deliberation. I don't
know what others think, but I don't think this is what the people of
Colorado expect us to do, and it is not how I envision the Senate
operating.
The provisions would dramatically change broad counterterrorism
efforts by requiring law enforcement officials to step aside and ask
the Department of Defense to take on a new role they are not fully
equipped for and do not want. And by taking away the flexible
decisionmaking capacity of our national security team, by forcing the
military to now act as police, judge, and jailer, these provisions
could effectively rebuild walls between our military law enforcement
and intelligence communities that we have spent a decade tearing down.
The provisions that are in the bill--to me and many others--appear to
require the DOD to shift significant resources away from their mission
to serve on all fronts all over the world. This has real consequences,
because we have limited resources and limited manpower. Again, I want
to say that I don't think we would lose anything by taking a little
more time to discuss and debate these provisions, but we could do real
harm to our national security efforts by allowing this language to
pass, and that is exactly what our highest ranking national security
officers are warning us against doing.
You will note I am speaking in the broadest terms here, but I did
want to speak to one particular area of concern, to give viewers and my
colleagues a sense of what we face.
The provisions authorize the indefinite military detention of
American citizens who are suspected of involvement in terrorism--even
those captured here in our own country, in the United States--which I
think should concern each and every one of us. These provisions could
well represent an unprecedented threat to our constitutional liberties.
Let me explain why I think that is the case.
Look, I agree if an American citizen joins al-Qaida and takes up arms
against the United States that person should be subject to the same
process as any other enemy combatant. But what is not clear is what we
do with someone arrested in his home because of suspected terrorist
ties. These detainee provisions would authorize that person's
indefinite detention, but it misses a critical point. How do we know a
citizen has committed these crimes unless they are tried and convicted?
Do we want to open the door to domestic military police powers and
possibly deny U.S. citizens their due process rights? If we do, I think
that is at least something that is worthy of a hearing, and the
American people should be made aware of the changes that will be
forthcoming in the way we approach civil liberties. But since our
counterterrorism officials are telling us these provisions are a
mistake, I am not willing to both potentially limit our fight against
terrorism and simultaneously threaten the constitutional freedoms
Americans hold dear.
As I begin my remarks, I hope I have projected my belief we have a
solemn obligation to pass the National Defense Authorization Act, but
we also have a solemn obligation to make sure those who are fighting
the war on terror have the best, most flexible, most powerful tools
possible. To be perfectly frank, I am worried these provisions will
disrupt our ability to combat terrorism and inject untested legal
ambiguity into our military's operations and detention practices.
We will hear some of our colleagues tell us not to worry because the
detainee provisions are designed not to hurt our counterterrorism
efforts. We all know the best laid plans can have unintended
consequences. While I am sure the drafters of this language intended
the provisions to be interpreted in a way that does not cause problems,
the counterterrorism community disagrees and has outlined some very
serious real world concerns. Stating in the language there will not be
any adverse effects on national security doesn't make it so. These are
not just words in a proposed law. And those who will be chartered to
actually carry out these provisions are urging us to reject them.
Shouldn't we listen to their serious concerns? Shouldn't we think twice
about passing these provisions?
I have not received a single phone call from a counterterrorism
expert, a professional in the field, or a senior military official
urging us to pass these provisions. We have heard a wide range of
concerns expressed about the unintended consequences of enacting these
detainee provisions but not a single voice outside of Congress telling
us this will help us protect Americans or make us safer.
In addition to our national security team, which is urging us to
oppose these provisions, other important voices are also asking us to
stop, to slow down, and to consider them more

[[Page S7946]]

thoroughly. The American Bar Association, the ACLU, the International
Red Cross, the American Legion, and a number of other groups have also
expressed a wide range of serious concerns.
Again, I want to underline, although the language was crafted with
the best of intentions, there are simply too many questions about the
unintended consequences of these provisions to allow them to move
forward without further input from national security experts through
holding hearings and engaging in further debate.
I am privileged to be a member of the Armed Services Committee. I am
truly honored. As I have implied, and I want to be explicit, I
understand the importance of this bill. I understand what it does for
our military, which is why, in sum, what I am going to propose with my
amendment is that we pass the NDAA without these troubling provisions
but with a mechanism by which we can consider in depth what is proposed
and, at a later date, include any applicable changes in the law. It is
not only the right thing to do policywise, it may very well protect
this bill from a veto. The clearest path toward giving our men and
women in uniform the tools they need is to pass this amendment and then
send a clean National Defense Authorization Act to the President.
In the Statement of Administration Policy, the President says the
following--and I should again mention in the Statement of
Administration Policy there is a recommendation the President veto the
bill.

We have spent 10 years since September 11, 2001, breaking
down the walls between intelligence, military and law
enforcement professionals; Congress should not now rebuild
those walls and unnecessarily make the job of preventing
terrorist attacks more difficult.

These are striking words. They should give us all pause as we face
what seems to be a bit of a rush to pass these untested and legally
controversial restrictions on our ability to prosecute terrorists.

I want to begin to close, and in so doing I urge my colleagues to
think about the precedent we would set by passing these provisions. We
are being told these detainee provisions are so important we must pass
them right away, without a hearing or further deliberation. However,
the Secretary of Defense, at the same time, along with the Director of
National Intelligence and the Director of the FBI, are all urging us to
reject the provisions and take a closer look. Do we want to neglect the
advice of our trusted national security professionals? I can't think of
another instance where we would rebuff those who are chartered with
keeping us safe.
If we in the Congress want to constrain the military and give our
servicemembers new responsibilities, as these provisions would do, I
believe we should listen to what the Secretary of Defense has had to
say about it. Secretary Panetta is strongly opposed to these changes,
and I think we all know before he held the job he has now, Secretary of
Defense Panetta was the Director of the CIA. He knows very well the
threats facing our country, and he knows we cannot afford to make any
mistakes when it comes to keeping our citizens safe. We have to be
right every time. The bad guys only have to be right once.
This is a debate we need to have. It is a healthy debate. But we
ought to be armed with all the facts and expertise before we move
forward. The least we can do is take our time, be diligent, and hear
from those who will be affected by these new and significant changes in
how we interrogate and prosecute terrorists. As I have said before, it
concerns me we would tell our national security leadership--a
bipartisan national security leadership, by the way--that we will not
listen to them and that Congress knows better than they do. It doesn't
strike me that is the best way to secure and protect the American
people.
That is why I filed amendment No. 1107. I think my amendment is a
commonsense alternative that will protect our constitutional principles
and beliefs while continuing to keep our Nation safe. The amendment has
a clear aim, which is to ensure we follow a thorough process and hear
all views before rushing forward with new laws that could be harmful to
our national security. It is straightforward, it is common sense, and I
urge my colleagues to support the amendment.
Mr. President, I thank you for your attention, and I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from Michigan.
Mr. LEVIN. Mr. President, we have approximately a half hour on each
side. I am wondering how much time Senator Graham needs?
Mr. GRAHAM. Ten minutes. Is that too much? Five minutes.
Mr. LEVIN. Could you do 5 minutes?
Mr. GRAHAM. Seven?
Mr. LEVIN. We have, I think, seven speakers on this side.
Mr. GRAHAM. I will try to be quick.
Mr. LEVIN. Can you try to do 8 minutes?
Mr. GRAHAM. I will try to do it as quickly as I can.
Mr. LEVIN. I yield 8 minutes.
Mr. McCAIN. I object. We have had a long time from the sponsor of the
amendment, the chief proponent; we are going to have 10 minutes from
the Senator of Illinois. So I yield to the Senator from South Carolina
10 minutes.
Mr. LEVIN. The Senator from Arizona will control, if this is all
right with the Senator, half of our time. Will that be all right?
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. GRAHAM. If the Chair will let me know when 5 minutes has passed,
because there are a lot of voices to be heard on this issue, and I want
them to be heard. I am just one.
The ACTING PRESIDENT pro tempore. The Chair will so advise.
Mr. GRAHAM. Let me start with my good friend from Colorado. I respect
the Senator; I know his concerns. I don't agree.
I can remember being told by the Bush administration: We don't need
the Detainee Treatment Act. Everybody said we didn't need it, but they
were wrong. I remember being told by the Vice President's office during
the Bush administration: It is OK to take classified evidence, show it
to the jury, the finder of fact, and not share it with the accused, but
you can share it with his lawyer.
How would you like an American soldier tried in a foreign land, where
they are sitting there in the chair wondering what the jury is talking
about and can't even comment to their own lawyer about the allegations
against them?
I have been down this road with administrations and we worked in a
bipartisan fashion to change some things the Bush administration wanted
to do and I am glad we did it. We are working in a bipartisan fashion
to change some things this administration is doing, and I hope we are
successful, because if we fail, we are all going to be worse for it.
Here are the facts: Under this provision of mandatory military
custody, for someone captured in the United States, if they are an
American citizen, that provision does not apply to them. But here is
the law of the land right now: If they are an American citizen
suspected of joining al-Qaida, being a member of al-Qaida, they can be
held as an enemy combatant.
The Padilla case in South Carolina, where the man was held 5 years as
an enemy combatant, went to the Fourth Circuit Court of Appeals, and
here is what that court said: You can interrogate that person in an
intelligence-gathering situation. The only thing you have to do is
provide them a lawyer for their habeas appeal review.
So here are the due process rights: If our intelligence community or
military believe an American citizen is suspected of being a member of
al-Qaida, the law of the land the way it is today, an American citizen
can be held as an enemy combatant and questioned about what role they
play in helping al-Qaida, and they do get due process. Everybody held
as an enemy here, at Guantanamo Bay, captured in the United States,
goes before the Federal judge, and the government has to prove, by a
preponderance of the evidence, that the person is, in fact, an enemy
combatant. There is due process. We don't hold someone and say: Good
luck. They have to go before a judge--a Federal court--and prove their
case as the government.

[[Page S7947]]

Here is the question for the country. Is it OK to hold, under
military control, an American citizen who is suspected of helping al-
Qaida? You had better believe it is OK.
My good friend from Colorado said this repeals the Posse Comitatus
Act. The Posse Comitatus Act is a prohibition on our military being
used for law enforcement functions, and it goes back to reconstruction.
This is the central difference between us. I don't believe fighting
al-Qaida is a law enforcement function. I believe our military should
be deeply involved in fighting these guys at home and abroad. The idea
of somehow allowing our military to hold someone captured in the United
States is a repeal of the Posse Comitatus Act, you would have to
conclude that you view that as a law enforcement function, where the
military has no reason or right to be there. That is the big difference
between us. I don't want to criminalize the war.
To Senator Levin, thank you for helping us this time around craft a
bipartisan solution to a very real problem. The enemy is all over the
world and here at home. When people take up arms against the United
States and are captured within the United States, why should we not be
able to use our military and intelligence community to question that
person as to what they know about enemy activity? The only way we can
do that is hold them in military custody, and this provision can be
waived. It doesn't apply to American citizens. But the idea that an
American citizen helping al-Qaida doesn't get due process is a lie.
They go before a Federal court and the government has to prove they are
part of al-Qaida.
Let me ask this to my colleagues on the other side. What if the judge
agrees with the military or the intelligence community making the case?
Are you going to require us to shut down the intelligence-gathering
process, read them their rights, and put them in Federal court? That is
exactly what you want, and that will destroy our ability to make us
safe. If an American citizen is held by the intelligence community or
the military and a Federal judge agrees they were, in fact, a part of
the enemy force, that American citizen should be interrogated to find
out what they know about the enemy, in a lawful way, and you should not
require this country to criminalize what is an act of war against the
people of the United States. They should not be read their Miranda
rights. They should not be given a lawyer. They should be held humanely
in military custody and interrogated about why they joined al-Qaida and
what they were going to do to all of us. So this provision not only is
necessary to deal with real-world events; it is written in the most
flexible way possible.
To this administration, the reason we are on the floor today is it
was your idea to take Khalid Shaikh Mohammed and put him in New York
City and give him the rights of an American citizen and criminalize the
war by taking the mastermind of 9/11 and making it a crime and not an
act of war.
The ACTING PRESIDENT pro tempore. The Senator has spoken for 5
minutes.
Mr. GRAHAM. Thank you. I will wrap up.
To Senator Levin and Senator McCain, what they are accusing the
Senators of doing is not true. They are codifying a process that will
allow us to intelligently and rationally deal with people who are part
of al-Qaida, not political dissidents.
If someone doesn't like President Obama, we are not going to arrest
them. I am getting phone calls about that. That is a bunch of garbage.
A person can say anything they want about the President or me, they
just can't join al-Qaida and expect to be treated as if it were a
common crime. When someone joins al-Qaida, they haven't joined the
Mafia. They are not joining a gang. They are joining people who are
bent on our destruction, and they are a military threat. If you don't
believe they are a military threat, vote for Senator Udall. If you
believe al-Qaida represents a threat to us at home and abroad, give our
intelligence and military agencies statutory guidance and authority to
do things that need to be clear rather than uncertain.
We are 10 years into this war. Congress needs to speak. This is your
chance to speak. I am speaking today. Here is what I am saying to my
colleagues on the other side and to the world at large: If you join al-
Qaida, you suffer the consequences of being killed or captured. If you
are an American citizen and you betray your country, you are going to
be held in military custody and you are going to be questioned about
what you know. You are not going to be given a lawyer if our national
security interests dictate that you not be given a lawyer and go into
the criminal justice system because we are not fighting a crime, we are
fighting a war.
There is more due process in this bill than at any other time in any
other war. I am proud of the work product. There are checks and
balances in this bill that we have been working on for 10 years. The
mandatory provisions do not apply to American citizens. They can be
waived if they impede in an investigation. We are trying to provide
tools and clarity that have been missing for 10 years. This is your
chance to speak on the central issue 10 years after the attacks of 9/
11. Are we at war or are we fighting a crime? I believe we are at war,
and the due process rights associated with war are in abundance and
beyond anything ever known in any other war.
What this amendment does is it destroys the central concept that we
are trying to present to the body and to the country; that we are
facing an enemy--and not a common criminal organization--that will do
anything and everything possible to destroy our way of life. Let's give
our law enforcement and military community the clarity they have been
seeking and I think now they will have.

To the administration, with all due respect, you have engaged in one
episode after another to run away from the fact that we are fighting a
war and not a crime. When the Bush administration tried to pass
policies that undercut our ability to fight this war and maintain our
values, I pushed back. I am not asking any more of the people on the
other side than I ask of myself. When the Bush administration asked me,
and others, to do things that I thought undercut our values, I said no.
Now we have an opportunity to tell this administration we respect their
input, but what we are trying to do needs to be done, not for just this
time but for the future.
Ladies and gentlemen, either we are going to fight this war to win it
and to keep us safe or we are going to lose the concept that there is a
difference between taking up arms against the United States and being a
common criminal.
In conclusion, Khalid Shaikh Mohammed and all those who buy into what
he is selling present a threat to us far different than any common
criminal, and our laws should reflect that.
Senators Levin and McCain have created a legal system for the first
time in 10 years that recognizes we are fighting a war within our
values. I hope we get a strong bipartisan vote for the tools in this
bill.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, how much time do we have
remaining?
The ACTING PRESIDENT pro tempore. The Senator has 15\1/2\ minutes.
Mr. UDALL of Colorado. Before I recognize Senator Durbin for 8
minutes, I just wish to respond to my friend, the Senator from South
Carolina.
Mr. McCAIN. Mr. President, how much time is on this side?
The ACTING PRESIDENT pro tempore. There is 5 minutes remaining.
Mr. UDALL of Colorado. The Senator from South Carolina is broadly
admired in the Senate. If I am ever in court, I want him to be my
lawyer.
I would point out, however, that what I am proposing wouldn't destroy
the system we have in place--a system, by the way, that has resulted in
the convictions of numerous terrorists with life sentences. What I am
asking is to listen to those who are on the frontlines who are fighting
against terrorists and terrorism who have said they have concerns about
this new proposal and would like a greater amount of time to vet it and
consider it.
I yield 8 minutes to the Senator from Illinois.
The ACTING PRESIDENT pro tempore. The Senator from Illinois.

[[Page S7948]]

Mr. DURBIN. Mr. President, I have the greatest respect for Senator
Carl Levin and Senator John McCain. They have done an extraordinary job
on the Defense authorization bill. I would say, by and large, this bill
would not have engendered the controversy that brings us to the floor
today but for this provision, because it is a critically important
provision which has drawn the attention not just of those in the
military community--which they, of course, would expect in a Defense
authorization bill--but also the attention of those in the intelligence
community and the law enforcement community across the United States,
as well as the President of the United States.
The provision which they include in this bill is a substantial and
dramatic departure in American law when it comes to fighting terrorism.
I salute Senator Udall for bringing it to the attention of the
committee and now to the floor; that before we take this step forward,
we should reflect and pass the Udall amendment which calls for the
necessary agencies of government--law enforcement, intelligence, and
military--to reflect on the impact of this decision, not just on the
impact of America's security but on America's commitment to
constitutional principles. This is a fundamental issue which is being
raised, and it should be considered ever so seriously. We need to ask
ourselves, 10 years after 9/11, why are we prepared to engage in a
rewrite of the laws on fighting terrorism?
Thank God we meet in this Chamber today with no repeat of 9/11.
Through President George Bush and President Barack Obama, America has
been safe. Yes, there are people who threaten us, and they always will,
but we have risen to that challenge with the best military in the
world, with effective law enforcement, and without giving away our
basic values and principles as Americans.
Take a look at the provision in this bill which Senator Udall is
addressing. Who opposes this provision? I will tell you who opposes it.
Secretary of Defense Leon Panetta, who passed out of this Chamber with
a 100-to-0 vote of confidence in his leadership, has told us don't do
this; this is a mistake in this provision.
Secondly, the law enforcement community, from Attorney General Eric
Holder to the Director of the Federal Bureau of Investigation, has told
us it is a mistake to pass this measure, to limit our ability to fight
terrorism. And the intelligence community as well; the Director of
National Intelligence tells us this is a mistake.
Is it any wonder Senator Udall comes to the floor and others join him
from both sides of the aisle saying, before we make this serious change
in policy in America, ask ourselves: Have we considered the impact this
will have on our Nation's security, our ability to interrogate
witnesses, and our commitment to constitutional principles?
When I take a look at the letter that was sent to us by the Director
of the Federal Bureau of Investigation, Robert Mueller, I have to
reflect on the fact that Director Mueller was appointed by President
George W. Bush and reappointed by President Barack Obama. I respect him
very much. He has warned this Senate: Do not pass this provision in the
Defense authorization bill. It may adversely impact ``our ability to
continue ongoing international terrorism investigation.''
If this provision had been offered by a Democrat under Republican
George W. Bush, the critics would have come to the floor and said: How
could you possibly tie the hands of the President when he is trying to
keep America safe?
The Director of the Federal Bureau of Investigation has made it clear
the passage of this provision in this bill will limit the flexibility
of the administration to combat terrorism. It will create uncertainty
for law enforcement, intelligence, and defense officials regarding how
they handle suspected terrorists and raise serious constitutional
concerns. Listen, all those things are worthy of debate were it not for
the record that for 10 years America has been safe. It has been safe
because of a Republican President and a Democratic President using the
forces at hand to keep us safe. If we were coming here with some record
of failure when it comes to keeping America safe, it is one thing, but
we have a record of positive success. This notion that there is no way
to keep America safe without military tribunals and commissions defies
logic and defies experience.
Since 9/11, over 300 suspected terrorists have been successfully
prosecuted in article III criminal courts in America. Yes, they have
been read the Miranda rights, and, yes, they have been prosecuted and
sent to prison, the most recent being the Underwear Bomber, who pled
guilty just weeks ago in the article III criminal courts. During this
same period of time, when it comes to military commissions and
tribunals, how many alleged terrorists have been convicted? Six. The
score, my friends, if you are paying attention, is 300 to 6. President
Bush and President Obama used our article III criminal courts
effectively to keep America safe, and in those instances where they
felt military tribunals could do it best, they turned to them with some
success.

I might add, to those who want to just change the law again when it
comes to military tribunals, this is the third try. Twice we have tried
to write the language on military tribunals and commissions. It has
been sent ultimately across the street to the Supreme Court and
rejected. They told us to start over. Do we want to risk that again? Do
we want to jeopardize the prosecution of an alleged terrorist because
we want to test out a new legal and constitutional theory? I hope not.
I ask unanimous consent to have printed in the Record the letter from
the Director of the FBI.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Department of Justice,

Federal Bureau of Investigation,

Washington, DC, November 28, 2011.
Hon. Carl Levin,
Chairman, Committee on Armed Services,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am writing to express concerns
regarding the impact of certain aspects of the current
version of Section 1032 of the National Defense Authorization
Act for Fiscal Year 2012. Because the proposed legislation
applies to certain persons detained in the United States, the
legislation may adversely impact our ability to continue
ongoing international terrorism investigations before or
after arrest, derive intelligence from those investigations,
and may raise extraneous issues in any future prosecution of
a person covered by Section 1032.
The legislation as currently proposed raises two principal
concerns. First, by establishing a presumption of military
detention for covered individuals within the United States,
the legislation introduces a substantial element of
uncertainty as to what procedures are to be followed in the
course of a terrorism investigation in the United States.
Even before the decision to arrest is made, the question of
whether a Secretary of Defense waiver is necessary for the
investigation to proceed will inject uncertainty as to the
appropriate course for further investigation up to and beyond
the moment when the determination is made that there is
probable cause for an arrest.
Section 1032 may be read to divest the FBI and other
domestic law enforcement agencies of jurisdiction to continue
to investigate those persons who are known to fall within the
mandatory strictures of section 1032, absent the Secretary's
waiver. The legislation may call into question the FBI's
continued use or scope of its criminal investigative or
national security authorities in further investigation of the
subject. The legislation may restrict the FBI from using the
grand jury to gather records relating to the covered person's
communication or financial records, or to subpoena witnesses
having information on the matter. Absent a statutory basis
for further domestic investigation, Section 1032 may be
interpreted by the courts as foreclosing the FBI from
conducting any further investigation of the covered
individual or his associates.
Second, the legislation as currently drafted will inhibit
our ability to convince covered arrestees to cooperate
immediately, and provide critical intelligence. The
legislation introduces a substantial element of uncertainty
as to what procedures are to be followed at perhaps the most
critical time in the development of an investigation against
a covered person. Over the past decade we have had numerous
arrestees, several of whom would arguably have been covered
by the statute, who have provided important intelligence
immediately after they have been arrested, and in some
instances for days and weeks thereafter. In the context of
the arrest, they have been persuaded that it was in their
best interests to provide essential information while the
information was current and useful to the arresting
authorities.
Nonetheless, at this crucial juncture, in order for the
arresting agents to proceed to obtain the desired
cooperation, the statute requires that a waiver be obtained
from the Secretary of Defense, in consultation with the
Secretary of State and the Director of National Intelligence,
with certification by the Secretary to Congress that the
waiver was in the national security interests of the United
States. The proposed statute acknowledges that this is a
significant point in

[[Page S7949]]

an ongoing investigation. It provides that surveillance and
intelligence gathering on the arrestee's associates should
not be interrupted. Likewise, the statute provides that an
ongoing interrogation session should not be interrupted.
These limited exceptions, however, fail to recognize the
reality of a counterterrorism investigation. Building rapport
with, and convincing a covered individual to cooperate once
arrested, is a delicate and time sensitive skill that
transcends any one interrogation session. It requires
coordination with other aspects of the investigation.
Coordination with the prosecutor's office is also often an
essential component of obtaining a defendant's cooperation.
To halt this process while the Secretary of Defense
undertakes the mandated consultation, and the required.
certification is drafted and provided to Congress, would set
back our efforts to develop intelligence from the subject.
We appreciate that Congress has sought to address our
concerns in the latest version of the bill, but believe that
the legislation as currently drafted remains problematic for
the reasons set forth above. We respectfully ask that you
take into account these concerns as Congress continues to
consider Section 1032.
Sincerely,
Robert S. Mueller III,
Director.

Mr. DURBIN. Let me also say that section 1031 of this bill is one
that definitely needs to be changed, if not eliminated. It will, for
the first time in the history of the United States of America,
authorize the indefinite detention of American citizens in the United
States. I have spoken to the chairman of the committee, who said he is
open to language that would try to protect us from that outcome. But
the language as written in the bill, unfortunately, will allow for the
indefinite detention of American citizens for the first time. The
administration takes this seriously. We should too. They have said they
will veto the bill without changes in this particular provision.
I hope we will step back and look at a record of success in keeping
America safe and not try to reinvent our Constitution on the floor of
the Senate. I believe we ought to give to every President, Democratic
and Republican, all of the tools and all of the weapons they need to
keep America safe. Tying their hands may give us some satisfaction on
the floor of the Senate for a moment, but it won't keep America safe.
I reserve the remainder of my time.
I yield the floor.
The PRESIDING OFFICER (Mr. Merkley). The Senator from Michigan.
Mr. LEVIN. Mr. President, I yield myself 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. There have been so many misstatements and facts that have
been made, it is hard to keep up with them. Let me just take the last
statement the Senator from Illinois made about changing military
tribunal law. There is no change in military tribunal law whatsoever
made in this bill. I am going to address the other misstatements that
have been made by my friends and colleagues, but that was the most
recent, so I just want to take on that one first.
In terms of constitutional provisions, the ultimate authority on the
Constitution of the United States is the Supreme Court of the United
States. Here is what they have said in the Hamdi case about the issue
both of our friends have raised about American citizens being subject
to the law of war.
A citizen--the Supreme Court said this in 2004--no less than an alien
can be part of supporting forces hostile to the United States and
engaged in armed conflict against the United States. Such a citizen--
referring to an American citizen--if released, would pose the same
threat of returning to the front during the ongoing conflict. And here
is the bottom line for the Supreme Court. If we just take this one line
out of this whole debate, it would be a breath of fresh air to cut
through some of the words that have been used here this morning--one
line. ``There is no bar to this Nation's holding one of its own
citizens as an enemy combatant.'' That is not me, that is not Senator
Graham, and that is not Senator McCain. That is the Supreme Court of
the United States recently. ``There is no bar to this Nation's holding
one of its own citizens as an enemy combatant.''
Mr. GRAHAM. Would the Senator yield for a question?
Mr. LEVIN. I would rather not at this point.
There are a number of sections in this bill. My dear friend Senator
Udall says ``these sections'' as though there are a whole bunch of
sections that are at issue. There is really only one section that is at
issue here, and that is section 1032, and that is the so-called
mandatory detention section which has a waiver in it.
Section 1031 was written and approved by the administration. Section
1031, which my friend from Illinois has just said is an abomination,
was written and approved by the administration. Now, section 1031 is
the authority section. This authorizes. It doesn't mandate anything
with the waiver; section 1032 does. Section 1031--and now I am going to
use the words in the administration's own so-called SAP, or Statement
of Administration Policy. This is what the administration says about
section 1031: The authorities codified in this section already exist.
So they don't think it is necessary--1031--but they don't object to it.
Those are their words--the authorities in 1031 already exist. They do.
What this does is incorporate already existing authorities from section
1031--unnecessary in the view of the administration, yes, but they
helped write it and they approved it. We made changes in it.
We have made so many changes in this language to satisfy the
administration, I think it all comes down to one section: 1032. Section
1032 is the issue, not all of the sections, by the way, that would be
stricken by the Udall amendment. The Udall amendment would strike all
the sections, but it really comes down to section 1032.
In 1032 is the so-called mandatory provision, which, by the way, does
not apply to American citizens. I better say that again. Senator Graham
said it, but let me say it again. The most controversial provision--
probably the only one in this bill--is section 1032. Section 1032 says:
The requirement to detain a person in military custody under this
section does not extend to the citizens of the United States. I guess
that is the second thing I would like for colleagues to take away from
what I say, is that section--and Senator Graham said the same thing.
Section 1032--the mandatory section that has the waiver in it--does
not, by its own words, apply to citizens of the United States. It has a
waiver provision in it to make this flexible.
The way in which 1032 operates is it says that if it is determined
that a person is a member of al-Qaida, then that person will be held in
military detention. They are at war with us, folks. Al-Qaida is at war
with us. They brought that war to our shores. This is not just a
foreign war. They brought that war to our shores on 9/11. They are at
war with us. The Supreme Court said--and I will read these words
again--that there is no bar to this Nation holding one of its own
citizens as an enemy combatant. They brought this war to us, and if it
is determined that even an American citizen is a member of al-Qaida,
then you can apply the law of war, according to the Supreme Court. That
is not according to the Armed Services Committee, our bill, or any one
of us; that is the Supreme Court speaking.
Who determines it? We say, to give the administration the flexibility
that they want, the administration makes that determination. The
procedures to make that determination--who writes those procedures? We
don't write them. Explicitly, the executive branch writes those
procedures. Can those procedures interfere with an ongoing
interrogation or investigation? No. By our own language, it says they
shall not interfere with interrogation or intelligence gathering. That
is all in here. The only way this could interfere with an operation of
the executive branch is if they themselves decided to interfere in
their own operation. They are explicitly given the authority to write
the procedures.
I think we ought to debate about what is in the bill, and what is in
the bill is very different from what our colleagues who support the
Udall amendment have described. Yes, we are at war, and, yes, we should
codify how we handle detention, and this is an effort to do that. And
as the administration itself says, we are not changing anything here in
terms of section 1031. We are simply codifying existing law.
The issue really relates to 1032, and that is what we ought to
debate.

[[Page S7950]]

Should somebody--when it has been determined by procedures adopted by
the executive branch--who has been determined to be a member of an
enemy force who has come to this Nation or is in this Nation to attack
us as a member of a foreign enemy, should that person be treated
according to the laws of war? The answer is yes. But should flexibility
be in here so the administration can provide a waiver even in that
case? Yes.
Finally, as far as civilian trials, I happen to agree with my friend
from Illinois, and he is a dear friend of mine. Civilian trials work.
There is nothing in this provision that says civilian trials won't be
used even if it is determined that somebody is a member of al-Qaida.
Not only doesn't it prevent civilian trials from being used, we
explicitly provide that civilian trials are available in all cases. It
is written right in here. I happen to like civilian trials a lot. I
participated in a lot of them, and they are very appropriate, and we
have a good record. In the case the Senator from Illinois mentioned,
that case was a Michigan case. I know a lot about that case. It was the
right way to go. I prefer civilian trials in many, many cases. This
bill does not say we are going to be using military commissions in lieu
of civilian trials. That is a decision we leave where it belongs--in
the executive branch.
But we do one thing in this bill in section 1031 that needs to be
said. We are at war with al-Qaida, and people determined to be part of
al-Qaida should be treated as people who are at war with us. But even
with that statement, we give the administration a waiver. That is how
much flexibility we give to the executive branch.
Mr. President, how much time have I used?
The PRESIDING OFFICER. The Senator has 3\1/2\ minutes remaining.
Mr. LEVIN. I yield the floor.
Mr. McCAIN. Mr. President, how much time remains on both sides?
The PRESIDING OFFICER. The Senator from Arizona has just over 5
minutes. The Senator from Colorado has 8 minutes.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, I want to clarify for the
record before I recognize Senator Webb for 5 minutes that some here
have claimed that the Supreme Court's Hamdi decision upheld the
indefinite detention of U.S. citizens captured in the United States.
It did no such thing. Hamdi was captured in Afghanistan, not the
United States. Justice O'Connor, the author of the opinion, was very
careful to say that the Hamdi decision was limited to ``individuals who
fought against the United States in Afghanistan as part of the
Taliban.'' I think that is important to be included in the Record.
I yield to Senator Webb for 5 minutes.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WEBB. Mr. President, I would like to say that I believe the
Senator from Colorado has a good point. I say that as someone who is a
strong supporter of military commissions, who in many cases has aligned
himself with my good friend the Senator from South Carolina and Senator
McCain as well on these issues. To me, this is not a jurisdictional
issue, and it is not an issue about whether we should be holding people
under military commissions under the right cases or under military
detention under the right cases.
My difficulty and the reason I support what Senator Udall is doing is
in the statutory language itself. I say this as someone who spent a
number of years drafting this kind of legislation as a committee
counsel. I have gone back over the last 2 days again and again, reading
these sections against each other--1031 and 1032 particularly--and I am
very concerned about how this language would be interpreted, not in the
here and now, as we see the stability we have brought to our country
since 9/11, but what if something were to happen and we would be under
more of a sense of national emergency and this language would be
interpreted for broader action.

The reason I have this concern is we are talking here about the
conditions under which our military would be sent into action inside
our own borders. In that type of situation, we need to be very clear
and we must very narrowly define how they would be used and, quite
frankly, if they should be used at all inside our borders. I think that
is the concern we are hearing from people such as the Director of the
FBI and the Secretary of Defense.
I am also very concerned about the notion of the protection of our
own citizens and our legal residents from military action inside our
own country. I think these protections should be very clearly stated.
There is a lot of vagueness in this language.
What the Senator from Colorado is proposing is that we clarify these
concepts--that we take this provision out and clarify the concepts.
Protections are in place in our country. We are not leaving our country
vulnerable. In fact, I think we are going to make it a much more
healthy legal system if we do clarify these provisions.
That is the reason I am here on the floor to support what Senator
Udall is saying. I know the emotion and the energy Senator Levin has
put into this, and I respect him greatly. I happen to believe we need
to do a better job of clarifying our language.
I spent 16 years, on and off, writing in Hollywood. One of the things
that came to me when I was comparing these sections is that this is
kind of the danger we get in when we get to the fourth or the fifth
screenwriter involved in a story. We want to fix one thing and we are
not fixing the whole thing.
I greatly respect the legitimacy of the effort that is put into this.
But when we read section 1031 against section 1032, there are questions
about what would happen to American citizens under an emergency. Let's
take, for instance, what happened in this country after Hurricane
Katrina. It is not a direct parallel, but we can see the extremes
people went to under a feeling of emergency and vulnerability. We had
people who were deputized as U.S. marshals in New Orleans, and we could
see them on CNN putting rifles inside people's cars, stopping them on
the street, going into people's houses, making a decision--which later
was rescinded--that they were going to take people's guns away from
them. The vagueness in a lot of this language will not guarantee
against these types of conduct on a larger scale if a situation were
more difficult and dangerous than it is today.
Section 1031, which Senator Levin mentioned, may be clear to the
administration but it is not that clear to me, when they talk about a
covered person. This isn't simply al-Qaida, depending on how one wants
to interpret it, in a time of national emergency. It is a person who is
a part of or who substantially supported al-Qaida, the Taliban, or
associated forces that are engaged in hostilities against the United
States or its coalition partners, including any person who has
committed a belligerent act. We might be able to agree to what that
means here on the Senate floor today, but we don't know how that might
be interpreted in a time of national emergency. I am not predicting
that it will; I am saying we should have the certainty that it will
not.
The PRESIDING OFFICER. The Senator has consumed 5 minutes.
Mr. WEBB. OK. Similar concerns also revolve around the definitions in
terms of the applicability of U.S. citizens and lawful resident aliens
when we go to the words ``requirement does not extend.'' What about an
option? These are the types of concerns I have. We should have language
that very clearly makes everyone understand the conditions under which
we would be using the U.S. military inside the borders of the United
States.
I yield the floor.
Mr. LEAHY. Mr. President, the Udall-Webb-Leahy-Feinstein-Durbin-Paul-
Wyden amendment would remove the very troubling detention subtitle from
the National Defense Authorization Act for Fiscal Year 2012. I am a
cosponsor of this amendment because I believe the detention subtitle is
deeply flawed. We should hear from the Pentagon and other agencies
about what they believe to be the appropriate role of the Armed Forces
in detaining and prosecuting terrorism suspects. Unfortunately, the
language in the bill before us blatantly disregards the concerns of
these agencies.
Contrary to statements by the bill's authors, the current version of
the detention subtitle, considered by the Senate Armed Services
Committee, SASC

[[Page S7951]]

on November 15, contains virtually all of the same concerns as the
earlier version of the bill. The changes made by SASC do not correct
the problems that have been raised by the administration.
Since the SASC marked up the new version, we have received several
letters from the administration in opposition to the new language.
Secretary Panetta, Director of National Intelligence Clapper, and FBI
Director Mueller, have all written to Senate leaders in opposition of
the language. That means this language is opposed by each of the
agencies whose officers in the field will be directly affected by it.
Just yesterday, Director Mueller wrote that the ``legislation
introduces a substantial element of uncertainty'' into terrorism
investigations. Secretary Panetta wrote that the legislation ``may
needlessly complicate efforts by frontline law enforcement
professionals to collect critical intelligence.'' Director Clapper
wrote that ``the various detention provisions . . . would introduce
unnecessary rigidity'' into investigations. And we have a Statement of
Administration Policy raising very strong objections to some of these
provisions. I ask unanimous consent to place these letters and the
Statement of Administration Policy in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

The Secretary of Defense,

Defense Pentagon,

Washington, DC, Nov. 15, 2011.
The Hon. Carl Levin,
Chairman, Committee on Armed Services, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: I write to express the Department of
Defense's principal concerns with the latest version of
detainee-related language you are considering including in
the National Defense Authorization Act (NDAA) for Fiscal Year
2012. We understand the Senate Armed Services Committee is
planning to consider this language later today.
We greatly appreciate your willingness to listen to the
concerns expressed by our national security professionals on
the version of the NDAA bill reported by the Senate Armed
Services Committee in June. I am convinced we all want the
same result--flexibility for our national security
professionals in the field to detain, interrogate, and
prosecute suspected terrorists. The Department has
substantial concerns, however, about the revised text, which
my staff has just received within the last few hours.
Section 1032. We recognize your efforts to address some of
our objections to section 1032. However, it continues to be
the case that any advantages to the Department of Defense in
particular and our national security in general in section
1032 of requiring that certain individuals be held by the
military are, at best, unclear. This provision restrains the
Executive Branch's options to utilize, in a swift and
flexible fashion, all the counterterrorism tools that are now
legally available.
Moreover, the failure of the revised text to clarify that
section 1032 applies to individuals captured abroad, as we
have urged, may needlessly complicate efforts by frontline
law enforcement professionals to collect critical
intelligence concerning operations and activities within the
United States.
Next, the revised language adds a new qualifier to
``associated force''--``that acts in coordination with or
pursuant to the direction of al-Qaeda.'' In our view, this
new language unnecessarily complicates our ability to
interpret and implement this section.
Further, the new version of section 1032 makes it more
apparent that there is an intent to extend the certification
requirements of section 1033 to those covered by section 1032
that we may want to transfer to a third country. In other
words, the certification requirement that currently applies
only to Guantanamo detainees would permanently extend to a
whole new category of future captures. This imposes a whole
new restraint on the flexibility we need to continue to
pursue our counterterrorism efforts.
Section 1033. We are troubled that section 1033 remains
essentially unchanged from the prior draft, and that none of
the Administration's concerns or suggestions for this
provision have been adopted. We appreciate that revised
section 1033 removes language that would have made these
restrictions permanent, and instead extended them through
Fiscal Year 2012 only. As a practical matter, however,
limiting the duration of the restrictions to the next fiscal
year only will have little impact if Congress simply
continues to insert these restrictions into legislation on an
annual basis without ever revisiting the substance of the
legislation. As national security officials in this
Department and elsewhere have explained, transfer
restrictions such as those outlined in section 1033 are
largely unworkable and pose unnecessary obstacles to
transfers that would advance our national security interests.
Section 1035. Finally, section 1035 shifts to the
Department of Defense responsibility for what has previously
been a consensus-driven interagency process that was informed
by the advice and views of counterterrorism professionals
from across the Government. We see no compelling reason--and
certainly none has been expressed in our discussions to
date--to upset a collaborative, interagency approach that has
served our national security so well over the past few years.
I hope we can reach agreement on these important national
security issues, and, as always, my staff is available to
work with the Committee on these and other matters.
Sincerely,
Leon E. Panetta.
____

Director of

National Intelligence,

Washington, DC.
Hon. Dianne Feinstein,
Chairman, Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Dear Madam Chairman: I am writing in response to your
letter requesting my views on the effect that the detention
provisions in the National Defense Authorization Act for
Fiscal Year 2012 could have on the ability of the
Intelligence Community to gather counterterrorism
information. In my view, some of these provisions could limit
the effectiveness of our intelligence and law enforcement
professionals at a time when we need the utmost flexibility
to defend the nation from terrorist threats. The Executive
Branch should have maximum flexibility in these areas,
consistent with our law and values, rather than face
limitations on our options to acquire intelligence
information. As stated in the November 17, 2011, Statement of
Administration Policy for S. 1867, ``[a]ny bill that
challenges or constrains the President's critical authorities
to collect intelligence, incapacitate dangerous terrorists,
and protect the nation would prompt the President's senior
advisers to recommend a veto.''
Our principal objective upon the capture of a potential
terrorist is to obtain intelligence information and to
prevent future attacks, yet the provision that mandates
military custody for a certain class of terrorism suspects
could restrict the ability of our nation's intelligence
professionals to acquire valuable intelligence and prevent
future terrorist attacks. The best method for securing vital
intelligence from suspected terrorists varies depending on
the facts and circumstances of each case. In the years since
September 11, 2001, the Intelligence Community has worked
successfully with our military and law enforcement partners
to gather vital intelligence in a wide variety of
circumstances at home and abroad and I am concerned that some
of these provisions will make it more difficult to continue
to have these successes in the future.
Taken together, the various detention provisions, even with
the proposed waivers, would introduce unnecessary rigidity at
a time when our intelligence, military, and law enforcement
professionals are working more closely than ever to defend
our nation effectively and quickly from terrorist attacks.
These limitations could deny our nation the ability to
respond flexibly and appropriately to unfolding events--
including the capture of terrorism suspects--and restrict a
process that currently encourages intelligence collection
through the preservation of all lawful avenues of detention
and interrogation.
Our intelligence professionals are best served when they
have the greatest flexibility to collect intelligence from
suspected terrorists. I am concerned that the detention
provisions in the National Defense Authorization Act could
reduce this flexibility.
Sincerely,
James R. Clapper.
____

U.S. Department of Justice,

Federal Bureau of Investigation,

[[Page S7952]]

further investigation of the subject. The legislation may
restrict the FBI from using the grand jury to gather records
relating to the covered person's communication or financial
records, or to subpoena witnesses having information on the
matter. Absent a statutory basis for further domestic
investigation, Section 1032 may be interpreted by the courts
as foreclosing the FBI from conducting any further
investigation of the covered individual or his associates.
Second, the legislation as currently drafted will inhibit
our ability to convince covered arrestees to cooperate
immediately, and provide critical intelligence. The
legislation introduces a substantial element of uncertainty
as to what procedures are to be followed at perhaps the most
critical time in the development of an investigation against
a covered person. Over the past decade we have had numerous
arrestees, several of whom would arguably have been covered
by the statute, who have provided important intelligence
immediately after they have been arrested, and in some
instances for days and weeks thereafter. In the context of
the arrest, they have been persuaded that it was in their
best interests to provide essential information while the
information was current and useful to the arresting
authorities.
Nonetheless, at this crucial juncture, in order for the
arresting agents to proceed to obtain the desired
cooperation, the statute requires that a waiver be obtained
from the Secretary of Defense, in consultation with the
Secretary of State and the Director of National Intelligence,
with certification by the Secretary to Congress that the
waiver was in the national security interests of the United
States. The proposed statute acknowledges that this is a
significant point in an ongoing investigation. It provides
that surveillance and intelligence gathering on the
arrestee's associates should not be interrupted. Likewise,
the statute provides that an ongoing interrogation session
should not be interrupted.
These limited exceptions, however, fail to recognize the
reality of a counterterrorism investigation. Building rapport
with, and convincing a covered individual to cooperate once
arrested, is a delicate and time sensitive skill that
transcends any one interrogation session. It requires
coordination with other aspects of the investigation.
Coordination with the prosecutor's office is also often an
essential component of obtaining a defendant's cooperation.
To halt this process while the Secretary of Defense
undertakes the mandated consultation, and the required.
certification is drafted and provided to Congress, would set
back our efforts to develop intelligence from the subject.
We appreciate that Congress has sought to address our
concerns in the latest version of the bill, but believe that
the legislation as currently drafted remains problematic for
the reasons set forth above. We respectfully ask that you
take into account these concerns as Congress continues to
consider Section 1032.
Sincerely,
Robert S. Mueller III,
Director.
____

Statement of Administration Policy

S. 1867--National Defense Authorization Act for FY 2012

(Sen. Levin, D-MI, Nov. 17, 2011)

The Administration supports Senate passage of S. 1867, the
National Defense Authorization Act for Fiscal Year (FY) 2012.
The Administration appreciates the Senate Armed Services
Committee's continued support of our national defense,
including its support for both the base budget and for
overseas contingency operations and for most of the
Administration's initiatives to control spiraling health
costs of the Department of Defense (DoD).
The Administration appreciates the support of the Committee
for authorities that assist the ability of the warfighter to
operate in unconventional and irregular warfare, authorities
that are important to field commanders, such as the
Commanders' Emergency Response Program, Global Train and
Equip Authority, and other programs that provide commanders
with the resources and flexibility to counter unconventional
threats or support contingency or stability operations. The
Administration looks forward to reviewing a classified annex
and working with the Congress to address any concerns on
classified programs as the legislative process moves forward.
While there are many areas of agreement with the Committee,
the Administration would have serious concerns with
provisions that would: (1) constrain the ability of the Armed
Forces to carry out their missions; (2) impede the Secretary
of Defense's ability to make and implement decisions that
eliminate unnecessary overhead or programs to ensure scarce
resources are directed to the highest priorities for the
warfighter; or (3) depart from the decisions reflected in the
President's FY 2012 Budget Request. The Administration looks
forward to working with the Congress to address these and
other concerns, a number of which are outlined in more detail
below.
Detainee Matters: The Administration objects to and has
serious legal and policy concerns about many of the detainee
provisions in the bill. In their current form, some of these
provisions disrupt the Executive branch's ability to enforce
the law and impose unwise and unwarranted restrictions on the
U.S. Government's ability to aggressively combat
international terrorism; other provisions inject legal
uncertainty and ambiguity that may only complicate the
military's operations and detention practices.
Section 1031 attempts to expressly codify the detention
authority that exists under the Authorization for Use of
Military Force (Public Law 107-40) (the ``AUMF''). The
authorities granted by the AUMF, including the detention
authority, are essential to our ability to protect the
American people from the threat posed by al-Qa'ida and its
associated forces, and have enabled us to confront the full
range of threats this country faces from those organizations
and individuals. Because the authorities codified in this
section already exist, the Administration does not believe
codification is necessary and poses some risk. After a decade
of settled jurisprudence on detention authority, Congress
must be careful not to open a whole new series of legal
questions that will distract from our efforts to protect the
country. While the current language minimizes many of those
risks, future legislative action must ensure that the
codification in statute of express military detention
authority does not carry unintended consequences that could
compromise our ability to protect the American people.
The Administration strongly objects to the military custody
provision of section 1032, which would appear to mandate
military custody for a certain class of terrorism suspects.
This unnecessary, untested, and legally controversial
restriction of the President's authority to defend the Nation
from terrorist threats would tie the hands of our
intelligence and law enforcement professionals. Moreover,
applying this military custody requirement to individuals
inside the United States, as some Members of Congress have
suggested is their intention, would raise serious and
unsettled legal questions and would be inconsistent with the
fundamental American principle that our military does not
patrol our streets. We have spent ten years since September
11, 2001, breaking down the walls between intelligence,
military, and law enforcement professionals; Congress should
not now rebuild those walls and unnecessarily make the job of
preventing terrorist attacks more difficult. Specifically,
the provision would limit the flexibility of our national
security professionals to choose, based on the evidence and
the facts and circumstances of each case, which tool for
incapacitating dangerous terrorists best serves our national
security interests. The waiver provision fails to address
these concerns, particularly in time-sensitive operations in
which law enforcement personnel have traditionally played the
leading role. These problems are all the more acute because
the section defines the category of individuals who would be
subject to mandatory military custody by substituting new and
untested legislative criteria for the criteria the Executive
and Judicial branches are currently using for detention under
the AUMF in both habeas litigation and military operations.
Such confusion threatens our ability to act swiftly and
decisively to capture, detain, and interrogate terrorism
suspects, and could disrupt the collection of vital
intelligence about threats to the American people.
Rather than fix the fundamental defects of section 1032 or
remove it entirely, as the Administration and the chairs of
several congressional committees with jurisdiction over these
matters have advocated, the revised text merely directs the
President to develop procedures to ensure the myriad problems
that would result from such a requirement do not come to
fruition. Requiring the President to devise such procedures
concedes the substantial risks created by mandating military
custody, without providing an adequate solution. As a result,
it is likely that implementing such procedures would inject
significant confusion into counterterrorism operations.
The certification and waiver, required by section 1033
before a detainee may be transferred from Guantanamo Bay to a
foreign country, continue to hinder the Executive branch's
ability to exercise its military, national security, and
foreign relations activities. While these provisions may be
intended to be somewhat less restrictive than the analogous
provisions in current law, they continue to pose unnecessary
obstacles, effectively blocking transfers that would advance
our national security interests, and would, in certain
circumstances, violate constitutional separation of powers
principles. The Executive branch must have the flexibility to
act swiftly in conducting negotiations with foreign countries
regarding the circumstances of detainee transfers. Section
1034's ban on the use of funds to construct or modify a
detention facility in the United States is an unwise
intrusion on the military's ability to transfer its detainees
as operational needs dictate. Section 1035 conflicts with the
consensus-based interagency approach to detainee reviews
required under Executive Order No. 13567, which establishes
procedures to ensure that periodic review decisions are
informed by the most comprehensive information and the
considered views of all relevant agencies. Section 1036,
in addition to imposing onerous requirements, conflicts
with procedures for detainee reviews in the field that
have been developed based on many years of experience by
military officers and the Department of Defense. In short,
the matters addressed in these provisions are already well
regulated by existing procedures and have traditionally
been left to the discretion of the Executive branch.

[[Page S7953]]

Broadly speaking, the detention provisions in this bill
micromanage the work of our experienced counterterrorism
professionals, including our military commanders,
intelligence professionals, seasoned counterterrorism
prosecutors, or other operatives in the field. These
professionals have successfully led a Government-wide effort
to disrupt, dismantle, and defeat al-Qa'ida and its
affiliates and adherents over two consecutive
Administrations. The Administration believes strongly that it
would be a mistake for Congress to overrule or limit the
tactical flexibility of our Nation's counterterrorism
professionals.
Any bill that challenges or constrains the President's
critical authorities to collect intelligence, incapacitate
dangerous terrorists, and protect the Nation would prompt the
President's senior advisers to recommend a veto.
Joint Strike Fighter Aircraft (JSF): The Administration
also appreciates the Committee's inclusion in the bill of a
prohibition on using funds authorized by S. 1867 to be used
for the development of the F136 JSF alternate engine. As the
Administration has stated, continued development of the F136
engine is an unnecessary diversion of scarce resources.
Medium Extended Air Defense Systems (MEADS): The
Administration appreciates the Committee's support for the
Department's air and missile defense programs; however, it
strongly objects to the lack of authorization of
appropriations for continued development of the MEADS
program. This lack of authorization could trigger unilateral
withdrawal by the United States from the MEADS Memorandum of
Understanding (MOU) with Germany and Italy, which could
further lead to a DoD obligation to pay all contract costs--a
scenario that would likely exceed the cost of satisfying
DoD's commitment under the MOU. Further, this lack of
authorization could also call into question DoD's ability to
honor its financial commitments in other binding cooperative
MOUs and have adverse consequences for other international
cooperative programs.
Overseas Construction Funding for Guam and Bahrain: The
Administration has serious concerns with the limitation on
execution of the United States and Government of Japan funds
to implement the realignment of United States Marine Forces
from Okinawa to Guam. The bill would unnecessarily restrict
the ability and flexibility of the President to execute our
foreign and defense policies with our ally, Japan. The
Administration also has concerns over the lack of
authorization of appropriations for military construction
projects in Guam and Bahrain. Deferring or eliminating these
projects could send the unintended message that the United
States does not stand by its allies or its agreements.
Provisions Authorizing Activities with Partner Nations: The
Administration appreciates the support of the Committee to
improve capabilities of other nations to support
counterterrorism efforts and other U.S. interests, and urges
the inclusion of DoD's requested proposals, which balance
U.S. national security and broader foreign policy interests.
The Administration would prefer only an annual extension of
the support to foreign nation counter-drug activities
authority in line with its request. While the inclusion of
section 1207 (Global Security Contingency Fund) is welcome,
several provisions may affect Executive branch agility in the
implementation of this authority. Section 1204 (relating to
Yemen) would require a 60-day notify and wait period not only
for Yemen, but for all other countries as well, which would
impose an excessive delay and seriously impede the Executive
branch's ability to respond to emerging requirements.
Unrequested Authorization Increases: Although not the only
examples in S. 1867, the Administration notes and objects to
the addition of $240 million and $200 million, respectively,
in unrequested authorization for unneeded upgrades to M-1
Abrams tanks and Rapid Innovation Program research and
development in this fiscally constrained environment. The
Administration believes the amounts appropriated in FY 2011
and requested in FY 2012 fully fund DoD's requirements in
these areas.
Advance Appropriations for Acquisition: The Administration
objects to section 131, which would provide only incremental
funding--undermining stability and cost discipline--rather
than the advance appropriations that the Administration
requested for the procurement of Advanced Extremely High
Frequency satellites and certain classified programs.
Authority to Extend Deadline for Completion of a Limited
Number of Base Closure and Realignment (BRAC)
Recommendations: The Administration requests inclusion of its
proposed authority for the Secretary or Deputy Secretary of
Defense to extend the 2005 BRAC implementation deadline for
up to ten (10) recommendations for a period of no more than
one year in order to ensure no disruption to the full and
complete implementation of each of these recommendations, as
well as continuity of operations. Section 2904 of the Defense
Base Closure and Realignment Act imposes on DoD a legal
obligation to close and realign all installations so
recommended by the BRAC Commission to the President and to
complete all such closures and realignments no later than
September 15, 2011. DoD has a handful of recommendations with
schedules that complete implementation close to the statutory
deadline.
TRICARE Providers: The Administration is currently
undertaking a review with relevant agencies, including the
Departments of Defense, Labor, and Justice, to clarify the
responsibility of health care providers under civil and
workers' rights laws. The Administration therefore objects to
section 702, which categorically excludes TRICARE network
providers from being considered subcontractors for purposes
of the Federal Acquisition Regulation or any other law.
Troops to Teachers Program: The Administration urges the
Senate's support for the transfer of the Troops to Teachers
Program to DoD in FY 2012, as reflected in the President's
Budget and DoD's legislative proposal to amend the Elementary
and Secondary Education Act of 1965 and Title 10 of the U.S.
Code in lieu of section 1048. The move to Defense will help
ensure that this important program supporting members of the
military as teachers is retained and provide better oversight
of 6 program outcomes by simplifying and streamlining program
management. The Administration looks forward to keeping the
Congress abreast of this transfer, to ensure it runs smoothly
and has no adverse impact on program enrollees.
Constitutional concerns: A number of the bill's provisions
raise additional constitutional concerns, such as sections
233 and 1241, which could intrude on the President's
constitutional authority to maintain the confidentiality of
sensitive diplomatic communications. The Administration looks
forward to working with the Congress to address these and
other concerns.

Mr. LEAHY. So, contrary to what the bill sponsors claim, they have
not incorporated the administration's requests, and the current
language does not remove the risk of impeding intelligence
investigations or prosecutions of terrorist suspects.
As currently written, the language in this bill would authorize the
military to indefinitely detain individuals--including U.S. citizens--
without charge or trial. I am fundamentally opposed to indefinite
detention, and certainly when the detainee is a U.S. citizen held
without charge. It contradicts the most basic principles of law that I
subscribed to when I was a prosecutor, and it severely weakens our
credibility when we criticize other governments for engaging in similar
conduct.
I fought against the Bush administration policies that left us in the
situation we face now, with indefinite detention being the de facto
administration policy, and I strongly opposed President Obama's
Executive order on detention when it was announced last March because
it contemplated, if not outright endorsed, indefinite detention.
I am also deeply troubled by the mandatory military detention
requirements included in this bill, which I believe dangerously
undermine our national security. In the fight against al-Qaida and
other terrorist threats, we should be giving our intelligence,
military, and law enforcement professionals all the tools they need--
not limiting those tools. But limiting them is exactly what this bill
does. Secretary Panetta has stated unequivocally that ``[t]his
provision restrains the Executive Branch's options to utilize, in a
swift and flexible fashion, all the counterterrorism tools that are now
legally available.'' Requiring terrorism suspects to be held only in
military custody, and limiting the available options in the field, is
unwise and unnecessary.
The language in the detention subtitle of this bill is the product of
a process that has lacked transparency from the start. These measures
directly affect law enforcement, detention, and terrorism matters that
have traditionally been subject to the jurisdiction of the Senate
Judiciary Committee and the Senate Select Committee on Intelligence,
but neither committee was consulted about these provisions in July when
the bill was first marked up, or earlier this month when it was
modified.
The administration proposed revisions to significantly improve the
detention provisions. However, rather than negotiate with the
administration in good faith, the Armed Services Committee drafted a
new version of the language behind closed doors and claimed that it had
solved all of the issues raised by the administration. It is obvious
from the letters we have received that this is not the case.
I can see no reason why these provisions were rushed through the
Committee without the input of the Defense Department and Federal
intelligence and law enforcement agencies that will be directly
affected if this language is enacted.
We must allow a thorough review to determine the legal and practical
consequences that these changes will have

[[Page S7954]]

on future counterterrorism and national security operations to ensure
they are not hindered. That is what the Udall amendment does. I urge
all Senators to support this amendment.
Ms. COLLINS. Mr. President, it is imperative that American citizens
detained on U.S. soil be entitled to every protection guaranteed by the
Constitution. I am concerned, therefore, that not all of the detainee
provisions in the bill provide explicit exemptions for U.S. citizens
who might be detained in the United States.
Had the amendment been more narrowly tailored to address that
concern, I would support it. However, I unfortunately cannot support
the amendment as a whole because it is too sweeping and would eliminate
provisions that are important to preserve because they undoubtedly make
our country safer. For instance, if this amendment were to pass, the
Administration would be free to transfer detainees to countries where
there are confirmed cases of detainees who have been released returning
to fight against the United States. In addition, the amendment would
eliminate a provision that would prevent foreign fighters captured
overseas from taking advantage of the very constitutional rights I want
to ensure for American citizens.
Mr. LEVIN. Mr. President, how much time is remaining?
The PRESIDING OFFICER. The Senator from Michigan has 4 minutes
remaining.
The Senator from Arizona.
Mr. McCAIN. Mr. President, I ask unanimous consent to yield 2 minutes
to the Senator from New Hampshire, followed by time from Senator Levin
for the Senator from Connecticut, and then what time I have remaining
for the Senator from Georgia.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from New Hampshire.
Ms. AYOTTE. Mr. President, first of all, I wish to thank Chairman
Levin and Ranking Member McCain and remind everyone that this
particular amendment addressing detainee provisions passed
overwhelmingly on a bipartisan basis in the Armed Services Committee.
The reason we addressed this issue was because we heard witness after
witness in a series of months before the Armed Services Committee from
our Department of Defense tell us--for example, when I asked the
commander of Africa Command, saying he needs some lawyerly help on how
to answer what to do with a member of al-Qaida who is captured in
Africa. This is an area that cried out for clarification, and that is
the genesis of this amendment, which is a very important amendment.
Briefly, two issues. No. 1, the arguments that have been raised about
section 1031, including the statement of authority, this is a red
herring. This provision was drafted, as Senator Levin said very
clearly, based upon what the administration wanted, and also codifies
existing law on what the statement authority is in terms of the fact
that we are at war with al-Qaida. If people want to disagree with that,
that is certainly a policy discussion we can have. But we were attacked
on our soil on 9/11, and this codifies the fact that we are at war with
members of al-Qaida.
Section 1032 is the military custody provision. Let's be clear on
what it does and what it does not do. No. 1, it is very clear on who it
applies to. It only applies to members of al-Qaida or an associated
force who are planning or carrying out an attack or attempted attack
against the United States or its coalition partners. It does not apply
to American citizens. We are only saying that if a person is a member
of al-Qaida and they want to attack the United States, we are going to
hold them in military custody. Why? I prosecuted cases in the criminal
system. We don't want to have to----
The PRESIDING OFFICER. The Senator's time has expired.
Ms. AYOTTE. We don't ever want to have to read a terrorist their
right to remain silent. That is the issue here.
Thank you, Mr. President. I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I yield 3 minutes to the Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair, and I thank my friend, the chairman
of the Armed Services Committee. I rise respectfully to oppose the
amendment the Senator from Colorado has offered, though in some measure
I thank him for offering it because this has been an important and good
debate.
My own position, stated briefly, is this: As Senator Levin has said,
we are a nation at war. As such we were attacked on 9/11. We adopted in
this Chamber the authorization for military force. That is about as
close to a declaration of war as we have done since the Second World
War. The comparison is exact because what happened to us on 9/11 was in
some ways even worse than what happened in December of 1941 when we
were attacked at Pearl Harbor.
A nation at war that seizes those who have declared themselves to be
part of enemy forces and have attempted to attack the American people,
or America, should be treated as enemy combatants, as prisoners of war,
according to the law of war. To me, that is a matter of principle.
Regardless of what statistics one can cite about how well prosecutions
have gone in article III courts, that is, to me, not ultimately the
point. If we are at war, the people who are fighting against us ought
to be treated as prisoners of war.
In fact, we are without a policy now, as Senator Ayotte said. The
main reason I oppose what Senator Udall is proposing is that he would
remove the sections of the current bill that create a policy and send
us back to where we are now, where our forces in the field don't know
what to do if they capture a member of al-Qaida.
If I had my way, the provisions in this proposal on detainees would
not have the waivers the President has. It would simply say, if you are
apprehended--if you are a foreign member of al-Qaida, and you are
captured planning or executing attacks against Americans or our allies
in this war, you are put in military custody and you are tried in a
military tribunal. This is not the law of the jungle; this is according
to American law. These are the same courts in which American soldiers
are tried when charges are brought against them, and, of course, we
accept and abide by all of the provisions of the Geneva Conventions.
But that was not the will of the Armed Services Committee. The Armed
Services Committee, in a good, reasonable, bipartisan compromise, has
created a system here where the default position--the initial position
is to transfer these enemy combatants to military custody. It is a good
compromise. It is the kind of compromise that----
The PRESIDING OFFICER. The Senator's 3 minutes has expired.
Mr. LIEBERMAN.--doesn't happen around here enough. I didn't get
everything I wanted out of it, but it is a lot better than the status
quo. Therefore, I support the language in the bill and oppose the Udall
amendment.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I rise to urge my colleagues to oppose
the Udall amendment, which would eliminate the bipartisan detainee
provision that the chairman, the ranking member, and committee members
worked so hard to craft. These provisions are necessary to provide some
certainty for our intelligence professionals in how our government will
handle terrorist detainees and how long detainees can be questioned for
intelligence-gathering purposes.
We have heard quite a lot over the past few days from administration
officials about how our intelligence and law enforcement professionals
need flexibility. In fact, Director of National Intelligence Clapper
wrote to the Intelligence Committee arguing for flexibility and
stressing the need for a process that, as he said, ``encourages
intelligence collection through the preservation of all lawful avenues
of detention and interrogation.'' With that, I agree wholeheartedly.
The problem with the status quo, however, is that the administration
refuses to use all of its lawful avenues of detention and interrogation
available to it, choosing instead only to use one, and that is article
III courts.
For nearly 3 years, Members of Congress have pressed the
administration to establish an effective and unambiguous long-term
detention policy, but they have refused. The intent behind these
bipartisan provisions is simple:

[[Page S7955]]

We must hold detainees for as long as it takes to gather information
our intelligence and law enforcement professionals need to take down
terror networks and to stop attacks.
Frankly, the best place, in my opinion, for this is Guantanamo Bay,
But when it comes to Gitmo, the administration is no longer concerned
about ``flexibility.'' Instead, we hear that Guantanamo is ``off the
table.''

In fact, in a hearing, when I asked the current Secretary of Defense,
prior to the SEAL Team 6 takedown of Osama bin Laden: If you captured
him, what would you do with him, he quizzically looked back and said:
Well, I guess we would send him to Guantanamo. Well, we know that would
not have happened had we not taken him down.
This is unfortunate because intelligence and law enforcement
professionals, including some at high levels in the administration,
acknowledge privately that what hampers intelligence collection from
detainees is the administration's unwillingness to take new detainees
to Guantanamo for questioning. When our operators overseas are unsure
about where they would hold captured detainees, it causes delay,
sometimes missed opportunities, and sometimes capture operations become
kill operations.
We cannot afford this kind of uncertainty and the Udall amendment
simply kicks the can down the road with a report about a problem we
already understand. The time to act is now.
Without Guantanamo, long-term military detention elsewhere is the
next best option and is the appropriate option for terrorists with whom
we are at war. The detainee provisions in the Defense Authorization Act
will ensure that the administration uses all of the detention options
it says it wants, not just article III courts, and offer the
flexibility the administration says it needs. I urge my colleagues to
oppose the Udall amendment and give our intelligence professionals and
military operators some certainty as they fight the war on terror.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. CHAMBLISS. Mr. President, I urge a ``no'' vote on the Udall
amendment.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I would like to thank all of my colleagues
who have engaged in a very important debate.
I would also like to say to my friend from Michigan, the chairman, I
have observed him for many years debate various issues on the floor of
the Senate and in the Armed Services Committee. I have never seen him
more eloquent than I have observed in his statements today and
throughout this debate. I also appreciate the fact that there are many
in his conference who do not agree with the position taken by the
chairman, and I especially am admiring of that.
I yield.
Mr. LEVIN. How much time is remaining, Mr. President?
The PRESIDING OFFICER. The Senator from Michigan has 45 seconds. The
Senator from Colorado has 1 minute.
Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator
from Colorado be allowed----
Mr. LEVIN. He only needs 2 minutes.
Mr. McCAIN. Two minutes, at least.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Such time as he may need.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, I thank, again, the ranking
member and the chairman of the Armed Services Committee for their hard
work.
I want to close with a couple points. I want to, in the interest of
clarifying the record, point out, on the heels of the chairman's
comments about the Statement of Administration Policy, when it comes to
section 1031, the full statement reads:

Because the authorities codified in this section already
exist, the Administration does not believe codification is
necessary and poses some risk. After a decade of settled
jurisprudence on detention authority, Congress must be
careful not to open a whole new series of legal questions
that will distract from our efforts to protect the country.

Second, there are questions that continue to be raised. I want to
mention section 1033. The chairman said it is only section 1032 that is
the focus of our attention, but there have been questions raised about
section 1033. There is language in section 1033 that makes it clear
that--we think it makes it clear that there is a provision that
requires any receiving country is taking actions ``to ensure that the
[detainee] cannot engage . . . in any terrorist activity.'' This is if
we are releasing or transferring somebody who is detained.
I was in Afghanistan recently, at Bagram prison. We have 20,000
detainees there. There are some who believe section 1033 would restrict
us from releasing those prisoners at Bagram as we begin to draw down
our efforts in Afghanistan. That is just one of the many questions that
are asked.
Finally, I listened to the passion that my friend from South Carolina
Senator Graham exhibited on the Senate floor. We are all in this
together. We are going to prevail. The bad guys in the world are not
going to win. We do have, however--and this is what makes our country
strong--different points of view on how we prosecute this war. I
believe the intent of what is being suggested in these provisions is
well and good and at the highest level. But there are many people we
trust and respect--including the FBI Director, the Secretary of
Defense, the Secretary of Homeland Security--who believe what will
happen, if we interpret the language, will not actually reflect our
intent.
Therefore, let's set this aside, pass the NDA, send it to the
President, and take the next 90 days to hold hearings and thoroughly
vet what is in this set of provisions. I will be the first person to
come to the floor if all of those individuals and our own experts tell
us this is the right way to proceed, to say: Let's put this into the
law.
But let's not rush to take these steps. We have something that is
working. We have over 300 terrorists who have been prosecuted through
our civil system who are in jail, many of them for life sentences,
sentences that will outlast their lifespans. Let's not fix something
that is not broken until we really understand what the consequences
are.
I thank, again, my colleagues on the Senate Armed Services Committee.
This has been a helpful and important debate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, let me also thank our friend from Colorado
for his contributions to the committee. He is a valuable member of our
committee, and he is no less valuable because he is offering an
amendment with which I happen to disagree.
Two quick factual points. One is, the language the Senator mentioned
from section 1033 is exactly the same language as was in last year's
bill and is in current law. The only difference is we have given
greater flexibility this year to the President by making it waiveable.
So our language is more flexible than the current law.
Finally, in terms of the Hamdi case, the Senator is correct. I
believe it was Senator Udall who said this was an American citizen who
was captured in Afghanistan. That is true. But the Supreme Court, in
Hamdi, relied on the Quirin case--which was an American citizen
captured on Long Island and--quoted that case with approval when
saying:

There is no bar to this Nation's holding one of its own
citizens as an enemy combatant.

That was the Quirin language--an American citizen captured on Long
Island.
Mr. President, if I have any time left, I will yield it and yield the
floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, the pending amendment is the Udall
amendment.
Am I correct, I ask the chairman, in that we would intend, depending
on--there are several things that have to be resolved--but we would
intend to have this vote at around 2:15 p.m., if things work out? Is
that correct?
Mr. LEVIN. I wonder if Senator Udall also heard that. I believe, and
I think it is the intention of all of us, that we vote on this as soon
as possible after 2:15.
I yield the floor.
Mr. McCAIN. I suggest the absence of a quorum.

[[Page S7956]]

The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. McCAIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendments Nos. 1230 and 1281, as Modified

Mr. McCAIN. Mr. President, I ask unanimous consent that the pending
McCain amendments Nos. 1230 and 1281 be modified with the changes at
the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments, as modified, are as follows:

AMENDMENT NO. 1230, AS MODIFIED

On page 220, strike line 13 and all that follows through
page 221, line 6, and insert the following:
``(c) Annual Adjustment in Enrollment Fee.--(1) Whenever
after September 30, 2012, and before October 1, 2013, the
Secretary of Defense increases the retired pay of members and
former members of the armed forces pursuant to section 1401a
of this title, the Secretary shall increase the amount of the
fee payable for enrollment in TRICARE Prime by an amount
equal to the percentage of such fee payable on the day before
the date of the increase of such fee that is equal to the
percentage increase in such retired pay. In determining the
amount of the increase in such retired pay for purposes of
this subparagraph, the Secretary shall use the amount
computed pursuant to section 1401a(b)(2) of this title.
``(2) Effective as of October 1, 2013, the Secretary shall
increase the amount of the fee payable for enrollment in
TRICARE Prime on an annual basis by a percentage equal to the
percentage of the most recent annual increase in the National
Health Expenditures per capita, as published by the Secretary
of Health and Human Services.
``(3) Any increase under this subsection in the fee payable
for enrollment shall be effective as of January 1 following
the date on which such increase is made.
``(4) The Secretary shall publish in the Federal Register
the amount of the fee payable for enrollment in TRICARE Prime
whenever increased pursuant to this subsection.''.
(b) Clarification of Application for 2013.--For purposes of
determining the enrollment fees for TRICARE Prime for 2013
under subsection (c)(1) of section 1097a of title 10, United
States Code (as added by subsection (a)), the amount of the
enrollment fee in effect during 2012 shall be deemed to be
the following:
(1) $260 for individual enrollment.
(2) $520 for family enrollment.

AMENDMENT NO. 1281, AS MODIFIED

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

SEC. 1243. DEFENSE COOPERATION WITH REPUBLIC OF GEORGIA.

(a) Plan for Normalization.--Not later than 90 days after
the date of the enactment of this Act, the President shall
develop and submit to the congressional defense committees
and the Committee on Foreign Relations of the Senate and the
Committee on Foreign Affairs of the House of Representatives
a plan for the normalization of United States defense
cooperation with the Republic of Georgia, including the sale
of defensive arms.
(b) Objectives.--The plan required under subsection (a)
shall address the following objectives:
(1) To establish a normalized defense cooperation
relationship between the United States and the Republic of
Georgia, taking into consideration the progress of the
Government of the Republic of Georgia on democratic and
economic reforms and the capacity of the Georgian armed
forces.
(2) To support the Government of the Republic of Georgia in
providing for the defense of its government, people, and
sovereign territory, consistent with the continuing
commitment of the Government of the Republic of Georgia to
its nonuse-of-force pledge and consistent with Article 51 of
the Charter of the United Nations.
(3) To provide for the sale by the United States of defense
articles and services in support of the efforts of the
Government of the Republic of Georgia to provide for its own
self-defense consistent with paragraphs (1) and (2).
(4) To continue to enhance the ability of the Government of
the Republic of Georgia to participate in coalition
operations and meet NATO partnership goals.
(5) To encourage NATO member and candidate countries to
restore and enhance their sales of defensive articles and
services to the Republic of Georgia as part of a broader NATO
effort to deepen its defense relationship and cooperation
with the Republic of Georgia.
(6) To ensure maximum transparency in the United States-
Georgia defense relationship.
(c) Included Information.--The plan required under
subsection (a) shall include the following information:
(1) A needs-based assessment, or an update to an existing
needs-based assessment, of the defense requirements of the
Republic of Georgia, which shall be prepared by the
Department of Defense.
(2) A description of each of the requests by the Government
of the Republic of Georgia for purchase of defense articles
and services during the two-year period ending on the date of
the report.
(3) A summary of the defense needs asserted by the
Government of the Republic of Georgia as justification for
its requests for defensive arms purchases.
(4) A description of the action taken on any defensive arms
sale request by the Government of the Republic of Georgia and
an explanation for such action.
(d) Form.--The plan required under subsection (a) shall be
submitted in unclassified form, but may contain a classified
annex.

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