[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,

                                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

[[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.

                          ____________________