[Congressional Record Volume 157, Number 193 (Thursday, December 15, 2011)]
[Senate]
[Pages S8632-S8664]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012--CONFERENCE
REPORT
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to the consideration of the conference report to accompany H.R.
1540, which the clerk will report.
The assistant legislative clerk read as follows:
The committee of conference on the disagreeing votes of the
two Houses on the amendment of the Senate to the bill (H.R.
1540), 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,
having met, after full and free conference, have agreed that
the House recede from its disagreement to the amendment of
the Senate and agree to the same with an amendment, and the
Senate agree to the same, signed by a majority of the
conferees on the part of both Houses.
(The conference report is printed in the House proceedings of the
Record of December 12, 2011.)
[[Page S8633]]
The PRESIDING OFFICER. There will be up to 3 hours of debate equally
divided between the leaders or their designees.
The Senator from Michigan.
Mr. LEVIN. Mr. President, I yield myself 20 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, on behalf of the Senate Armed Services
Committee, I am pleased to bring to the Senate the conference report on
H.R. 1540, the National Defense Authorization Act for fiscal year 2012.
This conference report, which was signed by all 26 Senate conferees,
contains many provisions that are of critical importance to our troops.
This will be the 50th consecutive year in which a National Defense
Authorization Act has been enacted into law.
I thank all of the members and staff of the Senate Armed Services
Committee--and especially our subcommittee chairs and our ranking
members--for the hard work they have done to get us to this stage.
Every year we take on tough issues and we work through them on a
bipartisan basis, consistent with the traditions of our committee. This
year was a particularly difficult one because of the severely condensed
timeline for floor consideration and conference on the bill.
I particularly thank my friend Senator McCain, our ranking minority
member, for his strong support throughout the process. I know both of
us thank the chairman and ranking member of the House Armed Services
Committee, Buck McKeon and Adam Smith, for their commitment to this
bill and to the men and women of our Armed Forces.
The conference report we bring to the floor today authorizes $662
billion for national defense programs. While it authorizes $27 billion
less than the President's budget request and $43 billion less than the
amount appropriated for fiscal year 2011, I am confident this
conference report, nonetheless, provides adequate support for the men
and women of the Armed Forces and their families and provides them with
the means they need to accomplish their missions.
This conference report contains many important provisions that will
improve the quality of life of our men and women in uniform. It will
provide needed support and assistance to our troops on the battlefield.
It will make the investments we need to meet the challenges of the 21st
century, and it will provide for needed reforms in the management of
the Department of Defense.
I ask unanimous consent that a list of some of the more significant
provisions be printed in the Record at the close of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEVIN. Probably the most discussed provision in the conference
report is the provision relative to military detention for foreign al-
Qaida terrorists. This provision was written to be doubly sure there is
no interference with civilian interrogations and other law enforcement
activities and to ensure that the President has the flexibility he
needs to use the most appropriate tools in each case. The bill as
passed in the Senate addressed this issue by including language that:
No. 1, left it to the President to adopt procedures to determine who is
a foreign al-Qaida terrorist and therefore subject to presumed military
detention; No. 2, required that those procedures not interfere with
ongoing intelligence, surveillance, or interrogations by civilian law
enforcement; No. 3, left it to the executive branch to determine
whether a military detainee who will be tried is tried by a civilian
court or a military court; and No. 4, gave the executive branch broad
waiver authority.
The conference report retains that language and adds additional
assurances that there will be no interference with civilian
interrogations or other law enforcement activities. In particular, the
conferees added language that says the following:
Nothing in this section shall be construed to affect the
existing criminal enforcement and national security
authorities of the Federal Bureau of Investigation or any
other domestic law enforcement agency with respect to a
covered person, regardless of whether such covered person is
held in military custody.
It also modifies the waiver language to give the President, rather
than the Secretary of Defense, the authority to waive the requirements
of the provision.
Under the provision in the conference report, law enforcement
agencies are not restrained in apprehending suspects or conducting any
investigations or interrogations. If a suspect is apprehended and is in
law enforcement custody, the suspect can be investigated and
interrogated in accordance with existing procedures. If and when a
determination is made that a suspect is a foreign al-Qaida terrorist,
that person would be slated for transfer to military custody under
rules written by the executive branch. Again, however, any ongoing
interrogations are not to be interrupted, and the President also has a
waiver authority. If the suspect is transferred to military custody,
all existing law enforcement and national security tools remain
available to the FBI and other law enforcement agencies, and even if
the suspect is held in military custody, it would be up to the Attorney
General, after consulting with the Secretary of Defense and the
Director of National Intelligence, to determine whether the suspect
will be tried in Federal court or before a military commission. The
bill provides the Attorney General with broad discretion to ensure that
whatever consultation is conducted does not impede operational
judgments that may need to be made to pursue investigative leads,
effect arrests or file charges.
The language in the Senate bill and in the conference report is
intended to preserve the operational flexibility of law enforcement and
national security professionals in the executive branch. Nothing in the
language limits the President as to when he can waive the provision or
for whom he can waive it.
For example, he is not required to wait for a coverage determination
to be made before deciding to waive the requirements of the provision.
Similarly, he is not precluded from waiving the provision with regard
to more than one individual at a time--for example, with regard to a
group of conspirators or potential codefendants.
In short, the waiver language in the conference report is broad
enough to reflect circumstances in which it is in the national security
interests of the United States for a President to waive the
requirements of the provision with respect to a category of covered
persons, if he so determines, in order to preserve the flexibility of
counterterrorism professionals and operators to take expeditious
action.
With the exception of those assurances, the detainee provisions in
the conference report are largely unchanged from the provisions in the
bill that was approved by the Senate on a 93-to-7 vote just 2 weeks
ago. Those who say we have written into law a new authority to detain
American citizens until the end of hostilities are wrong. Neither the
Senate bill nor the conference report establishes new authority to
detain American citizens--or anybody else.
The issue of indefinite detention arises from the capture of an enemy
combatant at war. According to the law of war, an enemy combatant may
be held until the end of hostilities. Can an American citizen be held
as an enemy combatant? According to the law of war, an enemy combatant
may be held until the end of hostilities. But, again, can an American
citizen be held as an enemy combatant? I believe that if an American
citizen joins a foreign army or a hostile force such as al-Qaida that
has declared war and organized a war against us and attacks us, that
person can be captured and detained as an enemy combatant under the law
of war.
In 2004, the Supreme Court held in the Hamdi case that ``there is no
bar to this Nation's holding one of its own citizens as an enemy
combatant.''
The Court cited with approval its holding in the Quirin case, in
which an earlier court held that ``citizens who associate themselves
with the military arm of the enemy government, and with its aid,
guidance and direction enter this country bent on hostile acts, are
enemy belligerents within the meaning of . . . the law of war.''
But despite that view of mine, which I clearly expressed on the
Senate floor a couple weeks ago, neither the Senate bill nor the
conference report takes a position on this issue. Both the Senate bill
and the conference report include
[[Page S8634]]
the language of the Feinstein amendment, which we drafted together and
passed 99 to 1. That amendment leaves this issue to the executive
branch and the courts by providing the following:
Nothing in this section shall be construed to affect
existing law or authorities relating to the detention of
United States citizens, lawful resident aliens of the United
States, or any other persons who are captured or arrested in
the United States.
The more difficult issue for me--and I believe it goes to the heart
of the concern of the detention policy--is the kind of war we are in
with al-Qaida, and that issue is when does the detention end? In other
words, when are the hostilities over? In this kind of nontraditional
war, we are not likely to sign a peace treaty or receive a formal
surrender or even reach an agreement on a cease-fire.
Under these circumstances, it is appropriate for us to provide
greater procedural rights to enemy detainees than we might in a more
traditional war. We have done so in this conference report. The
conference report, for instance, requires periodic reviews of detainee
cases in accordance with an executive order issued earlier this year to
determine whether detainees pose a continuing threat or safely can be
released. Under the conference report, enemy combatants who will be
held in long-term military detention are told, for the first time, they
will get a military judge and a military lawyer for their status
determination.
The conference report includes many other important provisions.
It includes new sanctions against the financial sector of Iran,
including the Central Bank of Iran. These sanctions would, among other
actions, require foreign financial institutions to choose between
maintaining ties with the U.S. financial system or doing business with
the Central Bank of Iran.
It includes provisions addressing the problem of counterfeit parts
that can undermine the performance of military weapons systems and
endanger our men and women in uniform. This is one of the most
important additional provisions we have in our bill; that is, the
provisions relative to these counterfeit parts that are flooding our
defense system with electronic parts that are counterfeited and come
mainly from China. We were able to identify approximately 1,800 cases
of suspect counterfeit electronic parts, covering more than 1 million
individual parts, with most of them, again, coming from China. This
conference report includes comprehensive reforms to keep counterfeit
electronic parts out of the defense supply chain and provides proper
accountability when suspect parts make it through that chain.
In particular, the conference report relative to this subject does
the following:
It clarifies acquisition rules to ensure that the cost of replacement
and rework that is required by the use of suspect counterfeit parts is
paid by the contractor, not by the taxpayer.
It requires the Department of Defense and Department of Defense
suppliers to purchase electronic parts from manufacturers and their
authorized dealers or from trusted, certified suppliers.
It requires Department of Defense officials and Department of Defense
contractors that become aware of counterfeit parts in the supply chain
to provide written notification to the government.
It requires the Department of Defense and its largest contractors to
establish systems and procedures to detect and avoid counterfeit parts.
It requires the Secretary of Homeland Security to consult with the
Secretary of Defense on the sources of counterfeit electronic parts in
the military supply chain and establish a risk-based program of
enhanced inspection of imported electronic parts.
It authorizes Customs to share information from electronic parts
inspected at the border with manufacturers to help determine whether
the parts are counterfeit.
It strengthens criminal penalties for counterfeiting military goods
or services.
We are very grateful for the support of Members of this body for that
provision.
Relative to the strengthening of criminal penalties, I wish to add
our thanks to Senator Whitehouse for his work on this subject, for his
provisions relative to additional criminal penalties for counterfeiting
military goods that are a part of this bill, and they are a very
important part.
The conference report requires sound planning--this is another
provision of this bill--and justification before we spend more money on
troop realignment from Okinawa to Guam and on tour normalization in
Korea. Those provisions follow detailed oversight that Senators Webb,
McCain, and I have conducted.
On some other provisions: The conference report requires that the
next lot of F-35 aircraft--lot 6--and all subsequent aircraft, be
purchased under fixed-price contracts, with the contractor assuming
full responsibility for any costs above the target cost specified in
the contract.
Our conference report fences 75 percent of the money available for
the Medium Extended Air Defense System--MEADS--until the Secretary of
Defense submits a detailed plan to use those funds to close out the
program or pay contract termination costs.
The conference report includes Senator Landrieu's bill to extend the
Small Business Innovative Research--SBIR--Program for an additional 6
years. It has been about 6 years since we reauthorized this vitally
important program, which provides a huge benefit to our small
businesses so they can effectively participate in research programs
that are funded by the Federal Government. In the defense arena, SBIR
has successfully invested in innovative research and technologies that
have contributed significantly to the expansion of the defense
industrial base and the development of new military capabilities.
As to Pakistan, the conference report limits to 40 percent the amount
of the Pakistan Counterinsurgency Capability Fund that can be obligated
until the Secretary of Defense provides Congress with a strategy on the
use of the fund and on enhancing Pakistan's efforts to counter the
threat of improvised explosive devices, those IEDs which kill so many
of our troops and so many civilians.
Finally, the Department of Defense has informed us it does not need
an exemption from section 526 of the Energy Independence and Security
Act of 2007 because that section does not apply to purchases at market
prices from generally available fuel supplies and does not preclude the
Department from purchasing any fuel it needs or expects to purchase in
the foreseeable future.
We are in the final stages of withdrawing our combat troops from
Iraq, but we continue to have almost 100,000 U.S. soldiers, sailors,
airmen, and marines on the ground in Afghanistan. While there are
issues on which we may disagree, we all know we must provide our troops
the support they need as long as they remain in harm's way. The
enactment of this conference report will improve the quality of life
for our men and women in uniform. It will give them the tools they need
to remain the most effective fighting force in the world. Most
important of all, it will send an important message that we as a nation
stand behind our troops and we deeply appreciate their service.
In conclusion, I would, once again, thank Senator McCain, all our
Members, and our majority and minority staff, led by Rick DeBobes and
Dave Morriss, for their hard work on this bill. We could not have done
this without them.
I ask unanimous consent that a full list of our majority and minority
staff, who gave so much of themselves and their families, be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Senate Armed Services Committee Staff
Richard D. DeBobes, Staff Director; David M. Morriss,
Minority Staff Director; Adam J. Barker, Professional Staff
Member; June M. Borowski, Printing and Documents Clerk; Leah
C. Brewer, Nominations and Hearings Clerk; Christian D.
Brose, Professional Staff Member; Joseph M. Bryan,
Professional Staff Member; Pablo E. Carrillo, Minority
Investigative Counsel; Jonathan D. Clark, Counsel; Ilona R.
Cohen, Counsel; Christine E. Cowart, Chief Clerk; Jonathan S.
Epstein, Counsel; Gabriella E. Fahrer, Counsel; Richard W.
Fieldhouse, Professional Staff Member; Creighton Greene,
Professional Staff Member; Ozge Guzelsu, Counsel; John Heath,
Jr., Minority Investigative Counsel.
Gary J. Howard, Systems Administrator; Paul C. Hutton IV,
Professional Staff Member; Jessica L. Kingston, Research
Assistant;
[[Page S8635]]
Jennifer R. Knowles, Staff Assistant; Michael J. Kuiken,
Professional Staff Member; Kathleen A. Kulenkampff, Staff
Assistant; Mary J. Kyle, Legislative Clerk; Gerald J.
Leeling, Counsel; Daniel A. Lerner, Professional Staff
Member; Peter K. Levine, General Counsel; Gregory R. Lilly,
Executive Assistant for the Minority; Hannah I. Lloyd, Staff
Assistant; Mariah K. McNamara, Staff Assistant; Jason W.
Maroney, Counsel; Thomas K. McConnell, Professional Staff
Member; William G. P. Monahan, Counsel; Lucian L. Niemeyer,
Professional Staff Member.
Michael J. Noblet, Professional Staff Member; Bryan D.
Parker, Minority Investigative Counsel; Christopher J. Paul,
Professional Staff Member; Cindy Pearson, Assistant Chief
Clerk and Security Manager; Roy F. Phillips, Professional
Staff Member; John H. Quirk V, Professional Staff Member;
Robie I. Samanta Roy, Professional Staff Member; Brian F.
Sebold, Staff Assistant; Russell L. Shaffer, Counsel; Michael
J. Sistak, Research Assistant; Travis E. Smith, Special
Assistant; William K. Sutey, Professional Staff Member; Diana
G. Tabler, Professional Staff Member; Mary Louise Wagner,
Professional Staff Member; Barry C. Walker, Security Officer;
Richard F. Walsh, Minority Counsel; Bradley S. Watson, Staff
Assistant; Breon N. Wells, Staff Assistant.
Mr. LEVIN. I yield the floor.
Exhibit 1
Selected Highlights of the National Defense Authorization Act for
Fiscal Year 2012
--Authorizes a 1.6 percent across-the-board pay raise for
all uniformed military personnel and extend over 30 types of
bonuses and special pays aimed at encouraging enlistment,
reenlistment, and continued service by active-duty and
reserve military personnel;
--Extends authorities needed to fairly compensate civilian
employees and highly qualified experts who are assigned to
work overseas in support of contingency operations;
--Clarifies provisions of the Uniform Code of Military
Justice relating to the offenses of rape, sexual assault, and
other sexual misconduct to address constitutional
deficiencies in the existing law;
--Extends the authority of U.S. Special Operations Forces
to provide support to regular forces, irregular forces, and
individuals aiding U.S. special operations to combat
terrorism;
--Freezes the Department's spending on contract services at
fiscal year 2010 levels, to ensure that cost reductions and
savings are spread across all components of the DOD
workforce;
--Authorizes the Department to void a contract in
Afghanistan, if the contractor or its employees are
determined to be actively working with the enemy to oppose
U.S. forces in that country;
--Implements cost-saving programs to address rapidly
escalating costs for the operation and support of weapon
systems, including costs incurred as a result of corrosion;
and
--Enhances the role of the National Guard by including the
Chief of the National Guard Bureau as a member of the Joint
Chiefs of Staff.
Mr. LEVIN. I suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Hagan). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. McCAIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Madam President, I fully support the conference report
and the national defense authorization bill for fiscal year 2012. This
is the 50th year the Congress will pass this, and I am now confident
this bill will be signed into law by the President of the United
States.
It is an important piece of legislation. I appreciate the
participation of all Members, as we went through this bill in a
relatively short period of time. There certainly was a lot of
participation by almost every Member.
I am most appreciative, of course, of Senator Levin, whom I have had
the honor of serving with for many years. Quite often we have spirited
discussions on various issues, but my admiration and appreciation for
his leadership is very large. He is a man of incredible patience--a
quality some accuse me of lacking, I think correctly.
Senator Levin and his staff and our staff work very closely together
throughout the year as we bring forth this Defense authorization bill.
Obviously this bill provides for defense policy guidance and funding
that is vital to our national security, provides the clearest
indication to our men and women in uniform that the Congress cares
about them and their families.
In testament to the importance of this legislation, as I mentioned,
we have passed a defense authorization bill every year since 1961.
Let me remind my colleagues of the hard work that went into this
bill. The bill is a product of 11 months of legislative effort in the
Senate, 71 hearings and meetings on the full range of national security
priorities. We reported our bill out of the committee with a 26-to-0
vote. We debated nearly 40 hours, disposed of 139 amendments, and the
bill was overwhelmingly passed 93 to 7. After Senate passage on
December 1, our staffs have worked around the clock for 9 days to put
this together.
As Senator Levin mentioned, it authorizes $662.4 billion for national
defense, which is $26.6 billion less than the President's request. It
authorizes $530 billion for the base budget for the Department of
Defense, and it goes on. We authorize a 6-percent increase in funding
over last year's request for our special operations forces, who play a
lead role in counterterrorism operations. We authorize over $2.4
billion to counter improvised explosive device activities. The IEDs
still plague the men and women who are serving in Afghanistan.
Let me also mention some noteworthy provisions in this legislation.
The conference report includes strong, unambiguous language that
recognizes that the war on terror extends to us at home and that we
must address it as such. The language the Senate adopted regarding
detainees recognizes both that we must treat enemy combatants who seek
to do us harm as such and that we must be able to gain as much
information from such individuals as possible regarding their plans to
wage war against our citizens--I want to emphasize--without violating
the rules of war, without violating the Geneva Conventions, without
engaging in torture or waterboarding or any of the kinds of techniques
that have stained America's honor in the 21st century.
I strongly believe the detainee provisions in the bill are
constitutional and in no way infringe upon the rights of law-abiding
Americans. Unfortunately, rarely in my time have I seen legislation so
consistently misunderstood and misrepresented as these detainee
provisions. The hyperbole used by both the left and the right regarding
this language is false and misleading.
Let me be clear. The language in this bill will not affect any
Americans engaging in the pursuits of their constitutional rights. The
language does recognize that those people who seek to wage war against
the United States will be stopped, and we will use all ethical, moral,
and legal methods to do so.
I am very pleased that the administration has finally recognized that
the language we have adopted merits the President's signature and will
soon be signed into law. While we have made some technical changes to
the detainee provisions, they remain substantially the same as passed
by the Senate Armed Services Committee.
The Congress, in strong bipartisan majorities, especially in the
Committee on Armed Services, is deeply concerned by the
administration's flawed handling of detainees in the fight against
terrorism.
It was Congress that took up this vital national security issue and
drafted all the versions of these provisions and led the negotiations
on all of the major compromises. Yes, we listened to the
administration's concerns, as we should, and we took many of them into
account. Unfortunately, the administration has fought these provisions
every step of the way. They tried to have these provisions stripped
from the Senate bill as a condition for bringing it to the floor for
debate. When that did not work, they tried to have these provisions
dropped from the bill through amendments on the floor. When that did
not work, they urged the conferees to drop these provisions in
conference or at least water them down into nothingness. Again and
again, the administration failed. So for them now to try to claim
credit for these provisions flies in the face of the historical record.
Facts are stubborn, and when it comes to these detainee provisions, the
fact is this: Congress has led and defined the debate, and the
administration has finally conceded to that reality.
Let's establish once again what these detainee provisions do and do
not do.
[[Page S8636]]
They would, among other things, reaffirm the military's existing
authority to detain individuals captured in the course of hostilities
conducted pursuant to the authorization of the use of military force.
The ``authority to detain provision'' in the conference report
confirms that nothing in this section of the bill should be ``construed
to affect existing law or authorities relating to the detention of
United States citizens, lawful resident aliens of the United States, or
any other persons who are captured or arrested in the United States.''
There could be nothing clearer than that statement.
This confirmation of the intent of the bill was inserted as a result
of floor debate and negotiations with the Senator from California, Mrs.
Feinstein, to make absolutely clear what Chairman Levin and I and
members of the committee who have supported this legislation have said
throughout--that this provision does not and is not intended to change
the existing state of the law with regard to detention of U.S.
citizens. This section simply restates the authority to detain what has
already been upheld by the Federal courts. We are not expanding or
limiting the authority to detain as established by the 2001
authorization for the use of military force.
The conference report also includes a provision requiring military
detention for foreign al-Qaida terrorists who attack the United
States--something this administration has been not only hesitant but
completely unwilling to even consider until this legislation
highlighted the inconsistency between claiming the authority to kill an
al-Qaida member with drones overseas but not being willing to hold a
captured al-Qaida member in military custody in the United States, even
in a situation where the al-Qaida terrorist had penetrated our defenses
and had carried out or attempted an attack inside the United States.
The authority to hold al-Qaida members in military custody, while
completely consistent with the law of war that applies to enemy
combatants, is not a straitjacket but is as flexible as the President
desires to make it.
While we in Congress have given the President a statutory authority
to use military custody for al-Qaida members as a tool to ensure that
we are able to obtain timely, actionable intelligence, the President
can exercise a broad national security waiver to this requirement--a
broad national security waiver. Most important, this provision
requiring military detention explicitly excludes U.S. citizens and
lawful resident aliens.
The military custody provision in the final compromise authorizes the
transfer of any detainee to civilian custody for trial in civilian
court and leaves it up to the President to establish procedures for
determining how and when persons determined to be subject to military
custody would be transferred. The provision adopted in the conference
report requires that such determination must not interfere with ongoing
intelligence, surveillance, or interrogation operations.
All of this flexibility was added to the bill even before we began
negotiations with the White House to make it clear that the intent of
the Senate's provisions was not to tie the administration's hands but
to give them additional means to defeat the most serious type of threat
from al-Qaida to our country. The result of these Senate modifications
to the original form of the provisions ensures that the executive
branch has complete flexibility in how it first determines and then how
it applies military custody for al-Qaida members who are captured after
having attacked the United States or while planning or attempting such
an attack.
Moreover, after meeting with FBI Director Robert Mueller, the Senate
conferees added language in conference in response to his concerns
about the impact on FBI operations confirming that nothing in this
provision may be ``construed to affect the existing criminal
enforcement and national security authorities of the Federal Bureau of
Investigation, or any other domestic law enforcement agency, with
regard to a covered person, regardless whether such covered person is
held in military custody.''
It is the intent of the Senate conferees, in agreement with House
colleagues on a bipartisan basis, that the FBI continue to execute the
full range of its investigative and counterterrorism responsibilities
and that any shift to military custody will be an administrative
measure that does not limit in any way the FBI's authority.
I acknowledge that these issues were very controversial with some
Members. These provisions were debated extensively--as thoroughly as
any matter I have seen in recent memory--but I believe we have
addressed in a positive way and have been responsive to concerns raised
by the administration. Indeed, the Senate made changes both on the
floor and during conference to ensure that the intent of the provisions
was fully understood by the administration and others even before
negotiations over the final form of the text began.
In many ways, as Chairman Levin has pointed out in many of his public
statements and speeches on these detainee provisions, rarely has such
misinformation, speculation, and outright misrepresentation been
greater over what a bill actually does compared to what some from the
left and right claim it does than has been the case with these detainee
provisions. Whether 2012 campaign politics played a role in the
characterization of these provisions or whether this was simply a case
of not fully understanding the intent of the authors of these
provisions I will leave to others to decide.
I point out again that I think my friend from Michigan Senator Levin
displayed a great deal of courage in formulating what he thought was
best for our Nation's security.
Regardless of the motivation that may have colored the debate until
now, I believe that, by any responsible reading, these provisions will
not impair the flexibility of the President or national security
officials in protecting the United States and its citizens. The
military custody provision, which has been the focus of much of this
debate, provides flexibility to use either a civilian track or a
military track for custody and eventual trial and leaves the details of
implementation in the hands of the executive branch, as it is
appropriate to do so. It preserves the current state of the law as it
applies to the rights of U.S. citizens and lawful resident aliens.
In terms of FBI authority to conduct investigations and
interrogations, as well as use other instruments of the investigative
and criminal process, these provisions preserve all of the FBI's role
and authority under existing law.
The conference report also includes, virtually unchanged, the Senate
provision requiring a plan to normalize U.S. defense cooperation with
Georgia and the sale of defensive weapons. U.S. defense cooperation
with the Republic of Georgia has been stalled ever since Russia invaded
that country 3 years ago. While there has been slow and minor progress
to enable Georgia's armed forces to deploy to Afghanistan--which they
have done in greater numbers than most of our NATO allies--precious
little has been done to strengthen Georgia's ability to defend its
government, people, and territory.
This provision would require the Secretary of Defense, in
consultation with the Secretary of State, to develop a plan for the
normalization of our defense cooperation with Georgia, especially the
reestablishment of U.S. sales of defensive weapons. It puts the
Congress on record as demanding a more normal U.S. defense relationship
with Georgia, particularly on defensive arms sales.
The conference report includes a strong and important provision to
sanction the Central Bank of Iran, to curtail Iran's ability to buy and
sell petroleum through its Central Bank, and to prevent foreign
financial institutions that deal with the Central Bank of Iran from
continuing their access to the U.S. financial system. This provision,
which was adopted on the Senate floor by a vote of 100 to 0, and the
attempted assassination of the Saudi Ambassador here in Washington, DC,
had a very positive and forceful effect on this bill being enacted by
the Senate. This provision would force foreign financial institutions
to make an important choice: Do they want to deal with the U.S. economy
or with Iran's Central Bank?
The Treasury Department urged the conferees to make a series of
changes to this provision, some of which would have narrowed its scope
and weakened
[[Page S8637]]
it. We rejected that course of action. We made some minor technical
changes but kept the provision as the authors, Senators Menendez and
Kirk, intended. The conferees did, however, provide the Treasury
Department the ability to more effectively implement this legislation
by imposing strict conditions on foreign financial institutions that
maintain ties to the Central Bank of Iran.
The conference report directs the Secretary of Defense to pause
further spending on Guam in support of the relocation of 8,500 U.S.
marines from Okinawa until Congress and the administration have had an
opportunity to review and assess the impact of an estimated $20 billion
spending initiative on Guam in the context of the full range of our
national interests in the Pacific region. This pause will allow
Congress to ensure that the taxpayer funds invested in overseas
military force posture and basing will afford us the best opportunity
to continue our strong alliances in the region, while pursuing new
arrangements with emerging partners that support security and economic
development.
The final agreed-upon provision includes a requirement for an
independent study to offer views and suggestions from a range of
regional experts on current and emerging U.S. national security
interests in the Pacific and options for the realignment of U.S.
military forces in the region. The conference report would restrict the
use of $33 million in operation and maintenance funds for items on Guam
that do not directly support military requirements, such as civilian
schoolbuses, the construction of museums, and mental health facilities.
This provision should not be interpreted as a lack of U.S. commitment
to realignment. The President has stated that we are shifting a lot of
our attention to the Pacific region, and we understand the importance
of the Pacific region in the 21st century.
Finally, the conference report includes a provision to require that
the contract for the sixth slot of ``low-rate initial production'' for
the Joint Strike Fighter be executed on a firm fixed-price basis. The
Pentagon has thus far failed to incentivize the prime contractor to
control costs. So a tougher measure, as embodied in the report, is
warranted.
While I would have preferred the original Senate position that would
have made the fixed-price requirement apply to the fifth lot currently
being negotiated, I strongly support this provision. The chairman and I
are committed to a close monitoring of this weapons system. We
understand its importance. We also understand that the kinds of cost
overruns that have characterized this system cannot be continued.
I am gratified that there are no earmarks in this bill.
Unfortunately, it still contains over $1.4 billion in spending that was
never requested by the President or by our military and civilian
leaders in the Pentagon. Examples of funding authorized by this
conference report include $255 million for additional M-1 tank upgrades
the Army didn't want in order to keep the M-1 production line hot
despite no compelling need to upgrade more tanks at this time; $325
million for Army National Guard and Reserve equipment not requested by
the Army; $8.5 million for an Air Force R&D program called the Metals
Affordability Initiative that the Air Force didn't consider a high
enough priority to fund; $30 million for an industrial base innovation
fund that the Pentagon didn't ask for; $200 million for the Rapid
Innovation Program--created by Congress in last year's Defense
authorization bill--that the Pentagon never asked for and which has
about $439 million in funds left over from last year it hasn't figured
out how to spend.
The bottom line is this: Congress will pump over $1.4 billion into
things the Pentagon never requested and didn't think were a priority.
The American taxpayers are not fooled by this exercise, and they have
long ago lost patience with it. For all the many good things this
conference report did, we still fell short of providing only the most
essential needs and priorities of the Department of Defense as
identified by our civilian and military leaders. A total of $1.4
billion is real money and could make an enormous difference to many
Americans if properly applied to real priorities.
Those criticisms aside, as we look forward to the holidays ahead, I
want all Senators to think about whom this report is really for--the
men and women of our Armed Forces, who have served our Nation so
bravely and so selflessly during the past 10 years of war. We owe it to
them to pass this bill to demonstrate our support for them and the
burden they carry for all of us and to show in a concrete way that the
American people and the Congress stand with them and appreciate what
they do for us. Passing this bill is really the very least we can do
for so many who are willing to give all they have to defend us and our
great country.
Finally, I thank Chairman Levin and Chairman McKeon and Ranking
Member Smith for their dedication and cooperation in getting through
the conference in a rapid but comprehensive and collegial manner. It is
an honor to work with Senator Levin on such an important cause for the
American people and for our men and women serving around the world in
the Department of Defense, who risk their lives for us every day. They
deserve positive action and your vote on this conference report.
I urge my colleagues to vote for the conference report of the fiscal
year 2012 national defense authorization bill.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I spoke at some length before, but I want
to repeat one sentiment in the statement that has to do with Senator
McCain and his staff. The way in which he and our staff work together
is in the finest tradition of this body. Our committee has had that
reputation. It is a well-earned, well-deserved reputation that we are
able to work on a bipartisan basis.
Senator McCain continues in a great tradition on the Republican side,
and I would hope I strive at least to do the same on our side. We have
had some great leaders of our committee over the decades, and Senator
McCain is one of those leaders in that tradition, and I want to say
what a great pleasure it is to work with him.
I know our staffs work beautifully together, and we are grateful for
that. The Senator was right in pointing out who we are doing this for--
it is the men and women in uniform--but we couldn't do that without our
great staffs, and I know he joins me, and has already in his statement,
in a tribute to our staffs.
Mr. McCAIN. Madam President, I say to my friend from Michigan, I
guess in our many years together we have seen the ups and downs and
back and forth, but during our more than a quarter of a century of
service we have always seen the bill coming to fruition and we have
carried on in that tradition.
I wish also to point out to my colleagues, in a rather drab and
dreary landscape of gridlock and acrimony, it is kind of nice to show
that every once in a while there is a little ray of sunshine. So I hope
we have been able to provide it for our colleagues, and I look forward
to a unanimous, if not near unanimous, vote on the part of this body.
I hope if there are other colleagues who wish to come and speak on
the bill--I know we have planned a colloquy on a provision of the bill
concerning depots--so, hopefully, our colleagues who are very concerned
about that issue might want to arrange to come to the floor so we can
dispose of that.
I don't know of any other except, I think, Senator Udall, who wishes
to come.
Mr. LEVIN. I think one on our side.
While we are talking about rays of lightness, we thank Senator Hagan,
our Presiding Officer, who is a member of our committee. She provides a
ray of light--one of the many rays of light on our committee. I see her
presiding and smiling over this effort, and I wanted to acknowledge
that she is an important part of it and to recognize her contribution
as well.
Mr. McCAIN. I happen to know for a fact that Senator Hagan is a
strong defender of the men and women who serve her State, which has a
very large military presence. I know they are very appreciative of her
advocacy and service.
Before we get too hokey around here, maybe we should suggest the
absence of a quorum.
[[Page S8638]]
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
SECTION 1022
Mr. LEVIN. Mr. President, section 1022(d) of the conference report
states that ``nothing in this section shall be construed to affect the
existing criminal enforcement and national security authorities of the
Federal Bureau of Investigation or any other domestic law enforcement
agency with regard to a covered person, regardless whether such covered
person is held in military custody.'' Would the Senator agree with me
that this language is intended to ensure that the provision does not
interfere with ongoing civilian interrogations and other law
enforcement activities and that the President has the flexibility he
needs to decide on the most appropriate law enforcement and
intelligence tools for each individual case?
Mr. McCAIN. Yes. That was the intention of the provision we wrote in
committee, and it has been clarified by the addition of subsection (d).
The statement of managers specifically states that the law enforcement
and national security tools that are not affected by the provision
include, but are not limited to, grand jury subpoenas, national
security letters, and actions pursuant to the Foreign Intelligence
Surveillance Act.
Mr. LEVIN. Section 1022 applies only to a person who is ``a member
of, or part of, al-Qaeda or an associated force that acts in
coordination with or pursuant to the direction of al-Qaeda.'' The
statement of managers states that this language intentionally excluded
the Taliban. Would the Senator agree with me that the requirements of
section 1022--including the transfer restrictions applicable under that
provision--do not apply to individuals detained by our forces in
Afghanistan?
Mr. McCAIN. Yes. Our forces in Afghanistan can continue to transfer
detainees to the host nation in accordance with existing agreements.
This provision does not apply to battlefield transfers in--Afghanistan.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, for the benefit of my colleagues, there
is a bit of interesting news today. When the demonstrations began in
Moscow, I tweeted--I am a big believer in tweets--and said, ``Dear
Vlad, the Arab Spring is coming to a neighborhood near you.''
Apparently, Mr. Putin was not amused, because an Associated Press
headline read: ``Putin rejects any redo of fraud-tainted vote.'' The
article also mentioned he was apparently on a program where he answered
some questions. To quote the article:
The harsh comments and his insistence that the December 4
election was valid will likely fuel anger and may draw even
bigger crowds of protest later this month.
Putin also lashed out at U.S. Senator John McCain, who had
goaded him with a Twitter post saying ``the Arab Spring is
coming to a neighborhood near you.''
Quoting Putin now, the article continues:
``He has the blood of peaceful civilians on his hands, and
he can't live without the kind of disgusting, repulsive
scenes like the killing of Gadhafi,'' Putin said, referring
to McCain's role as a combat pilot and prisoner of war in
Vietnam.
He went on to say:
``Mr. McCain was captured and they kept him not just in
prison, but in a pit for several years,'' he said. ``Anyone
(in his place) would go nuts.''
I know my friend from Michigan may think there is some veracity to
the last sentence from Putin's comments, but I would mention that, in
the context of the National Defense bill, in my view, the reset with
Russia has not gone as we had hoped and it is an argument for some
missile defense provisions in this bill in particular.
I think the reason why Mr. Putin reacted in the way he did is that I
believe he has been shaken, as he should have been, by the massive
demonstrations that have taken place in Moscow and other cities in
Russia. It will be very interesting on December 24 to see how large or
whether there will be demonstrations concerning a government that in
many ways has turned into a cryptocracy, and the abuse of human rights,
including the case of Mr. Magnitsky, who died in prison; and Mr.
Khodorkovsky, who was again sentenced to more time in prison, and what
Mr. Khodorkovsky and others have described as a death sentence.
These are very interesting times in which we live, and the world is a
very interesting place. I think it argues for the United States of
America to maintain its defenses, as we have in the consideration of
this bill.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I had not seen those remarks of Mr.
Putin, but referring to his last comment, read by Senator McCain, I
guess people would go nuts in the setting Senator McCain found himself
in the Vietnam war. He probably is perhaps, only in that line, accurate
that most people, indeed, could not have survived that experience. I
know Senator McCain does not raise this matter, but those of us who
work with him appreciate all he has done for this country and for this
body. I wish we had a chance to straighten out Mr. Putin about Senator
McCain. I don't think we will have that opportunity, but maybe his own
people will do so in a free election someday.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. HAGAN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER (Mr. Manchin). Without objection, it is so
ordered.
Mrs. HAGAN. Mr. President, I ask unanimous consent that all time in
the quorum call be divided equally.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. HAGAN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Depot Provisions
Mr. LEVIN. Mr. President, I now ask unanimous consent that the
following Senators be recognized for up to 4 minutes each to address
the depot provisions in the bill, and at the end of their remarks
Senator McCain and I be recognized to address the same issue. This was
the order we were given. They may want to change it: Senator Sessions,
Senator Chambliss, Senator Inhofe, Senator Shaheen, Senator Ayotte, and
Senator Hagan.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The Senator from Oklahoma.
Mr. INHOFE. Mr. President, let me thank the chairman of the
committee. I appreciate the opportunity to have this colloquy because
something has happened that shouldn't have happened. It happened over
on the House side, and we had no control over it.
While I support and will vote for the fiscal year 2012 Defense
authorization bill, this is the third year in a row we have bypassed
the formal conference process. I am pleased we finished the bill, but
this broken process allows for abuse, and we have certainly had some
abuse that I will allude to here. If the proper procedure had been
followed, some of these problems would not have happened.
On December 3, the House Armed Services Committee staff inserted new
language into the conference that would impact how DOD maintains its
ships, maintains its aircraft, maintains its ground vehicles--private
and public--impacting thousands of jobs in a number of States. That was
December 3. It wasn't until the morning of December 7 that I, along
with several other Senators, were shown the new language. That was just
6\1/2\ hours before we were to have our first conference. We were going
to be asked to support the new language without a full vetting from the
concerned Members' offices or from the depots and shipyards, arsenals,
the Shipbuilders Council of America, the Virginia Ship Repair
Association, and all of the rest of these stakeholders and those who
were concerned. That was November 7.
[[Page S8639]]
Then on November 9, 2 days later, I, along with Senators Chambliss,
Sessions, Ayotte, Collins, Hagan, and Shaheen sent a letter to Chairman
Levin and Chairman McKeon from the House and ranking members McCain and
Smith opposing the new House Armed Services Committee language and
asked that it not be included in the conference.
That was on December 9. We assumed they dropped the language, but
they didn't. The new language was put in the bill at the insistence of
staff, apparently, from all we can determine. Several Members of the
Senate complained that the new language was not in either the House or
the Senate bill, so it should not have been able to be dropped in.
They took the position that this was just a clarification of language
that was already in, when in fact that wasn't the case because the new
language was a complete and comprehensive rewrite of depot language
contained in the original House bill. Stakeholders were not included in
drafting the language. Senators were not included. Nobody knew.
The problem we had at that point--that was done on December 9. We
were all committed to passing out the bill at that time, and many of
the House Members had already signed the conference report. Then there
was a rollcall vote, so they all disappeared. So our choice was to go
back and open up everything again and nobody wanted to do that.
So we had language contained in the Senate bill, but it was dropped
out in conference. That language specifically called for DOD to provide
their inputs by March 1, 2012, on a recent study on the capability and
efficiency of the depots before--and I emphasize this--before any
change in legislation because the study alone does not provide Congress
with a comprehensive view. This is what we requested.
I thank Senators Levin and McCain for their support of this colloquy.
I wish we had time to take care of this in conference, but I hope that
by doing this we can slow down the implementation of the new language
contained in the bill until the Senate has had time to fully vet these
changes.
I certainly don't blame Chairman McKeon. His staff told him--because
he stated this in the meeting--his staff told him the new language was
fully vetted, but it was not, and we were not contacted. So the process
is wrong. I have to say this is the first time in my 8 years in the
House on the House Armed Services Committee and my 17 years in the
Senate that I have seen anything such as this happen. I hope we can
delay implementing these changes until we in the Senate can be heard.
That is what this colloquy is all about.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I wish to thank the chairman for his
willingness to enter into this colloquy. We had a discussion, as
Senator Inhofe said, during the conference meeting last week in which
it now is apparent that the process through which the depot language
was inserted was not proper. Senator Levin has been very up front and
straight forward with us, and I appreciate his willingness to do this
today. I know the chairman has already acknowledged there are problems,
and I appreciate his commitment to not only discuss it today but to
revisit these issues as soon as the next Senate session convenes and
address this issue through a truly inclusive process during which all
Members and stakeholders can express their views.
Clearly, there was a process problem related to how these provisions
wound up in the bill, and I think we can all agree that for issues that
are as central to so many Members as the definitions of ``depot
maintenance'' and ``core,'' the process needs to be inclusive and
extensive and both Houses of Congress need to be equally involved. That
simply did not happen in this case.
Specifically, related to the substance of the provisions, I am
extremely concerned the rewrite of the 10 USC 2464 ``core'' statute
replaces all references to ``core logistics'' functions in the original
statute with ``depot maintenance and repair'' functions. This basically
redefines ``core'' to be depot maintenance only, to exclude other
logistics functions such as supply chain management and product
support. This does constitute a very significant change, and I would
argue that it is exactly in these areas of logistics functions beyond
simple depot maintenance where the government has the greatest interest
in protecting their own capabilities. Yet the bill defines these
activities out of the core definition. This could very easily result in
the government's ability to employ and therefore maintain expertise in
areas such as program management, supply chain management, and product
support management atrophying.
I have no doubt that private industry applauds this change because
they would be the ones to presumably pick up this work. However, we
should not kid ourselves into thinking industry would be cheaper. If
the government loses this or any other depot-related capability, they
will have an extremely hard time rebuilding that expertise, and this
will only incentivize industry to charge more for their efforts. This
is clearly a problem and one of the issues we need to address next
year.
Secondly, the waiver in the 2464 rewrite is much broader than
previously and allows for a waiver for military equipment that is not
an enduring element of the national defense strategy. Perhaps this
could make sense at some level if we knew what this meant, but we
don't. What an ``enduring element of the national defense strategy'' is
has never been defined; hence, we will be at the mercy of the
subjective interpretation of the Department of Defense. That is not the
way it should be, and we need to fix that.
The current ``core'' waiver in 2464 is much narrower and more
defined. The presumption and philosophy in the current waiver is that
work, other than work on commercial items, will be considered core, and
only considered not core when it is clear it no longer needs to be. The
committee's rewrite changes that presumption based on new standards
which are unclear.
In addition to the two specific issues I have raised, there may be
other unintended consequences to these changes of which we are unaware
since we have had limited time, as Senator Inhofe said, to vet them and
are just now receiving feedback from some of the stakeholders.
During the chairman's remarks and in response, I would appreciate his
commitment to revisit these issues as soon as we can next year. I
encourage DOD to go slowly in implementing any changes since there is a
good chance we will make additional changes next year. I appreciate as
well his commitment to include a legislative package in next year's
national defense authorization bill that gets it right.
Again, I thank both Senator Levin and Senator McCain for allowing us
to address this issue and for their willingness to cooperate as we move
forward next year to clear this matter up.
The PRESIDING OFFICER. The Senator from North Carolina.
Mrs. HAGAN. Mr. President, I wish to thank the chairman and the
ranking member for allowing this colloquy to take place. I also wish to
state that I believe the Senator from Oklahoma laid out a little bit of
the groundwork of what we are discussing now.
I rise to discuss the depot maintenance issues associated with the
House-adopted language in the conference. We must avoid doing anything
that may upset the existing balance between DOD's internal depots,
logistic centers, arsenals and specialty facilities, and the industrial
base. The House-adopted provision can disrupt that delicate balance and
have unintended consequences. We just don't know who may be impacted.
We need time to get this right, and we need to ensure a transparent
process in which all stakeholders can make their position known to
Members of Congress.
The sensitivity associated with maintenance workload is at an all-
time high. Disrupting the balance of depot-level maintenance comes at a
time when our economy is struggling and when DOD is consolidating depot
source-of-repair work for current and emerging weapons systems.
Additionally, prematurely disrupting the readiness of our weapons
systems fleet is not an option, especially with the operational tempo
of our military.
It is critically important to preserve the capability and
competencies of DOD's internal depot-level maintenance facilities while
also sustaining the defense industrial base in order to
[[Page S8640]]
preserve our technological advantages and readiness on the battlefield.
Both face considerable challenges within a fiscally constrained
environment. Both the depots and the defense industrial base are
reshaping and restructuring their operations in anticipation of this.
As our military said, ``It's one team, one fight.'' The research,
development, and manufacturing communities within DOD, as well as in
our universities, small businesses, and large corporations, are
essential partners in our national security. That being said, we need
to acknowledge the fragile nature of DOD's depot-level maintenance
facilities and the defense supply chain within a heavily consolidated
defense industrial sector. Our country simply cannot lose skilled
manufacturing research and development expertise to global competitors.
Congress needs to do our due diligence to address the concerns of
DOD's internal base involving maintenance, repair, and overhaul of the
military equipment. At the same time, we need to facilitate public-
private partnerships and healthy competition that will be mutually
beneficial to the Department and the industrial base.
I know my colleagues are concerned about the impact this language may
have in their States. I wish to highlight Fleet Readiness Center-East
in North Carolina. Reducing FRC-East's workload is not an option. It
would negatively impact the quality and cost-effective maintenance and
logistics support for Navy and Marine Corps aviation. The operational
readiness and availability of deployable Navy and Marine Corps aircraft
would be undermined without preserving FRC-East's capabilities.
I certainly understand the incredible pressure the chairman and the
ranking member were under trying to resolve hundreds of issues in
conference over a very short period of time, and I certainly do
appreciate their willingness to engage members of the committee and
other interested stakeholders in a more comprehensive process next year
so we can be sure we get this right.
Thank you, Mr. President. I yield the floor to the Senator from
Alabama.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I appreciate and share the comments made
by the distinguished Senator from North Carolina. I believe it is
important. Having come here 15 years ago and having confronted the
question of depots and how they operate, I was surprised to learn the
intensity of the feelings and the difficulty of the issue.
We worked on it for some time, and for the most part, it has been
quiet under Senator Levin and Senator Warner. We kind of worked out how
this thing should be handled. I thought things were rocking along well
and have been very disappointed that the House Members have taken an
initiative at a point where we were told it was too late to make any
changes in the process. That alters that understanding, and I am not
comfortable with it.
I feel I have engaged in these issues. We have a depot in my State,
and we should have given it better consideration. I do not believe it
is correct, the language as it is. I do believe we need to make
changes. So it is a concern that the delicate balance created by the
current definition of ``core depot-level maintenance'' between
government facilities and industry could be altered and at risk.
We have all worked on this issue for a number of years. We have a
more efficient and productive model today than we had when I first came
here because of a lot of hard work and intense effort. So that is a
problem for me.
Another troubling element of this new definition is the potential
treatment of commercial items. The notion that perhaps an engine or
other major assembly of a major end item such as a tank or aircraft
could be considered a commercial item and not part of our depot core
mission is very problematic and would be contrary to the way we have
been operating for many years.
I would like to point out that because of the hasty way this language
came into the bill, we do not know the second- and third-level effects
of this language. That in itself is another reason to make sure we get
the policy right in a very deliberative and collaborative process.
I hope we have a solution that will work. I say to Chairman Levin and
Senator McCain, the ranking member, I appreciate your willingness to
work to correct the error in the process--and I believe there was a
process error--and to ensure that due diligence is done as we work to
codify the definition of ``core depot-level maintenance.''
So I look forward to your leadership in conducting subcommittee
hearings, full committee hearings, working sessions, and whatever it
takes to make sure we get the language right before we get to the
markup and consideration of the fiscal year 2013 National Defense
Authorization Act.
I will conclude by saying we had some very important issues to deal
with in the Defense bill. A lot of them were very difficult. Under
Chairman Levin's leadership and Senator McCain, we either reached an
agreement or reached an agreement not to agree, and moved the bill
forward. I think it is over 50 years now that this bill has moved
forward every year. I think it is something to be proud of.
The only real controversy that came out of it is this depot matter.
So it sort of went against the way we felt we should operate, the way
that has resulted in settlements of disputed issues and moving the bill
forward. For that reason, I think it is appropriate we ask that this
issue be redealt with next year.
I yield the floor.
Ms. COLLINS. Mr. President, I would like to voice my concerns
regarding two provisions included in the conference report, sections
321 and 327. These provisions constitute a major rewrite of depot
policies and laws.
These sections have not been sufficiently vetted. They could
potentially hurt competition in acquisition programs, harm our public
depots, and cause unintended consequences that could significantly
affect not only depots, but also the private sector industrial base and
the thousands of employees in both sectors.
In February, the Logistics Management Institute, LMI, delivered a
report to Congress making recommendations to modify the depot statutes.
Both Armed Services Committees asked DOD to offer input on the LMI
study, but the Department did not do so.
The Senate held DOD to account in the committee report accompanying
this very bill, which states:
The committee is concerned that a lack of Department of
Defense input regarding the findings and recommendations of
the LMI study does not provide Congress with a comprehensive
view prior to enacting legislation that could have unintended
consequences.
But even without DOD input, the House went ahead and included changes
to depot provisions when it passed its bill in May.
The Senate-passed bill also included a provision to prohibit any
change to the definition of depot maintenance until after the Defense
Business Board conducted its own study as well.
Given the concern identified by the Senate Armed Services Committee
and the requests for additional fact-based analysis, you can imagine my
alarm when I learned that such a rewrite was being considered for
inclusion in the conference report.
What surprised me even more was that the proposed rewrite differed
significantly even from the provision in the original House-passed
bill.
The Senator from Oklahoma, Senator Inhofe, and I voiced our concerns
about this in a meeting of the conferees. After that, six Senators and
I sent a letter to the leadership of both committees warning of the
unintended consequences of including these provisions in the conference
report. I ask unanimous consent to have our letter printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, December 9, 2011.
Hon. Carl Levin,
Chairman, Senate Armed Services Committee, Washington, DC.
Hon. John McCain,
Ranking Member, Senate Armed Services Committee, Washington,
DC.
Dear Chairman Levin and Ranking Member McCain: As conferees
to the Fiscal Year 2012 National Defense Authorization Act
Conference, we write to voice our concerns with the HASC
proposal regarding Sections 321 and 322 of the House bill.
While we appreciate the attempt to improve the depot and
shipyard related statutes, none of our offices were advised
or consulted regarding these last minute changes being
proposed by the
[[Page S8641]]
HASC or consulted during the last several months as these
provisions were apparently being crafted.
Only a few conferees received the new proposed language on
December 7th, but we are all now being asked to support new
language that will have far reaching implications on aviation
depots, shipyards, arsenals, and ammunition plants across the
United States. It is inappropriate to attempt legislative
changes that could affect more than 100,000 jobs, public and
private, across the United States without careful vetting and
ensuring there will be no unintended consequences.
While we support improvements to operations at our depots,
shipyards, arsenals, and ammunition plants, the HASC proposed
changes to the definitions of depot level maintenance could
have profound and enduring negative consequences to the
industrial base and ultimately the readiness of our force.
Given the lack of transparency and abbreviated conference
timeline, we request that you not include Sections 321 and
322 of the House bill in the FY12 NDAA Conference Report. We
further recommend that we begin to work together as soon as
possible regarding the possibility of incorporating a more
thoroughly considered version of this language in the Fiscal
Year 2013 NDAA.
Thank you for your consideration in this matter. A similar
letter has been sent to Chairman McKeon and Ranking Member
Smith.
Respectfully,
James M. Inhofe.
Jeff Sessions.
Susan Collins.
Jeanne Shaheen.
Kay Hagan.
Saxby Chambliss.
Kelly Ayotte.
Ms. COLLINS. The two provisions raise a number of unanswered
questions, questions that remain unanswered by the advocates of these
provisions, and which could lead to significant consequences for public
and private sector components of the industrial base. Let me share two
examples.
First, the provision expands the definition of depot maintenance to
include the installation of modifications and upgrades to end-items--a
measure potentially harmful to competition.
There is a concern that the Army may be required by this provision to
direct work related to the Modernized Expanded Capacity Vehicle, MECV,
program to the public sector without a full and open competition
allowing experienced private entities to bid.
It is my view that the MECV is much more than a modification to a
weapon system because it is an acquisition program. I understand this
view is shared by the Army, which has consistently said the source
selection for the MECV will be full, open, and fair.
Those who have invested in this program deserve to know that this
language does not restrict competition or introduce, in any way, an
incentive to favor the public or the private sector as it relates to
acquisition programs, and the MECV program in particular.
While depot maintenance work is an important component of both the
public and private sector industrial base, Congress has consistently
supported a strong core requirement at the depots for national security
reasons. For example, vital submarine overhauls, refueling, and
maintenance work are performed at the Portsmouth Naval Shipyard in
Kittery, ME.
It is unclear if the ramifications of the conference report will lead
to work flowing away from our public depots, thus jeopardizing the
government's core repair capability.
I would ask the chairman to closely reevaluate these provisions to
ensure that the two concerns I described, as well as the concerns of
other interested Senators, are fully addressed.
This process should allow Members adequate time to reach out to
interested parties and a committee hearing to understand the
ramifications of these legislative changes to the defense industrial
base.
I would also ask the chairman to commit to modifying or repealing
these provisions, if necessary, in next year's NDAA.
I would also ask the chairman to ensure that any future proposals
pertaining to these sensitive issues be addressed in a more inclusive
and deliberate manner.
Finally, given the uncertainty and confusion surrounding these
critical depot issues, I would hope that the Department of Defense
would exercise much care and refrain from making dramatic changes in
its policies.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mrs. SHAHEEN. Mr. President, I come to the floor to echo the comments
and concerns we have heard in the last few minutes from my colleagues
on the Armed Services Committee regarding this House-inserted language
on our Nation's military depots, arsenals, and shipyards.
I wish to begin by saying to Chairman Levin how much I appreciate his
assurances, as well as those of Ranking Member McCain, and Chairman
McKeon and Ranking Member Smith in the House, that there are no
intended changes to the current law under this language. I think that
is very important for us to say to our constituents so they are
reassured.
I also appreciate Chairman Levin's commitment to examine this issue
closely in the coming year to prevent any unintended consequences that
this language might have on our Nation's industrial repair facilities,
including the Portsmouth Naval Shipyard, which my home State of New
Hampshire shares with Maine and which is very important to us in the
Northeast and I think to our military capabilities.
With that said, I have to say I share the concern that has been
expressed about the manner in which this language was inserted. While I
understand that the House has been working on this issue for some time,
including holding roundtable discussions at the National Defense
University, I believe there is much more that should have been done.
On Friday, December 9, my staff was made aware that this language
from the House could be included in the final NDAA report--a measure we
have all been working on for the past 11 months. So along with six
other members of the committee, I signed a letter that very day--so 1
week ago tomorrow--indicating our concerns and frustration over
including such language without adequate Senate review or input.
Despite the concerns expressed in our letter, the language was
included.
On such an important issue as this, usually we have had a very
collaborative, transparent process in our committee, on the Senate side
anyway, and I appreciate that. I think that has been one of the reasons
for the great success of Senator Levin and Ranking Member McCain in
being able to get a bill out year after year on which there has been
consensus agreement.
Unfortunately, that did not happen with respect to this language. As
such, we now face a situation where the committee will need to spend a
significant amount of time examining the language and its
implementation over the next year to ensure no changes result.
The reason we as a nation maintain the 50-50 rule--where all
maintenance work is split between the public and private sectors--is to
ensure that in times of conflict, the Federal Government will have the
critical capabilities necessary to repair our Nation's combat
equipment.
Advanced technical repair work, such as the work done on nuclear
submarines at the Portsmouth Naval Shipyard, requires highly skilled
and specialized technicians. Any changes to the way we structure
workload for these facilities has to be closely examined and should
include input from the individual stakeholders who understand this
issue best.
Generations of Americans have invested significant resources in our
Nation's military to ensure our men and women in uniform have the most
advanced equipment in the world to keep us safe.
I say to the chairman of the committee, I very much appreciate your
assurance that we will continue to take a close look at this issue,
including holding a hearing next year, if necessary. So I thank the
Senator very much for his cooperation to work with us.
With that, I yield the floor.
The PRESIDING OFFICER. The junior Senator from New Hampshire.
Ms. AYOTTE. Mr. President, I would like to join in the comments of my
colleague from New Hampshire and the concerns she has expressed, along
with my other colleagues who serve on the Armed Services Committee.
But, first of all, I thank Chairman Levin and Ranking Member McCain
again for their tremendous leadership on the Defense authorization
bill. We have conducted a tremendous amount of work in a short period
of time, continuing the long-running, proud tradition of the Senate
Armed Services
[[Page S8642]]
Committee of professionalism and bipartisanship in support of our
troops and our national security.
This is a bill of which we can be proud. In a time of war, this bill
supports the men and women of our Armed Forces and their families and
authorizes the equipment, training, and resources our servicemembers
need to complete their missions.
While I am very proud of this bill and pleased that many of my
provisions to reduce wasteful spending and maintain military readiness
have been included in the final conference report, I also share the
concerns of my colleague from New Hampshire, Senator Shaheen, and other
colleagues who serve on the Senate Armed Services Committee--both
substantive and procedural concerns--regarding the depot provisions,
sections 321 and 327, that were included by the House in the conference
report.
When we were informed of this significant language--only last week--I
joined a bipartisan group of Senators, including my colleague Jeanne
Shaheen, to express our concern and our opposition to including the
depot provisions in the final Defense bill.
As ranking member of the Senate Armed Services Readiness
Subcommittee--which has oversight over depots, shipyards, arsenals, and
ammunition plants--I am troubled that such a significant rewrite of
depot statutes was hastily included in the final bill without
consulting with key stakeholders and without conducting more complete
analysis involving the Senate.
In the coming years, as we ask the Department of Defense to do more
with less, the role of our depots and shipyards will become even more
important. This is certainly true for our four public shipyards,
including the Portsmouth Naval Shipyard, where many of my constituents
work on a daily basis to sustain the world's best submarine force.
I share the pride my colleague from New Hampshire Senator Shaheen and
my colleague from Maine Senator Collins feel about the Portsmouth Naval
Shipyard. Portsmouth conducts maintenance on the Los Angeles- and
Virginia-class submarines. In fact, Portsmouth has led the way for the
entire Navy with the first-in-class maintenance availability on the USS
Virginia.
While I am troubled by the process through which the depot provisions
were included in the conference report, I am encouraged that both
Chairman Levin and Ranking Member McCain have expressed similar
concerns and have committed to addressing these concerns in the coming
months.
This process should include an inclusive and thorough vetting of the
provisions to ensure we understand all the ramifications of what was
included by the House.
As ranking member of the Readiness Subcommittee, I plan to propose to
Chairman McCaskill that we hold a hearing on these depot provisions at
the earliest opportunity next year.
The capabilities of our depots and shipyards and their role in
sustaining military readiness are too important to hastily adopt such
potentially far-reaching provisions.
Let me conclude by again thanking my colleagues on the Senate Armed
Services Committee. Despite the partisanship that often characterizes
Washington, it is encouraging to see that bipartisanship continues to
prevail in the Senate Armed Services Committee. That is largely due to
the leadership of Chairman Levin and Ranking Member McCain.
I am proud of this bill, and I look forward to it becoming law in the
coming days.
I thank my colleagues.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I join the chairman in the acknowledgment
that many Members of the Senate have concerns with both the process and
substance of the changes adopted in the Defense authorization
conference report regarding statutes for depot activities in the
Department of Defense. The protection of a core logistics capability
within the Department has been a very controversial issue for many
years, as the Department's depot enterprise employs over 77,000
personnel with an annual operating budget exceeding $30 billion. As we
draw down from two wars which have consumed so much in resources and
equipment, there will be much concern and debate about the continued
workload and jobs at depots, shipyards, and arsenals, particularly in
light of declining defense budgets.
I agree this debate and deliberation should have included all
interested parties. While I support legislation that would have the
clear intent of improving the effectiveness and efficiency of the
Department's industrial activities, I was not and am not in support of
moving forward on changes that have not been addressed with all members
of the committee. The concerns expressed to us by Senator Inhofe,
Senator Chambliss, Senator Collins, Senator Ayotte, Senator Shaheen,
and others need to be reviewed in an open and transparent process.
As to the substance of the concerns, from what I can tell, there are
opinions on the impact of these two provisions on both sides of the
issue--from private industry and from the depots and their government
civilian workers and unions.
I am aware some are very concerned that the changes in the conference
report will upset the balance currently maintained between public and
private performance of these activities, which could affect readiness.
Changes to the definition of depot-level maintenance and repair have
the potential to result in the shift of workload at shipyards. Changes
to this provision should not be construed to restrict competition or to
create any incentive to favor the public or the private sector as it
relates to acquisition programs.
The narrowing of the statutes from core logistics to corps depot-
level maintenance could be interpreted as congressional intent to
eliminate the identification of core activities in the defense supply
chain affecting arsenals and ammunition plants.
On the other hand, the inclusion of an expansive waiver provided to
the Secretary of Defense to waive core requirements is very unsettling
for every depot activity. Such a waiver could move significant amounts
of depot work to the private sector.
Revisions to the definitions of ``commercial items'' to be exempted
from core determinations could have an immediate detrimental impact to
those depots that work on commercially available items of equipment,
such as engines and transmissions of ground combat vehicles.
So many depots that do this sort of work are concerned about the
impact. I agree we need to fully understand the impacts, real and
unintended, from the implementation of these provisions. We will need
to work closely with the Department of Defense to ensure that whatever
changes or repeals we make are in the best interests of our military
with the priority placed on readiness as well as efficiency of
operations and fiscal responsibility.
I support the chairman and commit to giving this issue focused
attention in the year ahead to ensure the measures taken in this year's
bill are the right outcome for the Department of Defense and the
taxpayers.
I yield the floor.
The PRESIDING OFFICER (Mr. Sanders). The Senator from Michigan.
Mr. LEVIN. Mr. President, I appreciate and I understand the Senators'
concerns about this issue as they have been expressed here this
afternoon. I also very much appreciate their understanding relative to
the extremely short period for conference this year where we worked
through hundreds of provisions with our House colleagues in about a
week, a process that usually takes a month or more.
While I am proud of what we were able to accomplish in this bill as a
whole, it was probably likely that some language would need more
consideration because of the time constraints we were operating under.
Before I continue, I want to state my appreciation to the Members who
spoke here this afternoon and members of the Armed Services Committee.
They make major contributions to this committee.
I listened carefully to what our colleagues have had to say about the
depot maintenance issue. I believe their concerns are substantive and
merit careful consideration from the Armed Services Committee. This is
an issue that was brought to our conference in the House bill.
The depot maintenance provisions that were approved by the House last
[[Page S8643]]
May arose out of a congressionally mandated independent review of the
statutes, regulations, and policies guiding depot maintenance
performance and reporting. The House conferees then proposed
modifications to their own provisions based on the results of a series
of discussions with stakeholders held throughout the summer at the
National Defense University. We were told this process was
comprehensive, that all stakeholders were invited, and that the
resulting recommendations were widely accepted by all interested
parties.
In particular, we understood the Department of Defense, private
industry, and the House Depot Caucus had reached consensus on the
revised House language. While those statements were made in good faith,
it turns out they were not accurate. A number of key players, including
stakeholders in government, private industry, and labor, did not
participate in the process at National Defense University and were
apparently unaware of the results.
Senators with a strong interest in the issue were not aware of the
modified House language that was presented in our conference until it
was too late to consider changes. I am aware that the depot maintenance
issue has long been a sensitive one to our Nation and to many of our
Members, and that the precise words in these provisions matter. The
existing statutes, regulations, and practices have served to sustain
both core logistics capabilities and the defense industrial base over
the last decade, so any changes need to be fully understood.
I understand there are a number of unanswered questions about the
provisions in the conference report that could have significant
effects. For example, first, the new language substitutes the term
``core depot level maintenance'' for the existing term ``core
logistics.'' Does this change impact National Guard readiness,
sustainment maintenance sites, and other DOD facilities that are not
depots? Does the change impact requirements for supply chain management
and other logistics functions that are not performed by depots?
Second, the new language changes the wording regarding modifications
in the definition of core depot level maintenance. Does this change
impact planned public-private competitions for modifications and
upgrades programs? Does the change preserve the distinction between
modifications and upgrades on the one hand and acquisition programs on
the other? Is this an expansion of core functions that will be required
to be performed in the public sector with an adverse impact on the
defense industrial base?
Third, the new language changes the wording of the exclusion for
commercial items. Is this a change to the existing exclusion or merely
a recodification? Will it impact maintenance requirements for
commercial derivative aircraft and other major defense systems that are
based on commercial technology?
Fourth, the new language includes a waiver rather than an exemption
from core requirements for nuclear aircraft carriers. Will the new
language result in any change in requirements for the maintenance and
modifications of nuclear aircraft carriers?
Fifth, the new language includes the authority to waive core
requirements for any weapons system that is ``not an enduring element
of the national defense strategy,'' rather than an exclusion for a
workload that is ``no longer required for national defense reasons.''
Does this new language mean something different from the existing
language? If so, will it change the balance of work between the depots
and the private sector?
I am committed to have the Armed Services Committee revisit the
modifications to the depot maintenance laws included in this conference
report and to give full consideration to the concerns our Members have
raised. Over the coming months we will engage with interested Members
and their staffs to review the language in detail. Together we will
reach out to interested parties through a process that will include a
full committee hearing if we determine one is needed. We will then take
action to repeal or modify anything that needs to be repealed or
modified in these provisions during our consideration of next year's
National Defense Authorization Act. Many of my colleagues heard
Chairman Buck McKeon make a similar commitment at our final conference
meeting.
During the next year, while this review process is underway, I join
my colleagues in urging the Department of Defense to proceed with
caution in implementing this legislation. In particular, I urge the
Department to make as little change as possible in the status quo with
regard to these functions during the next year. It would be unfortunate
if the Department were to change significant functions from one form of
performance to another this year only to be required to change the
decision again the year later.
Our objective has always been and always will be to ensure the
Nation's depot maintenance system is structured and supported in a
manner that efficiently and effectively provides for the readiness of
our Armed Forces and our national security. I know this is a critically
important issue. I look forward to working with Senators over the next
year to take the steps we have discussed here today.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, let me speak to some of the provisions of the
National Defense Authorization Act especially concerning nuclear
modernization and the implementation of the New START treaty. This is
in the context of the omnibus appropriations bills that we will
consider later this week, which appear to include funding reductions
from the President's request for nuclear weapons modernization
activities for the year 2012.
Earlier this year I introduced the New START Implementation Act
because other Senators and I believed it is necessary that the Congress
codify the agreement made between the President and Congress regarding
the commitment to the modernization of our nuclear deterrent. Indeed,
it is fair to say the Senate's support for the ratification of New
START was contingent on modernization of the remaining nuclear arsenal.
One of the critical features of that legislation was the link between
funding of the administration's 10-year nuclear modernization program
to any U.S. nuclear force reductions in a given year. The language that
appeared in the House-passed version of the Defense bill was good
policy because it limited the reductions in warheads the United States
otherwise would make pursuant to the New START treaty if Congress
failed to provide the funding prescribed each year under the so-called
1251 modernization plan. In other words, warhead reductions were based
on adequate funding.
The House language would also prohibit reduction of the nuclear
stockpile hedge of nondeployed warheads until after we completed
construction of the key nuclear facilities necessary to regain our
production capacity. The reason for that, of course, is we have a hedge
or a stockpile of these weapons that exists in the event we would need
them since we do not have a production capacity right now to replace
them. Until that capacity is created, probably in about a decade, we
will need to continue to maintain that hedge capability.
The language that appears in the conference report now before us
removes this explicit linkage, which I think is very unfortunate. The
NDAA conference report addresses these concerns in some ways, though
not as strongly as we originally intended. Here is what the compromise
in the bill provides: First, in any year in which modernization is not
fully funded, the President must report to Congress how he intends to
address the shortfall and whether as a result of the shortfall it is
still in the national interest to remain a party to the New START
treaty. For the first time, the President will be compelled to detail
his plans for U.S. nuclear force reductions over the next 5 years,
which will provide Congress an opportunity to evaluate whether these
reductions are in the national interest. This second provision is an
important addition. Third, in any year in which the President seeks
reductions in the nuclear stockpile, he must first seek from the
Commander of U.S. Strategic Command a net assessment on the reductions,
which, of course, puts the Commander of STRATCOM in a crucial position,
and to provide that assessment to Congress unchanged. And, finally, the
President must provide to
[[Page S8644]]
Congress any changes to the Nation's nuclear war plan and provide
access to certain Members of Congress to these plans.
These are all important provisions, but without the House language,
the possibility remains that we will draw down our warheads under START
without adequate funding to ensure our remaining stockpile meets our
requirements. As I said, this is quite unfortunate.
Let's recall why this modernization of our nuclear weapon program was
necessary. The modernization program was painstakingly worked out,
first within the Department of Defense, and the Department of Energy,
our national laboratories, and then between the administration and
Senators at the time of the New START treaty. It resulted in a 10-year
$200 billion work plan to renovate our national laboratories, to extend
the life of our nuclear weapons, to maintain their safety, the security
and effectiveness of those warheads, and to sustain the modernization
of the triad of our nuclear delivery systems, the ICBMs, bombers, and
nuclear submarine force.
The plan was updated last November after a very thorough review by
the Department of Defense and the Department of Energy, bringing the
total 10-year funding figure to about $213 billion. There was little
disagreement at the time about the need to modernize our nuclear
facilities or about this amount which represented the cost over the 10-
year period.
Indeed, between fiscal year 2005 and fiscal year 2010, the National
Nuclear Security Administration, or NNSA, had lost about 20 percent of
its purchasing power due to funding cuts. This, without the changes
recommended in the 1251 report, would have been devastating to its
modernization plan. Incredibly, funding for stockpile surveillance
activities--these are activities which are necessary for the President
to annually certify the safety and effectiveness of our nuclear
warheads and bombs--had declined by 27 percent during this period of
time. In other words, our ability to actually even understand what was
going on in these weapons and determine whether changes had to be made
was being degraded substantially. The situation was so dire that in
February 2010, Vice President Biden gave a major address on the subject
at the National Defense University and penned an op-ed in the Wall
Street Journal that stressed:
The slow but steady decline in support for our nuclear
stockpile and infrastructure--
And then noting that again--
For almost a decade, our laboratories and facilities have
been underfunded and undervalued.
He concluded by observing that ``Even in a time of tough budget
decisions, these are investments we must make for our security.''
Secretary of Defense Gates had earlier drawn attention to the neglect
of our nuclear weapon complex. In 2008 he said, ``To be blunt, there is
absolutely no way we can maintain a credible deterrent and reduce the
numbers of weapons in our stockpile without either resorting to testing
our stockpile or pursuing a modernization program.''
Of course, we have not resumed testing, which meant our only
alternative was this modernization program which we then all agreed to.
What is the linkage between modernization and the reductions in
warheads called for under the START treaty? Well, it is pretty clear.
As the President's National Security Advisor wrote to me in April of
2010, ``Support for the nuclear complex is fully consistent with and,
indeed, an enabler of the nuclear reductions we seek to implement--a
direct connection, in other words.
So critical was the need to reverse the decline in our nuclear weapon
enterprise that the Senate included in its resolution of ratification
for the New START treaty a condition No. 9, which stated:
The United States is committed to proceeding with a robust
stockpile stewardship program, and to maintaining and
modernizing the nuclear weapon production capabilities and
capacities that will ensure the safety, reliability, and
performance of the United States nuclear arsenal at the New
START Treaty levels and meet requirements for hedging against
possible international developments or technical problems.
The condition also stipulated that if appropriations are enacted that
fail to meet the requirements set forth in the President's 10-year
plan, then the President must tell Congress how he proposes to remedy
the resource shortfall and whether the United States should remain a
party to the treaty in light of such funding shortfalls.
That commitment to modernization was made explicit by the chairman
and ranking members of the Senate Appropriations Committee and its
Energy and Water Development Subcommittee, who wrote to the President
on December 6, 2010, to express support for ``ratification of the New
START treaty and full funding for the modernization of our nuclear
weapons arsenal, as outlined by your updated report that was mandated
by section 1251 of the Defense Authorization Act for Fiscal Year
2010.''
Despite this commitment, we are now faced with a reduction of some
$400 million below the President's $7.6 billion request for nuclear
weapon activity. It depends on the outcome of the appropriations
process, but based upon the bill that was filed in the House last
night, this appears to be the amount of reduction.
Senior officials from our national labs, the Department of Defense,
and NNSA have all warned that cuts of this magnitude will delay
construction activities for critical nuclear processing facilities,
postpone critical life extension programs for our nuclear warheads, and
could jeopardize our ability to certify the nuclear stockpile without
testing.
In the words of Defense Secretary Panetta:
I think it's tremendously shortsighted if they reduce the
funds that are absolutely essential for modernization. . . .
If we aren't staying ahead of it, we jeopardize the security
of this country. So for that reason, I certainly would oppose
any reductions with regards to the funding for
[modernization].
Likewise, General Kehler, the commander of U.S. Strategic Command,
told Congress that, due to the impending NNSA budget cuts, ``we've got
some near-term issues that will impact us in terms of life-extension
programs for aging weapons.''
What are life extension programs? These are the ways in which we can
take the nuclear warheads that need working and extend their life by
refurbishing them or replacing some of the components and doing other
things that generally the scientists understand are critical to
maintain the safety, the surety, and the reliability of those weapons
over the period of time in which they are needed.
We all understand that the appropriations committees were under
immense budget pressures, especially after the Budget Control Act of
2011. Full funding for nuclear modernization, though, was a priority
brought about by this Nation's pledge, made in the New START treaty, to
reduce the levels of U.S.-deployed nuclear weapons. As such, it should
have superseded other budgetary considerations. It should have been
fully funded.
Few things are more important than ensuring that our Nation's nuclear
deterrent is effective and reliable, especially as those forces are
reduced to lower levels by the START treaty arms control agreement.
Indeed, this was the view of the House and Senate Armed Services
Committees, which fully authorized the President's request for nuclear
modernization.
Senior DOD officials worked to secure adequate funding for the
President's 10-year commitment to nuclear modernization. Among other
things, the President submitted the budget that requested the full
amount of funding called for in the 1251 report, and the Department
initially transferred $8.3 billion in budget authority to NNSA for
weapons activities over a 5-year period, which, unfortunately, is not
fully reflected in the fiscal year 2012 Energy and Water appropriations
bills.
In this case, the customer, the Department of Defense, was so
concerned that the Energy Department could do this work that it
transferred its own budget authority to accomplish it. Yet some of that
money was drained away for other purposes.
Some of the $400 million shortfall could possibly be mitigated,
however, if the Secretary of Defense exercises the transfer authority
that is going to be granted in this fiscal year 2012 Defense
authorization bill to transfer up to $125 million to NNSA for weapons
activities. This is a very small amount of money for four critical top
priorities identified by the Department of Defense; therefore, if it
can find the
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funds, it can utilize the transfer authority that has been granted in
this legislation and get that money to the NNSA to do the work that is
absolutely critical next year. I will be working with the Department of
Defense and my colleagues in Congress to ensure that this happens.
I express my appreciation to the chairman and ranking members of the
committees and the conference committee who saw to it that this
language to allow the Defense Department to transfer these funds was
included.
Finally, let me mention what the consequences of the $400 million
reduction could mean in the future. First, it could send a message to
OMB that Congress no longer considers itself bound to the 10-year
modernization funding plan. This would be a huge mistake; it would be
wrong. OMB then might direct less funding in the future for nuclear
weapons in fiscal 2013 and following years than originally prescribed
in the 1251 plan, which would be very wrong. But the problem is that
any divergence between what was deemed necessary over the next 10 years
and what is actually appropriated by Congress will continue to grow--
maybe to the point where it becomes difficult to certify on an annual
basis that the nuclear stockpile is safe, reliable, and effective.
Referring to such reductions, NNSA Administrator Tom D'Agostino
reported this to Congress on November 2:
This is the work to make sure these technologies are the
ones that allow us to certify the stockpile on an annual
basis without underground testing. Reductions in these areas
will have a direct impact on the President today in the
ability to certify the stockpile without underground
testing.
For those who remain so opposed to underground testing, you cannot
have it both ways. You cannot both oppose underground testing and
prevent the Department from getting the money it needs to modernize the
stockpile. We have to do one or the other. We are now $400 million
below where we need to be.
A second impact: Life extension programs for nuclear warheads,
already facing very tight schedules because of the delays over the
years, would be further delayed and exacerbated. Warheads that are not
refurbished in time are not going to be available for deployment. This
would have serious consequences for the readiness of our nuclear
deterrent at a future date, which, of course, could have serious
implications for the credibility of our nuclear guarantees to our
allies and partners.
Third, the revitalization of nuclear labs--including expensive but
very necessary construction projects--will be further delayed, and, of
course, costs will go up even more. Funding for science will be
curtailed to support higher priority programs, thus starving the labs
of important innovation and perhaps hampering recruitment of the
scientists and engineers necessary to maintain the long-term viability
of the nuclear weapons complex.
Fourth, this funding reduction will trigger the reporting requirement
contained in Condition 9 of the New START resolution of ratification,
requiring the President to explain the impact of the resource shortfall
on the safety, reliability, and performance of our nuclear forces. We
know what that report is going to say. It is serious. The President
must also propose how he plans to resource the shortfall and, in light
of the shortfall, whether and why it remains in the national interest
of the United States to remain a party to New START. As a result,
Members of Congress may seek to ensure, through annual defense
authorization legislation, that any future New START-mandated
reductions in the nuclear stockpile are tied to successful execution of
the planned modernization program.
Finally, this funding reduction, which could well be a precursor to
further cuts in the future, will dampen the enthusiasm of Senators to
agree to any future arms control agreement. Senators who voted for New
START on the basis of the 10-year modernization program will not be so
easily swayed by such promises in the future.
I look forward to taking up and voting on the Defense authorization
conference report. It has a lot of good things in it and some things
that aren't as good. This report, as I said, is not as strong as was
the House language, but it will contain some important provisions the
Congress will try to enforce to ensure that the modernization of our
nuclear weapons continues on schedule for the next 10 years, which is
something that is critical to our future national security.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, I rise to speak on the National
Defense Authorization Act conference report we will be voting on later
today.
First, I wish to acknowledge that Chairman Levin and Ranking Member
McCain have worked tirelessly to craft the Defense authorization bill
to provide our Armed Forces with the equipment and services they need
to keep us safe. I thank them, their staffs, and all my colleagues for
their diligence and dedication to this important work.
I also come to the floor because I want to share, as I have over the
last few weeks, the concerns that many Americans--and especially the
people I represent in Colorado--have expressed over the last few weeks
about the detainee provisions that have been included in the Defense
authorization bill. I wish to make it clear that I still have very
strong concerns about these provisions, especially because they have
been presented as a solution to alleged gaps that exist in our
counterterrorism policy.
It is my strong belief that our military men and women, law
enforcement officials, and counterterrorism professionals have done an
outstanding job since 9/11 to keep our Nation safe. For 10 years we
have killed, captured, and prosecuted terrorists, and I believe--in
fact, I know--our system has been successful.
The professionals whom I just mentioned, who are in charge of waging
this battle to keep us safe, agree that the detainee provisions are of
real concern. That includes the Secretary of Defense, the Director of
National Intelligence, and the Directors of both the FBI and CIA.
In speaking to these same concerns that I continue to hold, along
with the people just mentioned, the administration has stated:
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.
I know many agree, especially Coloradans, who have contacted me in
very impressive and large numbers. They believe, as I do, that these
detention provisions could endanger our national security and that we
ought to take a hard look at where we are heading.
I strongly objected to these detention provisions back in the summer
when the Armed Services Committee first considered them. In fact, I was
the only member of the committee who cast a ``no'' vote during the
committee markup. I felt a little lonely at that point in time, but I
think my judgment has been recognized by the outpouring of concern
about where we may be headed.
Let me talk about what they do. The provisions could authorize the
indefinite military detention of American citizens who are suspected of
involvement in terrorism, without charge, even those captured in the
United States. The point I have tried to make over and over again is
that this concerns each and every one of us. If these provisions deny
American citizens their due process rights under a nebulous, new set of
directives, it would not only make us less safe, but it would serve as
an unprecedented threat to our constitutional liberties.
Senator Graham, my friend from South Carolina, has stated that if an
American citizen takes up arms against the United States, he or she
could be treated as an enemy combatant. I agree. However, the dangerous
part of that proposition is as follows: How do we go about determining
who those individuals are? No matter how serious the charge may be, the
Constitution requires us to provide our citizens with due process
before they are incarcerated--especially indefinite incarceration. If
we start labeling our citizens as enemies of the United States without
any due process, I think we will have done real damage to our system of
justice in our country, which is admired all over the world.
My colleagues and I all agree that we have to take every action
necessary to keep our Nation safe. But what separates us--what makes
America exceptional--is that even in our darkest
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hours, we ensure that our constitution prevails.
We do ourselves a grave disservice by allowing for any citizen to be
locked up indefinitely without trial, no matter how serious the charges
against them. Doing so may make us feel safer, it may be politically
expedient, but we risk losing the principles of justice and liberty
that have kept our Republic strong, and it does, frankly, nothing to
make us safer. No terrorist, no weapon, no physical threat is powerful
enough to destroy who we are as a people, and that is why we have to
remain diligent in ensuring we hold true to the principles that make
our country great.
I took note of this very principle in a powerful piece written by two
retired four-star Marine Corps generals, General Krulak and General
Hoar.
Mr. President, I ask unanimous consent to have printed in the Record
the article written by these two generals.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Dec. 12, 2011]
Guantanamo Forever?
(By Charles C. Krulak and Joseph P. Hoar)
In his inaugural address, President Obama called on us to
``reject as false the choice between our safety and our
ideals.'' We agree. Now, to protect both, he must veto the
National Defense Authorization Act that Congress is expected
to pass this week.
Hobbling the Fight Against Terrorism
This budget bill--which can be vetoed without cutting
financing for our troops--is both misguided and unnecessary:
the president already has the power and flexibility to
effectively fight terrorism.
One provision would authorize the military to indefinitely
detain without charge people suspected of involvement with
terrorism, including United States citizens apprehended on
American soil. Due process would be a thing of the past. Some
claim that this provision would merely codify existing
practice. Current law empowers the military to detain people
caught on the battlefield, but this provision would expand
the battlefield to include the United States--and hand Osama
bin Laden an unearned victory long after his well-earned
demise.
A second provision would mandate military custody for most
terrorism suspects. It would force on the military
responsibilities it hasn't sought. This would violate not
only the spirit of the post-Reconstruction act limiting the
use of the armed forces for domestic law enforcement but also
our trust with service members, who enlist believing that
they will never be asked to turn their weapons on fellow
Americans. It would sideline the work of the F.B.I. and local
law enforcement agencies in domestic counterterrorism. These
agencies have collected invaluable intelligence because the
criminal justice system--unlike indefinite military
detention--gives suspects incentives to cooperate.
Mandatory military custody would reduce, if not eliminate,
the role of federal courts in terrorism cases. Since 9/11,
the shaky, untested military commissions have convicted only
six people on terror-related charges, compared with more than
400 in the civilian courts.
A third provision would further extend a ban on transfers
from Guantanamo, ensuring that this morally, and financially
expensive symbol of detainee abuse will remain open well into
the future. Not only would this bolster Al Qaeda's recruiting
efforts, it also would make it nearly impossible to transfer
88 men (of the 171 held there) who have been cleared for
release. We should be moving to shut Guantanamo, not extend
it.
Having served various administrations, we know that
politicians of both parties love this country and want to
keep it safe. But right now some in Congress are all too
willing to undermine our ideals in the name of fighting
terrorism. They should remember that American ideals are
assets, not liabilities.
Mr. UDALL of Colorado. Mr. President, these generals put it right to
the point we all need to hear: Our ideals are assets, not liabilities.
In that spirit, interestingly enough, we had a very robust debate about
these detention provisions, and it bolstered my faith we could continue
to have great and substantive debates in this body. Because of the
concerns that were raised and serious questions that were presented
about the provisions, we were able to secure some improvements that may
reduce some of the grave concerns I have outlined here.
I see my good friend from Illinois, who I know is going to speak and
who shares some of my concerns, so let me touch on a couple of the
adjustments that have been made.
Senator Feinstein's amendment clarified that detainee provisions are
not to be interpreted ``to affect existing law or authorities relating
to the detention of United States citizens.''
I was a member of the conference committee on this bill, and during
the conference committee negotiations resulted in a clarification that
was made to ensure these provisions are not to be interpreted to
``affect the existing criminal enforcement and national security
authorities of the FBI or any other domestic law enforcement agency.''
These were helpful changes and, hopefully, will prevent the undermining
of our constitutional liberties and the disruption of domestic
counterterrorism efforts.
However, while I was pleased my colleagues were willing to
acknowledge the language presented serious problems and left many
questions unanswered, I still remain concerned about the detention
provisions. Making changes to the law that have serious ramifications
for our Constitution and our national security deserve serious thought
and deliberation. Yet to this day we have not had a single hearing on
these matters. Hearings would allow us to understand and mitigate the
concerns of national security experts such as FBI Director Mueller.
Director Mueller testified yesterday in front of the Senate Judiciary
Committee and said that because of the requirements of this language,
``the possibility looms that we will lose opportunities to obtain
cooperation from the persons in the past that we've been fairly
successful in gaining.''
One of our primary goals in these cases is to gain actionable
intelligence, and the FBI is very good--in fact, they are unbelievably
good--at using a variety of techniques to gather the information we
need--techniques, by the way, that fit within the Bill of Rights and
the Uniform Code of Military Justice. Some of my colleagues believe
that intelligence will be lost if a suspect receives a Miranda warning,
but now we may be jeopardizing entire cases by adding new layers of
bureaucracy and questionable legal processes.
These detention provisions, even as they are amended, will present
numerous constitutional questions that the courts will inevitably have
to resolve, and the provisions will present logistical problems that
our national security experts will have to wade through. It sure feels
to me as though these changes are being forced on an already nimble and
effective counterterrorism community against their warnings, and I
remain unconvinced of their benefit. I continue to believe the best
course of action would be to separate these detention provisions from
the Defense authorization bill so we can take our time, speak to
experts in the field, and make sure we are effectively balancing our
counterterrorism needs and the constitutional freedoms of American
citizens. Most importantly, we need to understand and we need to ensure
we are not damaging our national security. That is why I made it clear
in signing the conference report that I do not support the two flawed
detention provisions, sections 1021 and 1022.
All of that said, the Senate has a solemn obligation to our men and
women in uniform to pass a Defense Authorization Act. As a proud member
of the Senate Armed Services Committee, I understand the importance of
this bill for our military and for their families, and while I continue
to have serious reservations about the detention provisions and sought
to separate them from the Defense authorization bill, we face a single
vote on the entirety of the Defense bill, which includes the amended
detention provisions. That is not how I wanted to proceed, but that is
the choice in front of us.
For those who joined me in voicing opposition to the detention
provisions, I thank you. We fought to ensure that the rights of
American citizens are not trampled with ease, and we joined the
counterterrorism community to demand the full use of existing tools to
fight the enemy. We showed that such a debate was worth having and
secured revisions to the language that will now help us continue the
important work of ensuring that both our Constitution and our national
security remain protected.
Although I intend to vote for final passage of the conference bill, I
want to make clear I do not fully support the bill. I sincerely believe
this debate is not over and there is much work left to do. Over the
coming months and years, as a member of the Senate Armed Services
Committee, I intend to hold this administration, and any further
administration, accountable in
[[Page S8647]]
the implementation of these provisions.
I will also push the Congress to conduct the maximum amount of
oversight possible as it relates to these provisions. We must apply a
heightened level of scrutiny to ensure that what passes the Senate
today does not deny U.S. citizens their due process rights and does not
impede our counterterrorism efforts by hamstringing our military, the
FBI, the CIA, or others who keep us safe. If these provisions stray in
any way from that standard, I will be the first to demand hearings and
changes to the law.
In conclusion, I believe we owe it to our men and women in uniform to
pass a Defense authorization bill, but we also owe the American people
a full and honest debate about our national security strategy that
keeps us both safe and protects this document--the Constitution--we all
have taken an oath to uphold.
With that, I yield the floor.
Mr. BINGAMAN. Mr. President, I rise today in strong opposition to
several sections of the fiscal year 2012 Department of Defense
authorization bill relating to detainees.
I have serious concerns regarding the detention provisions included
in the final conference report. When this legislation was being
discussed in the Senate, the Secretary of Defense, the Director of
National Intelligence, and the Director of the Federal Bureau of
Investigation clearly stated that these provisions would undermine the
ability of the government to bring suspected terrorists to justice. The
language in the bill also raises significant issues regarding civil
liberties, including the applicability of the indefinite detention
provision to American citizens.
Section 1021 of the conference report provides the U.S. military with
the authority to indefinitely detain, without trial, an individual
suspected of involvement in hostilities against the United States. The
ability to detain the person without charges could last until the ``end
of hostilities''--a completely undefined period of time considering
that we are confronting a long-term conflict with groups, such as al-
Qaida, who will never sign a peace treaty ending the hostilities.
The final language does include an amendment offered by Senator
Feinstein that states that the provision should not be construed as
affecting existing law with respect to the detention of U.S. citizens,
but this language simply restates that the law is what the law is. The
problem is that the law is unsettled. If Congress is going to enact
provisions authorizing the indefinite detention of a person without a
trial, frankly, I believe the sensible approach is to be very clear
about whether or not it is the intent of Congress to include American
citizens within this category.
Another problematic provision is section 1022, which mandates that
the military detain suspected members of al-Qaida, including those
captured within the United States. As I previously mentioned, military
and Federal law enforcement officials have argued that this provision
will hamper their ability to bring suspected terrorists to justice by
limiting the flexibility of civilian law enforcement and creating a
completely new and untested framework for dealing with suspected
terrorists.
Proponents of this provision have argued that this section will not
interfere with the ability of civilian law enforcement to do their job.
They point to the fact that the President may waive the requirement and
that the President must draft procedures within 60 days to mitigate any
problems associated with implementing this section.
First, with regard to the waiver, if civilian law enforcement agents
capture a suspected terrorist, the need to obtain a Presidential waiver
for continued civilian detention could disrupt interrogations and
intelligence gathering. Second, if there is an acknowledgement that the
statute could interfere with Federal law enforcement's ability to
interrogate and prosecute a suspected terrorist, it would seem more
appropriate to just address the underlying problems with the statute
rather than task the administration with coming up with procedures to
deal with these shortfalls.
Just yesterday, the Director of the FBI, Robert Mueller, in testimony
before the Senate Judiciary Committee, stated that the revised language
did not fully address his concerns about the negative impact the
military detention provision would have in interfering with the work of
investigators.
The bottom line is that this section muddies the water and is
completely unnecessary. The administration already has the discretion
to prosecute foreign terrorists in civilian court or in military
tribunals. We should maintain this flexibility to ensure the government
is able to aggressively pursue terrorists in the forum that is the most
effective in each specific case.
Lastly, I would like to briefly comment on the various provisions in
the conference report aimed at limiting the ability of the
administration to close the detention facility in Guantanamo Bay. It
has been about 10 years since the Bush administration established the
facility and its closure is long overdue.
As a recent article by Scott Shane of the New York Times pointed out,
the government spends around $800,000 a year to house each of the 171
remaining prisoners at the military facility at Guantanamo. This is
despite the fact that our Federal prison system has a strong record of
safely holding individuals convicted of terrorism-related offenses--
there are currently 362 of these individuals within the custody of the
Bureau of Prisons.
Mr. President, I ask unanimous consent that the article be printed in
the Congressional Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. BINGAMAN. It is unfortunate that Congress continues to put in
place restrictions preventing the transfer of inmates and the closure
of the facility. I believe our Nation's handling of detainees will not
be viewed kindly by history, and I look forward to the day we are able
to close this regrettable chapter.
I supported an amendment offered by Senator Mark Udall to remove all
of the detainee provisions from the Senate bill. Unfortunately, the
measure was not adopted. It was my hope that these matters would be
dealt with as the legislative process moved forward, and I am
disappointed that efforts to adequately address these concerns were
unsuccessful. I will continue to support efforts to revise these
provisions as Congress discusses detainee matters in the future.
Exhibit 1
[From the New York Times, Dec. 10, 2011]
Beyond Guantanamo, a Web of Prisons for Terrorism Inmates
(By Scott Shane)
Washington.--It is the other Guantanamo, an archipelago of
federal prisons that stretches across the country, hidden
away on back roads. Today, it houses far more men convicted
in terrorism cases than the shrunken population of the prison
in Cuba that has generated so much debate.
An aggressive prosecution strategy, aimed at prevention as
much as punishment, has sent away scores of people. They
serve long sentences, often in restrictive, Muslim-majority
units, under intensive monitoring by prison officers. Their
world is spare.
Among them is Ismail Royer, serving 20 years for helping
friends go to an extremist training camp in Pakistan. In a
letter from the highest-security prison in the United States,
Mr. Royer describes his remarkable neighbors at twice-a-week
outdoor exercise sessions, each prisoner alone in his own
wire cage under the Colorado sky. ``That's really the only
interaction I have with other inmates,'' he wrote from the
federal Supermax, 100 miles south of Denver.
There is Richard Reid, the shoe bomber, Mr. Royer wrote.
Terry Nichols, who conspired to blow up the Oklahoma City
federal building. Ahmed Ressam, the would-be ``millennium
bomber,'' who plotted to attack Los Angeles International
Airport. And Eric Rudolph, who bombed abortion clinics and
the 1996 Summer Olympics in Atlanta.
In recent weeks, Congress has reignited an old debate, with
some arguing that only military justice is appropriate for
terrorist suspects. But military tribunals have proved
excruciatingly slow and imprisonment at Guantanamo hugely
costly--$800,000 per inmate a year, compared with $25,000 in
federal prison.
The criminal justice system, meanwhile, has absorbed the
surge of terrorism cases since 2001 without calamity, and
without the international criticism that Guantanamo has
attracted for holding prisoners without trial. A decade after
the Sept. 11 attacks, an examination of how the prisons have
handled the challenge of extremist violence reveals some
striking facts:
--Big numbers. Today, 171 prisoners remain at Guantanamo.
As of Oct. 1, the federal Bureau of Prisons reported that it
was holding 362 people convicted in terrorism-related cases,
269 with what the bureau calls a
[[Page S8648]]
connection to international terrorism--up from just 50 in
2000. An additional 93 inmates have a connection to domestic
terrorism.
--Lengthy sentences. Terrorists who plotted to massacre
Americans are likely to die in prison. Faisal Shahzad, who
tried to set off a car bomb in Times Square in 2010, is
serving a sentence of life without parole at the Supermax, as
are Zacarias Moussaoui, a Qaeda operative arrested in 2001,
and Mr. Reid, the shoe bomber, among others. But many inmates
whose conduct fell far short of outright terrorism are
serving sentences of a decade or more, the result of a
calculated prevention strategy to sideline radicals well
before they could initiate deadly plots.
--Special units. Since 2006, the Bureau of Prisons has
moved many of those convicted in terrorism cases to two
special units that severely restrict visits and phone calls.
But in creating what are Muslim-dominated units, prison
officials have inadvertently fostered a sense of solidarity
and defiance, and set off a long-running legal dispute over
limits on group prayer. Officials have warned in court
filings about the danger of radicalization, but the Bureau of
Prisons has nothing comparable to the deradicalization
programs instituted in many countries.
--Quiet releases. More than 300 prisoners have completed
their sentences and been freed since 2001. Their convictions
involved not outright violence but ``material support'' for a
terrorist group; financial or document fraud; weapons
violations; and a range of other crimes. About half are
foreign citizens and were deported; the Americans have
blended into communities around the country, refusing news
media interviews and avoiding attention.
--Rare recidivism. By contrast with the record at
Guantanamo, where the Defense Department says that about 25
percent of those released are known or suspected of
subsequently joining militant groups, it appears
extraordinarily rare for the federal prison inmates with past
terrorist ties to plot violence after their release. The
government keeps a close eye on them: prison intelligence
officers report regularly to the Justice Department on
visitors, letters and phone calls of inmates linked to
terrorism. Before the prisoners are freed, F.B.I. agents
typically interview them, and probation officers track them
for years.
Both the Obama administration and Republicans in Congress
often cite the threat of homegrown terrorism. But the Bureau
of Prisons has proven remarkably resistant to outside
scrutiny of the inmates it houses, who might offer a unique
window on the problem.
In 2009, a group of scholars proposed interviewing people
imprisoned in terrorism cases about how they took that path.
The Department of Homeland Security approved the proposal and
offered financing. But the Bureau of Prisons refused to grant
access, saying the project would require too much staff time.
``There's a huge national debate about how dangerous these
people are,'' said Gary LaFree, director of a national
terrorism study center at the University of Maryland, who was
lead author of the proposal. ``I just think, as a citizen,
somebody ought to be studying this.''
The Bureau of Prisons would not make any officials
available for an interview with The New York Times, and
wardens at three prisons refused to permit a reporter to
visit inmates. But e-mails and letters from inmates give a
rare, if narrow, look at their hidden world.
Paying the Price
Consider the case of Randall Todd Royer, 38, a Missouri-
born Muslim convert who goes by Ismail. Before 9/11, he was a
young Islamic activist with the Council on American-Islamic
Relations and the Muslim American Society, meeting with
members of Congress and visiting the Clinton White House.
Today he is nearly eight years into a 20-year prison
sentence. He pleaded guilty in 2004 to helping several
American friends go to a training camp for Lashkar-e-Taiba,
an extremist group fighting Indian rule in Kashmir. The
organization was later designated a terrorist group by the
United States--and is blamed for the Mumbai massacre in
2008--but prosecutors maintained in 2004 that the friends
intended to go on to Afghanistan and fight American troops
alongside the Taliban.
Mr. Royer had fought briefly with the Bosnian Muslims
against their Serbian neighbors in the mid-1990s, when NATO,
too, backed the Bosnians. He trained at a Lashkar-e-Taiba
camp himself. And in 2001, he was stopped by Virginia police
with an AK-47 and ammunition in his car.
But he adamantly denies that he would ever scheme to kill
Americans, and there is no evidence that he did so. Before
sentencing, he wrote the judge a 30-page letter admitting,
``I crossed the line and, in my ignorance and phenomenally
poor judgment, broke the law.'' In grand jury testimony, he
expressed regret about not objecting during a meeting, just
after the Sept. 11 attacks, in which his friends discussed
joining the Taliban.
``Unfortunately, I didn't come out and clearly say that's
not what any of us should be about,'' he said.
Prosecutors call Mr. Royer ``an inveterate liar'' in court
papers in another case, asserting that he has given
contradictory accounts of the meeting after Sept. 11. Mr.
Royer says he has been truthful.
Whatever the facts, he is paying the price. His 20-year
sentence was the statutory minimum under a 2004 plea deal he
reluctantly took, fearing that a trial might end in a life
term. His wife divorced him and remarried; he has seen his
four young children only through glass since 2006, when the
Bureau of Prisons moved him to a restrictive new unit in
Indiana for inmates with the terrorism label. After an
altercation with another inmate who he said was bullying
others, he was moved in 2010 to the Supermax in Colorado.
He is barred from using e-mail and permitted only three 15-
minute phone calls a month--recently increased from two, a
move that Mr. Royer hopes may portend his being moved to a
prison closer to his children. His letters are reflective,
sometimes self-critical, frequently dropping allusions to his
omnivorous reading. His flirtation with violent Islam and his
incarceration, he says, have not poisoned him against his own
country.
``You asked what I think of the U.S.; that is an
extraordinarily complex question,'' Mr. Royer wrote in one
letter consisting of 27 pages of neat handwriting. ``I can
say I was born in Missouri, I love that land and its people,
I love the Mississippi, I love my family and my cousins, I
love my Germanic ethnic heritage and people, I love the
English language, I love the American people--my people.
He said he believed some American foreign policy positions
had been ``needlessly antagonistic'' but added, ``Nothing the
U.S. did justified the 9/11 attacks.''
Mr. Royer rejected the notion that the United States was at
war with Islam. ``Conflict between the U.S. and Muslims is
neither inevitable nor beneficial or in anyone's interest,''
he wrote. ``Actually, I suppose it is in the interest of
fanatics on both sides, but their interests run counter to
everyone else's.'' He added an erudite footnote: `` `Les
extremites se touchent' (the extremes meet)--Blaise Pascal.''
He expressed frustration that the Bureau of Prisons appears
to view him as an extremist, despite what he describes as his
campaign against extremism in discussions with other inmates
and prison sermons at Friday Prayer, ``which they surely have
recordings of.''
``I have gotten into vehement debates, not to mention civil
conversations, with other inmates from the day I was arrested
until today, about the dangers and evils of extremism and
terrorism,'' Mr. Royer wrote in a yearlong correspondence
with a reporter. ``Can they not figure out who I am?''
A Scorched-Earth Approach
In 2004, prosecutors believed they knew who Mr. Royer was:
one of a group of young Virginians under the influence of a
radical cleric, Ali al-Timimi, whose members played paintball
to practice for jihad and were on a path toward extremist
violence. After Sept. 11, federal prosecutors took a
scorched-earth approach to any crime with even a hint of a
terrorism connection, and judges and juries went along.
In the Virginia jihad case, for instance, prosecutors used
the Neutrality Act, a little-used law dating to 1794 that
prohibits Americans from fighting against a nation at peace
with the United States. Prosecutors combined that law with
weapons statutes that impose a mandatory minimum sentence in
a strategy to get the longest prison terms, with breaks for
some defendants who cooperated, said Paul J. McNulty, then
the United States attorney overseeing the case.
``We were doing all we could to prevent the next attack,''
Mr. McNulty said.
``It was a deterrence strategy and a show of strength,''
said Karen J. Greenberg, a law professor at Fordham
University who has overseen the most thorough independent
analysis of terrorism prosecutions. ``The attitude of the
government was: Every step you take toward terrorism, no
matter how small, will be punished severely.''
About 40 percent of terrorism cases since the Sept. 11
attacks have relied on informants, by the count of the Center
on Law and Security at New York University, which Ms.
Greenberg headed until earlier this year. In such cases, the
F.B.I. has trolled for radicals and then tested whether they
were willing to plot mayhem--again, a preemptive strategy
intended to ferret out potential terrorists. But in some
cases prosecutors have been accused of overreaching.
Yassin M. Aref, for instance, was a Kurdish immigrant from
Iraq and the imam of an Albany mosque when he agreed to serve
as witness to a loan between an acquaintance and another man,
actually an informant posing as a supporter of a Pakistani
terrorist group, Jaish-e-Muhammad. The ostensible purpose of
the loan was to buy a missile to kill the Pakistani
ambassador to the United Nations. Mr. Aref's involvement was
peripheral--but he was convicted of conspiring to aid a
terrorist group and got a 15-year sentence.
That was a typical punishment, according to the Center on
Law and Security, which has studied the issue. Of 204 people
charged with what it calls serious jihadist crimes since the
Sept. 11 attacks, 87 percent were convicted and got an
average sentence of 14 years, according to a September report
from the center.
Federal officials say the government's zero-tolerance
approach to any conduct touching on terrorism is an important
reason there has been no repeat of Sept. 11. Lengthy
sentences for marginal offenders have been criticized by some
rights advocates as deeply unfair--but they have sent an
unmistakable message to young men drawn to the rhetoric of
violent jihad.
The strategy has also sent scores of Muslim men to federal
prisons.
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Special Units
After news reports in 2006 that three men imprisoned in the
1993 World Trade Center bombing had sent letters to a Spanish
terrorist cell, the Bureau of Prisons created two special
wards, called Communication Management Units, or C.M.U.'s.
The units, which opened at federal prisons in Terre Haute,
Ind., in 2006 and Marion, Ill., in 2008, have set off
litigation and controversy, chiefly because critics say they
impose especially restrictive rules on Muslim inmates, who
are in the majority.
The C.M.U.'s? You mean the Muslim Management Units?'' said
Ibrahim Hooper, a spokesman for the Council on American-
Islamic Relations.
The units currently hold about 80 inmates. The rules for
visitors--who are allowed no physical contact with inmates--
and the strict monitoring of mail, e-mail and phone calls are
intended both to prevent inmates from radicalizing others and
to rule out plotting from behind bars.
A Bureau of Prisons spokeswoman, Traci L. Billingsley, said
in an e-mail that the units were not created for any
religious group but were ``necessary to ensure the safety,
security and orderly operation of correctional facilities,
and protection of the public.''
An unintended consequence of creating the C.M.U.'s is a
continuing conflict between Muslim inmates and guards, mainly
over the inmates' demand for collective prayer beyond the
authorized hourlong group prayer on Fridays. The clash is
described in hundreds of pages of court filings in a lawsuit.
In one affidavit, a prison official in Terre Haute describes
``signs of radicalization'' in the unit, saying one inmate's
language showed ``defiance to authority, and a sense of being
incarcerated because of Islam.''
One 2010 written protest obtained by The New York Times,
listing grievances ranging from the no-contact visiting rules
to guards ``mocking, disrespecting and disrupting'' Friday
Prayer, was signed by 17 Muslim prisoners in the Terre Haute
Communication Management Unit. They included members of the
so-called Virginia jihad case of which Mr. Royer was part;
the Lackawanna Six, Buffalo-area Yemeni Americans who
traveled to a Qaeda camp in Afghanistan; Kevin James, who
formed a radical Muslim group in prison and plotted to attack
military facilities in Los Angeles; and John Walker Lindh,
the so-called American Taliban.
An affidavit signed by Mr. Lindh, who is serving 20 years
after admitting to fighting for the Taliban, complained that
a correctional officer greeted male Muslim inmates with
``Good morning, ladies.'' (``No ladies were in the area,''
Mr. Lindh writes.) Prison officials say in court papers that
Mr. Lindh has repeatedly challenged guards and violated
rules.
Unlike those at the Supermax, inmates in the segregated
units have access to e-mail, and some were willing to answer
questions. Mr. Lindh, whose father, Frank Lindh, said his son
believed the news media falsely labeled him a terrorist, was
not. In reply to a reporter's letter requesting an interview,
he sent only a photocopy of the sole of a tennis shoe. Since
shoe bottoms are considered offensive in many cultures, his
answer appeared to be an emphatic no.
There is some evidence that the Bureau of Prisons has
assigned Muslims with no clear terrorist connection to the
C.M.U.'s. Avon Twitty, a Muslim who spent 27 years in prison
for a 1982 street murder, was sent to the Terre Haute unit in
2007. When he challenged the assignment, he was told in
writing that he was a ``member of an international terrorist
organization,'' though no organization was named and there
appears to be no public evidence for the assertion.
Mr. Twitty, working for a home improvement company and
teaching at a Washington mosque since his release in January,
said he believed the real reason was to quash his complaints
about what he believed were miscalculations of time off for
good behavior for numerous inmates. ``They had to shut me
up,'' he said.
Another former inmate at the Marion C.M.U., Andy Stepanian,
an animal rights activist, said a guard once told him he was
``a balancer''--a non-Muslim placed in the unit to rebut
claims of religious bias. Mr. Stepanian said the creation of
the predominantly Muslim units could backfire, adding to the
feeling that Islam is under attack.
``I think it's a fair assessment that these men will leave
with a more intensified belief that the U.S. is at war with
Islam,'' said Mr. Stepanian, 33, who now works for a
Princeton publisher. ``The place reeked of it,'' he said,
describing clashes over restrictions on prayer and some
guards' hostility to Islam.
Yet Mr. Stepanian also said he found the ``family
atmosphere'' and camaraderie of inmates at the unit a welcome
change from the threatening tone of his previous medium-
security prison, where he said prisoners without a gang to
protect them were ``food for the sharks.'' When he arrived at
the C.M.U., he said, he found on his bed a pair of shower
slippers and a bag of non-animal-based food that Muslim
inmates had collected after hearing a vegan was joining the
unit.
He was wary. ``I thought they were trying to indoctrinate
me,'' he said. ``They never tried.'' The consensus of the
inmates, he said, ``was that 9/11 was not Islam.'' ``These
guys were not lunatics,'' he said. ``They wanted to be back
with their families.''
Reflection
It may be too early to judge recidivism for those
imprisoned in terrorism cases after Sept. 11; those who are
already out are mostly defendants whose crimes were less
serious or who cooperated with the authorities. Justice
Department officials and outside experts could identify only
a handful of cases in which released inmates had been
rearrested, a rate of relapse far below that for most federal
inmates or for Guantanamo releases.
For example, Mohammed Mansour Jabarah, a Kuwaiti Canadian
who plotted with Al Qaeda to attack American embassies in
Singapore and Manila, pleaded guilty in 2002 and began to
work as an F.B.I. informant. But F.B.I. agents soon
discovered he was secretly plotting to kill them--and he was
sentenced to life in prison.
Nearly all of these ex-convicts, however, lie low and steer
clear of militancy, often under the watchful eye of family,
mosque and community, lawyers and advocates say. A dozen
former inmates declined to be interviewed, saying that to be
associated publicly with a terrorism case could derail new
jobs and lives. As for Mr. Royer, he is approaching only the
midpoint of his 20-year sentence.
Did he get what he deserved? Chris Heffelfinger, a
terrorism analyst and author of ``Radical Islam in America,''
did a detailed study of the Virginia jihad case, and
concluded that Mr. Royer's sentence was perhaps double what
his crime merited. But he said the prosecution was warranted
and probably prevented at least some of the men Mr. Royer
assisted from joining the Taliban.
``I think a strong law enforcement response to cases like
this is appropriate nine times out of 10,'' Mr. Heffelfinger
said. Mr. Royer himself, in his long presentencing letter to
Judge Leonie M. Brinkema, said he understood why he had been
arrested. ``I realize that the government has a legitimate
interest in protecting the public from terrorism,'' he wrote,
``and that in this post-9/11 environment, it must take all
reasonable precautions.''
Today, Mr. Royer's only battle is to serve out his sentence
in a less restrictive prison nearer his children. In what he
called in a letter ``a heroic sacrifice,'' his parents, Ray
and Nancy Royer, moved from Missouri to Virginia to be close
to their son's children, now aged 8 to 12.
``I found it necessary to be a surrogate father,'' said Ray
Royer, 70, a commercial photographer by trade, in an
interview at the retirement community outside Washington
where he and his wife now live. When his son, who still goes
by Randy in the family, converted to Islam at the age of 18,
his parents did not object. Later, when he headed to Bosnia,
they chalked it up to his active social conscience.
``Religion is a personal thing,'' the elder Mr. Royer said.
``He'd never been in trouble.''
Ray Royer was at his son's Virginia apartment in 2003 when
the F.B.I. knocked at 5 a.m., put him in handcuffs and took
him away. Now, years later, he alternates between defending
his son and expressing dismay at what Randy got himself into.
``He did help his buddies get to L.E.T.,'' or Lashkar-e-
Taiba, the Pakistani militant group later designated as a
terrorist organization. ``He admitted to it. He should pay
the price.'' Still, he added, ``maybe he deserved five years
or so. Not 20.''
Ray Royer sat at his home computer one recent evening,
looking through a folder called ``Randy Pics''--photographs
tracing his son's life from childhood, to fatherhood, to
prison.
``He loved his family,'' the father said of his son. ``Why
would he put this cause ahead of his family? I still don't
really know what happened. I'm still trying to figure it
out.''
Mr. WHITEHOUSE. Mr. President, I rise today to highlight important
provisions of the National Defense Authorization Act conference report
that will counter the serious and growing problem of counterfeit goods
entering the military supply chain.
Section 818 of the conference report, which includes these
provisions, reflects the leadership of Chairman Levin and Ranking
Member McCain of the Senate Armed Services Committee. I applaud their
work to keep counterfeit parts out of the military supply chain. As I
have said before, our Nation asks a lot of our troops. In return, we
must give them the best possible equipment to fulfill their vital
missions and come home safely. We must ensure the proper performance of
weapon systems, body armor, aircraft parts, and countless other
mission-critical products. Section 818 goes a long way toward
protecting our troops from the dangers of counterfeit parts and the
decreased combat effectiveness they cause.
I am particularly glad that section 818 includes a provision I
introduced to increase criminal penalties for trafficking in
counterfeit military goods. That provision, introduced as the Combating
Military Counterfeits Act of 2011, S. 1228, was reported without
objection by the Senate Judiciary Committee. It was cosponsored by
Senators Graham, Leahy, McCain, Coons, Kyl, Blumenthal, Hatch,
Klobuchar, and Schumer. I was very grateful that Chairman Levin and
Ranking Member
[[Page S8650]]
McCain included it in their anticounterfeiting amendment to the NDAA,
and I greatly appreciate their leadership in ensuring that the
provision remained in the conference report. I would also particularly
like to thank Chairman Lamar Smith of the House Judiciary Committee,
who introduced comparable language in the House. It was a pleasure
working with him on the language included in section 818(h). I am very
grateful that he was able to clear the provision on the House side,
thereby enabling its inclusion in the conference report.
Prosecutors will be able to employ section 818(h) to deter criminals
from trafficking in military counterfeits. This will help protect our
national security and the safety of our troops. The U.S. Sentencing
Commission also has a role to play. It should update relevant
sentencing guidelines to ensure that they reflect the seriousness of
these reprehensible crimes. I would particularly note that the Obama
administration has called for an increase of the minimum base offense
level for trafficking in counterfeit military goods to 14. I trust that
the Sentencing Commission will give this recommendation substantial
weight when it reconsiders the guidelines in light of the changes
section 818(h) makes to the Criminal Code. As the administration has
explained, a minimum offense level of 14 for trafficking in counterfeit
military products would mean that a first-time offender with no
criminal history would face at least a 10- to 16-month guideline range
without any other aggravated conduct, after taking into account a
reduction for acceptance of responsibility. Such penalties should be
the bare minimum for offenses that put our troops' safety at risk.
I also would like to highlight a second provision within section 818
of the conference report. Our colleagues on the Finance and Judiciary
Committees have been working diligently to clarify that Customs and
Border Protection agents can share sufficient information with
trademark holders to ensure that counterfeit products are stopped at
the border. Chairman Leahy, for example, amended his PROTECT IP Act to
that end. Section 818(g) includes comparable language, and I applaud
the conferees for recognizing the importance of this provision. It
reaffirms the executive branch's authority to share necessary
information with rights holders without fear of violating the Trade
Secrets Act. It thereby will enable Customs and Border Protection to
fulfill its responsibility to stop military counterfeits at the border.
Under this provision, they will be able to share the same photographs
and samples they currently share but with the serial numbers and other
identifying information shown, not redacted. This simple change in
practice should be implemented immediately, without the delay of
unnecessary regulatory processes. Now is the time to protect our troops
from the risk of dangerous counterfeit military parts entering our
fighter jets, weapons, ships, and countless other mission-critical
products.
I am glad to have the opportunity to vote in favor of these important
provisions. I look forward to the future reduction in the number of
dangerous counterfeit military products that are currently putting our
troops' safety at risk and reducing combat effectiveness.
Mr. KERRY. Mr. President, I am voting to pass the conference report
for the National Defense Authorization Act for Fiscal Year 2012, NDAA.
This is not a perfect piece of legislation. But it contains important
hard-fought provisions that I am unwilling to jeopardize or risk
denying to the brave men and women defending our Nation, and their
families. Specifically, this bill represents the year's last
opportunity to pass a 1.6 percent across-the-board pay raise for our
men and women in the military. The bill also includes a bipartisan
provision Senator Collins and I have been working on for over a year to
get passed: an effort to protect victims of sexual assault in the
military. As a veteran, I have been deeply troubled by what Senator
Collins and our colleague in the House, Representative Tsongas, have
heard about the alarming incidences of sexual assault in the military--
which is why we worked so hard through this bill to strengthen support
for sexual assault prevention, legal protection for victims of sexual
assault, and assistance for victims.
There are, however, problems with this bill which still concern me.
When the bill was on the floor, I fought for amendments that would have
stripped troubling detainee provisions out of the bill entirely. I also
voted for other amendments that would have significantly narrowed the
scope of the detainee provisions. Unfortunately, notwithstanding my
votes, those amendments were not adopted by the Senate. The conferees,
with our urging, and with the President's veto threat, made some
progress in improving that part of the bill. I commend the conferees
for working to address concerns of mine and many other Senators, senior
administration officials, and the public over the detention-related
provisions in the NDAA. While the provisions in the conference report
are an improvement over their counterparts in the bill that the Senate
passed last week, we need to continue to examine detention law and
policy to ensure that the treatment of detainees is consistent with our
national security and with core American values.
The progress made in conference on the detention-related provisions
is significant enough that I am comfortable voting for the bill, and
the White House has lifted its veto threat. Specifically, the
conference report includes several changes to the detainee provisions,
including a new paragraph that clearly states that nothing in the bill
``shall be construed to affect the existing criminal enforcement and
national security authorities of the Federal Bureau of Investigation or
any other domestic law enforcement agency,'' provisions that give the
President additional discretion over implementation, and a transfer of
the waiver authority from the Secretary of Defense to the President. In
its totality, these changes led the White House to state that the ``the
language does not challenge or constrain the President's ability to
collect intelligence, incapacitate dangerous terrorists, and protect
the American people, and the President's senior advisors will not
recommend a veto.''
Given all this, as well as the fact that the detention-related
provisions of the bill have been improved from a civil liberties
perspective, and in light of the other urgent priorities contained in
the overall bill, I am voting in favor of the conference report.
Mr. HARKIN. Mr. President, as a U.S. Senator, I have no greater
responsibility than to work to ensure our Nation's security. In that
regard, I believe our Armed Forces must have all the tools they need to
keep our country safe. That is why I support the vast majority of the
provisions in the National Defense Authorization Act.
The bill takes some small steps towards reining in runaway defense
spending, which has nearly doubled in the past decade. This bill
authorizes $26.6 billion less than requested at the beginning of the
year, providing more than enough to defend our interests, while
chipping away at the Pentagon's nonstop growth. It also lays the
groundwork for reevaluating outdated Cold War-era overseas deployments
in Europe and the Pacific that are both costly and increasingly
unnecessary.
All of these provisions I support and believe are important. However,
because I believe this bill infringes on critical constitutional
values, I must oppose final passage. I believe we can do a better job
of protecting our national security without compromising these
important values.
This Nation has long been a beacon of liberty and a champion of
rights throughout the world. Yet, since 9/11, in the name of security,
we have repeatedly betrayed our highest principles. The past
administration believed it could eavesdrop on Americans without a
warrant or court order. It utilized interrogation techniques long
considered immoral, ineffective, and illegal, regardless of laws and
treaties. And, it intentionally sought to put detainees beyond the rule
of law. Thankfully, the current administration has ended the worst
abuses of these practices, despite the efforts of some of my colleagues
to stymie these efforts.
However, I am deeply concerned that the conference report continues
us on a dangerous path, which sacrifices long-held and durable
principles at the altar of fear and short-term expediency.
To begin, this bill fails to make clear that under no circumstance
can an American citizen be detained indefinitely without trial. I
simply do not
[[Page S8651]]
believe that a person should be seized on American soil and
indefinitely detained without charges and without due process of law.
Second, it mandates, for the first time, that non-American terrorist
suspects arrested in the United States will be detained by the military
rather than civilian law enforcement. Throughout our history, there has
been a clear divide between our military--which fights wars abroad--and
law enforcement in the United States, and that divide has worked. For
example, since
9/11, over 400 terrorists have been successfully convicted in article
III, not military, courts. For persons in this country, it is a
dangerous precedent to not only authorize but actually require military
custody.
Finally, the bill would make it much more difficult to close the
detention center at Guantanamo Bay. There simply is no compelling
reason to keep the facility open and not to bring these detainees to
maximum security facilities within the United States. The detention
center is a recruiting tool for those who wish to cause us harm and
been a stain on our Nation's honor. I agree with former Secretary of
State Colin Powell, who said that ``we have shaken the belief that the
world had in America's justice system by keeping [the detention center
at Guantanamo Bay] open. We don't need it and it's causing us far more
damage than any good we get for it.''
In the immediate aftermath of 9/11, the administration declared a
broad and open-ended ``war on terror.'' I have always considered this a
flawed description of the challenge that confronted us after the 9/11
attacks. After all ``terror'' is an endlessly broad and vague term. And
a ``war on terror'' is a war that can never end because terrorism and
terrorists will always be with us. Because of the never-ending nature
of this so-called war on terror, it offers a rationale for restricting
civil liberties indefinitely. This is not healthy for our democracy or
for our ability to inspire other countries to abide by democratic
principles.
Mr. President, we will not overcome terrorism with secret prisons,
with torture, with degrading treatment, with individuals denied basic
rights; rather, we shall overcome it by staying true to our highest
values and by insisting on legal safeguards that are the very basis of
our system of government and freedom. Today is the 220th anniversary of
the ratification of the Bill of Rights. The values embodied in that
remarkable document have bound our Republic together for over 200 years
and can bind us for 200 more if we hold them close.
Mr. LEAHY. Mr. President, the Senate today will pass the National
Defense Authorization Act for the coming fiscal year. This vote is
historic as Congress has enacted a national defense authorization act
every year for the past half century. I commend the Senate for
maintaining this steadfast support for our armed services, but this
legislation will be remembered for reasons both bad and good. I regret
the decision of the House and Senate conferees to include unnecessary
and potentially harmful provisions related to the detention of
terrorist suspects. However, I strongly support measures in the
conference report that will empower the National Guard within the
Department of Defense, enhance protections for military victims of
sexual violence, increase transparency by limiting unnecessary
exclusions from the Freedom of Information Act, improve mental health
outreach to members of the National Guard and Reserves, and make many
other changes to strengthen our national defense and take care of our
men and women in uniform.
I continue to strongly oppose the detention related provisions in
this conference report, which I believe are unwise and unnecessary.
These provisions undermine our Nation's fundamental principles of due
process and civil liberties and inject operational uncertainty into our
counterterrorism efforts in a way that I believe harms our national
security.
I strongly oppose section 1021 of this conference report, which
statutorily authorizes indefinite detention. I am fundamentally opposed
to indefinite detention and certainly when the detainee is a U.S.
citizen held without charge. Indefinite detention 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.
Supporters of this measure will argue that this language simply
codifies the status quo. That is not good enough. I am not satisfied
with the status quo. Under no circumstances should the United States of
America have a policy of indefinite detention. I fought against 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.
This is not a partisan issue for me. I have opposed indefinite
detention no matter which party holds the keys to the jailhouse. I
fought to preserve habeas corpus review for those detained at
Guantanamo Bay because I believe that the United States must uphold the
principles of due process and should only deprive a person of their
liberty subject to judicial review.
Today, I joined Senator Feinstein, Senator Lee, and others to
introduce a bill titled the Due Process Guarantee Act. This bill will
make clear that neither an authorization to use military force nor a
declaration of war confer unfettered authority to the executive branch
to hold Americans in indefinite detention. In the 2004 Supreme Court
opinion in Hamdi v. Rumsfeld, Justice Sandra Day O'Connor stated
unequivocally: ``We have long since made clear that a state of war is
not a blank check for the President when it comes to the rights of the
Nation's citizens.'' It is stunning to me that sponsors of the
underlying Senate bill argued for the indefinite detention of U.S.
citizens at Guantanamo Bay. We must make clear that our laws do not
stand for such a proposition. We are a nation of laws, and we must
adhere vigilantly to the principles of our Constitution. I urge all
Senators to support this bipartisan effort to protect American values
and cosponsor the Due Process Guarantee Act.
I am also deeply troubled by the mandatory military detention
requirements included in section 1022 of this conference report. In the
fight against al-Qaida and other terrorist threats, we should give our
intelligence, military, and law enforcement professionals all the tools
they need, not limit those tools. But limiting them is exactly what
this conference report 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.
Supporters of the conference report claim that concerns about the
mandatory military detention section are ``red herrings.'' They claim
that they have modified the legislation in ways that give the President
the flexibility he needs to apply the provisions without impeding
investigations or undermining operations in the field. The changes are
totally inadequate. The Statement of Administration Position, SAP,
calls the mandatory military detention section ``unnecessary, untested,
and legally controversial.'' The SAP goes on to state that ``applying
this military custody requirement to individuals inside the United
States . . . would raise serious and unsettled legal questions and
would be inconsistent with the fundamental American principle that our
military does not patrol our streets.''
Some supporters of the conference report also claim that the national
security waiver provision is ``a mile wide'' and provides the
administration with sufficient flexibility. The intelligence
professionals who work every day to keep our Nation safe disagree. The
Director of National Intelligence, James R. Clapper, wrote to Senator
Feinstein that the ``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.''
As chairman of the Judiciary Committee, I am particularly concerned
[[Page S8652]]
that this provision fails to acknowledge or appreciate the vital role
that law enforcement and the courts play in our counterterrorism
efforts. In light of the hundreds of successful prosecutions of
terrorism defendants in Federal courts, why would we want to remove
this option from the table? As Jeh Johnson, the Pentagon's top lawyer,
said recently, the Federal courts are ``well equipped to handle the
prosecution of dangerous domestic and international terrorists,'' and
``the military is not the only answer.'' I could not agree more.
The implementation procedures required in the legislation are simply
not enough to alleviate the potential for problems in the field. As
Secretary Panetta stated in his recent letter to Senator Levin, this
provision may ``needlessly complicate efforts by frontline law
enforcement professionals to collect critical intelligence concerning
operations and activities within the United States.'' No one in the
military, intelligence community, or law enforcement has asked for this
provision, and rather than strengthening our national security, it
makes us less safe.
During floor debate over the Senate bill, FBI Director Mueller wrote
that the mandatory military provision would adversely affect the
Bureau's ability to conduct counterterrorism investigations and inject
``a substantial element of uncertainty'' into its operations. He argued
that the provision fails to take into account ``the reality of a
counterterrorism investigation.'' The conference report modified the
mandatory military detention section to preserve the existing law
enforcement and national security authorities of the FBI, but the
effect of that new language remains unclear. At our Judiciary Committee
hearing on December 14, the FBI Director stated that the modified text
``does not give me a clear path to certainty as to what is going to
happen when arrests are made in a particular case.'' The FBI Director
is particularly concerned with how the legislation will affect the
Bureau's ability to gain the cooperation of suspects. The FBI has a
long and successful track record in the cultivation and use of
cooperating witnesses. But as Director Muller stated, ``The possibility
looms that we will lose opportunities to obtain cooperation from the
persons in the past that we've been fairly successful in gaining.'' I
cannot understand why the authors of this conference continue to insist
upon language that will undermine the FBI in its use of this critical
counterterrorism authority.
The language in the detention subtitle of this conference report 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 legislation was first considered by
the Armed Services Committee, nor was either committee consulted
earlier this month when it was modified. I also 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. On
issues of such national significance, the American people deserve an
open and transparent process.
Supporters of the detention provisions in the conference report
continue to argue that such measures are needed because, they claim,
``we are a nation at war.'' That does not mean that we should be a
nation without laws or a nation that does not adhere to the principles
of our Constitution. We should prosecute those who commit crimes and
terrorist acts and sentence them to long terms in prison. The
Department of Justice has prosecuted more than 440 terrorists since
September 11, 2001. We have a very strong record and nothing to fear
from choosing a course that upholds American values and the rule of
law. That is why I also oppose some of onerous funding and
certification restrictions that make it virtually impossible to
transfer individuals out of Guantanamo or to prosecute individuals
detained there in Federal courts.
I also strongly oppose section 1029 of the conference report, which
requires the Attorney General to consult with the Director of National
Intelligence and Secretary of Defense before seeking an indictment of
certain terrorism suspects. This provision was not considered or
debated by the Senate and certainly not by the Senate Judiciary
Committee, which I chair. I oppose this provision because it needlessly
undermines the authority of the Attorney General and is an
unprecedented infringement on the prosecutorial independence of the
Department of Justice.
Regrettably, the detention language in this conference report remains
fundamentally flawed. The detainee provisions will codify a practice of
indefinite detention that has no place in the justice system of any
democracy. They will cause further damage to our reputation as a nation
that respects the fundamental right of due process, harm the efforts of
intelligence and law enforcement officials in the field, and may limit
their ability to track down terrorists and bring them to justice. My
support for the Defense bill should not be construed as support for its
detention provisions, which I oppose in the strongest possible terms.
Instead, my support for the bill reflects the inclusion of the
National Guard Empowerment Act, a bill I drafted with Senator Lindsey
Graham, as an amendment to its underlying text. The Guard empowerment
provisions have been understandably overshadowed by the debate on
other, more contentious provisions in the bill, but I nevertheless
believe that these provisions will set the stage for dramatic changes
to our military force structure in the years to come.
Beginning in May, a new national security consensus quietly formed in
Congress around an issue at the core of our national security. Seventy-
one senators from both parties steadily added their support to S. 1025,
the bill that Senator Graham and I called Guard Empowerment II. The
provisions of our bill built upon the first Guard empowerment bill that
I introduced with Senator Kit Bond of Missouri. That measure became law
in 2008 and elevated the Chief of the National Guard Bureau to the rank
of four-star general. This year's bill had as its headlining provision
an effort to make the Chief a statutory member of the Joint Chiefs of
Staff. Despite the vociferous opposition of Active component generals
in the Pentagon--including all six sitting Joint Chiefs of Staff--a
bipartisan congressional consensus formed around S. 1025 and Guard
empowerment. I was pleased that the Senate included its provisions in
our version of the National Defense Authorization Act late last month
and that the conferees retained a majority of those provisions in the
conference report.
The new consensus on the National Guard comes as the budget debates
of this Congress have fractured the Cold War national security
consensus of the last half century. While those fractures were an
inevitable outcome of the end of the Soviet empire, what will replace
the Cold War consensus remains unclear. Some Members of Congress argue
for diplomatic and military retrenchment from every corner of the globe
back to Fortress America. Others believe that we must expand, not
shrink, our international footprint. Yet nearly everyone agrees that
budgetary factors must mean a change in the way the Pentagon does
business--and that change cannot wait.
The seeds of that change were sown a decade ago. In the days and
weeks following 9/11, the former ``strategic reserve'' became, of
necessity, fully operational. The National Guard and Reserve
components, once a Cold War failsafe, were called into regular rotation
in the wars in Iraq and Afghanistan. Our country simply could not field
the forces we needed without calling on the Guard and Reserve.
Simultaneously, America experienced domestic disasters on an
unprecedented scale. In each situation, the President called on the
National Guard as the military first responders to help citizens in
need. Today, the metamorphosis from a strategic reserve to an
operational reserve is complete.
Yet entrenched bureaucratic interests still resist what most
Americans now accept as an accomplished fact. The Joint Chiefs fought
our efforts to bring the Chief of the Guard Bureau into the ``Tank''
not because they misunderstand the value of the Guard and
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Reserve, but precisely because they fear that value proposition may
threaten the size and budget of their Active components in the years to
come.
Nevertheless the Active component must shrink, both as a consequence
of our current budgetary reality and to reflect the constitutional
vision the Framers had of a small standing Army augmented by a larger
cadre of citizen soldiers. Simultaneously, the Guard and Reserve must
grow so that those cuts to the Active force can be quickly and easily
reversed if the circumstances demand it. Just a year ago, no one
predicted our operations to oust Muammar Qadhafi. In a world where
military needs change day by day, we must not hollow out the force. To
avoid that outcome in a period of austere budgets, we must depend more
and more on the National Guard and Reserve.
To that end, the conferees included section 512 in this Defense bill
which adds the Chief of the National Guard Bureau to the Joint Chiefs
of Staff. It also reinforces the duties and responsibilities of the
Chief as listed in 10 U.S.C. Sec. 10502 in accordance with the listing
of responsibilities of the Chief already in that section. This
provision is historic and will dramatically improve the advice that the
President and Secretary of Defense receive on matters of national
security and the defense budget.
Section 511, ``Leadership of the National Guard Bureau,''
reestablishes the Vice Chief of the National Guard Bureau as a
lieutenant general and excludes the positions of the Chief and the Vice
Chief of the National Guard Bureau from limitations on the number of
general and flag officers in the Department of Defense. Reinstating the
Deputy position at the National Guard Bureau will give the Chief
flexibility at a time when he sorely needs it and providing a third
star for the position will give it more institutional clout.
Section 515 implements the outcomes of a negotiation between the
Council of Governors and the Department of Defense by authorizing the
President to order the Federal Reserve component to Active Duty to
provide assistance in response to a major disaster or emergency. In
addition to authorizing a Reserve forces callup for domestic disasters
and emergencies, it codifies the dual-status title 10 and title 32
commander as the usual and customary command relationship for military
operations inside the United States, a key victory for Federal-State
integration of military command and control.
Section 518, ``Consideration of Reserve Component Officers for
Appointment to Certain Command Positions,'' is a modified version of a
provision of S. 1025 which would have reserved the positions of
commander, Army North, and commander, Air Force North, for National
Guard officers with an emphasis on the consideration of current and
former adjutants general. Instead, the section requires that Guard and
Reserve officers be considered for these positions whenever they are
vacant.
Section 1085, ``Use of State Partnership Program Funds for Certain
Purposes,'' includes a limited authorization of the State Partnership
Program which is the major vehicle for the National Guard of the States
to participate in international security assistance and capacity
building missions at the request of the State Department chief of
mission and geographic combatant commander.
Last but certainly not least, section 1080A, ``Report on Costs of
Units of the Reserve Components and the Active Components of the Armed
Forces,'' institutes the ``similar unit'' cost report proposed by S.
1025 with some added detail and while retaining the Comptroller General
evaluation of the Department's report. That last requirement is
important to keep the Department of Defense honest in its assumptions
and analysis leading to conclusions about the relative cost of Active
and Reserve units.
The Reserve component cost report will undergird efforts by the
Senate National Guard Caucus in the years to come. While it has long
been common knowledge that the National Guard and Reserves are cheaper
to maintain in dwell than Active-Duty Forces, the report will prove
that colloquial wisdom and bolster the arguments of the Congress in a
future push to reduce the size of the Active component as we draw down
from Iraq and Afghanistan while growing the size of the Reserve
components.
I am also pleased that the conferees included my language to narrow
the Freedom of Information Act, FOIA, exemption in the bill for
Department of Defense critical infrastructure security information.
This improvement adds a public interest balancing test requiring that
the Secretary of Defense consider whether the public interest in the
disclosure of this information outweighs the government's need to
withhold the information when evaluating FOIA requests. The addition of
this measure to the National Defense Authorization Act will help ensure
that FOIA remains a viable tool for access to Department of Defense
information that impacts the health and safety of the American public.
As I said at the outset, this National Defense Authorization Act will
be remembered both for changing our process of detaining and
prosecuting suspected terrorists and for empowering the National Guard.
I continue to oppose the changes the act will make to our
counterterrorism legal regime. But I nevertheless support how the act
will improve the sourcing and fielding of military forces in the years
to come. I will look to fix the former and further improve the latter
in future legislation.
Mr. COONS. Mr. President, today I rise to express my deep concern
that the 2012 National Department of Defense Authorization Act
provisions pertaining to detainee treatment fail to strike the
appropriate, important balance between national security, due process,
and civil liberties. Sections 1021, 1022, and 1023 are the latest in a
series of legislative proposals that provide ever-narrowing latitude
for dealing with terrorism suspects, whether in the U.S. or abroad.
I am concerned, that these provisions take us one small, but
significant, step down the road towards a state in which ordinary
citizens live in fear of the military, rather than the free society
that has marked this great nation since the Bill of Rights was ratified
220 years ago, in 1791.
The new detention authorities thrust upon our military in this bill
are an assault on our civil liberties and do not belong on our books.
They were not requested by the Pentagon, in fact they have been
resisted by the President, the Secretary of Defense, the Attorney
General, and the directors of National Intelligence and the FBI. They
do not make us safer and, to the contrary, they will create dangerous
confusion within our national security community.
Under these sections, a terrorism suspect must be remanded to U.S.
military custody, even when that suspect presents no imminent threat to
public safety and is being held under suspicion of committing a U.S.
crime. The suspect may be held indefinitely. Indeed, if the suspect is
transferred to Guantanamo, it may be a practical reality that the
suspect must be held indefinitely, thanks to the onerous certification
requirements contained in Section 1023. If not sent to Guantanamo, the
suspect may be rendered to a foreign power, where he may be subject to
coercive interrogation, torture, or death. Or, the individual may
simply remain in custody of our own military, waiting for the cessation
of an endless conflict against an idea.
As my colleagues from Vermont and Oregon, from Colorado and
California, have already said so eloquently, these provisions reflect
an unfortunate and unwise shift away from the current law, in which the
criminal justice system is presumed to be sufficient for those who
commit crimes on U.S. soil. No system is perfect, but the federal
criminal justice system is considered by many around the world to be
the gold standard for fairness, transparency and reliability. Since 9/
11, the civilian criminal process has been successful in securing
convictions and lengthy sentences against hundreds of terrorism
suspects.
This is compared to just six convictions in military tribunals, and
two of these individuals are walking free today. A third, Ibrahim al
Qosi, was convicted of being a Taliban fighter. Under his sentence of 2
years, he would be due to be released next summer. But when he serves
his sentence, he likely will not be released. Instead, he will be
detained until our undefined hostilities against Islamic extremism and
terrorism conclude. In other words, he
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will be detained indefinitely. Criminal process like this is little
better than no process at all. It ought to be reserved for the rarest
cases where the civilian criminal justice system is not suitable. It
should not be made the new standard.
If we are going to short-circuit the criminal justice system, we
ought to at least have good reason to do so. At a minimum, I would
expect the President, the Attorney General, the Secretary of Defense,
or the Director of National Intelligence to make the case that military
custody is the only way to appropriately handle terrorists. But that is
not what happened here. No one is calling for these new powers. They
are being thrust upon our military.
President Obama has said that these provisions will hinder his
ability to prosecute the campaign against terrorists. The Attorney
General and the Director of National Intelligence have said that these
provisions threaten to undermine the collection of intelligence from
suspected terrorists.
They don't want these authorities.
The military does not want them either. The Secretary of Defense has
said that the provisions will unnecessarily complicate its core mission
of protecting our nation and projecting military force abroad. These
provisions do not make sense as a matter of defense policy, and,
because the meaning of some of the key terms is deliberately unclear,
we can not even predict the precise impact that they will have.
In the best-case scenario, we will end up in a situation with minor
changes to an existing detainee policy that has already proven to
inspire and sustain this and the next generation of extremists who wish
to destroy this country. In the worst-case scenario, we make several
significant changes that hinder our ability to find and destroy this
current generation of extremists.
I do not accept the underlying assumption of these unnecessary new
provisions that the threat the United States faces is one that can be
defended by more guns, taller walls, and deeper holes that we
``disappear'' people into. In fact, defense from the threats of today
and tomorrow called ``asymmetric'' because they do not attempt to meet
us on the battlefield with equal capabilities requires a new paradigm,
the concept of defense in depth. To address asymmetric threats,
including networks of extremists determined to carry out acts of
terrorism, law enforcement and the Defense Department must work
cooperatively to protect U.S. interests using their respective
strengths in authorities and levels of response.
Instead of strengthening our ability to confront asymmetric threats,
these unwelcome new authorities reinforce the philosophy that the
military is the only preeminent institution of national security, with
law enforcement relegated to a limited support role. That may have been
an appropriate philosophy for the world in 1961, but it did not help us
in 2001, and will not help us in 2021. These new authorities do nothing
to change that and will not make us any safer. The only effective
comprehensive model for national security is one that strengthens both
our law enforcement and military to fight threats within their
respective areas of expertise.
Another deeply concerning aspect of the detainee provisions in the
Defense Authorization bill is what they say about the ability of the
military to detain U.S. citizens. Section 1021 expands the 2001
Authorization of the Use of Military Force to include the authority to
detain and hold indefinitely any person, even a U.S. citizen, if the
military suspects that such a person has supported any force associated
with al-Qaeda.
While I believe it acceptable for lethal military actions to be taken
against U.S. citizens abroad who have clearly taken up arms against
this Nation, I am concerned about the slow but steady creep of the
military into areas that traditionally have been reserved for civilian
law enforcement. Testifying yesterday before the Judiciary Committee,
FBI Director Robert Mueller said he has serious concerns about the
potential future ramifications of introducing military forces into the
criminal justice process.
At the local level, it is often difficult to distinguish whether an
individual in possession of bomb-making components is a hardened
terrorist coordinating with al-Qaeda; is a troubled, dangerous, but
affiliated teenager; or is completely innocent of any crime at all. In
the rush to ``repel borders'' at the early stages of investigations,
mistakes will be made. We need to make sure that these mistakes do not
overrun the constitutional protections we all enjoy as Americans.
It is true, as supporters of these provisions have argued, that
Section 1021 contains a limitation that the authorization of force does
not include the right to hold citizens in violations of their
constitutional rights. That is some comfort, but not enough. As I sat
in the presiding chair during debate over this bill, I heard my
colleagues argue that we are in a time of war and that, during times of
war, U.S. citizens have no constitutional protections against being
treated as a prisoner of war. Even if there was broad agreement about
the constitutional protections citizens enjoy against extrajudicial
killing or indefinite detention, who will enforce them? Under this
bill, that task would seem to be left to the President and to the
military. Were my life or liberty at stake, I would want the benefit of
an independent judiciary. So, too, I think would the vast majority of
my fellow citizens.
Mr. President, we are in conflict against terrorists. I do not doubt
or dispute that. But this is not the first time that has been the case.
During the beginning part of the last century, anarchists committed a
string of bombings, usually targeting police officers or civilians. In
1901, an anarchist assassinated President McKinley. In the First Red
Scare during the early part of the century, a plot was uncovered to
bomb 36 leaders of government and industry. During the 1960s and 70s,
the Weather Underground declared as its mission to overthrow the U.S.
government. Members planted bombs in the Capitol, the Department of
State and the Pentagon.
Each of these threats, and others, has before placed an existential
fear in the minds of Americans. We have not always acted well. The
Sedition Act of 1918, the internment of Japanese Americans during the
Second World War, and the House Un-American Activities Committee and
Hollywood blacklisting following the war are three notable examples of
action, taken in the face of severe threat, which now the vast majority
of Americans look back upon with deep regret.
As technology has advanced, so has the ability of the government to
reach into our lives, whether through unseen drones and hidden
electronic surveillance, omnipresent cameras and advanced facial
recognition programs, or unfettered access to our telephone and
Internet records.
The advance of technology, however, is not justification for the
retreat of liberty, especially not when we have at our disposal a
criminal justice system that is up to the task of keeping us safe.
I plan to vote for the Conference Report of the National Defense
Authorization Act because I agree with much of what is within it.
During a time of war, we cannot allow our military to go unauthorized.
We cannot allow our troops to go unpaid. The NDAA provides oversight of
and spending limitations for the military. It elevates the head of the
National Guard to the Joint Chiefs level, which is necessary to ensure
that military leadership adequately considers the unique reserve
capacity role now filled by the Guard. The bill will also begin to
address the inability of Customs and Border Patrol agents to share
information necessary to identify military and other counterfeits at
our borders.
Though we were not able to remove the dangerous and counterproductive
provisions contained in Sections 1021, 1022 and 1023 from the NDAA
today, we are not done trying. I will continue to work with my
colleagues to ensure that we maintain the balance between security and
liberty.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I ask unanimous consent that the time for
debate on the conference report to accompany H.R. 1540 be extended
until 4 p.m., with all other provisions of the previous order remaining
in effect; further, that at 4 p.m., the Senate proceed to a vote on the
adoption of the conference report; that upon the disposition of the
conference report and H.
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Con. Res. 92, the Senate resume executive session and the consideration
of the Christen nomination, as provided under the previous order.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Mr. President, with this agreement, there will be two
votes at 4 p.m. The first will be on the adoption of the Defense
authorization conference report and the second vote on the confirmation
of the nomination of Morgan Christen to be U.S. Circuit Judge for the
Ninth Circuit.
Mr. President, I rise today to discuss the National Defense
Authorization Act conference report now pending before the Senate.
I thank my colleague from Colorado, Senator Udall, as well as my
colleague from California, Senator Feinstein, for engaging in a
spirited and important--perhaps historic--debate during the
consideration of this authorization bill on the floor of the Senate. I
especially thank Senator Feinstein. It was a pleasure to work with her
to insert language which I think moved us closer to a position she and
I both share concerning the language in this important bill.
I have the highest respect for the chairman and the ranking member of
this committee, Senators Levin and McCain, who have worked diligently
and hard on a bill which has become a hallmark of congressional
activity each and every year, particularly in the Senate. It takes a
special effort for them to produce an authorization bill of this
complexity and challenge. They do it without fail and they do it in a
bipartisan fashion.
For those critics of Congress--and there are many--who look at this
bill, you can see the best of the Senate in terms of the effort and the
professionalism these two gentlemen apply, along with the entire
committee, in bringing this bill to the floor.
This bill does a number of good things for our troops and for my home
State of Illinois, and I am thankful to the chairman and the ranking
member for those provisions. There is important language about public-
private partnerships regarding the U.S. Army that will have special
value at the Rock Island Arsenal, where some of the most dedicated and
competent civilian individuals continue to serve this country's
national security, meeting the highest levels of standards and conduct
and performance. They will have a chance to continue to do that work,
and it is important they continue to have that chance in this weak
economy when so many people are struggling to find jobs.
The legislation provides the Chief of the National Guard with an
equal seat at the table with the Joint Chiefs of Staff to ensure the
needs of our brave Army and Air National Guard personnel are heard at
the highest levels. It makes it easier for reserve units to access
mental health services by providing that access during drill weekends.
It also provides our men and women in uniform with a much deserved pay
increase, which is imperative in light of their heroic service and the
state of our economy today.
I must say, though, there are provisions within this bill which still
concern me relative to the treatment and detention of terrorism
suspects.
First, we need to agree on the starting point, and the starting point
should be clear on both sides of the aisle. There are those who
threaten the United States, those who would use terrorist tactics to
kill innocent people, as they did on 9/11. We are fortunate, through
the good leadership of President George W. Bush and President Obama,
that we have been spared another attack since 9/11, but vigilance is
required if we are to continue to keep this country safe. That is a
bipartisan mission. It is shared by every Member of Congress,
regardless of their political affiliation.
We salute the men and women in uniform, first, for all the work and
bravery they have put into that effort, but quickly behind them we will
add so many others in our law enforcement community; for example, those
individuals at every level--Federal, State and local--who are engaged
in keeping America safe. We salute the executive branch in its
entirety, including the Department of Homeland Security, the White
House, the National Security Advisors, and all of those who have made
this a successful effort.
The obvious question we have to ask ourselves is this: If for 10
years we have been safe as a nation, why is this bill changing the way
we detain and treat terrorism suspects?
I will tell you there has been an ongoing effort by several members
of this committee and Senate to change the basic approach to dealing
with terrorism, to create a presumption that terrorist suspects would
be treated first subject to military detention and their cases then
considered before military tribunals.
This, in and of itself, is not a bad idea. It could be right, under
certain circumstances, but it does raise a question: If to this point
in time we have been able to keep America safe using the Department of
Justice, law enforcement, and the courts of our land, together with
military tribunals, why are we changing?
The record is pretty clear. Since 9/11, more than 400 terrorism
suspects have been successfully prosecuted in the courts of America.
These are individuals who have been subjected to FBI investigation,
they have been read their Miranda rights, they have been tried in our
courts in the same manner as those accused of crimes are tried every
single day, and they have been found guilty--400 of them--during the
same interval that 6--6--have been tried by military tribunals.
Overwhelmingly, our criminal court system has been successful in
keeping America safe, but that is not good enough for many Members of
the Senate. They are still bound and determined to push more of them
into the military tribunal system for no good reason. These people who
have been tried successfully when accused of terrorism have been safely
incarcerated in the Federal penitentiaries across America, including in
my home State of Illinois at the Marion Federal Prison. Not one
suggestion has been made that the communities surrounding these prisons
nor the prisoners themselves are under any threat. What we have instead
is this presumption that isn't borne by the facts or by our experience.
I voted for the Senate version of this bill with the hope that the
Members of the Senate and House who were negotiating the final bill
would remove some of the detainee provisions that concern me. I want to
acknowledge that the conference committee did make some positive
changes. But I continue to have serious concerns because provisions in
the bill would limit the flexibility of any President in combatting
terrorism, create uncertainty for law enforcement, intelligence, and
defense officials regarding how they handle suspected terrorists, and
raise serious constitutional concerns.
I am especially concerned about section 1022 in the conference
report. This provision would, for the first time in American history,
require our military to take custody of certain terrorism suspects in
the United States. Our most senior defense and intelligence officials
have raised serious concerns about this provision. FBI Director Robert
Mueller strongly objects to the military custody requirement. For those
who need reminding, Robert Mueller served as a Federal judge in
California and was appointed to this position as head of the FBI by
Republican President George W. Bush. He has been retained in that
office by Democratic President Barack Obama. I believe he is a
consummate professional who has dedicated his life, at least in the
last 10 years-plus, to keeping America safe. I trust his judgment. I
respect his integrity.
In a letter to the Senate, Director Mueller says the bill will
``inhibit our ability to convince covered arrestees to cooperate
immediately, and provide criminal intelligence.''
He was asked after the conference report whether the changes absolved
any of his concerns, and he said he was still concerned. I will go to
that in a moment. Director Mueller concluded that the provision I am
raising ``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.''
Considering the source of this concern, the Director of the Federal
Bureau of Investigation who has been responsible ultimately for the
successful prosecution of 400 suspected terrorists, we should take his
concerns to heart.
The Justice Department, which then prosecutes terrorism suspects,
shares
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Director Mueller's concerns. Here is what they said:
Rather than provide new tools and flexibility for FBI
operators and our intelligence professionals, this
legislation creates new procedures and paperwork for FBI
agents, intelligence lawyers and counter-terrorism
prosecutors who have conducted hundreds of successful
terrorism investigations and prevented numerous attacks
inside this country over the past decade.
The supporters of this legislation have responded to these concerns
by pointing to the fact that the bill allows the Secretary of Defense
to waive the military custody requirement. But the Justice Department
says the administrative burdens of obtaining a waiver could hinder
ongoing counterterrorism operations. Here is how they explained it:
While the legislation proposes a waiver in certain
circumstances to address these concerns, this proposal
inserts confusion and bureaucracy when FBI agents and
counter-terrorism prosecutors are making split-second
decisions. In a rapidly developing situation--like that
involving Najibullah Zazi traveling to New York in September
2009 to bomb the subway system--they need to be completely
focused on incapacitating the terrorist suspect and gathering
critical intelligence about his plans.
The authors of this legislation say they made changes to the military
custody requirement to respond to these concerns raised by Director
Mueller and the Department of Justice. But in my view, these changes
don't go nearly far enough. They continue to create uncertainty and
impose administrative burdens on our counterterrorism professionals
whom we depend on to keep us safe.
The changes in the legislation do not change the fundamental premise.
They create a presumption that a terrorism suspect arrested in the
United States should be transferred to military custody, despite the
fact--despite the fact--that the Federal Bureau of Investigation has
kept America safe since
9/11.
I am not alone in my feelings. This morning, an editorial in the
Washington Post said:
[These provisions]--while less extreme--are still
unnecessary and unwise. . . . [L]awmakers have . . .
introduced confusion in the form of directives that threaten
to bollix up law enforcement and military personnel when they
most need to be decisive.
Why in the world would we create uncertainty and bureaucracy when,
with every second that ticks away, American lives can be in danger?
Just yesterday in the Senate Judiciary Committee, FBI Director Robert
Mueller testified he is still deeply concerned about section 1022,
despite the changes made in this conference report. Here is what
Director Mueller said:
Given the statute the way it is now, it does not give me a
clear path to certainty as to what is going to happen when
arrests are made in a particular case. The possibility looms
that we will lose opportunities to obtain cooperation from
the persons in the past that we've been fairly successful in
gaining.
That, in and of itself, should give pause to every member of the
Senate. When we consider this objection from the Director of the
Federal Bureau of Investigation, the lead official charged with
combatting terrorism in the United States, shouldn't we take Director
Mueller's concerns to heart? Do we want the FBI to have uncertainty the
next time they stop and detain a suspected terrorist in the United
States?
I want to address another provision, section 1021. I was very
concerned that the original version of the legislation would, for the
first time in history, authorize indefinite detention in the United
States. But we have agreed, on a bipartisan basis, to include language
in the bill offered by Senator Feinstein that makes it clear this bill
does not change existing detention authority in any way. What it means
is, the Supreme Court will make the decision who can and cannot be
detained indefinitely without trial, not the Senate.
I believe the Constitution does not authorize indefinite detention in
the United States. Some of my colleagues see it differently. They claim
the Hamdi decision upheld indefinite detention. It didn't. Hamdi was
captured in Afghanistan, not in the United States. Justice O'Connor,
the author of the opinion, carefully stated the Hamdi decision was
limited to ``individuals who fought against the United States in
Afghanistan as part of the Taliban.''
Some of my colleagues also cited the Padilla case, claiming it is a
precedent for the indefinite detention of U.S. citizens captured in the
United States. But look at what happened in the Padilla case. Padilla
is a U.S. citizen who was placed in U.S. custody. The Fourth Circuit
Court of Appeals, one of the most conservative in the land, upheld his
military detention. But then, before the Supreme Court had the chance
to review the Fourth Circuit's decision, George W. Bush's
administration transferred him out of military custody, prosecuting him
in an article III criminal court. To this day, the Supreme Court has
never ruled on the question of whether it is constitutional to
indefinitely detain a U.S. citizen captured in the United States. That
decision must be decided by the Supreme Court, not by the Senate,
thanks to the Feinstein amendment.
I support the inclusion of the Feinstein amendment in this bill. I
continue to believe there is no need for this provision overall and
that it should have been removed.
I also continue to oppose provisions in the conference report that
limit the administration's ability to close the Guantanamo Bay
detention facility. Section 1027 of this legislation provides that no
detainee held at Guantanamo can be transferred to the United States
even for the purpose of holding him incarcerated for the rest of his
life in a Federal supermaximum security facility.
There is absolutely no reason for this prohibition. Section 1026 of
this legislation provides clearly that the government may not construct
or modify any facility in the United States for the purpose of holding
a Guantanamo Bay detainee.
Let me bring this closer to home. We have offered for sale in the
State of Illinois a prison built by our State that has not been used or
opened in its entirety. The Federal Bureau of Prisons has stated they
are interested in purchasing it because of the overcrowded conditions
in many Federal prisons. We would, of course, like to see that done--
not just for the revenue that would come to the State of Illinois but
because it would create jobs in my State.
In the course of deliberating it, controversy arose as to whether
Guantanamo detainees would be placed in this prison. Initially, the
administration said they would, and I supported them. But ultimately it
became clear that there was opposition to going forward with this
purchase of the Illinois prison if there was any likelihood Guantanamo
detainees would be incarcerated at this prison. We have now made it
clear--and I wish to make it clear for the record--that despite my
personal views on this issue, I believe the law is clear that the
Thomson Prison, once under Federal jurisdiction, will not house
Guantanamo detainees. That has been a stated policy. It is now going to
be a matter of law in this Defense authorization. Regardless of my
personal feelings on the subject, it is the governing law, and I will
not try to change the situation of Thomson in any way as long as I
serve in the Senate when it comes to this important issue.
Unfortunately, some of my colleagues--whom I disagree with--are
determined to keep Guantanamo open at all costs. I disagree. When we
consider the expense of detention at Guantanamo and the reputation of
that facility, I believe the President was right, initially, when he
talked about the fact that we needed to, at some point, bring detention
at Guantanamo to a close. My feelings are not only shared by the
President but also by GEN Colin Powell; former Republican Secretaries
of State James Baker, Henry Kissinger, and Condoleezza Rice; former
Defense Secretary Robert Gates; ADM Mike Mullen; and, GEN David
Petraeus.
There is great irony here. For 8 long years during the previous
Republican administration, Republicans on the floor argued time and
again that it was inappropriate--some said even unconstitutional--for
Congress to ask basic questions about the Bush administration's
policies on issues such as Iraq, torture, waterboarding, and
warrantless wiretapping. Time and again, we were told Congress should
defer to President Bush, our Commander in Chief. Let me give one
example.
My friend Senator Lindsey Graham of South Carolina, on September 19,
2007, said:
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The last thing we need in any war is to have the ability of
535 people who are worried about the next election to be able
to micromanage how you fight the war. This is not only
micromanagement, this is a constitutional shift of power.
With a Democratic President, obviously some of my colleagues have had
a change of heart. They think it is not only appropriate but urgent for
Congress to limit this President's authority to combat terrorism,
despite the success we have had since 9/11 under President Bush and
President Obama keeping America safe. This is a clear political double
standard. It is unnecessary. Look at the track record.
Since 9/11, our counterterrorism professionals have prevented another
attack on the United States, and more than 400 terrorists have
successfully been prosecuted and convicted in Federal courts. Here are
just a few of them: Umar Faruk Abdulmutallab, the Underwear Bomber;
Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing;
Omar Abdel-Rahman, the so-called Blind Sheik; the 20th 9/11 hijacker,
Zacarias Moussaoui; and Richard Reid, the Shoe Bomber--all prosecuted
in the criminal courts of this land successfully and safely
incarcerated in our Federal prisons. Something which many on the other
side refuse to acknowledge, and argue is impossible, has, in fact,
happened over and over again over 400 times.
Why do we want to change this system when it is working so well to
keep America safe?
The fact that these detainee provisions have caused so many
disagreements and such heated debate demonstrates the danger of
enacting them into law. We shouldn't impose this kind of uncertainty on
law enforcement, defense, and intelligence who are working to protect
America. We should not limit the flexibility of the administration to
respond to suspected terrorists in the most effective way, and we
should not raise serious constitutional questions by requiring the
military to detain people in the United States.
I have a letter from the Agents Association of the Federal Bureau of
Investigation, dated December 7, 2011, raising many of the same issues
which I have raised. I will say we contacted the Agents Association
after the conference and asked them their reaction, and they said they
still stood behind their statements of December 7, 2011. I ask
unanimous consent to have printed in the Record this letter.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Federal Bureau of Investigation Agents Association,
Arlington, VA, December 7, 2011.
Hon. Carl Levin,
Chairman, Senate Armed Services Committee, Washington, DC.
Hon. John McCain,
Ranking Member, Senate Armed Services Committee, Washington,
DC.
Hon. Howard P. McKeon,
Chairman, House Armed Services Committee, Washington, DC.
Hon. Adam Smith,
Ranking Member, House Armed Services Committee, Washington,
DC.
Dear Chairmen and Ranking Members: On behalf of the more
than 12,000 active duty and retired FBI Agents who are
members of the FBI Agents Association (``FBIAA''), I write
today to express our concerns about Section 1032 of S. 1867,
the National Defense Authorization Act for Fiscal Year 2012.
Section 1032 requires that persons detained in connection
with incidents of terrorism be held in military custody and
leaves critical operational details unresolved. Like many in
the federal law enforcement and intelligence communities, the
FBIAA is concerned that this language undermines the ability
of our counterterrorism experts to conduct effective
investigations, Accordingly, we urge the conferees working to
reconcile H.R. 1540 and S. 1867 through the conference
process to reject Section 1032.
Section 1032 establishes a presumption for military custody
for individuals detained in connection with acts of terrorism
against the United States. While Section 1032 includes some
exceptions and waivers to the military custody requirement,
they are limited in scope and could create additional layers
of bureaucracy at critical points in our investigations.
Injecting this level of uncertainty and delay into terrorism
investigations could undermine law enforcement effectiveness.
To truly fight terrorism, all of the nation's law enforcement
assets should be deployed and enabled to act nimbly. This can
only be accomplished if our laws preserve flexibility and
prevent unnecessary bureaucracy from hampering law
enforcement activities.
As part of the nation's counterterrorism strategy, FBI
Agents work in the United States and abroad as an integral
part of the intelligence-gathering and interrogation process.
These interrogations are often instrumental in obtaining
information that is essential to efforts to thwart subsequent
acts of terror. The interrogation of detained persons,
however, must be adapted to each specific individual and
circumstance in order to be effective. Obtaining cooperation
or information requires a mix of patience, leverage, and
relationship-building that is inconsistent with the language
in Section 1032, which under a presumption of military
custody would require a waiver early in the process. FBI
Agents already work closely with the military and prosecutors
to conduct effective investigations, and interjecting a
requirement to obtain waivers from the Secretary of Defense,
while well-intentioned, risks delays and miscommunications
that would not serve the goal of conducting effective
investigations,
The FBIAA shares the goal of enacting and adopting policies
that protect Americans from terrorism, and we appreciate the
difficult task before the conferees working to reconcile H.R.
1540 and S. 1867. To this end, we urge the rejection of any
language that risks unnecessarily limiting the flexibility
that is essential to adapting our investigations to the
circumstances of each investigation. In the interest of
national security, please reject Section 1032 in the final
National Defense Authorization Act for Fiscal Year 2012. If
you have any questions or would like to discuss the FBIAA's
views on this issue, please do not hesitate to contact me.
Sincerely,
Konrad Motyka,
President.
Mr. DURBIN. Mr. President, I have a press report that was released
today relative to the testimony of Director Robert Mueller of the FBI,
which I referenced in my speech. So that his statement will be reported
more fully at this point, I ask unanimous consent to have printed in
the Record the press report from Politico.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From www.politico.com, Dec. 14, 2011]
On National Defense Authorization Act, Robert Mueller Not Satisfied
(By Josh Gerstein)
FBI Director Robert Mueller said Wednesday said he remains
concerned that a defense bill containing provisions about
military custody for terrorism suspects could interfere with
the FBI's ability to investigate terrorist incidents and
interrogate those believed responsible.
On Monday, a House-Senate conference committee announced a
revised version of the National Defense Authorization Act
that lawmakers said addressed many of the concerns that led
White House officials to threaten a veto. However, at a
Senate Judiciary Committee hearing Wednesday morning, Mueller
said he remains worried about aspects of the bill.
``The drafters of the statute went some distance to
resolving the issue related to our authority but the language
did not really fully address my concerns. . . .'' Mueller
said during questioning by Sen. Dianne Feinstein (D-Calif.),
who opposes the detainee-related language in the bill. ``I
was satisfied with part of it with regard to the authority, I
still have concerns and uncertainties that are raised by the
statute.''
Mueller said he fears that the legislation would muddle the
roles of the FBI and the military.
The bill ``talks about not interrupting interrogations,
which is good but gaining cooperation is something different
than continuing an interrogation,'' Mueller said. ``My
concern is that . . . you don't want to have FBI and military
showing up at the scene at the same time on a covered person
(under the law], or with a covered person there may be some
uncovered persons there, with some uncertainty as to who has
the role and who's going to do what.''
Mueller said later that he worries confusion caused by the
legislation could affect the FBI's ability to build rapport
with suspects.
``Given the statute the way it is now, it does not give me
a clear path to certainty as to what is going to happen when
arrests are made in a particular case. And the facts are gray
as they often are at that point,'' the FBI director said
under questioning by Sen. Chris Coons (D-Del.) ``The
possibility looms that we will lose opportunities to obtain
cooperation from the persons in the past that we've been
fairly successful in gaining.''
Backers of the defense bill say it will improve
intelligence collection by making military custody the
default for certain terrorism suspects. President Barack
Obama has established civilian custody and courts as the
default for terrorism cases, with the option to direct them
to military commissions when the Justice and Defense
departments deem it appropriate.
[[Page S8658]]
Since the conference bill was unveiled Monday, the White
House has been mute about whether the changes to the bill are
enough to win Obama's signature or whether he plans to carry
through with the veto threat.
Mr. DURBIN. I yield the floor.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, I thank the Senator from Illinois for
his very eloquent remarks; also, the Senator from Colorado, Mr. Udall,
whom I had the pleasure of hearing from my office. I think they have
encapsulated the situation we find ourselves in very well.
Mr. President, I wish to follow up on the detention authorities in
the Defense Authorization bill and announce that today I am introducing
legislation to clearly state that citizens apprehended in the United
States shall not be indefinitely detained by the military.
This new legislation is called the Due Process Guarantee Act of 2011.
I am joined by Senator Leahy, the chairman of the Judiciary Committee,
to which this bill will go, Senator Lee, a member of that committee,
Senator Kirk, Senator Mark Udall, Senator Paul, Senator Coons, and
Senator Gillibrand. I thank them for being original cosponsors of this
bipartisan legislation.
In sum, the Due Process Guarantee Act we are introducing will add to
another major law called the Non-Detention Act of 1971, which clearly
stated:
No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an act of Congress.
The new legislation we intend to introduce will amend this Non-
Detention Act to provide clearly that no military authorization
authorizes the indefinite detention without charge or trial of U.S.
citizens who are apprehended domestically. It also codifies a ``clear
statement rule'' that requires Congress to expressly authorize
detention authority when it comes to U.S. citizens and lawful permanent
residents for all military authorizations and similar authorities.
We cannot limit the actions of future Congresses, but we can provide
that if they intend to limit the fundamental rights of U.S. citizens,
they must say so clearly and explicitly.
I am very pleased to add that Senator Durbin will also cosponsor this
legislation.
Lawful permanent residents are included in this bill we will
introduce because they have the same due process protections as
citizens under the Constitution. In this bill, the protections for
citizens and lawful permanent residents is limited to those
``apprehended in the United States,'' excluding citizens who take up
arms against the United States on a foreign battlefield.
I strongly believe constitutional due process requires that U.S.
citizens apprehended in the United States should never be held in
indefinite detention. That is what this legislation would accomplish,
so I look forward to working with my colleagues, especially Chairman
Leahy on the Judiciary Committee, to move this bill forward.
I note the Senator from Illinois, Senator Kirk, is on the floor of
the Senate to speak about this bill as well.
Our current approach to handling these suspects in Federal criminal
courts has produced a strong record of success since the 9/11 attacks.
We would be wise to follow the saying, ``If it ain't broke, don't fix
it.''
Our system is not broken. We thwarted attempted terrorist acts. We
have captured terrorists, interrogated them, retrieved actionable
intelligence from them, prosecuted them, and locked them up for lengthy
sentences--in most cases for the rest of their lives.
Both Senator Udall and Senator Durbin pointed out Director Mueller's
testimony before the Judiciary Committee yesterday. This is relevant
because it had been said that the Director of the FBI was satisfied
with the language of the conference report of the Defense authorization
bill. When Director Mueller was asked the question yesterday, Are you
satisfied with the language, in so many words, he said, not quite. To
quote him, Director Mueller said:
Given the statute the way it is now, it doesn't give me a
clear path to certainty as to what is going to happen when
arrests are made in a particular case.
He warned:
The possibility looms that we will lose opportunities to
obtain cooperation from the persons in the past that we've
been fairly successful in gaining.
I am concerned about how these provisions will be implemented once
they are enacted into law, so I will be watching carefully to ensure
that they do not jeopardize our national security.
Finally, I want to explain, as the sponsor of the Feinstein
compromise amendment, No. 1456, that the Defense authorization bill
should not be read to authorize indefinite detention of U.S. citizens
captured inside the United States or abroad, lawful resident aliens of
the United States captured inside our country or abroad, or any other
persons who are captured or arrested in the United States.
On page 655 of the conference report, the compromise amendment, No.
1456, that passed the Senate by a vote of 99 to 1, reads this way, and
this is in the conference report of the Defense authorization bill:
Nothing in this section shall be construed to affect
existing law or authorities relating to the detention of
United States citizens, or lawful resident aliens of the
United States, or any other persons who are captured or
arrested in the United States.
What does this mean? This means we have agreed to preserve current
law for the three groups specified, as interpreted by our Federal
courts, and to leave to the courts the difficult questions of who may
be detained by the military, for how long, and under what
circumstances.
And the Due Process Guarantee Act will clarify that citizens and
lawful permanents cannot be detained without charge or trial if they
are apprehended domestically.
I interpret current law to permit the detention of U.S. citizens as
``enemy combatants,'' consistent with the laws of war, only in the very
narrow circumstance of a citizen who has taken an active part in
hostilities against the United States and is captured outside the
United States in an area of ``active combat operations,'' such as the
battlefields of Afghanistan. This was the Supreme Court's narrow
holding in Hamdi v. Rumsfeld in 2004.
I am sorry to say that Hamdi has been mischaracterized in this body.
Whether Congress should grant the President more expansive powers of
detention or act to curtail the powers identified by the Supreme Court
in Hamdi is a question that Congress will continue to debate in the
future. And we introduced the Due Process Guarantee Act to help clarify
current law: that citizens and lawful permanents cannot be detained
without charge or trial if they are apprehended domestically.
I would like to point out the errors in the legal analysis by those
who would interpret current law, or this Defense Authorization Act, to
authorize the indefinite detention of U.S. citizens without charge or
trial, irrespective of where they are captured or under what
circumstances.
Let's turn to the Supreme Court's 2004 opinion in Hamdi v. Rumsfeld,
which has been incorrectly cited by others for the proposition that the
2001 AUMF permits indefinite detention of American citizens regardless
of where they are captured.
Hamdi involved a U.S. citizen, Yaser Esam Hamdi, who took up arms on
behalf of the Taliban and was captured on the battlefield in
Afghanistan and turned over to U.S. forces. The Supreme Court's opinion
in that case was a muddled decision by a four-vote plurality that
recognized the power of the government to detain U.S. citizens captured
in such circumstances as ``enemy combatants'' for some period, but
otherwise repudiated the government's broad assertions of executive
authority to detain citizens without charge or trial.
In particular, the Court limited its holding to citizens captured in
an area of ``active combat operations'' and concluded that even in
those circumstances, the U.S. Constitution and the due process clause
guarantees U.S. citizens certain rights, including the ability to
challenge their enemy combatant status before an impartial judge. The
plurality's opinion stated:
It [the Government] has made clear, however, for the
purposes of this case, the ``enemy combatant'' that it [the
Government] is seeking to detain is an individual who, it
alleges, was ``part of or supporting forces hostile to the
United States or coalition partners'' in Afghanistan, and
who ``engaged in an armed conflict against the
[[Page S8659]]
United States'' there. Brief for Respondents 3.
That was all a quote from the plurality opinion, and it continues:
We therefore answer only the narrow question before us:
whether the detention of citizens falling within that
definition is authorized.
The opinion goes on to say at page 517:
We conclude that the AUMF is explicit congressional
authorization for the detention of individuals--
And here it is--
in the narrow category we describe. . . . And the narrow
category they describe is one who is part of forces hostile
to the U.S. on the battlefield of Afghanistan. Indeed, the
plurality later emphasized that it was discussing a citizen
captured on the battlefield. In responding to Justice
Scalia's dissenting opinion, the plurality opinion says:
Justice Scalia largely ignores the context of this case: a
United States citizen captured in a foreign combat zone.
The plurality italicized and emphasized the word ``foreign'' in that
sentence.
Thus, to the extent the Hamdi case permits the government to detain a
U.S. citizen until the end of hostilities, it does so only under a very
limited set of circumstances; namely, citizens taking an active part in
hostilities who are captured in Afghanistan and who are afforded
certain due process protections, at a minimum.
It is also worth noting that amid lingering legal uncertainty
regarding whether the government had the authority to detain Hamdi, the
Government--this was the Bush administration--saw this and released
Hamdi to Saudi Arabia on the condition that he relinquish his U.S.
citizenship.
As a result, I don't regard the Supreme Court's decision in Hamdi as
providing any compelling support for broad assertions of legal
authority to detain U.S. citizens without trial. Certainly, the case
provides no support for the indefinite detention of citizens captured
inside the United States.
Let me go back to something. In 1971, the Congress passed, and
Richard Nixon signed into law, a Non-Detention Act to preclude this
very possibility. That act was intended in large measure to put the
wrongs of Japanese internment during World War right. It provides
simply:
No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an act of Congress.
I very much agree with the Second Circuit Court of Appeals, which
held in the case of Padilla v. Rumsfeld that:
[W]e conclude that clear congressional authorization is
required for detentions of American citizens on American soil
because . . . the Non-Detention Act . . . prohibits such
detentions absent specific congressional authorization.
The Second Circuit went on to say that the 2001 AUMF ``is not such an
authorization and no exception to [the Non-Detention Act] otherwise
exists.''
The Fourth Circuit came to a different conclusion when it took up
Padilla's case, but its analysis turned entirely on disputed claims
that ``Padilla associated with forces hostile to the U.S. Government in
Afghanistan'' and, ``like Hamdi,'' and this is a quote, ``Padilla took
up arms against United States forces in that country in the same way
and to the same extent as did Hamdi.''
To help resolve this apparent dispute between the circuits, I believe
we need to pass the Due Process Guarantee Act that my cosponsors and I
are introducing today.
I would like to add Senator Bill Nelson of Florida as a cosponsor.
The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so
ordered.
Mrs. FEINSTEIN. This is important. We spent about half a day on this
floor discussing this with Senator Levin, with Senator McCain, in the
cloakroom with Senators Lee and Paul, as well as with a whole host of
staff both from the Armed Services Committee as well as the
Intelligence and Judiciary Committees. Here is the conclusion: I, and
many of my colleagues and legal scholars, believe neither the AUMF nor
the provisions of the National Defense Authorization Act that we are
considering today constitute such an express authorization to detain
American citizens.
As I previously mentioned, I sponsored compromise amendment No. 1456
to the Defense bill when it passed the Senate and that amendment has
now become section 1021(e) of the conference report specifically to
prevent misrepresentations from providing Congressional intent to
support the detention of Americans.
Ex parte Quirin is a 1942 Supreme Court case that upheld the
jurisdiction of a U.S. military tribunal that tried several German
saboteurs captured inside the United States during World War II and
brought to stand trial before the hastily convened military tribunal.
One of the saboteurs, Herbert Hans Haupt, was a U.S. citizen.
However, the question at issue in Quirin was not whether a U.S. citizen
captured inside the United States could be held indefinitely under the
laws of war without trial, but rather, whether such an individual could
be held in detention for a matter of weeks pending trial by military
commission.
Haupt was, in fact, tried, convicted and sentenced to death within
weeks after his capture. Moreover, the Quirin opinion predates the
Geneva Conventions, a milestone of rather substantial significance in
the development of the law of war, and the decision also predates the
Non-Detention Act of 1971.
As Justice Scalia said in his dissent in Hamdi: ``[Quirin] was not
[the Supreme] Court's finest hour.''
The only recent case of a U.S. citizen captured inside the United
States and held as an enemy combatant under the law of war is that of
Jose Padilla.
However, amid considerable legal controversy regarding the legality
of his detention, Padilla was ultimately transferred out of military
custody and tried and convicted in a civilian court.
Padilla, a U.S. citizen, was arrested in Chicago on May 8, 2002 on
suspicion of plotting a dirty bomb attack in the United States. He was
initially detained pursuant to a material witness warrant based on the
9/11 terrorist attacks.
On June 9, 2002, two days before a Federal judge was to rule on the
validity of continuing to hold Padilla under the material witness
warrant, President Bush designated him an ``enemy combatant'' and
transferred him to a military prison in South Carolina for detention
pursuant to the law of war without charge or trial.
Padilla subsequently filed a petition for a writ of habeas corpus in
Federal court challenging the legality of his continued detention and
an extended series of appeals ensued.
Facing an impending Supreme Court challenge and mounting public
criticism for holding a U.S. citizen arrested inside the U.S. as an
enemy combatant, President Bush ordered Padilla transferred to civilian
custody to face criminal conspiracy and material support for terrorism
charges in Federal court. The criminal charges against Padilla were
not, however, related to Padilla's alleged involvement in a dirty bomb
plot, which had been the basis for his prior detention as an enemy
combatant.
Padilla was subsequently convicted and sentenced to 17 years in
prison. That 17-year sentence has since been vacated and is under
reconsideration. Thus, the Padilla case is at best inconclusive as to
the President's authority to detain a citizen captured inside the
United States as an ``enemy combatant.'' More likely, it evidences the
folly of such overreaching assertions of Executive power.
Despite my longstanding opposition to the detention provisions in
this bill, I will be voting yes on this important legislation. The main
reason I support the defense authorization bill is because it ensures
our troops deployed around the world--especially those in Afghanistan--
have the equipment, resources, and training they need to defend this
Nation.
I wish to sum up by quoting Justice Sandra Day O'Connor, writing for
the plurality in Hamdi. Here is what she wrote:
As critical as the Government's interest may be in
detaining those who actually pose an immediate threat to the
national security of the United States during ongoing
international conflict, history and common sense teach us
that an unchecked system of detention carries the potential
to become a means for oppression and abuse of others who do
not present that sort of threat.
This is what Senator Kirk, Senator Lee, Senator Paul, and those of us
on the Democratic side who have worked on this truly believe. What
about the person captured on the corner who looks a certain way, who
gets picked up and put into detention? Does that
[[Page S8660]]
person have the right to a charge and to a trial? Our system of due
process and the Constitution of the United States say, simply, yes.
I look forward to working with my colleagues to pass the due process
guarantee bill.
I wish to defer to the distinguished Senator from Illinois, Senator
Kirk.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. KIRK. Madam President, I wish to rise in support of the
Feinstein-Leahy-Lee legislation. We are taking up the Defense
authorization bill with the controversial provisions in it, somewhat
protected already by the Feinstein language. But this legislation locks
in a fundamental truth that I think is important for our country, and
that is as a U.S. citizen inside the territory of the United States,
you have inalienable rights under our Declaration of Independence. We
are protected pursuant to the U.S. Constitution.
Our Constitution says all crimes, and prosecution thereof, shall be
pursuant to a grand jury indictment. There is no exception in the
Constitution for that. The Constitution grants a U.S. citizen a trial
in the State in which the crime was committed, I think clearly
envisioning a civilian trial. We, as Americans, have a right to a
speedy trial, not indefinite detention.
We as Americans have a right to a jury of our peers, which I would
argue is not enlisted or military personnel sitting in a jury. You
cannot search our persons or our places of business or homes without
probable cause under the Bill of Rights. You cannot be deprived of your
freedom or your property without due process of law, and that, I would
say, is not indefinite detention. All due process guarantees under law
are granted to you by the 14th amendment. I would actually argue that
no statute and no Senate and no House can take these rights away from
you.
It is very important to pass this legislation to prevent needless
litigation against constitutional rights, which I regard already as
your birthright as an American citizen. It is very important to talk
about what the Feinstein legislation does and does not do. I think it
is very narrowly crafted to defend the rights of American citizens and
resident aliens inside the United States. We agree that aliens who are
engaged or captured on foreign battlefields can be subjected to rough
justice, battlefield outcomes, or detention and prosecution by the U.S.
military.
We even agree that a U.S. citizen such as Anwar al-Awlaki, who took
up arms against the United States from his terrorist base, Yemen, is
then the proper subject of U.S. military action, and he received that
proper attention. Illegal aliens, even inside the United States--we are
not engaging on that subject. If they are part of jihad or other
warfare against the United States, they can be subjected to military
jurisdiction. But with regard to U.S. citizens and resident aliens on
U.S. soil, I would argue that the entire point of the Department of
Defense is to defend our constitutional rights and to make sure they
are honored. If you read the Constitution--and I would urge all Members
in this battle to reread it; it is only 5,000 words long--you will see
that the rights provided are without qualification and are part of your
birthright.
What is the first thing a U.S. Senator, a Member of Congress, or the
President does? They swear an oath to the Constitution of the United
States. What is the first act any American or resident alien joining
the U.S. military does? They don't swear allegiance to a President or a
leader or a territory; they swear allegiance to the U.S. Constitution,
and that is the mission which they are undertaking to protect.
We see a number of cases cited--as I noted, Ex parte Quirin, the
German spy, or U.S. nationals who landed in Long Island and were
summarily executed under U.S. military justice. I would say at least
they were part of a foreign military and trained in that mission and
trying to carry out that mission when that rough justice was put in
place.
With regard to Jose Padilla, he was a U.S. citizen--sometimes when I
was at the State Department, people would ask me who our Ambassador to
Puerto Rico was. Puerto Rico is part of the United States. He was a
full member of the country, with U.S. citizenship. He was arrested at
O'Hare Airport, but pursuant to executive action was immediately taken
into military custody and held in a brig. I regard all of his
constitutional rights were then violated. In the subsequent litigation,
I think eventually the Bush administration realized they were about to
lose this case, which is why they kicked him back into civilian court.
In the Hamdi case, which is so often cited, even there we at least
had a foreign connection, foreign training as part of another
battlefield. What we are talking about here is very narrow, to make
sure at the very least that you, as a U.S. citizen in U.S. territory,
are not going to be subjected to indefinite military detention and
military justice, that all of your constitutional rights are adhered
to.
I would simply ask this--also as a reserve naval officer--what U.S.
military officer wants the duty to roll in, for example, to Peoria, IL,
and arrest an American citizen for actions that citizen has only done
in the United States, not connected to a foreign military or training,
and then to put that person through military detention and justice? I
would say for the long-term interest of the U.S. military and to
protect the U.S. military, we do not want to give that mission to our
Armed Forces. A point of common sense should prevail here as well.
We spend billions of dollars on the Department of Homeland Security,
which is fully under the fourth and sixth amendments of our
constitutional protection. We have an extraordinarily able FBI, ATF,
DEA, et cetera, the whole panoply of Federal law enforcement, which,
quite properly, is not under the administration of the Pentagon but is
instead under the administration of the Department of Justice. We have
a vast array of State and local law enforcement all dedicated to
protecting the United States but, most importantly, to uphold the very
oaths they also take in their first minute as law enforcement officers
to protect the U.S. Constitution.
So on this day that we pass the NDAA, which has a murky provision
regarding this--somewhat protected by the Feinstein legislation--it is
very important for us then to rally behind the further legislative
protections here. I think this is strong, bipartisan legislation. I
commend Senator Feinstein, Chairman Leahy, and Senator Lee for bringing
it forward. No. 1, this will help protect the U.S. military from
missions that it should not undertake. No. 2, we will make sure there
is clear delineation between the Department of Justice, Homeland
Security, and its whole panoply of agencies, and our military, which
protects our rights from threat overseas. But, most importantly, No. 3,
to defend the U.S. Constitution, your birthright as an American citizen
to have these rights to make sure we do not subject any U.S. citizen
apprehended inside the United States to indefinite detention under U.S.
military authority, knowing they have inalienable birthrights that were
granted to them by the U.S. Constitution.
With that, I commend the Chair.
Mr. KIRK. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. KIRK. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. KIRK. Madam President, we have two other provisions that are in
the National Defense Authorization Act that I want to briefly mention.
First, we have a modified Brooks amendment in the conference report
that says if there is any plan to deliver classified missile defense
data to the Russians, the administration has to have a 60-day clock
expire and then certify to the Congress that none of this data could
end up in the hands of third parties, particularly the Iranians or
Syrians. I wish to put the administration on notice that that
certification probably cannot be made. Dmitry Rogozin, the lead
negotiator on the missile defense for their government, has a close and
continuing relationship with Iran. He is going to Iran next month. When
we see the intelligence sharing and cooperation on
[[Page S8661]]
missiles and on other weaponry, but especially discussions about a
second nuclear reactor in Iran, I think we should all realize that any
classified data on U.S. missile defense going to the Russians would be
given to the Iranians.
Remember, in missile combat between enemies of the United States and
ourselves, everything would be over potentially in a matter of hours.
If the Russians accomplish by diplomacy what they have failed to do by
espionage, which is getting critical details of U.S. missile defense,
and especially missile defenses of Poland and other key allies, we give
only a few minutes to a few hours to the U.S. commander to be able to
diagnose the problem, understand how he has been penetrated or fooled,
and to correct that. I think that weakens the defenses of the United
States significantly.
I had a hold on the nominee for the U.S. Ambassador to Moscow,
Michael McFaul. Because of the passage of the modified Brooks amendment
and a written letter of assurances given to me by the administration, I
have now lifted that hold. I will be supporting his nomination also
because he will be good in working with the opposition and human rights
communities in Russia.
But I think everyone is now on notice that we should not move forward
with any plan to provide classified missile defense data to Russia
because it will be shared with the Islamic Republic of Iran, and that
is one of the principal threats for which the U.S. and NATO missile
defenses are arrayed against.
A second provision which is in the National Defense Authorization Act
concerns Iran itself. Senator Menendez and I teamed up on an amendment
that also says: If you do business with the Central Bank of Iran, you
may not do business with the United States. But we provided critical
flexibility to the administration. The amendment is not imposed for
weeks, if not months, and two critical waivers are put in the amendment
which say, No. 1, if we find a critical shortage in oil markets because
of Iran's leading role, sanctions could be delayed if not suspended.
Also, there is a general national security waiver put in if something
unexpected happens. But, in general, the rule goes forward that we are
moving forward on a comprehensive plan to collapse the Central Bank of
Iran.
Despite Secretary Geithner opposing the Menendez-Kirk amendment, this
body voted 100 to 0 to support that amendment because we know of the
International Atomic Energy Agency's report that they may be getting
close to having enough fissile material for a nuclear weapon. We know
of Iran's support for Hezbollah and Hamas. We know of their oppression
of minorities, especially 330,000 Baha'is, who have been prohibited
from contracting with the Iranian Government. Kids are not allowed to
be in university. We even know of one poor Iranian actress who was
sentenced to 90 lashes, later suspended, for simply appearing in an
Australian film without a head dress.
The time for action on Iran is now. With the passage of the National
Defense Authorization Act and the signature that we now expect from the
President, a set of clocks begins, 60- and 180-day clocks. I will be
teaming with Senator Menendez and others--in fact, with the entire U.S.
Senate that supported this--to make sure we have the toughest action
possible to collapse the Central Bank of Iran, which the Treasury
Department noted is the central money launderer for that government to
support terror and nuclear proliferation.
With that, I yield the floor. Actually, I yield to my colleague from
New Hampshire.
The PRESIDING OFFICER. The Senator from New Hampshire.
Ms. AYOTTE. Madam President, I rise today in support of the National
Defense Authorization Act. In particular, I wish to speak briefly about
the detainee provisions contained in the conference report.
I have spoken many times over the last few months about this issue,
but due to the importance of these issues--and I think because of some
of the unfortunate mischaracterizations we have heard about the
bipartisan compromise that passed this body already overwhelmingly and
came out of the Armed Services Committee overwhelmingly--I wanted to
come to the floor to make some closing points on this.
I would like to start with this proposition: No member of al-Qaida,
no terrorist, should ever hear the words ``you have the right to remain
silent.'' That fundamental principle is at the heart of the issue we
confronted in the Armed Services Committee in addressing the detainee
provisions that are contained within the Defense authorization report.
The central issue is, how do we best gather intelligence to protect our
country from future attacks?
It is common sense that if we tell a terrorist they have the right to
remain silent, they may exercise that right. What if they do so and
they have additional information about future attacks on our country
or, as in the case of the so-called Underwear Bomber--which,
unfortunately, in my view, has been cited by some of my colleagues as a
success--if that event had been part of a series of events such as the
events that occurred on 9/11 where we were attacked on our own soil,
what would we have lost? After 50 minutes, the so-called Christmas
Bomber was told he had the right to remain silent and he exercised that
right and we did not get to question him again until 5 weeks later,
after law enforcement officials tracked down his parents in another
country and convinced him to cooperate. That is not a good policy to
gather intelligence to protect our country, and that is at the heart of
what we are trying to address on a bipartisan basis in the Defense
authorization bill.
We have to ask ourselves: The events of 9/11, were they acts of war
or were they a crime against our country? I firmly believe we are at
war with members of al-Qaida; that what happened on September 11 was an
attack against the United States of America. Innocent Americans were
killed not because of what they did but because of what we believe in
and what we stand for as a country.
So when I hear some of my colleagues suggest there are problems with
the detainee compromise that was achieved on a bipartisan basis in this
body--because we have basically said, if a foreign member of al-Qaida
comes to the United States of America, seeks to commit another 9/11
against us, seeks to attack our country or its citizens, that the
presumption will be military custody. That those provisions are
misguided in some way deeply troubles me. If this wasn't an act of war,
then I don't know what is. We need to make sure we treat enemies of our
country for who they are and make sure they are not read their Miranda
rights.
So in this bipartisan compromise we said there is a category of
individuals--members of al-Qaida or associated groups--who want to come
to America to attack us or our allies and for whom, yes, there is a
presumption of military custody. That way they don't have to be read
their Miranda rights or be provided the rights of our civilian system.
We also address the administration's concerns by giving them a
national security waiver, by allowing our law enforcement officials the
flexibility to come up with the procedures on how to implement the
provisions of this bill.
I wish to address what I heard from FBI Director Mueller yesterday,
just to be clear on the record, because yesterday FBI Director Mueller
raised concerns about these detention provisions saying there is a
possibility that looms that we will lose opportunities to obtain
cooperation from individuals we have been able to obtain cooperation
from in the past.
Well, I am concerned because when FBI Director Mueller came to a
group of us, including the chairman of the Armed Services Committee and
Ranking Member McCain, he raised operational concerns about this
provision, and we said we want to address those concerns. So in the
final conference report there is language that was given to us by the
FBI to address their operational concerns. It was included in this bill
without a comma changed.
So it makes me concerned when we put their language in to address
their concerns, saying nothing in this section shall be construed to
affect the existing criminal enforcement and national security
authorities of the Federal Bureau of Investigation or any other
domestic law enforcement agency with respect to a covered person
regardless of whether such covered person is held in military custody.
So I say to Director Mueller: We put your language in directly, and
it makes
[[Page S8662]]
me concerned when I hear, in my view, what are political viewpoints
rather than what is the reality of what is in this bill, which will
allow the FBI to continue its work and will allow for us to hold in
military custody those who are seeking to attack our country and will
ensure that Miranda rights do not have to be given if that is the best
investigative way to go forward to protect our country.
I see my colleague, the Senator from South Carolina, on the floor. I
wish to ask him a question about the bill and the detainee provisions,
particularly about the authorization for the use of military force. I
have heard some people on the floor of the Senate--including the
Senator from Colorado, the Senator from Illinois, and the Senator from
California--express concerns about the fact that this bill reaffirms
the authority of the President of the United States to detain an
American citizen who has joined with al-Qaida and who has, as a member
of al-Qaida or an associated force, joined arms against our country and
sought to kill Americans.
I wish to ask the Senator from South Carolina about this provision
and why it is important for our country.
Mr. GRAHAM. I thank the Senator from New Hampshire who has been a
great leader on this issue.
Let me just tell my colleagues what drives my thinking. I think we
are at war--I don't think it, I believe it. I hope my colleagues
believe it too, and I know America is part of the battlefield because
the enemy would like to destroy our country.
If we capture an al-Qaida operative overseas, does anybody in this
body suggest that we should give them a lawyer or read them their
rights? In World War II, if we had captured a Nazi soldier overseas and
started saying they had the right to remain silent and we would give
them a lawyer, even though Miranda didn't exist at the time, people
would have run us out of town.
So if we believe we can kill an American citizen who has joined al-
Qaida--the Awlaki case, where the President of the United States made
an executive decision under the rule of the law, not through a court
decision, to target an American citizen who had aligned themselves with
the enemy--then if we can kill them, which is pretty indefinite, why
can't we capture and hold them?
Now, that would be the dumbest thing in the history of the world for
a nation to say: We all acknowledge the executive branch's power to
target an American citizen who has aligned themselves with the enemy.
We can kill them overseas, we can capture them overseas, we can
interrogate them about what they know about future attacks, but when
they get here we have to treat them as a common criminal.
I think what we share, I say to the Senator from New Hampshire, is
that we think al-Qaida operatives, citizens or not, are not common
criminals. We think they are crazy people, warriors, bent on our
destruction, who would blow themselves up just as quickly as they would
blow you up, and they don't care if they blow themselves up. The only
reason the Christmas Day Bomber didn't kill a bunch of people is
because his shoe didn't go off. The only reason the Times Square Bomber
didn't kill a bunch of people is because the bomb didn't go off.
If you are an American citizen and you want to help al-Qaida kill
Americans and destroy your own country, here is what is coming your
way. If you happen to be listening to this debate, please understand
the law as it is today and as it is going to be after this bill is
passed: We are at war. The authorization to use military force passed
by the Congress right after the attacks against this Nation designates
al-Qaida as a military threat, not a common criminal threat, so we
apply the law of war. There are two legal systems at play: domestic
criminal law that well serves us as a nation to deal with crime--even
the worst person, the worst child abuser gets a lawyer and is presumed
innocent. Believe it or not, war criminals get lawyers and are presumed
innocent.
I am proud of both systems, but the law enforcement model doesn't
allow us to hold someone for a period of time to gather intelligence.
Under the law enforcement model, once we capture someone, we have to
start reading them their rights and providing them with a lawyer. Under
the law of war model, we can hold someone who is part of the enemy
force and gather intelligence.
This is not the first war where American citizens have sided with the
enemy. In the In re Quirin case, a World War II case where American
citizens aided Nazi saboteurs, here is what the Court said: There is no
bar to the Nation holding one of its own citizens as an enemy
combatant. That has been the law for decades.
So if it made sense to hold an American citizen who was helping the
Nazis under military authority because they were helping a military
enemy of the Nation to gather intelligence, why in the world wouldn't
it make sense to hold somebody who has joined with al-Qaida to gather
intelligence about the next attack?
Let me give an example of what we may face. Homegrown terrorism is on
the rise. The Internet is out there. It is a good thing and a bad
thing. But the idea of people getting radicalized and turning against
their own country is a growing threat.
So the likelihood in the future of someone getting radicalized--an
American citizen here at home going to Pakistan, getting educated in
one of these extremist madrassas, coming back home, getting off the
plane at Dulles Airport, coming down to the Mall and starting to shoot
American citizens and tourists alike--is very real.
What this legislation does is it says from the Congress's point of
view we recognize the person who is aligned with al-Qaida is not a
common criminal, that we expressly authorize the indefinite detention
of someone who has joined al-Qaida operations.
Why is that important? Don't you think most Americans, I say to the
Senator, would be offended if after the person who went on a rampage in
the Capital to kill American citizens, to kill people in America, was
captured, we could not question them about: Is there somebody else
coming? We would have to say: You have the right to remain silent. Here
is your lawyer.
What we should do with that person who went to Pakistan and got
radicalized and wants to come back and kill us all is hold them in
military custody, as we have done in every other war, and find out all
we can about future attacks and what they know. Because we are not
fighting a crime; we are fighting a war. That has been the law,
according to the Supreme Court, for decades, and all we are doing in
Congress is saying, statutorily: We recognize the authority of this
President and every other President to hold an enemy combatant for
intelligence-gathering purposes indefinitely, whether they are captured
at home or abroad, because that only makes logical sense. The idea of
criminalizing the war and not being able to gather intelligence will
put our country at risk.
Let me say this about the system: No one can be held as an enemy
combatant under the law we have constructed without having their day in
Federal court. So do not worry about going to a tea party or a
moveon.org rally or an Occupy Wall Street rally and somebody holding
you as a political prisoner under this law. The only people who can be
held under military custody for an indefinite period are ones who have
been found to have associated with al-Qaida in an overt way, and the
government has to prove that to a Federal judge. If the Federal judge
does not believe the government has made their case, the person is
released. If the Federal judge says to the U.S. Government: You have
convinced me that the person in front of me is cooperating and has
joined al-Qaida and is overtly engaged in hostilities against the
United States. I hereby authorize to you to hold that person to gather
intelligence, how long can you hold them? As long as it takes to make
us safe.
Here is what the law does. Every year, the person being held as an
enemy combatant has an annual review process where the experts in our
government look at the threat this person possesses, whether we have
more intelligence to be attained, and there is a legal process to
review ongoing detention.
Here is what some of my colleagues would say: Wait a minute. You
cannot
[[Page S8663]]
do that. We are going to say, as a Member of Congress, that at an
artificial date you have to let that person go or try them? A lot of
these cases will be based on intelligence that may not go to an article
III court. We may have to compromise our national security. We can
prove to a judge they are a member of al-Qaida, but we are not going to
take them to the criminal court because that is not in our national
security interest.
The key fact is, no one is held as an enemy combatant without
judicial review. Once you are determined to be an enemy combatant, then
we are going to apply the law of war, as we have for 200 years. The law
of war says: No nation has to let an enemy prisoner go or prosecute
them--because we are not fighting a crime; we are fighting a war.
If you are an al-Qaida operative, you could get killed, even if you
are an American citizen, by assisting the enemy at home or abroad. So
do not join al-Qaida because you could lose your life. If you do get
captured, you can be held indefinitely under the law of war because you
have committed an act of war.
Ms. AYOTTE. Would the Senator from South Carolina yield for a
question?
Mr. GRAHAM. I am pleased to.
Ms. AYOTTE. Isn't it true that included within the Defense
authorization language in the detainee provisions is that:
Nothing in this section is intended to limit or expand the
authority of the President or the scope of the Authorization
for Use of Military Force.
In other words, what is the law today--as you just described it--we
are reaffirming in this bill. But we are not adding or subtracting from
the President's authority that he has, as the Commander-in-Chief of our
country, to protect our country against members of al-Qaida.
Mr. GRAHAM. The Senator is correct.
But here is what we are doing. Here is what Lindsey Graham is doing,
and Carl Levin, and an overwhelming number of the Members of this body
are about to do. We are about to pass a defense authorization bill that
increases military pay, that has a lot of great things. But we are
about to say as a Congress: We believe we are at war, and we reject the
idea--the Libertarian idea; who are great Americans--that if you get to
America somehow, it is no longer a war.
I think the Libertarians agree that if you catch an al-Qaida
operative, including an American citizen, overseas, we do not have to
read them their rights, and we do not have to give them a lawyer. But
somehow, the perverse logic is, if they make it to America to attack
us, whether they are a citizen or not, somehow they get a special deal.
All of us who are voting for this bill say that is crazy; we are at
war. For no other war has that been the case. If you would have
suggested in 1942 that the American citizen helping the Nazis commit
sabotage against the United States had a special status and could not
be treated in the fashion of a military threat to the country, they
would have run you out of town.
So we are 10 years out from the attacks of 9/11, and here is what we
are rejecting: We are rejecting the criminalization of the war, but we
are doing it in a smart way. We are not telling the executive branch
they have to go into a law-of-war detention system. We are just saying
that is available to them. We are not telling the executive branch they
have to try people in military commissions. We are just saying to them
that is available for noncitizens. What we are telling the executive
branch is that we believe we are at war, and that narrow group of
people--thank God it is a narrow group--who join al-Qaida do not have
special privileges when it comes to destroying our homeland; that if
they make it to America, the closer they get to us, the more tools we
should have available to protect ourselves.
So we are on record--at least I am and I think the body as a whole.
Senator Levin has been terrific. The administration has been great to
work with. Finally, after 10 years, the Congress of the United States,
through this legislation, is going to make the simple statement, simple
proposition that under the law of war, you can be held as an enemy
combatant indefinitely to protect this Nation. Because when you join
al-Qaida--the enemy of us all--we are not worried about whether we are
going to prosecute you right away. We are worried about what you know
about the next attack coming.
Let me tell you why we need this flexibility. The Christmas Day
Bomber--the bomb did not go off, thank God; it was just luck--was read
his Miranda rights within 45 minutes. Five weeks later, his parents
convinced him to cooperate. What we are suggesting is there is another
way that has been used in other wars, that the U.S. intelligence
community, law enforcement community, and military have an option
available to them.
We could grab this person who has just tried to blow up an airplane
over Detroit--American citizen or not--and we can hold them without
telling them they have a right to a lawyer and reading them their
Miranda rights. Because we are trying to find out is another airplane
coming and what do they know about the enemy and what were they up to
and where did they train.
If we take that option off the table, we will have diminished our
national security. We will have overturned what every other time of war
has been about. We would be the first Congress in the history of the
country to reject the idea that we can hold someone who is
collaborating with the enemy under the law of war. Let's reverse this.
This is the first time in history people have said on the floor of the
Senate: We reject the Supreme Court holdings that allow the American
Government to hold someone as an enemy combatant when they have joined
the enemy forces at home or abroad.
So those of us who are voting for this, we are saying we accept the
proposition that if you join al-Qaida, you can be killed, you can be
captured, you can be interrogated. I am willing to accept the heat for
making that decision. Because if we cannot kill them and we cannot
capture them and we cannot interrogate them, we have made a huge
mistake because these people hate us. They hate who we are. They hate
what we stand for. They would kill us all if they could. They are out
there, and some of them are among us who have the title of ``American
citizen.''
But let me tell you about that title. Not only does it have rights,
it has responsibilities. Our courts have said there is nothing in our
law or our Constitution that prevents us from holding one of our own
when they join the enemy. Because when they join the enemy, they have
not committed a crime; they have turned on the rest of us, and they
should accept the consequences of being at war with America. Being at
war with America is something they should fear, and if they do not fear
being at war with America, we have made a huge mistake.
I believe in due process. No one is going to prison without a Federal
judge's oversight. No one stays in prison indefinitely without an
annual review. But, my God, we are not going to arbitrarily say: You
have to go. You have to be let go because of the passage of time and we
are not going to criminalize this war--because it is a war.
As sure as I am standing here talking today, we are going to be wrong
once. We have to be right every time, I say to the Senator. We have
been lucky, and our men and women in uniform and our intelligence
community and our FBI agents are doing a wonderful job. They are
working night and day to protect us. The threats are growing. They are
not lessening. There will come a day, I am sad to say, when we are
going to get hit again. But when that day comes, we are going to make
sure we have the tools to deal with it in terms of what it is: an act
of war. We are going to have the tools available to this country to
rein in the consequences because we are going to have the tools
available to find out where is the next attack coming from.
We are not going to criminalize the war. We are going to fight it
within our values. We are going to provide robust due process. But we
are going to acknowledge as a body in Congress that our Chief Executive
and those men and women in uniform, law enforcement agents, CIA
agents--that they have our blessing to do their job, and we are going
to acknowledge that they have the tools available in this war that were
available to other like people in other wars.
[[Page S8664]]
Ladies and gentlemen, if there was ever a war where it was important
to know what the enemy was up to and hit them before they hit us, it is
this war. They could care less about losing their lives. The only way
we will be safe is to gather intelligence, and we cannot gather
intelligence, in my view, by locking down America to ``Dragnet''
standards. This is not a TV show. This is a real-world event that
changes as I speak.
To Senator Levin, to Senator Ayotte, and to all those who have tried
to create a compromise to enjoy bipartisan support--to the
administration--thank you all. To the critics, some of your criticism
has been unfounded. But you have the right to be a critic. You live in
the State called ``Live Free or Die.''
Let me remind everybody, being a critic and being able to speak your
mind sometimes means people have to die.
What I am----
The PRESIDING OFFICER. The time for the Senator from New Hampshire
has expired.
Mr. GRAHAM. Madam President, could I ask for 30 seconds?
The PRESIDING OFFICER. Is there any objection?
Mr. LEVIN. Madam President, reserving the right to object--and I, of
course, will not--how much time is left before our vote?
The PRESIDING OFFICER. One minute.
Mr. GRAHAM. I will do this in 15 seconds.
Mr. LEVIN. If the Senator will save me 30 seconds, I would appreciate
it.
Mr. GRAHAM. Absolutely.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. This idea of civil liberties and the American way of
life--if we do not fight for it, we are going to lose it. We are under
siege and we are under attack. So let's fight back within our values.
This bill allows us to fight back, and I am very proud of the product.
I thank Senator Levin for being such a good leader for the Nation at
a time when we need good leaders.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, let me first thank Senators Graham and
Ayotte for their contributions this afternoon and long before this
afternoon on this subject.
The best answer to some of the criticism we have heard this
afternoon--the FBI has been successful. Why change it?--read the law,
read the conference report.
Nothing in this section shall be construed to affect the
existing criminal enforcement and national security
authorities of the Federal Bureau of Investigation. . . .
It is flatout explicit in the law.
Something else we have heard: We are doing something for the first
time--long-term custody for American citizens. Read the conference
report:
Nothing in this section shall be con-
strued to affect existing law or authorities
relating to the detention of United States
citizens. . . .
I urge people to read our conference reports read the Senate bill,
before they accept some of the arguments which have been made against
this conference report.
Madam President, I ask unanimous consent that the statement of the
Press Secretary for the President that was issued yesterday on behalf
of the President be printed in the Record, including this line:
[W]e have concluded that the language does not--
The language in the conference report--
challenge or constrain the President's ability to collect telling
intelligence, incapacitate dangerous terrorists, and protect the
American people--
And the key words for many people--
and the President's senior advisors will not recommend a
veto.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement From the Press Secretary on the NDAA Bill
We have been clear that ``any bill that challenges or
contrains 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.'' After intensive engagement by senior
administration officials and the President himself, the
Administration has succeeded in prompting the authors of the
detainee provisions to make several important changes,
including the removal of problematic provisions. While we
remain concerned about the uncertainty that this law will
create for our counterterrorism professionals, the most
recent changes give the President additional discretion in
determining how the law will be implemented, consistent with
our values and the rule of law, which are at the heart of our
country's strength. This legislation authorizes critical
funding for military personnel overseas, and its passage
sends an important signal that Congress supports our efforts
as we end the war in Iraq and transition to Afghan lead while
ensuring that our military can meet the challenges of the
21st century.
As a result of these changes, we have concluded that the
language does not challenge or constrain the President's
ability to collect intelligence, incapacitate dangerous
terrorists, and protect the American people, and the
President's senior advisors will not recommend a veto.
However, if in the process of implementing this law we
determine that it will negatively impact our counterterrorism
professionals and undercut our commitment to the rule of law,
we expect that the authors of these provisions will work
quickly and tirelessly to correct these problems.
Mr. LEVIN. Again, I want to thank all of my colleagues who
participated in this debate.
I yield the floor.
The PRESIDING OFFICER (Ms. Klobuchar.) The question is on agreeing to
the conference report.
Mr. LEVIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Kansas (Mr. Moran).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 86, nays 13, as follows:
[Rollcall Vote No. 230 Leg.]
YEAS--86
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Carper
Casey
Chambliss
Coats
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Enzi
Feinstein
Gillibrand
Graham
Grassley
Hagan
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Roberts
Rockefeller
Rubio
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wicker
NAYS--13
Cardin
Coburn
Crapo
DeMint
Durbin
Franken
Harkin
Lee
Merkley
Paul
Risch
Sanders
Wyden
NOT VOTING--1
Moran
The conference report was agreed to.
MR. LEVIN. Madam President, I move to reconsider the vote by which
the conference report was agreed to.
Mr. MENENDEZ. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
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