[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

[[Page S8645]]

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

[[Page S8646]]

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.

[[Page S8649]]

                             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

[[Page S8653]]

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

[[Page S8654]]

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.

[[Page S8655]]

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

[[Page S8656]]

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:


[[Page S8657]]


       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.

                          ____________________