[Congressional Record Volume 161, Number 88 (Wednesday, June 3, 2015)]
[Senate]
[Pages S3642-S3654]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2016

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of H.R. 1735, which the clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 1735) to authorize appropriations for fiscal 
     year 2016 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.

  The PRESIDING OFFICER. Under the previous order, the time until 2:30 
p.m. will be for debate only and equally divided between the bill 
managers or the designees.
  The Senator from Arizona.


                           Amendment No. 1463

                (Purpose: In the nature of a substitute)

  Mr. McCAIN. Mr. President, I call up amendment No. 1463, which is at 
the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. McCain] proposes an amendment 
     numbered 1463.

  Mr. McCAIN. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in the Record of June 2, 2015, under ``Text 
of Amendments.'')


                            Order for Recess

  Mr. McCAIN. Mr. President, I ask unanimous consent that the Senate 
stand in recess from 1 p.m. until 2 p.m. today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, it is my pleasure to rise with my friend 
and colleague from Rhode Island to speak about the National Defense 
Authorization Act for Fiscal Year 2016. For 53 consecutive years, 
Congress has passed this vital piece of legislation, which provides the 
necessary funding and authorizes--I repeat, authorizes--our military to 
defend the Nation. The NDAA is one of few bills in Congress that 
continues to enjoy bipartisan support year after year. This is a 
testament to the legislation's critical importance to our national 
security and the high regard with which it is held by the Congress.
  Last month, the Senate Armed Services Committee voted 22 to 4 to 
approve the NDAA, an overwhelming vote that reflects the committee's 
proud tradition of bipartisan support for the brave men and women of 
our armed services.
  I thank the committee's ranking member, the Senator from Rhode 
Island. Despite his failure of education at our Nation's military 
academy, I appreciate the thoughtfulness and bipartisan spirit with 
which he approaches our national security. It has been a pleasure to 
work with Senator Reed over the last few months and years on this 
legislation and today as we appear on the floor on behalf of this 
legislation.
  We have worked through some of the toughest issues facing our 
military today. We have our differences on some aspects of this 
legislation, but those differences have never interfered with the 
search for common ground and consensus. This is a much better bill 
thanks to the Senator from Rhode Island.
  I also thank the majority leader, the Senator from Kentucky, for his 
commitment to resuming regular order and bringing the NDAA to the floor 
this week. Under the leadership of the Senator from Kentucky, the 
Senate will be able to take up this critical national security 
legislation on time, allowing for thoughtful consideration and 
amendments and giving our military the certainty they need to plan and 
execute their missions.
  That stands in stark contrast to the last 2 years under Democratic 
leadership, when this body failed to take up the NDAA until the very 
end of the year, at the last minute, with no amendments allowed.
  Just yesterday the Democratic leader said considering this vital 
Defense bill is just a ``waste of time''--waste of time. Those comments 
must be very disappointing to the servicemembers, retirees, and their 
families in his home State of Nevada who clearly understand the 
importance of this legislation.
  The fiscal year 2016 NDAA is a reform bill. It tackles acquisition 
reform, military retirement reform, personnel reform, commissary 
reform, headquarters and management reform. This legislation delivers 
sweeping defense reforms that can enable our military to rise to the 
challenges of a more dangerous world, both today and in the future. The 
Armed Services Committee identified $10 billion of excess and 
unnecessary spending from the President's defense budget request, and 
we are reinvesting it in military capabilities for our war fighters and 
reforms that can yield long-term savings for the Department of Defense. 
We did all of this while upholding our commitments to our 
servicemembers, retirees, and their families.
  This legislation is a reflection of the growing threats we face in 
the world. Over the past few months, the Senate Armed Services 
Committee has received testimony from many of America's most respected 
statesmen, thinkers, and former military commanders. These leaders had 
a common warning: America is facing the most diverse and complex array 
of crises since the Second World War. Just consider some of the 
troubling events that have transpired over the past year.
  In Ukraine, Russia has sought to redraw an international border and 
annex the territory of another sovereign country through the use of 
military force. It continues aggressively to destabilize Ukraine, with 
troubling implications for security in Europe. Yet the President 
continues to refuse to provide Ukraine with the defensive weapons they 
need and have repeatedly requested to defend their sovereign nation 
from Russia's onslaught.
  In the Middle East, a terrorist army, with tens of thousands of 
fighters, many holding Western passports, has taken over a vast swath 
of territory and declared an Islamic State in the heart of one of the 
most strategically important parts of the world. Nearly 3,000 U.S. 
troops have returned to Iraq to combat this threat, with U.S. aircraft 
flying hundreds of strike missions a month over Iraq and 
Syria. Unfortunately, as recent reports suggest, nearly 75 percent of 
those air missions never even dropped weapons, and meanwhile ISIS is 
taking territory on the ground, most recently in Ramadi and Palmyra.

  At the same time, amid negotiations over its nuclear program, Iran 
continues to pursue its ambitions to challenge regional order in the 
Middle East by increasing its development of ballistic missiles, 
support for terrorism, training and arming of pro-Iranian militant 
groups, and other malign activities in places such as Iraq, Syria, 
Lebanon, Gaza, Bahrain, and Yemen.
  Yemen has collapsed, as a Shia insurgency with ties to the Iranian 
regime has toppled the U.S.-backed government in Sana'a. Al Qaeda 
continues to use parts of the country to plan attacks against the West, 
the U.S. Embassy has been evacuated, and a U.S.-backed coalition of 
Arab nations has intervened militarily to reverse the gains of the 
Houthi insurgency and to restore the previous government to power.
  Libya has become a failed state, beset by civil war and a growing 
presence of transnational terrorist groups, such as Al Qaeda and ISIL, 
similar to Afghanistan in 2001.
  In Asia, North Korea continues to develop its nuclear arsenal and 
ever-more capable ballistic missiles, and late last year it committed 
the most destructive cyber attack ever on U.S. territory.
  China is increasingly taking coercive actions to assert expansive 
territorial claims that unilaterally change the status quo in the South 
and East China Seas and raise tensions with U.S. allies and partners, 
all while continuing to expand and modernize its military in ways that 
challenge U.S. access and freedom of movement in the western Pacific. A 
recent report in the Wall Street Journal described how China has taken 
steps to militarize the vast land features that it is actively 
reclaiming in the South China Sea.
  Unfortunately I could go on, but these are just some of the growing 
threats our Nation faces--threats that are far more serious than they 
were a year ago and significantly more so than when Congress passed the 
Budget Control Act in 2011. That legislation arbitrarily capped defense 
spending

[[Page S3643]]

and established the mindless mechanism of sequestration, which was 
triggered in 2013. As a result, with worldwide threats rising, we as a 
nation are on a course to cut nearly $1 trillion of defense spending 
over 10 years.
  The Committee on Armed Services has conducted wide-ranging bipartisan 
oversight on the effects of sequestration-level spending on our 
national defense, and every single military and national security 
leader who has testified before the committee this year has denounced 
sequestration and urged its repeal as soon as possible. Indeed, each of 
our military service chiefs testified that continued defense spending 
at sequestration levels would put American lives at risk. I want to 
repeat to my colleagues: Our armed services leaders have told the Armed 
Services Committee that American lives are at risk if we continue 
mindless sequestration. Don't we care about the risks and the lives of 
the young men and women who have volunteered to serve in our military? 
Don't we care about them?
  I urge my colleagues in the Senate and in the House to come together 
and repeal sequestration, and however that is accomplished, I will be 
glad to discuss, but our first priority has always been and always will 
be American security, our national security and the lives of the men 
and women who have volunteered to defend it.
  Unfortunately, this legislation doesn't end sequestration. Believe 
me, our committee would have done so if the NDAA were capable of it, 
but it is not. The NDAA is a policy bill. It deals only with defense 
and national security issues. It does not spend a dollar. It provides 
the Department of Defense and our men and women in uniform with the 
authorities and support they need to defend the Nation.
  Although the committee could not end sequestration, we did the most 
we could to authorize necessary levels of funding for the Department of 
Defense and our men and women in uniform. As a result, the NDAA fully 
supports President Obama's budget request of $612 billion for national 
defense, which is $38 billion above the spending caps established by 
the Budget Control Act. Let me repeat that. This legislation gives the 
President every dollar of budget authority he requested. The difference 
is our legislation follows the Senate budget resolution and funds that 
$38 billion increase through overseas contingency operations--or OCO--
funds.
  This is not my preferred option. It is not anybody's preferred option 
that I know of. I recognize that reliance on OCO spending limits the 
ability of the Department of Defense to plan and modernize our 
military. For this reason, the committee included a special 
transfer authority in this legislation that allows the Department of 
Defense to transfer the additional $38 billion from OCO to the base 
budget in the event that legislation is enacted that increases the 
statutory limitations on discretionary defense and nondefense spending 
in proportionately equal amounts.

  This was the product of a bipartisan compromise, and it was the most 
we could do in the NDAA to recognize the need for a broader fiscal 
agreement without denying funding for our military right now. 
Nevertheless, the White House threatened yesterday to veto this 
legislation over its additional OCO spending and because the Congress 
has not provided for similar increases in nondefense spending. This is 
misguided and irresponsible. With global threats rising, how does it 
make any sense to oppose a defense policy bill--legislation that spends 
no money but is full of vital authorities that our troops need--for a 
reason that has nothing to do with national defense spending? The NDAA 
should not be treated as a hostage in a budget negotiation.
  The political reality is that the Budget Control Act was signed by 
the President and remains the law of the land. So faced with a choice 
between OCO money and no money, I choose OCO. And multiple senior 
military leaders who testified before the Armed Services Committee this 
year said they would make the same choice for one simple reason: This 
is $38 billion of real money that our military desperately needs and 
without which, our top military leaders have said, they cannot succeed. 
Military leader after military leader has testified before our 
committee that they cannot carry out their obligations in their various 
commands to defend the Nation if the Budget Control Act--also known as 
sequestration--continues.
  My message is simple: Let's have our fights over government spending, 
but let's keep those fights where they belong--in the appropriations 
process, where money is actually spent. The NDAA is not the place for 
it. If the President and some of my colleagues oppose the NDAA due to 
concerns over nondefense spending, I suspect they will have a very 
difficult time explaining and justifying that choice to Americans who 
increasingly cite national security as a top concern.
  I care about nondefense spending. I really believe we need to fund 
many of the areas, such as the FBI, Border Patrol, and others. But to 
somehow equate that with national defense with the world as we see it 
today is either out of ignorance or partisanship--I don't know which, 
but neither is a valid ambition or reason.
  The NDAA is a policy bill, and this year's version is an incredibly 
ambitious one. It advances major reform initiatives that can make more 
efficient use of our precious taxpayer dollars while increasing 
military capability for our warfighters.
  In recent years, the Defense Department has grown larger but less 
capable, more complex but less innovative, more proficient at defeating 
low-tech adversaries but more vulnerable to high-tech ones. No one is 
more cognizant of this unfortunate fact than those of us whose 
responsibility it is to oversee our defense budget on the Armed 
Services Committee.
  It is a top priority for me, my colleague from Rhode Island, as well 
as all of my fellow committee members to ensure that every dollar we 
spend on defense is used wisely, efficiently, and effectively. The 
fiscal year 2016 NDAA makes important contributions to this reform 
effort. This legislation contains sweeping acquisition reform.
  Many of our military's challenges today are the result of years of 
mistakes and wasted resources. One recent study found that the Defense 
Department had spent $46 billion between 2001 and 2011 on at least a 
dozen programs that never became operational. I will repeat that--$46 
billion on programs that never became operational. What is worse, I am 
not sure who, if anyone, was ever held accountable for these failures. 
At a hearing 2 years ago, I asked the Chief of Naval Operations who was 
responsible for $2.4 billion in cost overruns on the USS Gerald R. Ford 
aircraft carrier. He had no answer.
  In today's vast acquisition bureaucracy where personnel and project 
managers cycle through rapidly, everyone is accountable and no one is 
accountable. We need acquisition reform now because our senior leaders 
must be held accountable for responsible stewardship of taxpayers' 
dollars.
  But this is not just about saving money. Acquisition reform is needed 
immediately to preserve U.S. technological and military dominance and 
is therefore a national security imperative. Over the last decade, our 
adversaries have invested heavily in modernizing their militaries with 
a focus on anti-access and area-denial technologies designed 
specifically to counter American military strengths. Meanwhile, an 
acquisition system that takes too long and costs too much is leading to 
the erosion of America's defense technological advantage. If we 
continue with business as usual, I fear the United States could lose 
this advantage altogether. In short, our broken defense acquisition 
system itself is a clear and present danger to the national security of 
the United States.
  The acquisition reforms in this legislation center on five principle 
objectives.
  First, the legislation establishes effective accountability for 
results. We give greater authority to the military services to manage 
their own programs, and we enhance the role of the service chiefs in 
the acquisition process. In exchange for greater authority, the bill 
demands accountability and creates new mechanisms to deliver it. 
Service chiefs, service secretaries, service acquisition executives, 
and program managers would sign up to binding management, requirement, 
and resource commitments.
  The bill also creates new incentives for the services to deliver 
programs on

[[Page S3644]]

time and on budget. If military services fail to manage a program 
effectively, they will lose authority and control over that program, 
and they will be assessed an annual cost penalty on their cost 
overruns, with those funds directed toward acquisition risk reduction 
efforts across the Department.
  Second, the legislation supports the use of flexible acquisition 
authorities and the development of alternative acquisition paths to 
acquire critical national security capabilities. The bill establishes a 
new streamlined acquisition and requirements process for rapid 
prototyping and rapid fielding within 2 to 5 years. It expands rapid 
acquisition authorities for contingency operations and cyber security 
missions, and the legislation allows the Secretary of Defense to waive 
unnecessary acquisition laws to acquire vital national security 
capabilities.

  Third, the NDAA improves access to nontraditional and commercial 
contractors. To give our military the necessary capabilities to defend 
the Nation, the Department of Defense must be able to access innovation 
in areas such as cyber, robotics, data analytics, miniaturization, and 
autonomy--the innovation that is much more likely to come from Silicon 
Valley, Austin or Mesa than Washington. But our broken acquisition 
system, with its complex regulation and stifling bureaucracies, is 
leading many commercial firms to choose not to do business with the 
Defense Department or to limit their engagement in ways that prevent 
the Department from accessing the critical technologies these companies 
have to offer. The NDAA creates incentives for commercial innovation by 
removing barriers to new entrants into the defense market. By adopting 
commercial buying practices for the Defense Department, the legislation 
makes it easier for nontraditional firms to do business with the 
Pentagon. The legislation also ensures that businesses are not forced 
to cede intellectual property developed at their expense to the 
government.
  Fourth, the NDAA streamlines the process for buying weapons systems, 
services, and information technology by reducing unnecessary 
requirements, reports, and certification. The legislation retains 
positive reforms made in the Weapons System Acquisition Reform Act of 
2009, but streamlines processes to support more rapid and efficient 
development and delivery of new capabilities. It would also establish 
an expert review panel to identify unneeded acquisitions regulations.
  Fifth, the legislation reinvigorates the acquisition workforce in 
several ways, including by establishing several direct-hire authorities 
for science and technology professionals to join the acquisition 
workforce. The legislation seeks to improve the attractiveness of 
acquisition functions to skilled military personnel through credits for 
acquisition-related assignments, creation of an enhanced dual-track 
career path to include acquisition, and increased business and 
commercial training opportunities.
  In a Statement of Administration Policy released yesterday, the White 
House asserted that transferring some acquisition authority back to the 
services is somehow inconsistent with the Secretary of Defense's 
exercise of authority, direction, and control over all of DOD's 
programs and activities. I could not disagree more with this assertion. 
What this legislation does is merely switch who does what in certain 
circumstances from different people who all directly report and serve 
under the authority, direction, and control of the Secretary of 
Defense. In this legislation, for a limited number of programs to start 
with, the Secretary of Defense will look to the service Secretaries 
directly for management of these acquisition programs rather than 
looking to the Under Secretary of Defense for Acquisition, Technology, 
and Logistics or AT and L. This is not usurpation of the Secretary of 
Defense's power. It is called streamlining of authorities and reducing 
layers of unnecessary bureaucracy. There is a section in the 
legislation that would allow the Secretary of Defense to continue to 
rely on more layers of management if he chooses but only if he 
certifies to Congress that this makes sense. There simply is not any 
undermining of the Secretary of Defense's authority here.
  Another concern raised has been that the transfer of milestone 
decision authority to the services would reduce the Secretary of 
Defense's ability through AT and L to guard against unwarranted 
optimism in program planning and budget formulation. Unwarranted 
optimism is indeed a plague on acquisition, and there is not a monopoly 
of that in the services. Yet there is nothing in this bill that 
overrides the requirement to use better cost estimates from the Office 
of Cost Assessment and Program Evaluation. In fact, new incentives and 
real penalties imposed on the services in the bill are designed to put 
some of this optimism in check.
  There is also belief manufactured in parts of the Department that the 
current system is working. They are saying the current system is 
working. That is laughable. The statistics are improving, first of all, 
because Secretary Gates canceled over 25 programs. It is easier to make 
your numbers when you are unilaterally disarming and buying less. 
Still, all of the programs that are left under the U.S. Defense 
Department AT and L management have over $200 billion in cost overruns. 
I want to repeat--$200 billion in cost overruns under the current 
setup. That is why it is imperative we change it. There are a lot of 
words to describe this, but success is not one of them. The USD AT and 
L is trying to have it both ways: claiming credit for all the 
improvements in the acquisition system while blaming the services for 
its long list of failures. This is exactly the problem this legislation 
is trying to address--blurred lines of accountability inside the 
Defense Acquisition System that allow its leaders to evade 
responsibility for results.
  Then, there is the issue of process and documentation. Defenders of 
the current acquisition system say they have it right. They might have 
it right if our adversary were the old Soviet Union and their 
centralized planned economy. The reality for the modern world is that 
under USD AT and L management process takes too long and adds costs and 
looks like it was designed by a Soviet apparatchik. For example, an 
Army study looked at the time it would take to go through all of the 
U.S. Defense Department AT and L reviews and buy nothing. What was the 
answer? Ten years to buy nothing.
  The Government Accountability Office looked at the much wanted 
milestone reviews that the office of the Secretary of Defense is 
touting as a success. Just one review takes on average 2 years. A 
similar review at the Missile Defense Agency takes about 3 months. Our 
adversaries are not shuffling paper, they are building weapons systems. 
It is time for us to do the same. The first step is to eliminate 
unnecessary calls for data from those outside the program office, just 
as David Packard recommended 30 years ago. This legislation does that.
  The acquisition reforms in this bill are sweeping, but there is much 
more work to do to transition what is in essence a Cold War management 
system into one that is more agile and nimble to meet the challenges of 
a globalized information age. This legislation marks the beginning of a 
multiyear process to change the acquisition system to be more open to 
next-generation technologies that can enable the United States to 
outpace its adversaries.
  Acquisition reform is part of a larger effort to reform the 
management of the Department of Defense. This bill seeks to ensure that 
the Department and the military services are using precious defense 
dollars to fulfill their missions and defend the Nation, not to expand 
their bloated staffs. While staff at Army headquarters increased 60 
percent over the past decade, the Army is now cutting brigade combat 
teams. The Air Force avoided mandated cuts to their headquarters 
personnel by creating two new headquarters entities, even as it 
complained it had insufficient personnel to maintain combat aircraft.
  I want to repeat that. The Air Force mandated cuts of headquarters 
personnel, not reducing by a single person but by creating new 
headquarters entities, even as it complained it had insufficient 
personnel to maintain combat aircraft. From 2001 to 2012, the defense 
civilian workforce grew at five times the rate of the Active-Duty 
military. I repeat that. From 2001 to 2012, the defense civilian 
workforce grew at five

[[Page S3645]]

times the rate of the Active-Duty military.

  This legislation initiates a reorganization of the Department of 
Defense in order to focus limited resources on operations rather than 
administration, to ensure military personnel can develop critical 
military skills, and to stabilize organizations and programs. The NDAA 
mandates a 30-percent cut in funding for headquarters and 
administrative staff over the next 4 years. These reductions generate 
$1.7 billion in savings for fiscal year 2016. As the Department 
implements these reductions, this bill authorizes the Secretary of 
Defense to retain the best talent available, rather than just the 
longest serving.
  Contrary to the Statement of Administration Policy that the White 
House issued yesterday, the reductions to Pentagon overhead and 
management staff are neither arbitrary nor across the board. These cuts 
are targeted to administrative functions, but they do not inflict 
unintended harms on functions such as mortuary affairs or sexual 
assault prevention. The legislation does not seek to micromanage the 
Defense Department. It cuts money from broad headquarters and 
administrative functions, but it defers to the Secretary of Defense on 
how, what, and where exactly to cut, and it instructs him to devise a 
plan to make these cuts wisely.
  Beyond management reform, the NDAA also puts forward wide-ranging and 
unprecedented reform to the military retirement system. Under the 
current 70-year-old system, 83 percent of servicemembers leave the 
service without any retirement assets. This system excludes the vast 
majority of current servicemembers who will not complete 20 years of 
uniformed service, including many veterans of the wars in Afghanistan 
and Iraq.
  The legislation creates a modernized retirement system and extends 
retirement benefits to the vast majority of servicemembers through a 
new plan offering more value and choice. Under the new plan, 75 percent 
of servicemembers would get retirement benefits. In many cases, the 
overall benefit of those serving at least 20 years will be greater than 
the current system. This new modernized retirement system will apply to 
members first joining a uniformed service on or after January 1, 2018. 
Current members are grandfathered but may choose to be covered by the 
new plan. The retirement reforms in this legislation will enable 
servicemembers to save for retirement earlier in their careers, create 
a new incentive to recruit millennials, and increase retention across 
the services. That is why these reforms are supported by the Veterans 
of Foreign Wars, the Reserve Officers Association, the National Guard 
Association, the Enlisted Association of the National Guard, and the 
Air Force Association, among others.
  In addition to retirement reform, the NDAA focuses on sustaining the 
quality of life of our military servicemembers, retirees, and their 
families. The legislation authorizes a 1.3-percent pay raise for 
members of the uniformed services in the grade O-6 and below. The bill 
authorizes $25 million to support local educational agencies that serve 
military dependent children, and $5 million in impact aid for schools 
with military dependent children with severe disabilities.
  The NDAA includes many provisions to improve the military health care 
system and TRICARE. The legislation allows the TRICARE beneficiary up 
to four urgent care visits without making them get a preauthorization. 
It requires DOD to establish appointment access standards and wait-time 
goals, and if a patient can't get an appointment within standards, the 
military hospital must offer an appointment in the TRICARE network. The 
legislation requires DOD to focus more on health care quality, patient 
safety, and beneficiary satisfaction by making them publish health 
outcome measures on their Web sites, and it requires a plan to improve 
the delivery of pediatric health care, especially for children with 
special needs. Furthermore, as military families frequently move from 
one location to another, their health care coverage must be seamless 
and portable, but too often families have to leap over several hurdles 
to get health care in a new location. This has to stop. We take care of 
that problem in this legislation.
  The NDAA also builds on the work of the past few years to prevent and 
respond to military sexual assault. The legislation contains a number 
of provisions aimed at strengthening the authorities of special 
victims' counsel to provide services to victims of sexual assault. The 
legislation also enhances confidential reporting options for victims of 
sexual assault and increases access to timely disclosure of certain 
materials and information in connection with the prosecution of 
offenses.
  This is a fiscally responsible NDAA. I have said that my top priority 
as chairman of the Senate Armed Services Committee is to repeal 
sequestration and return to a strategy-driven defense budget. But I 
have also made clear that repealing sequestration must be accompanied 
by a vigorous effort to root out and eliminate Pentagon waste. Given 
the fiscal constraints and global challenges confronting our military, 
we simply cannot afford to waste precious defense dollars.
  Our committee identified over $10 billion in excessive and 
unnecessary spending in the President's budget request: headquarters 
and administrative overhead, troubled information technology programs, 
weapons systems that are over budget and underperforming, among other 
items. The NDAA reinvests those savings in providing critical military 
capabilities for our warfighters and meeting unfunded priorities of our 
service chiefs and combatant commanders.
  Even as challenges to maritime security increase in the Middle East 
and the western Pacific, our Navy remains well below its fleet-size 
requirement of 306 ships. Moreover, our shipbuilding budget will 
experience even greater pressure at the end of this decade, as the Navy 
procures the replacement for the Ohio-class ballistic missile 
submarine. The NDAA directs savings identified in the budget request to 
accelerate Navy modernization and shipbuilding to mitigate the impacts 
of the Ohio-class replacement and to increase the Navy to meet rising 
threats.
  The legislation adds $800 million for additional advanced procurement 
for Virginia-class submarines, and $200 million for the next amphibious 
assault ship. The bill provides incremental funding authority for one 
additional Arleigh Burke-class destroyer. The bill accelerates the Navy 
LX(R) Amphibious Ship Program, shipbuilding for the afloat forward 
staging base, and procurement of the first landing craft utility 
replacement.
  The NDAA upgrades an additional guided missile destroyer with 
ballistic missile defense capability and funds advanced undersea 
payloads for submarines.
  Across the services, our military faces dangerous strike fighter 
capacity shortfalls. For example, we have seen delivery of the F-35 
Joint Strike Fighter fall well short of projections, even as the Air 
Force has retired hundreds of aircraft.
  Indeed, the President's budget request proposed cutting the Air Force 
down to 49 fighter squadrons, of which less than half would be fully 
combat mission ready. The NDAA addresses these shortfalls, and it is 
all the more urgent in view of the ongoing and anticipated operations 
in Iraq and Syria against ISIL, as well as a potential delay of force 
withdrawals from Afghanistan.
  The NDAA fully restores the planned retirement of the A-10 aircraft. 
The Air Force itself has said in its posture statement this year:

       There was a time when the Air Force could trade some 
     capacity in order to retain capability. But we have reached 
     the point where the two are inextricable; lose any more 
     capacity and the capability will cease to exist.

  The Armed Services Committee agrees. That is why divesting the A-10 
capability at this time incurs unacceptable risk in the capacity and 
readiness of the combat air forces without a suitable replacement 
available. The NDAA authorized procurement funding for 12 additional F-
18 Super Hornets for the Navy and 6 additional F-35B Joint Strike 
Fighters for the Marine Corps. The legislation also procures an 
additional 24 MQ-9 Reaper unmanned aircraft for the Air Force to 
support increased combatant commander requirements for medium-altitude 
intelligence, surveillance, and reconciliation support.
  The committee was similarly concerned about munitions capacity

[[Page S3646]]

across the services. So the NDAA adds funding for additional PAC-3 
missiles for ballistic missile defense and additional AMRAAM missiles. 
The legislation also increases Tomahawk missile production to the 
minimum sustaining rate and procures TOW tube-launched, antitank 
missiles to mitigate shortfalls for the Marine Corps.
  The NDAA supports modernization across the services. The legislation 
invests in lethality by enhancing the firepower of Stryker combat 
vehicles and increasing the survivability of the Apache attack 
helicopter against new threats. The NDAA fully supports the President's 
request for the F-35 Joint Strike Fighter Program and provides all 
executable funding for the Long Range Strike Bomber Program.
  In addition, the legislation authorizes $6.1 billion for Virginia-
class submarines, $3.5 billion for Arleigh Burke-class destroyers, and 
$1.4 billion for the Ohio-class replacement program.
  While the NDAA supports our military commanders' most urgent 
priorities, the bill also contains rigorous oversight measures to 
prevent further cost growth in major acquisition programs, including 
the F-35 Joint Strike Fighter, the Ford-class aircraft carrier, and a 
littoral combat ship.
  As adversaries seek to counter and thwart American military power, 
the NDAA looks to the future and invests in the technologies that will 
maintain America's military technological superiority. The NDAA 
provides $400 million in additional funding to support the so-called 
third offset strategy to outpace our emerging adversaries. The 
legislation funds a cyber vulnerability assessment, a new initiative to 
enable the services to begin evaluating all major weapons systems for 
cyber vulnerabilities. It also increases investment in six breakthrough 
technologies: cyber capabilities; low-cost, high-speed munitions; 
autonomous vehicles; undersea warfare; intelligence data analytics; and 
directed energy.

  Similarly, our Nation has only begun to realize the potential of 
unmanned combat aircraft, especially in a maritime environment. In the 
past 2 years, the Unmanned Combat Air System Demonstration Program, or 
UCAS-D, has achieved a number of historic firsts: the first carrier-
based catapult launch, the first arrested landing on a carrier, the 
first cooperative operations with manned aircraft aboard a carrier, and 
the first autonomous aerial refueling.
  The NDAA funds the remaining research and development work to be 
completed on UCAS-D, while directing the Secretary of Defense to 
develop competitive prototypes that move the Department toward a 
carrier-based, unmanned, long-range, low-observable, penetrating strike 
aircraft that can enhance the capability of the carrier air wing to 
meet future threats.
  The NDAA supports our allies and partners with robust training and 
assistance initiatives. The legislation authorizes nearly $3.8 billion 
in support for the Afghan National Security Forces as they continue to 
defend their country and the gains of the last decade against our 
common enemies. The legislation also authorizes the provision of 
defensive lethal assistance to Ukraine to help it build combat 
capability and defend its sovereign territory.
  The legislation supports efforts by Lebanon and Jordan to secure 
their borders against ISIL, and it creates a new initiative to provide 
equipment, supplies, and training to Southeast Asian nations in order 
to support them in building maritime domain awareness capabilities and 
addressing growing maritime sovereignty challenges in the South China 
Sea.
  Finally, this legislation contains a bipartisan compromise on how to 
address the challenge of the detention facility at Guantanamo Bay. 
President Obama has said from day one of his Presidency that he wants 
to close Guantanamo Bay. But 6\1/2\ years into his administration, the 
President of the United States has never provided a plan to do so.
  The NDAA would require the administration to provide a comprehensive 
plan to the Congress on how it intends to close Guantanamo, which would 
then have to be approved by both Houses of Congress. That plan would 
have to include a case-by-case determination on the disposition of each 
detainee at Guantanamo Bay, including a discussion of the legal 
challenges of bringing detainees to the United States and any 
additional authorities that might be needed.
  The plan would also have to address how the Department would ensure 
the continued detention and intelligence collection from future 
combatants captured under the laws of war. If such a plan is approved, 
the Congress would provide the President the authority to proceed with 
the closure of the facility. If the Congress does not approve the plan, 
nothing would change. The ban on domestic transfers would stay in 
force, and the certification standards for foreign transfers included 
in the NDAA would remain.
  This is an ambitious piece of legislation. It recognizes that in 
order to ensure that the Department of Defense is prepared to meet our 
present and future national security challenges, we must champion the 
cause of defense reform, rigorously root out Pentagon waste, and invest 
in modernization and next-generation technologies to maintain our 
military technological advantage.
  America has reached a key inflection point. The liberal world order 
that has been anchored by U.S. hard power for seven decades is being 
seriously stressed and with it the foundation of our security and 
prosperity. It does not have to be this way. We can choose a better 
future for ourselves but only if we make the right decisions now to set 
us on a better course. That is what this legislation is all about--
living up to our constitutional duties to provide for the common 
defense, increasing the effectiveness of our military, restoring 
America's global leadership, and defending a liberal world order.
  This legislation is a small step toward accomplishing those goals. 
But it is an important step that the Congress must take now and take 
together. For 53 consecutive years, Congress has passed a National 
Defense Authorization Act. This year should be no different. I am 
hopeful that the bipartisan spirit that has carried this legislation 
for over half a century will prevail once again.
  Ultimately, we owe the brave men and women in uniform, many of whom 
are still in harm's way around the world today, nothing less.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I rise to discuss the fiscal year 2016 
national defense authorization bill, which was recently reported out of 
the Senate Armed Services Committee.
  I want to begin by commending the chairman, Senator McCain, for his 
extraordinary leadership. I also want to reflect--because both the 
Presiding Officer, the Senator from Alaska, and I had the privilege of 
being with Senator McCain in Vietnam last week--that to recognize 
firsthand the heroic service of CDR John McCain is to recognize an 
extraordinary individual whose service, whose sacrifice, whose valor, 
whose fidelity to the principles of our military and to our Nation are 
virtually unique. But more important than that, it is to recognize that 
after observing the horrors and brutality of war, as few people have, 
he was able to summon the courage and the capacity to bring two 
countries together. Without Senator McCain's active participation--not 
alone but absolutely essential and perhaps the most essential part--the 
Government of the United States and the Government of Vietnam would not 
have diplomatic relations today. We would not have been at a university 
in Vietnam listening to young people talking about their future--a 
future that is not clouded by war but has the opportunity for peace and 
prosperity, working with us and working with the world community.
  I can't think of any historical examples of individuals working so 
hard to defeat each other, then so hard to embrace each other, save, of 
course, General Grant and General Lee. But I know the Senator would be 
offended by being compared to two West Point graduates, so I will 
simply say that he has made historic contributions to this country in 
so many ways. It is no surprise that he has taken the leadership of 
this committee and made a remarkable contribution. His vision to engage 
us in a strategic dialogue with some of the most sophisticated and 
experienced individuals in the country--Henry Kissinger, Madeleine 
Albright, and a host

[[Page S3647]]

of others--gave us the perspective to begin to look at the issues we 
face in a much more comprehensive and a much more thoughtful way. I 
have had the privilege of serving on the committee for many years. No 
one has done that. No one has set the stage so well. And then to bring 
our DOD witnesses together in that context of both the strategic vision 
and the operational budgetary requirements was absolutely incredible. 
All of this has made us better prepared on the committee to write this 
bill which is before us today.
  (Mr. SASSE assumed the Chair.)
  Let me also take a moment to thank the professional staff on both 
sides of the aisle. Their willingness to work together to tackle the 
hard issues has been the key to this authorization bill. I thank them 
in advance because their work has just begun. The hours they will spend 
over the next several days to go through the significant number of 
amendments--all of that will be unnoticed by many but appreciated 
certainly by me, the chairman, and all of us on the committee. Thank 
you.
  As the Senator from Arizona pointed out, this is basically a good 
bill. It has many provisions that were requested by the Department of 
Defense. It has many necessary reforms. The chairman has highlighted 
many of them. I think it will further our national security in many 
dimensions, and most importantly it will provide the training, 
equipment, and support our men and women in uniform deserve. I will try 
to focus on some of these important developments.
  However, there are some provisions in this bill that cause me 
concern--indeed, grave concern. One problem, I fear, is the familiar, 
oft-debated, and very complicated challenge of Guantanamo. While we 
have had some very carefully crafted compromise language in the bill, 
there are other provisions that reverse progress, particularly on the 
overseas transfer of detainees.
  We have a number of individuals who have been vetted for overseas 
transfer--not to the United States--that is not appropriate at this 
moment--but overseas. I think we have to continue that effort to 
repatriate these individuals outside of the United States, in areas in 
which their security and their activities can be appropriately 
monitored. I will spend a few more minutes--and in a few minutes, I 
will discuss an amendment that I may propose with respect.
  Despite all of these good provisions, however, I was ultimately 
unable to vote for the bill. After working closely and sincerely, with 
the leadership of the chairman, I am reluctantly unable to vote for the 
bill because at the heart, the funding mechanism to provide a 
significant portion of the resources--$39 billion--is, I think, an 
unsustainable aspect of the legislation.
  As the Senator pointed out, the legislation before us does not end 
the Budget Control Act's arbitrary caps on spending, and, as he also 
said, every major military official, every major senior defense 
official came and told us: We have to end the Budget Control Act caps 
and the prospect of sequestration. We have not done that.
  What the bill does is adopt a device--some have said a gimmick--that 
uses the overseas spending account to fund base activities of the 
Department of Defense. As I have indicated and as the chairman has 
suggested, the one request consistently received--in fact, just a few 
days ago, the commander of the Pacific forces indicated the same 
thing--is to end sequestration. We have not been able to do that.
  What the President's budget did is he sent up a request for $38 
billion above the budget cap levels in the base--not overseas defense 
spending but in the base. He requested $50.9 billion for contingency 
operations, overseas operations. We have been funding overseas 
operations since 9/11. This funding was designed to do what it suggests 
in the title. We have forces deployed overseas in combat, in contact 
with our enemies--Afghanistan, Iraq, and elsewhere--and this funding 
was to provide for those forces and indirectly for our supporting 
mechanisms, but the key was to support these forces overseas.
  Now what we have done--and it was done because we were unable to 
eliminate the budget caps under the Budget Control Act--is we have 
taken this OCO account and we have grossed it up dramatically.
  This approach has several problems. First, it doesn't solve--in fact, 
in some cases it complicates the DOD's budget problems. OCO, as I said, 
was created and should be used for war costs only. OCO has limits and 
restrictions. There are very strict rules that have to be followed. It 
is not flexible funds that can be moved around at will.
  Defense budgeting needs to be based on a long-term military strategy, 
which requires the DOD to focus at least 5 years ahead. OCO money is 1-
year money. It is just this year. There is no commitment statutorily 
that it will be available. There is no presumption, because it is in 
the base, that it will be the starting point of discussions for the 
next budget. Frankly and obviously, we cannot fight a multigenerational 
war with 1-year money. And we are in a multigenerational conflict. It 
has been more than a decade since we started our efforts in the wake of 
9/11, and we have challenges that will not resolve themselves in a 
year. To adopt a major part of our budget, roughly $39 billion, as one-
time--supposedly--funds is not a wise, sensible, and appropriate way to 
fund our security going forward.

  Another aspect is it doesn't reduce the deficit; it adds to the 
deficit. This is all deficit funding, so this is not a way to avoid 
tough decisions about how we are going to deal with our deficit.
  It also does not reach other vital aspects of national security that 
are housed in domestic agencies which are also critical for our 
national defense--the FBI, Homeland Security, the Coast Guard. All of 
these agencies contribute dramatically to our national defense. In 
fact, particularly with the threat of ``lone wolves''--and that is 
increasingly more of a concern to all of us--these agencies play an 
even more significant role in our overall national security. When you 
are talking about a national security strategy, it is not just the 
Department of Defense; it is the Department of State and it is 
engagement overseas.
  Again, as we were in Vietnam, we were talking to the Defense 
Minister, and one of his key priorities is a project to eliminate 
toxins in Bien Hoa airfield, an airfield we used extensively in 
Vietnam. To him, that would be a hugely significant indication of our 
support for their efforts. That is not funded through the Department of 
Defense; that would be principally funded through the AID. And you 
could go on and on.
  The approach we offer in the bill does not go to the heart of the 
problem that faces the Department of Defense and every other Federal 
agency, and that is the BCA caps and the steep cuts that will come into 
effect if sequestration is invoked. That is the heart of the matter. I 
offered an amendment in committee to address this problem, and 
unfortunately it failed. That was one of the reasons I reluctantly--
very reluctantly--chose not to support the bill, because there are so 
many, as the chairman indicated and as I will indicate, important 
provisions in this bill.
  What I tried to do was to say: Let's leave this money on the books, 
but let's fence it off until we can fix the real problem, which is the 
Budget Control Act and sequestration, which affects defense and 
nondefense alike.
  In the context of this floor debate, I hope to be able to once again 
rejoin that issue and ask my colleagues to recognize the heart of the 
matter--not the consequences affecting defense but the heart of the 
matter, which is the Budget Control Act.
  As I said, this is a bill with many laudatory provisions reflecting 
in large part bipartisan cooperation. Some of them have been discussed 
by the chairman, but I would also like to mention them.
  The bill provides key funding and authorities for the two major U.S.-
led coalition operations: the mission in Afghanistan and the counter-
ISIS coalition in Iraq and Syria. Critical to both of these operations 
are our efforts to build the capacities of our partner nations.
  With regard to Afghanistan, the bill includes the full $3.8 billion 
requested by the President to support the Afghan army, police, and 
other security forces fighting to secure the hard-fought gains of the 
past decade and to ensure that Afghanistan does not once again become a 
safe haven for Al Qaeda or other terrorist groups seeking to attack 
America.

[[Page S3648]]

  The bill would also increase the total number of visas for the Afghan 
Special Immigrant Visa Program by 3,000, providing a path to safety for 
Afghans who have put themselves at risk by serving as translators or 
otherwise helping our coalition efforts.
  For coalition efforts against ISIS, the bill provides additional 
funding for training and equipping the Iraqi security forces and other 
associated forces in Iraq, including the Kurdish Peshmerga and Sunni 
tribes, who are confronting the threat of ISIS in heavily contested 
Anbar Province and in other parts of Iraq. It includes $80 million for 
the Office of Security Cooperation in Iraq. It also provides an 
additional $600 million for the Syria Train and Equip Fund, to build 
the capabilities of a vetted, moderate opposition to fight ISIS in 
Syria. Additionally, $125 million is authorized to reimburse Lebanon 
and Jordan for operations that help secure their borders against ISIS.
  The bill includes funding for an initiative to expand the U.S. 
military presence and exercises in Eastern Europe, reassuring allies 
and countering the threat of hybrid warfare tactics like those used by 
Russia in the Crimea and eastern Ukraine. The bill also authorizes 
additional military assistance for Ukraine--including lethal 
assistance--to build the capabilities of Ukrainian security forces to 
defend against further aggression and ceasefire violations by Russian-
backed separatist forces.
  With respect to counternarcotics, which is another national security 
threat, the bill expands an existing authority to permit 
counternarcotics assistance to the Governments of Kenya, Tanzania, and 
Somalia. This expansion would allow for additional nonlethal assistance 
to those nations as they combat illicit trafficking in the region. In 
Latin America, the bill would provide assistance to support the unified 
counterdrug and counterterrorism campaign of the Government of 
Colombia. This assistance remains a key element of our bilateral 
security operation in Colombia and enables the commander of SOUTHCOM to 
provide critical enabling support upon request.
  The bill also provides an additional $50 million to address unfunded 
priorities identified by SOUTHCOM, including intelligence, 
surveillance, and reconnaissance, as well as maritime interdiction 
support operations in Central America.
  As the chairman indicated, the bill adds over $400 million in 
additional readiness funding for the military services across all 
branches, Active, Guard, and Reserve. These increases will provide 
resources for crucial programs aimed at improving our military 
readiness in many areas, including depot readiness, flying operations, 
cyber training, reducing insider threat attacks, behavioral health 
counseling, and other important programs.

  With respect to our nuclear deterrence, the committee bill fully 
authorizes the program for modernizing our triad of sea, ground, and 
airborne platforms. The last B-52 was produced in the 1960s, and by the 
time the Long-Range Strike Bomber, its replacement, begins to be 
fielded in the mid-2020s, the B-52 will be flown in some cases by the 
grandchildren of its first pilots.
  Turning to the undersea deterrent, the current Ohio-class submarine, 
which will ultimately carry upward of two-thirds of our strategic 
arsenal, is to be replaced by the Ohio replacement submarine. If we are 
to maintain a sea-based deterrent, the current Ohio fleet of 14 subs 
must be replaced starting in 2027 due to the potential for hull 
fatigue. By then, the first Ohio sub will be 46 years old--the oldest 
submarine to have sailed in our Navy in its history.
  Now, the third aspect of our triad--those of our land-based ICBMs--
will not need to be replaced until the 2030 timeframe. We have 
authorized a concept development for replacement of this most 
responsive leg of the triad which acts as a counterbalance to Russian 
ICBMs.
  As Secretary Carter noted in his confirmation hearing, our nuclear 
deterrence forms the bedrock of our defense policy. This is an 
essential mission which must not be neglected.
  In the area of technology and innovation, I am pleased this bill 
takes a number of steps to ensure that DOD has access to the most 
innovative minds in the private sector and to strengthen DOD's in-house 
laboratories. It significantly increases funding for university 
research programs as well as authorizing $400 million to support 
Secretary Carter's efforts to identify and fund new technologies that 
will help offset the advancing military capabilities of peer nations, 
invest in technologies such as lasers, unmanned systems, and undersea 
warfare.
  The bill also supports the DOD's laboratory enterprise by improving 
their ability to attract and hire the world's best and brightest 
scientists and engineers. These labs help DOD act as smart buyers and 
builders of the most advanced weapon systems on the planet and are 
often underappreciated for their endeavors.
  It also improves their ability to build world-class modern research 
infrastructure, encourages them to hire selected students from friendly 
foreign nations, and strengthens their ability to partner with 
industry, allowing small businesses to have access to the great 
intellectual property coming from DOD labs, as well as access to their 
research and technical equipment. I believe these policy changes and 
funding increases will continue to strengthen the technological 
dominance of our military forces while reducing the costs to build and 
maintain weapon systems in the future.
  There are also specific recommendations on hardware programs that 
will help the Department to improve management and cope with 
shortfalls, such as providing an additional 12 F-18 Super Hornets for 
the Navy and an additional 6 F-35B aircraft for the Marine Corps. These 
aircraft will help deal with the Department of Navy shortfall in strike 
fighter aircraft.
  It adds $800 million in Virginia-class advance procurement to provide 
flexibility to begin building Virginia-class boats with the enhanced 
payload module as soon as that version is ready for production and to 
help mitigate pressure on shipbuilding funds coming from the Ohio-class 
replacement program.
  It accelerates several other ship programs, including amphibious 
assault ships, the dock landing ship replacement, the next afloat 
forward staging base, the new salvage ship/fleet tug replacement, and 
the landing craft utility replacement.
  As the chairman indicated, this bill also includes critical 
authorities for our men and women in uniform. They are the heart and 
soul of our military. All the equipment in the world, as sophisticated 
as it is, will not make the difference that the young men and women who 
wear the uniform of the United States make each and every day. So this 
bill includes a 1.3-percent pay raise for most servicemembers, the 
reauthorization of over 30 types of bonuses and special pays to 
encourage enlistment and reenlistment in the military, and funds to 
provide health care to the force, retirees, and their families.
  Notably, this bill includes important benefit and compensation 
reforms either requested by the Department or recommended by the 
Military Compensation and Retirement Modernization Commission that 
helps to ensure the long-term viability of the all-volunteer force.
  For example, the bill includes a new retirement system for 
servicemembers joining after January 1, 2018, as recommended by the 
Commission, which grandfathers in the current force. For most 
servicemembers, this new system will provide a greater benefit at less 
cost to the government and will address perhaps the grossest inequity 
of the current system, as highlighted by the chairman--the fact that 83 
percent of all servicemembers leave military service with no retirement 
benefits at all. This is especially challenging, difficult, and in some 
cases even galling for those who have deployed multiple times and leave 
the service simply because they cannot endure the strain any longer. We 
essentially ask them to choose between retirement benefits or their 
mental health or the unity of their family. Under the new system 
contained in our bill, anyone who completes 2 years of service will be 
eligible to walk away with something.
  Notably, the bill does not include the overall TRICARE system 
recommended by the Commission. We have heard from the President with 
respect to TRICARE and agree these recommendations require more study. 
These reforms are vital. In a budget-

[[Page S3649]]

constrained environment, with hard spending caps, it is critical we 
strike the right balance between a military compensation package that 
provides a high quality of life for military families and training and 
modernization funding that provides a high quality of service and a 
ready force.
  As senior Department officials have testified, if we don't have 
enough money to provide our troops the latest technology and the 
training they need, we are doing them a disservice. When we send them 
into harm's way under these conditions, that disservice quickly 
translates into a breach of trust.
  The Department has assumed approximately $1.7 billion in savings in 
its 2016 budget relating to these benefit proposals and $25.4 billion 
over the entire FYDP. The committee supported these proposals and has 
redirected that funding to readiness and modernization accounts to 
restore those deficits. Difficult choices need to be made and this bill 
makes them. We might not yet have it perfectly right, but as we move 
through the legislative year, we will continue to work to ensure that 
we pay our servicemembers a fair wage while delivering the training and 
equipment necessary to succeed.
  This bill begins a process, long overdue, for reviewing different 
options, for example, for providing the commissary benefit to our 
servicemembers--another important aspect of quality of life. Included 
in one of these options is at least the consideration of privatization. 
I understand some Members may have some difficulty supporting these 
provisions, but the bill simply requires a number of studies to 
generate and evaluate new ideas, and a pilot program to test them, 
without requiring the actual privatization of the system. This is an 
experiment which I think is worth conducting, and I believe the 
chairman's leadership on this point was extraordinarily valuable.
  The bill also addresses the Department's management of its civilian 
workforce in two ways--one of which I agree with and one of which I 
will raise some questions. We have long heard from the Department that 
it lacks certain authorities to effectively manage its civilian 
workforce. This bill includes new authorities which will enable 
civilian managers to more effectively retain their best performing 
employees while divesting their poorest. These reforms, while painful 
for some, are sensible and necessary.
  However, this bill also mandates a management headquarters reduction 
of 7.5 percent in 2016 and 30 percent over 4 years. I am concerned that 
such deep, and at this point generalized, cuts to the civilian 
workforce may create more problems than it will solve. I am hoping we 
can take a more careful approach to headquarters reform and look 
forward to working with my colleagues on this issue as we move through 
the floor and through the conference to final passage.
  Again, as the chairman highlighted, this bill also contains roughly 
50 provisions on acquisition reform, and I commend the chairman for his 
efforts. The provisions will help streamline acquisition processes, 
allow DOD to access commercial and small businesses, and improve the 
acquisition workforce. They build on the successes of the reforms led 
by Chairman McCain and Chairman Levin in the Weapons System Acquisition 
Reform Act of 2009.
  I did have concerns about one provision in this area, and I thank the 
chairman for working with me to address it. I am sure we will be 
continuing this discussion of acquisition reform throughout the year 
and in the future. I expect the Department of Defense will have 
concerns over some of the provisions as well, so I look forward to 
working with the chairman and soliciting the best advice from 
acquisition experts in the government and industry so we can continue 
to improve our stewardship of taxpayer dollars and deliver the best 
technologies to our fighting forces.
  Now, let me turn to an area of concern which the chairman has 
highlighted and on which I may be offering an amendment; that is, 
Guantanamo. Over the past few years, the Senate Committee on Armed 
Services has led the way on Guantanamo-related issues, giving careful 
consideration to our detention policies and finding bipartisan 
solutions.
  In certain ways, this bill continues that tradition of bipartisan 
progress on Guantanamo issues. For example, it includes the authority, 
carried in our bill over the last 2 years, for the Secretary of Defense 
to approve the temporary transfer of Guantanamo detainees to a military 
medical facility in the continental United States to provide medical 
treatment in a life-threatening emergency, when that treatment cannot 
be provided on-island without unreasonable or excessive cost. The 
detainee would be required to return to Guantanamo at the conclusion of 
the medical treatment.
  Most importantly, the bill contains a provision that would clear a 
path for closing Guantanamo, including the option of bringing detainees 
to the United States for detention, civil trial, and incarceration. 
Under this approach, the current prohibitions on Guantanamo transfers 
to the United States would remain in place until the President submits 
to Congress a detailed plan on the disposition of these detainees and 
Congress votes, under expedited procedures, to approve that plan. If 
Congress approves the plan, the bans on transfers to the United States 
would be lifted and the President would have the authority to implement 
this plan for closing Guantanamo.
  I particularly want to thank Chairman McCain and Senator Manchin, who 
worked closely to craft this compromise, which was approved by a 
significant vote in the committee--19 to 7. This is an example of 
bipartisan work at its best.
  At the same time, on other Guantanamo policies, I must note they take 
us backward. This is particularly the case with regard to overseas 
transfers of Guantanamo detainees--not transfers into the United States 
but to third countries. In the fiscal year 2014 National Defense Act, 
the committee's bipartisan efforts resulted in real progress on 
overseas transfers, granting the Secretary of Defense more flexible and 
streamlined authorities for overseas transfers of detainees, consistent 
with our national security interests and with measures to substantially 
mitigate the risk of Guantanamo detainees reengaging in terrorist 
activities.
  Unfortunately, the bill before us today would undo that progress and 
reimpose restrictions which date back to 2013 that include a burdensome 
checklist of certifications that the Secretary of Defense would be 
required to fulfill for any overseas transfers and a prohibition on 
transfers to any country where there was a prior case of detainee 
recidivism.
  These provisions make it nearly impossible to transfer Guantanamo 
detainees overseas to a third-party country. In fact, during the 3 
years these certifications were previously in place, no detainees were 
transferred under these certification restrictions. During this period, 
a total of 11 detainees were transferred out of Guantanamo overseas, 6 
under an existing national security waiver and 5 under an exception for 
court-ordered transfers. This is a fraction of the over 30 detainees 
who have been transferred under the more recent 2014 transfer 
authority.
  These backward-looking restrictions on overseas transfers create an 
unnecessary roadblock for disposing of the 57 detainees currently at 
Guantanamo who have been approved for overseas transfer, most of whom 
were approved nearly 5 years ago. My hope is that we can work with our 
colleagues across the aisle to craft a compromise that brings us more 
in line with present law.

  Finally, I wish to discuss more in-depth the reason I was unable to 
support the committee's bill and why I think we need to have a very 
serious debate on the underlying financing of this legislation.
  Our national defense decisions should be based on actual needs, not 
on spending caps and ways around the spending caps that don't change 
the BCA but simply use a device--some have labeled a gimmick--to get us 
money, not to fix the fundamental problem but to get us money.
  The President's fiscal year budget 2016 requested $38 billion above 
the Budget Control Act spending caps. Senator McCain and I wrote a 
letter to the Budget Committee that also asked to go above those budget 
caps because we understand the best approach is to put within the base 
funding of the Department of Defense those functions which are 
essential, not just to the year-to-year operations but to the long-term

[[Page S3650]]

operations of the Department of Defense and to our long-term national 
security. The President requested this $38 billion be authorized as 
part of the base budget.
  The request from the President also contained--as Presidential 
requests have contained since 2001-2002--OCO funding; OCO funding being 
for those unique, we hope, one-of or at least yearly expenditures that 
we have to make with respect to current operations overseas. That is 
why this is called the Overseas Contingency Operations. For some time 
now, the President and all of our Secretaries--Secretary Carter, 
Secretary Hagel, Secretary Gates, Secretary Panetta, and Secretary 
Hagel--have implored Congress to end the damaging effects of the Budget 
Control Act's sequester and spending caps. However, this bill, 
following the budget resolution, does not clearly address the BCA 
issue. Instead, it turns to this OCO fund. This mark transfers $39 
billion from the base budget to the Overseas Contingency Operations 
budget, leaving the base at, surprisingly, the BCA level, and it raises 
several concerns. I mentioned these concerns, but let me mention them 
again.
  First, adding funds to OCO does not solve, and actually complicates, 
the DOD's budgetary problems. Defense budgeting needs to be based on 
our long-term military strategy, which requires DOD to plan at least 5 
years ahead. When you are doing technology innovation, when you are 
investing in programs that are not going to come off the shelf in 6 
months, you can't rely on 1-year money. It doesn't provide DOD the 
certainty and stability it needs. It has to have money in the base.
  This instability can undercut the morale of our troops and their 
families. If vital programs are subject to year-to-year appropriations, 
if they are not considered to be the norm, if they are not where we 
begin but are sort of put in at the end, that affects the morale and 
confidence of our military.
  It also affects our defense industry partners. If their funding is in 
the category of Overseas Contingency Operations, that is less certain 
to them than money that is in the base and will likely remain in the 
base for 5 years or beyond that they need.
  Then, the second aspect of this is that our national security is more 
than just the Department of Defense. The Department of Defense is 
critical. Ask Americans: Where does our national defense come from? 
Well, it is those men and women in uniform. That is absolutely true. 
But we need domestic agencies. We can't defend the homeland without the 
FBI, which is funded through the Department of Justice, which will not 
have access--direct access--in the way we are proposing, to OCO or the 
Transportation Security Administration that screens individuals coming 
in or Customs that additionally screens people or the Coast Guard. All 
of these are in the Department of Homeland Security.
  Furthermore, without adequate support for the State Department, then 
we can't present the kind of comprehensive approach overseas to 
national security issues that are essential to success. Gen. James 
Mattis, whom the chairman and I both know, said: ``If you don't fund 
the State Department fully, then I need to buy more ammunition.''
  There is a symbiotic relationship between our diplomatic activities, 
our national defense activities, our law enforcement activities, and 
our Treasury activities, because if we are truly to interrupt these 
terrorist networks, we have to go after their financing. That is done 
through the Department of Treasury. This whole-of-government approach 
to national security has to be recognized, and it is not recognized if 
we allow the Budget Control Act to continue to be operational on the 
nondefense side but avoid it on the defense side because we have access 
to the overseas contingency fund.
  Also, I think we are going to see going forward, as we have seen 
before--and we are saying this OCO funding is for 1 year. But I think 
we are doing a little bit of a wink-wink, don't worry; we are not going 
to pull $40 billion out of the Defense bill in the 2017 budget. We 
couldn't do that. What we are doing, though, is we are sort of inviting 
the ingenious use of OCO funding in the years ahead, and I think we 
will see increasingly more esoteric and exotic things in OCO funding 
because that is where the money is.
  If you have a program that you need to get funded and it has a 
connection to Defense--and in some cases doesn't even need to be 
Defense. Senator McCain and I were chatting at the hearing about the 
significant amount of medical research run through the Department of 
Defense. One reason is because there was money available back in the 
1980s for defense spending that wasn't available on the domestic side, 
and that funding found its way into Defense.
  So I think there are several reasons we have to take a different 
approach. My approach in the committee was, I thought, straightforward. 
The President recognizes we need these resources for national defense. 
We recognize we need the resources for national defense, but I believe 
we should budget honestly and directly, and initially that was our 
approach in the Budget Committee. Let's put it in the base, and let's 
take the President's $50 billion--which is the best estimate by the 
Department of Defense of what we really need for overseas contingency--
and let's do that.
  So my proposal is certainly just to fence the additional OCO funds 
until we could, in fact, collectively, as a Congress--what we have to 
do and what so many people on both sides have argued--until we could 
repeal, reform, modify, extend the Budget Control Act, much as we did 
through the great efforts of Senator Murray and Congressman Paul Ryan, 
which gave us the head room to actually pass legislation--not just the 
Department of Defense but other agencies--that allowed us to continue 
the work of the government and allowed us to protect the Nation. My 
proposal in committee did not succeed, but I would renew that request.
  I think we have made great progress in the legislation. I think the 
last step is to get us to a position where we have essentially 
recognized that the BCA caps and sequestration have to be eliminated.
  I would conclude by commending the chairman for all he has done to 
get us here, but, second, to repeat what has been said to us by every 
military leader. What is their first request? It wasn't for more OCO 
money. Their first request was to eliminate the BCA caps, eliminate the 
threat of sequestration. I think we have to do this, and I think we can 
start this process now. In fact, I would say that if we don't start 
this process now, if we don't send a strong signal--and my proposal 
would send that strong signal--then I am afraid we will just be victims 
of the calendar. Before we get to the BCA, we will have tough choices 
to make about this bill that we don't have to.
  So I urge consideration when the amendment comes up.
  I yield back to the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I thank the Senator from Rhode Island, my 
friend Senator Reed, for his thoughtful analysis of the legislation 
before us. Again, it has been not only a pleasure but an honor for me 
to have the opportunity to work with him on the issues that are so 
important to our Nation--none more important.
  I am told by the majority leader that he would like to have this 
legislation completed by the end of next week. That means we have a lot 
of work to do. We already have a number of amendments that have been 
filed. I would ask my colleagues to have their amendments in, 
hopefully, by, say, tomorrow afternoon, when the Senator from Rhode 
Island and I will ask unanimous consent that no further amendments be 
considered. We want to give every Senator an opportunity to have their 
amendments thoroughly vetted and debated and voted on, if that is their 
desire. That means we have a lot of work to do. I think we will be 
considering an amendment this afternoon from Senator Portman, and we 
would like to move forward from there.
  So I ask the indulgence of my colleagues that if they do want debate 
and a vote on their amendments, that they be prepared to come to the 
floor to do so. Again, on filing of amendments, we would like to have 
all pending amendments in, in the next 24 hours, so we can have a 
finite number of amendments for the legislation that is pending today.

[[Page S3651]]

  I thank all of my colleagues for their cooperation. We look forward 
to discussion and debate and, I am sure, will come out with a better 
result.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON. Mr. President, I agree with the Senator from Rhode 
Island, Mr. Reed, the ranking member. There is a lot of good stuff in 
here, but there is budgetary fakery in here. I want to, in my words, 
describe this budgetary fakery. But before I do, I want to commend the 
chairman, Senator McCain, and Senator Reed for how they have conducted 
the committee. I thank them for their professionalism. They show how 
two leaders of opposite parties can get along, and Lord knows we need a 
lot more of that around here.
  But for this budgetary issue, Senator Reed and I would be voting for 
this on the final passage coming out of the committee. I, too, will be 
supporting Senator Reed's amendment to try to straighten out some of 
this budgetary trickery. Let me say that in front of our committee, we 
have had general after general and admiral after admiral and the top 
enlisted folks come in and say that sequestration is harming the 
national security of this country. When we do that, it puts us at a 
risk that the American people would find intolerable if they knew what 
was going on. Now, let me see if, in my words, I can describe what this 
is.
  After Senator Murray and Congressman Ryan put together a bipartisan 
budget--and for 2 years this artificial ceiling, like a meat-ax 
approach, sequestration, across the board was enacted to be implemented 
over the next several years, not a budgetary strategy of program by 
program but a meat-ax approach across the board, regardless of the 
importance of the program.
  Their bipartisan budget lifted that for 2 years. We are at the end of 
that 2-year period, so that sequestration is kicking back in. That is 
why we need to get rid of it. We need to get rid of it not only for 
defense but nondefense as well. I will talk about that in a second. But 
in defense, it now kicks in and limits the overall spending for the 
Department of Defense. But we know we have to spend more than that.
  So this defense bill, which Senator Reed and I voted against, takes 
operational and readiness funds out of the Department of Defense 
request, which is a major part of the defense of the country. You want 
your troops to be operationally ready so that we can fight two wars if 
we have to simultaneously. But they take that money--that funding--out 
of the defense budget, and they put it over here in this special 
account that is not counted against the budget caps, which is an 
account for conducting the war originally in Iraq, then Afghanistan, 
and primarily for purposes of funding Afghanistan now.
  As Senator Reed has very appropriately and accurately discussed, if 
you do that, first of all, this is nothing but budgetary fakery to meet 
an arbitrary cap on budgets, because you are spending a lot more than 
that ceiling. You are just spending it over here on something that is 
off budget, and the total amount that is moved over is about $39 
billion. In that account, there is approximately $50 billion already 
for conducting the war in Afghanistan. But now we are going to take 
operational readiness for the entire Department of Defense and pull it 
over here.
  If we are going to be straight with what we are spending so that we 
really know what we are spending, why don't we keep it in the budget 
and let the total budget rise instead of having an artificial ceiling 
so we know what we are spending? Senator Reed is concerned that if you 
do that and you are spending it over here, then in future years, as 
this continues to stay there, we are not going to be able to show that 
operational readiness is something that ought to be a normal part of 
the funding of the Department of Defense, as it has been for years and 
years.
  That is basically what is going on. Military strategy is not just 
dependent on defense spending, but it is also dependent upon nondefense 
national security spending, which at this point is not even being 
addressed. What will the generals and the admirals tell you? They will 
tell you that a strong national economy is one of the most important of 
all the strengths of our country to be able to project American 
military strength. And as a result, if we continue to budget like this, 
not only in defense but in nondefense as well, in nondefense areas that 
directly affect defense--I mean the Coast Guard, the CIA, the FBI, the 
DEA, Customs and Border Protection, air traffic control, TSA--then all 
of these areas in the Federal Government are going to be under this 
artificial meat-ax approach of cutting across the board, and all of 
those agencies directly affect the national security.
  So what we have been doing is artificially avoiding what is the 
obvious. It is sequestration. It is this meat-ax cut across the board. 
I want us, as we discuss this budget--now highlighted first by Senator 
Reed--to start talking about how we are going to get rid of the 
sequester. We did it in the bipartisan Murray-Ryan budget over 2 years 
ago. We need to do it again. Otherwise, we are going to be wasting our 
time working on bills that at the end of the day may well not get the 
60 votes to proceed to final passage or we will have a veto by the 
President. So we need to fix the budget caps for defense and nondefense 
spending. If we have bleeding in an artery, we do not need a Band-Aid.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.


                            USA Freedom Act

  Mr. MERKLEY. Mr. President, yesterday we passed the USA FREEDOM Act, 
and it was quickly signed by our President because it was so important 
to put it into place. It contained two items that I want to draw 
particular attention to. One is that there should be no secret spying 
on U.S. citizens here in the United States of America. The second is 
that there should be no secret laws here in the United States of 
America.
  These two items are very closely connected together. Our Nation was 
founded upon the principles of liberty and freedom. Fundamental to the 
exercise of those principles is the right to privacy, to be free from 
unreasonable intrusions. This right is central to all other rights 
protected in the Constitution, especially to the freedom of speech, the 
freedom of assembly, and the freedom to petition our Government.
  Our sense of privacy and to be secure in our homes and secure with 
our records goes back to common law in England. It was in 1767 that the 
Earl of Chatham, when he was debating the cider tax, said:

       The poorest man may in his cottage bid defiance to all the 
     forces of the Crown. [His cottage] may be frail, its roof may 
     shake; the wind may blow through it; the storms may enter, 
     the rain may enter, but the King of England cannot enter.

  Certainly, that is the spirit that infused the Fourth Amendment of 
our Constitution. That amendment says: ``The right of the people to be 
secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated. . .''
  We need to ensure that our security apparatus, our law enforcement, 
and our intelligence officers have the tools they need to enact the 
efforts to keep America secure. But in the process, we cannot sacrifice 
our constitutional rights as American citizens. There should be no 
secret spying on Americans and no secret law in a democracy. So how did 
we end up in that place--the place that I am so glad we took a major 
stride toward remedying yesterday?
  It goes back to section 215 of the PATRIOT Act. This Act was passed 
after the attacks on 9/11. I was not here in the Senate, but it said 
that our government can access business records or tangible things if 
it shows that there is a statement of facts showing that there are 
reasonable grounds to believe that those things are relevant to an 
authorized investigation.
  That certainly mimics the second half of the Fourth Amendment, which 
goes on to say that ``no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.''
  The responsibility of the government was to prepare a statement of 
facts, and those statements of facts had to show reasonable grounds and 
had to show that the things sought were relevant to an authorized 
investigation.

[[Page S3652]]

Each one of those words had a significant influence in constraining the 
potential for the government to collect business records or, 
particularly, as we came to learn, to collect phone records on American 
citizens. However, a problem developed, and that is that a secret court 
was created here in America, a secret court called the FISA Court, or 
the Foreign Intelligence Surveillance Court. That secret court could 
interpret the common language of the law, and its interpretations were 
not disclosed to the U.S. public. So in that process of taking the 
language of the law that has a clear set of standards and then 
interpreting it, the court created secret law--secret law that was not 
disclosed to the citizens of the United States.
  This is an enormous risk to democracy--a court with no scrutiny and, 
quite tragically, no presentation of opposing views from the position 
presented by the government. What kind of court is it that allows no 
presentation of an opposing view to the view of the government? That is 
a court that can create tyranny of the government by secretly 
reinterpreting the plain language of the law. That is exactly what 
happened.
  Let's think about how this then went forward. Back in December 2012, 
I proposed an amendment, and that amendment said that there can be no 
secret law in America; that if the FISA Court makes an interpretation 
of terms, that interpretation of those terms has to be made public.
  Here we have a representation of the importance of shining a light on 
that secret court, disclosing to the public how it interprets the law 
and thereby changes the meaning of the law. And what did this court do? 
This court tipped those terms and said ``authorize investigation.'' 
That can mean anything that happens in the future, which, of course, 
makes that term meaningless. It means that there is no authorized 
investigation. It is just a fictional possibility of the future--
nothing existing right now. And then it took the term ``relevant to an 
authorized investigation,'' and it said that relevant is irrelevant. 
You have to show no connection, one or two places removed, in order to 
secure the right to access the papers, the business records, the phone 
records of U.S. citizens.
  So this secret court here in America, the FISA Court, created secret 
law, wiped out the plain meaning of section 215, put its own 
interpretation in place, and told no one. This is absolutely 
unacceptable. That is why I put forward the amendment in December of 
2012 that there is no secret law amendment, that this is unacceptable, 
that we must have disclosure of whatever that court finds so that the 
public can be informed, so that legislators can be informed, so that we 
can have a debate on whether that interpretation is consistent with 
what the legislature intended--what the Senate and the House intended--
and consistent with what the President intended when he signed that 
law.
  That amendment did not get a debate at that time in 2012, but the 
chair of the Intelligence Committee pledged to work with me to ask our 
government to declassify those opinions of the FISA Court, and she did. 
I thank very much the senior Senator from California, the former chair 
of the Intelligence Committee, for her help in doing that. And some of 
those records, some of those opinions, and some summaries of the 
interpretation of the law were declassified. That was a step forward, 
but it should not be dependent on the whim of the executive branch as 
to whether secret law exists in our country.

  So I continued to press forward. And then we had a situation occur. 
In June 2013, Edward Snowden disclosed the existence of the cell phone 
program. I could not explain in December of 2012 why it was so 
important to end secret law, but after Edward Snowden's disclosures, I 
could explain it.
  In fact, when the National Security Agency chief, Keith Alexander, 
was testifying, which was shortly after that disclosure, I proceeded to 
pull out my cell phone and ask the chief: What authorized investigation 
gives you the authority under section 215 to access my, Senator 
Merkley's, cell phone records? He was unable to answer that question 
but said he would seek legal consultation in order to explain what 
investigation showed that there was a relevant connection and what 
statement of facts would justify it. But I never got an answer because 
there was no answer because the government was collecting everything 
under this secret reinterpretation of law.
  Yesterday, we ended the era of secret law in America. Yesterday, my 
no secret law act was incorporated into the USA FREEDOM Act and was 
signed by the President of the United States. This law says the 
executive branch must declassify opinions of the FISA Court or, if they 
find that the exact opinion poses a security risk because of details 
enclosed therein, must declassify summaries or at a minimum must 
summarize the significant constructions and interpretations of law 
found by the FISA Court. That is the heart of it. We are not asking 
that classified information about facts of a case that could endanger 
our national security be disclosed. We are asking that interpretations 
and constructions of law be disclosed so that we have no secret law in 
America, and that is what is required by the act we passed yesterday.
  In conclusion, we must not have secret laws in America. We must not 
have a secret court that has no opposing point of view presented. And 
when it makes interpretations of law, it must be disclosed to American 
citizens, who have every right as citizens to know what the law means 
and to be able to argue whether they like that interpretation, dislike 
it, think the law should be supported or the law should be changed.
  May we never again allow a secret court to authorize secret spying on 
U.S. citizens under the cover of secret law.
  What we did yesterday--incorporating the no secret law act into the 
USA FREEDOM Act--was important. To paraphrase William Pitt, the 
humblest American, no matter his wealth or her income or his status 
within the community--that no American may be in a situation where he 
may be unable to say to the U.S. Government: Here in my home, within 
these walls, however modest, you, the government, may not enter.
  I thank the Presiding Officer.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Mr. President, I ask unanimous consent that the Senate 
remain in session for at least 5 additional minutes while I speak.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. BURR. Mr. President, I couldn't let the statements that were just 
made go without a degree of fact check. There is no secret court. A 
secret court means we don't know it exists. Every Member of the U.S. 
Senate and every American knows that the FISA Court exists. The FISA 
Court exists because when the Senate of the United States takes up 
classified, top-secret legislation, we shut these doors, we clear the 
Gallery, and we cut the TV off because it can't be heard in public. As 
a matter of fact, every court in the country operates in secret when 
they have sensitive information that can't be shared.
  I wish my colleague would stay.
  The information can't be shared because it can't be public. There are 
some things that don't meet that classification.
  And to get up here and talk about secret courts and secret laws--we 
pass the laws. The courts enforce the laws, and they are challenged. We 
have committees and Members who do oversight. It is unfactual to stand 
on this floor and say we have secret courts and secret laws. That is 
why the Senate and the House made a mistake this week.
  If the Senator were really concerned about privacy, my friend would 
be on the floor arguing that we eliminate the CFPB, a Federal agency 
created--not even funded by Congress--that collects every piece of 
financial transaction on the American people today. They get every data 
point from credit card companies and the credit bureau, they search the 
student loan information, and they download all of that into metadata 
within the CFPB. No Member is down here complaining about that. That is 
the greatest intrusion of privacy on the American people that could 
ever happen. It was known upfront, so they made sure it wasn't funded 
by Congress and made sure we didn't have any oversight 
responsibilities. That is why they put it under the guidance of the 
Federal Reserve.
  The President of the United States could have ended section 215 at 
any

[[Page S3653]]

time. He had the power. But the President understands that this program 
works and that there was public pressure to move this data from the NSA 
to the telecom companies, which is probably a greater concern about 
privacy than to have this controlled and supervised within the NSA.
  The Senator mentioned Edward Snowden--a traitor to the United States. 
My colleague held him up as though he were a prize because he had come 
out with this publicly. What do the American people think when we come 
out here and take some of the most sensitive information and suggest 
everybody ought to know it? The American people look at us and ask us 
to keep them safe and do whatever is within the law to accomplish that.
  And there is one thing that has never been contested on section 215: 
It lived within the letter of the law or it lived within the letter of 
the Presidential directive.
  We had a debate, and that is behind us. But to come out here and 
suggest that there is a secret court and that there are secret laws and 
that yesterday they eliminated all of that--no, they didn't. No 
administration in their right mind is going to publicly release those 
classified and top-secret documents that go to the FISA Court because 
it would put Americans and foreigners at risk.
  I have tried to explain to my colleagues that terrorists are not good 
people. We can't hug them and all of a sudden change their intent. They 
want to kill people. And in most cases, we don't find them through 
association with Boy Scouts; we find them by actually putting agents 
into a system where they work sources and collect intelligence. Why 
would we go out and give terrorists the roadmap of how we do things?
  I will end on this. As everyone can tell, when somebody gets up and 
talks about something that just is not true, it can't go without 
correction.
  What we have done in the last 2 months is given every terrorist in 
the world a roadmap as to exactly how the United States picks up 
individuals in the United States who might communicate with terrorists 
abroad.
  I will say for the last time what section 215 did. Section 215 was a 
database that stated the NSA--the only way that any number could ever 
be queried was if we had a foreign telephone number that we knew was a 
terrorist telephone number, we could go to the FISA Court and say: We 
would like to test this against telephone numbers--not Americans; 
telephone numbers. It was a database that only had telephone numbers, 
the date of the call, and the duration of the call. The court would 
give us permission when we were looking to see if there was an American 
telephone number that actually talked to a known terrorist. And if it 
did, we turned it over to the Federal Bureau of Investigation and said: 
You might want to look at this person. They then went through a normal 
court process. If they wanted to find the person's name and get 
additional information, that is what they did. Some called that an 
invasion of privacy. I will tell everyone that is not the courts' 
interpretation. The courts ruled that when my telephone information 
goes to a telephone company, I have no expectation of privacy. None. 
That is the law.
  The reality is that we are collecting telephone numbers. It has no 
personal identification on it. I don't know how it would be an invasion 
of privacy when we don't know who it is. And that threshold is met when 
the Bureau goes to the court and says they have a different concern 
about the individual, and the court will then rule on it.
  But to believe that the FISA Court does anything different from the 
Senate of the United States or different from any court in the country 
when they are faced with classified or secret information--and that is, 
they shut it down--is wrong. It is just plain wrong. It is important 
for the American people to understand that there are ramifications to 
stupid decisions, even by Congress.
  It is my hope that this program will work as it is currently 
designed. But there is no mistake that we have given terrorists every 
reason to never use a cell phone or a landline again, especially those 
who are in our country and intend to carry out some act like the 
gentleman from Boston did yesterday. He pulled a knife on two officers 
who just wanted to talk to him because he had been under 24/7 
surveillance for days. If the news reports were correct, he intended to 
behead a Boston police officer.
  I think the American people want our law enforcement folks to be in 
that position. If we take away their tools, we will not be able to do 
it. What we did yesterday was we took some of the tools away. We didn't 
take all of them away. My hope is that this body will think clearly in 
the future about the tools we provide to allow this to happen.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  For the Senator's information, the Senate has an order to recess 
until 2 p.m.
  Mr. MERKLEY. Mr. President, I ask unanimous consent to speak for 5 
minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Oregon.
  Mr. MERKLEY. Mr. President, when colleagues come to the floor and 
contend that there have been no secret courts in America, that there 
has been no secret law in America, that the administration of section 
215 matched the plain language of the laws adopted by this body, they 
are wrong on all three counts.
  Mr. BURR. Will the Senator entertain a question?
  Mr. MERKLEY. When I have completed my remarks, I will be happy to 
take a question.
  And so my colleague comes to the floor and says that there is no 
secret law. But the fundamental understanding of law is that there is 
the plain language of the law and there is the interpretation of that 
by the court. It is only through the combination of those two things 
that you can know what a law means. So if you have the plain language 
but you don't have the interpretation that has been assigned by the 
courts and used to adjudicate cases, then in fact you have secret law 
because none of us know what the words mean.
  If you look at the plain language of section 215, it doesn't say: 
Here are restrictions on how the government examines a body of 
information, interrogates that body of information, and analyzes that 
body of information. No. The language is completely about how the 
government collects that information and whether they can collect that 
information. It sets a series of clear standards for collecting that 
information. It says that information cannot be collected unless there 
is stated analysis, a set of facts that show there is evidence that the 
information being sought is relevant to an authorized investigation.

  Now, any common citizen knows, therefore, that the government has to 
do a statement of facts. They have to state what is the specific 
investigation, has that investigation been authorized, and is the 
assorted information relevant that is being requested?
  Well, ``relevant'' is a very powerful term in the law. It means one 
or two steps removed. And that is exactly what the Second Circuit found 
when they looked at this issue just recently.
  The court's opinion explained that as the program is being 
implemented, the records demanded are not those of suspects who are 
under investigation, which would certainly be relevant, or of people or 
businesses that have contact with suspects under investigation, which 
is one step removed and certainly would be relevant, or even, the court 
went on to say, of people or businesses that have contact with others 
who are in contact with the subjects. That would be two steps removed, 
and that is stretching the boundaries of what is considered relevant 
under the definition of the law.
  The court found that the implementation of the program has extended 
to every record that exists. The Court found that the implementation of 
the law extended to every record that exists.
  So if the implementation by the administration so diverged from the 
language of the law passed and debated in this Chamber, how did the 
government--the executive branch--justify its gross deviation from the 
plain language of the law? Well, here is how they did it. They went to 
a court that had been created, the Foreign Intelligence Surveillance 
Court, and they

[[Page S3654]]

said: We would like to be able to collect all the information, whether 
or not it is relevant, because some day, under some situation, we may 
want to analyze that information, and we would like to have it right at 
hand.
  Now, had there been an adversary in this court, the adversary 
presenting an opposite point of view would have said: Well, not so 
quick, because there are standards in the case law for relevance. There 
are standards for what constitutes an authorized investigation. There 
are certainly standards for what are the means to present evidence to 
document this. But there was no contrary opinion in this court because 
the only one arguing the case with no rebuttal and no examination by 
any group was the government. So we have the government and a judge. 
That is not really the theory behind the courts. The idea is that we 
have an examination of an issue with both sides presented so there can 
be full articulation and full examination of the issues, and then a 
judge can decide based on full input. But, in this case, we didn't have 
that input. The government asked for an interpretation that would allow 
them to do something far different from the plain language of the law, 
and they got it from this secret court.
  So, yes, we do have secret courts, operated with no input, and they 
disclose no opinions. And yes, we did have a secret law, and that ended 
yesterday, as it should have.
  Thank you, Mr. President.
  Mr. BURR. Will the Senator yield for a question?
  Mr. MERKLEY. I will yield.
  Mr. BURR. I ask unanimous consent for 1 additional minute before the 
Senate adjourns.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURR. My question to the Senator is this: Did he know the FISA 
Court existed?
  Mr. MERKLEY. The existence of the court----
  Mr. BURR. It is a simple yes or no answer. Did the Senator from 
Oregon know the FISA Court existed?
  Mr. MERKLEY. The Senator from North Carolina can ask a question, and 
I get to answer the question.
  Mr. BURR. Well, no, you don't. I asked the question, but I did not 
yield the Senator from Oregon the time.
  Mr. President, regular order.
  I don't want to take any more of the Senate's time, and I certainly 
don't want to take any more of my colleague's time.
  The fact is that he knows the court existed. Congress has 
reauthorized section 215 of the PATRIOT Act. The FISA Court has 
reauthorized it. They reauthorized it. They are asked every 90 days, 
and they ruled 41 times to allow section 215 to exist.
  Mr. MERKLEY. Mr. President, will my colleague yield for a question?
  Mr. BURR. I will be happy to yield for a question.
  Mr. MERKLEY. Were the opinions of this court, established by law--
and, yes, it is transparent to the public that the court exists. But 
the question of secrecy is not one of whether it exists; it is a 
question of whether the process is open in any feasible way to debate 
between two points of view. Did the Senator from North Carolina know 
that the opinions of the court, including interpretations of the law, 
were never disclosed to the American public and were, in fact, kept 
secret?
  Mr. BURR. I actually do know that.
  Mr. MERKLEY. Well, thank you, because that does show that in fact 
there were secret----
  Mr. BURR. The Senator asked his question, and I answered, and I still 
control the time. Thank you.
  Now, clearly, it is evident that if we say something wrong enough 
times, people start to believe it. It is not a secret court. It is not 
a secret law. The President knows about it, and Members of Congress 
know about it. We have voted on it. We know what goes on. Fifteen 
Members of this body have oversight responsibility over the program. We 
do our job, and we do it well.
  Now, we may disagree with what tools we use to try to defeat 
terrorism in this country, and clearly the Senator and I have a big 
canyon between us. But I have to tell my colleagues that America 
expects the Senate and the Congress of the United States and the 
President of the United States to defend them. I am going to continue 
to do everything I can to make sure law enforcement and the 
intelligence community have the tools to do their job because their job 
is a big one and the threat is big, and for people to ignore that today 
is irresponsible.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, the people of the United States expect 
the Constitution to be upheld and the principles of the Fourth 
Amendment. They expect that the law that is passed on this floor will 
be implemented in an appropriate fashion and consistently, and when it 
is not, our liberty is diminished, our freedom is diminished, and our 
privacy is diminished.
  Indeed, what we did yesterday with the USA FREEDOM Act was to end a 
system in which a court, in secrecy, changes the meaning of the law and 
does not expose it to the American public. That is a very important 
improvement, taking us back to the democracy that we are all a part of 
and that we all love.
  Thank you, Mr. President.

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