[Congressional Record Volume 162, Number 94 (Tuesday, June 14, 2016)]
[Senate]
[Pages S3849-S3850]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION BILL
Mr. DURBIN. Mr. President, 2 and a half years ago, I chaired a
hearing of the Defense Appropriations Subcommittee in which the chief
executives of the two top rocket makers, the United Launch Alliance and
SpaceX, testified on the need for competition in launching government
satellites.
Not long after that hearing, Russia began its aggression against
Ukraine. These two issues--the threat against Ukraine and the launch of
U.S. satellites--intersected because one company is reliant on rocket
engines made in Russia.
Defense appropriations bills since then have included nearly half a
billion dollars to build a new, American-made engine to end this
reliance on Russian engines as quickly as a replacement can be built
and tested.
Defense authorization bills have taken a different approach, by
putting strict limits on the number of Russian engines that can be
purchased before the new, American-made rocket will be ready.
Our top national security leaders, including the Secretary of
Defense, the Director of National Intelligence, and the Secretary of
the Air Force, have warned that laws that halt access to Russian
engines will endanger our ability to launch important defense and
intelligence satellites.
To cut-off access to Russian engines would force the Defense
Department to buy rockets that are not cost-competitive with SpaceX
because SpaceX's rockets cannot launch our largest satellites. The cost
to the American taxpayer would be more than $1.5 billion, and it would
be a risk to our national security.
As vice chairman of the Defense Appropriations Subcommittee, I
believe these costs and risks are too high. Many of my colleagues agree
with this view. The chairman of the Armed Services Committee, Senator
McCain, has a different view. He argued forcefully that we should pass
strong laws restricting the use of these engines. We crossed swords
many times on the floor of the Senate on this issue. Even though we
still do not see eye-to-eye on this issue, the product of this debate
is better because of it.
The Nelson-Gardner amendment provides the Department of Defense with
sufficient time to develop and test a replacement for the Russian
rocket engine. The amendment limits the use of Russian engines for
competitive launches to a maximum of 18, allows for a responsible
transition to an American-made engine, and, consistent with existing
law, does not impact the use of Russian engines purchased to support
the EELV block buy.
These provisions increase the pressure on DOD and the United Launch
Alliance to keep its new rocket R&D program on-track and push them to
use only those Russian engines that are needed to support our national
security.
This amendment protects the American taxpayer by avoiding billions in
additional spending on sole-source contracts for more expensive
rockets. It protects our national security by guaranteeing that there
will not be a gap in our ability to launch satellites. And it protects
our national interests by increasing the pressure to have an American-
made replacement engine ready as soon as possible.
I would like to thank the Senators who worked tirelessly to see that
this amendment was adopted with a strong vote in the U.S. Senate:
Senators Nelson, Gardner, Bennet, Shelby, Cochran, Donnelly, Sessions,
and Inhofe deserve great credit for their efforts.
I am proud to have worked with them on this issue, and I am pleased
that we were able to find a responsible solution that protects our
national security and the American taxpayer.
Mr. LEAHY. Mr. President, today the Senate approved a Defense
authorization bill of tremendous scope and containing a number of
harmful provisions. I was against the decision by the majority leader
to end debate on this bill after a period of consideration that
resulted in consideration of only a handful of the over 600 amendments
filed. Now, I am disappointed by its passage in the Senate. A bill this
big deserves substantial, open, public debate.
With less than 2 weeks of debate on legislation that authorizes
nearly $600 billion, I continue to believe that the Senate was unable
to properly consider the bill. Not only was more time needed to explore
and debate this lengthy bill, during the brief period of consideration
it was given, many on both sides of the aisle, myself included,
determined that the Defense authorization contains an assortment of
harmful language.
This is unfortunate, because the Defense authorization also contains
provisions that I support. It authorizes spending to promote our
national interests, provides vital resources to our military personnel,
and reaffirms our commitment to partners abroad. It also furthers our
military readiness through investment in next-generation technology. It
is this kind of reasonable content that should be the universal rule
for a defense authorization. Regrettably, that is only a portion of
this bill.
This year's Defense authorization will once again prevent the
President from closing the detention facility at Guantanamo Bay. The
bill would extend the unnecessary prohibition on constructing
facilities within the United States to house Guantanamo detainees,
continue the counterproductive ban on transferring detainees to the
United States for detention and trial, and maintain the onerous
certification requirements to transfer detainees to foreign countries.
Regrettably, the bill also adds several new restrictions, including a
provision to bar detainee transfers to any country subject to a travel
warning by the State Department. This sweeping prohibition is
unnecessary and would even include some of America's allies. While this
year's bill does contain some modest improvements to current law, the
Defense authorization once again fails to provide the Obama
administration with the flexibility it needs to finally close the
detention facility at Guantanamo. With the costs of more than $4
million per year per detainee to keep the detention facility at
Guantanamo open, I agree with our retired military leaders who tell us
that it is in our national security interest to close the detention
facility. Doing so is the morally and fiscally responsible thing to do,
and I strongly oppose the needless barriers to closing Guantanamo
contained in this bill.
Also unfortunately, the Freedom of Information Act, FOIA, our
Nation's premier transparency law, is directly
[[Page S3850]]
undermined by the Defense authorization. Just yesterday, the House of
Representatives passed the Senate's FOIA Improvement Act, reaffirming
our commitment to the principle that a government of, by, and for the
people cannot be one that is hidden from them. However, just as we are
about to bring more sunshine into the halls of power on FOIA's 50th
anniversary, this Defense authorization bill threatens to cast a long
and dangerous shadow over our efforts.
Without ever consulting the Senate Judiciary Committee, which has
exclusive jurisdiction over FOIA, the Armed Services Committee included
provisions in this bill that cut at the heart of FOIA. One particularly
egregious provision would allow the Department of Defense to withhold
from the public anything ``related to'' military ``tactics, techniques,
or procedures.'' The terms ``tactic,'' ``technique,'' and ``procedure''
are either defined very broadly or not at all. The provision further
states that this information can only be withheld if its disclosure
would ``risk impairment'' to the Department of Defense's ``effective
operation'' by ``providing an advantage to an adversary or potential
adversary.'' But it is entirely unclear what if any limitation this
language would impose, given that none of the operative terms--
impairment, effective operation, advantage, or adversary--are anywhere
defined. While the Department of Defense might call those ``terms of
art,'' it is law and not art that the Congress passes.
Given the breadth of this language, this provision amounts to what
could be a wholesale carveout for the Department of Defense from our
Nation's transparency and accountability regime. If enacted, this bill
would empower the Pentagon to withhold a wealth of information from the
American public. For example, the Pentagon could withhold the legal
justifications for drone strikes against U.S. citizens, preventing the
American people from knowing the legal basis upon which their
government can employ lethal force against them. It could withhold from
disclosure documents memorializing civilian killings by U.S. forces,
depriving the American people of knowledge about the human cost of wars
fought in their name. And if enacted, the Pentagon could withhold
information about sexual assaults in the military, masking the true
extent of sexual violence against servicemembers who risk their lives
defending our country.
In short, this bill could effectively drape a shroud of secrecy over
all five corners of the Pentagon. It would unravel decades of work we
have done to make our government more transparent to the American
people and threaten the progress we have just made with the FOIA
Improvement Act. This unprecedented disappearing act from our Nation's
premier transparency law should have never been considered without a
full consultation of the Senate Judiciary Committee. On the eve of
FOIA's 50th anniversary, I urge all Senators to stand on the side of
sunshine, not shadows, and oppose these provisions within the Defense
authorization.
My concerns are not limited to Guantanamo Bay and FOIA. The bill also
includes massive changes to our military's procurement and management
systems, rolling back reforms that have been in place since Goldwater-
Nichols and putting at risk Federal employees and businesses that sell
to the Department. These specific sections include the elimination of
the office that coordinates major acquisitions, separating development
of new technology and plans for its long-term sustainment. The changes
have been promoted under the guise of saving money and reducing bloated
command structures, when they in fact only confuse an already complex
process and will likely result in needless future waste.
I also remain deeply concerned about the impact of the caps on
general officers to the National Guard. While I was grateful to see
that adjutants general and assistant adjutants were exempted, there are
other joint general officers within the Guard, and I am worried hard
caps on the number of general officers will mean that the best man or
woman for the job becomes less important than whether the Army or the
Air Force has space under its respective cap. I am likewise concerned
that decoupling the statutory requirement that the Vice Chief of the
National Guard Bureau be a lieutenant general--a decoupling that did
not occur for the vice of any other member of the Joint Chiefs of
Staff--will force the Army or Air Force to give up a three-star
position to someone who statutorily does not report to their service
secretary. I am also concerned that by removing the statutory
requirement that the commander or deputy commander of U.S. Northern
Command be a member of the National Guard, we run the risk of entering
a major national disaster without a leader of the principal Federal
response force having any experience with how the States deal with
disasters individually and together.
The bill includes a provision, section 1204, which would prohibit
joint or multilateral exercises and conferences between the Department
of Defense and the Government of Cuba, even though the Department and
the Cubans have worked together on issues related to the security of
Guantanamo for many years. Senator Flake and I, along with Senators
Cardin and Durbin, proposed some exceptions to this provision in order
to permit the Department to continue to engage with the Cubans on
Guantanamo and to cooperate on other security matters, including search
and rescue and counternarcotics. Unfortunately, Senator Cruz, the
author of section 1204, was unwilling to compromise, and we were not
able to obtain a vote on our amendment.
Perhaps the most predictable flaw of this bill is that it continues
the reliance on overseas contingency operations funds to operate the
Department. The original intention of this fund has been routinely
ignored, and it continues be used as a free-for-all spending pool.
Borrowing to sustain our national defense objectives only increases the
already significant burden placed on the working families who are most
impacted by this irresponsible practice. We must put in place
mechanisms to begin responsibly ridding ourselves of the growing debt,
rather than continuing to employ irresponsible practices that only take
us farther away from anything resembling a solution.
The National Defense Authorization Act provides the Senate with a
yearly opportunity to responsibly address our security priorities and
to take care of our men and women in uniform, while bolstering our
overall military capabilities. However, this year's bill proposes too
many damaging provisions far beyond the scope of the Department of
Defense. Despite the agreeable content found within the bill, the
damage that will be caused by many of these measures far outweighs the
benefits of approving this authorization. For that reason, I cannot
give it my support.
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