[Congressional Record (Bound Edition), Volume 149 (2003), Part 9]
[Senate]
[Pages 12286-12300]
[From the U.S. Government Publishing Office, www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2004

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now resume consideration of S. 1050, which the clerk will 
report.
  The assistant legislative clerk read as follows:

       A bill (S. 1050) to authorize appropriations for fiscal 
     year 2004 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe 
     personnel strengths for such fiscal year for the Armed 
     Forces, and for other purposes.

  Pending:

       Daschle amendment No. 689, to ensure that members of the 
     Ready Reserve of the Armed Forces are treated equitably in 
     the provision of health care benefits under TRICARE and 
     otherwise under the Defense Health Program.

[[Page 12287]]

       Graham (SC) amendment No. 696 (to amendment No. 689), in 
     the nature of a substitute.

  The PRESIDING OFFICER (Ms. MURKOWSKI). The Senator from Virginia is 
recognized.
  Mr. WARNER. Madam President, the ranking member of the committee and 
myself are prepared this morning to entertain any amendments that 
colleagues wish to bring to the floor. I will be on the floor, and I am 
sure my colleague will outline a timetable for the amendments he knows 
of thus far on his side. On my side, there are no amendments that I 
know of right now. I do urge our colleagues to come forward.
  The distinguished majority leader and the Democratic leader have made 
possible these 2 days for us to work on this bill. I know my colleague 
from Michigan, the ranking member, and I are ready to move right along 
on it. At this time, I yield the floor, hopefully for the purpose of my 
colleague speaking to the amendments he knows of.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I thank my good friend from Virginia. I 
think the business before us is to dispose of the Graham of South 
Carolina second-degree amendment and then the underlying Daschle 
amendment. I do not know if any of the opponents of the two amendments 
are on the floor to speak, but I think we should dispose of those. It 
is my understanding that after those amendments are disposed of, 
Senator Jack Reed will be ready to proceed with an amendment.
  Mr. REID. Will the Senator from Michigan yield?
  Mr. LEVIN. I am happy to yield.
  Mr. REID. On this side, we are ready for a vote on the Graham of 
South Carolina amendment. We ask that vote occur around 11:30 today, if 
at all possible.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. I will consult with the majority leader. I will note a 
willingness on this side to voice-vote the Graham of South Carolina 
amendment.
  Mr. REID. We would not be willing to do that. We want a rollcall vote 
on that amendment.
  Mr. WARNER. The time the Senator is recommending would be?
  Mr. REID. The time would be 11:30 to have a vote.
  Mr. WARNER. Fine.
  Mr. REID. I think we will probably only need one vote. We would 
accept Daschle by voice if, in fact, the Graham of South Carolina 
amendment passes, which I have an indication that it will. In the 
meantime, staff will work toward that goal with the two leaders and 
other people can come to the floor and offer amendments, which are 
certainly waiting to be offered.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. If the chairman will yield for an inquiry, if we could put 
in a very brief quorum call, I think I would be able to straighten out 
which of the other amendments might be offered while we are awaiting a 
vote on the Graham of South Carolina amendment. I need to make two 
quick calls and could then give a report.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Madam President, I understand we are now on the Defense 
authorization bill. I will speak about a number of matters in the 
legislation. I also will talk about a couple of amendments I am hoping 
to offer. I deeply appreciate the leadership of Senator Warner and 
Senator Levin. There are few in the Senate for whom I have higher 
regard. I think both of them do an extraordinary job for this country. 
Our country is blessed to have their leadership during these difficult 
times.
  Much of what is in the Defense authorization bill I support. I think 
they have done quite a remarkable job in bringing that bill to the 
Senate floor. I do, however, want to talk about a couple of areas that 
concern me and a couple of amendments I wish to offer.
  Obviously, our first responsibility in this legislation is to support 
a strong military for this country. This is a dangerous world. All of 
us understand the uncertainties in the world. We understand especially 
that our sons and daughters were called upon to go halfway around the 
world and fight in the country of Iraq. They did so with great skill 
and our thoughts and prayers go with them as well. We understand from 
that experience what these investments mean for our country, the 
investments in military preparedness.
  Being prepared, making the investments, being able to defend our 
country's liberty against terrorists, aggressors, and others, is very 
important. The single most important threat that faces our children and 
our grandchildren is the threat of nuclear weapons. If there is a 
leader in this world that has a responsibility to stop the spread of 
nuclear weapons, it surely must be us. It must be the United States of 
America.
  Some many months ago there was a story, not widely told, about a 
rumor. The rumor was a nuclear weapon had been stolen from the Russian 
arsenal and that one nuclear weapon stolen by terrorists from the 
Russian arsenal was to be detonated in an American city. It caused an 
epileptic seizure in the intelligence community: Terrorists stealing a 
nuclear weapon, detonating it in an American city; talk about 3,000 
people dying at the World Trade Center; then talk about one nuclear 
weapon killing half a million people in a major American city. That is 
the specter of what will happen with the threat of nuclear weapons in 
the wrong hands.
  It was discovered some time after that rumor was moving around the 
intelligence community that, in fact, they believed it was not 
credible; a terrorist had not stolen a nuclear weapon from the Russian 
arsenal. Interestingly enough, it was not beyond belief of most 
intelligence analysts that it could have happened.
  We know there are thousands of nuclear weapons in the hands of the 
Russians. We know the command and control of those weapons is not what 
we would like. We hear rumors and stories about the recordkeeping for 
nuclear weapons in Russia being in a three-ring binder. So we worry 
about the command and control of nuclear weapons. We think somewhere in 
this world, between us and the Russians and a few others, there are 
nearly 25,000 to 30,000 nuclear weapons. I will say that again. 
Although there is not an exact known number, we expect between 25,000 
and 30,000 nuclear weapons exist, both theater and strategic nuclear 
weapons.
  The rumor that one had been stolen by a terrorist and might be 
detonated in an American city caused great concern. Again, the 
intelligence people apparently felt it was entirely possible that could 
have happened and, having happened, it was entirely plausible they 
could have detonated a nuclear weapon in an American city.
  So with this arsenal of 25,000 or 30,000 nuclear weapons, both 
theater and strategic nuclear weapons, the question for us, our 
children, and their children is: Will someone someday get hold of a 
nuclear weapon, build one, create one, steal one, perhaps? Will those 
terrorists someday have access to one nuclear weapon? Will it be 
detonated in a city of millions of people? Will it kill hundreds of 
thousands of people? Or before then, will we be a world leader in 
trying to stop the spread of nuclear weapons, prevent the theft of 
nuclear weapons, improve the command and control of nuclear weapons, 
especially those in Russia, and begin to reduce the stock of nuclear 
weapons?
  Will we do that in our country? Will we send a signal to the world 
that nuclear weapons cannot ever again be used in anger, cannot ever 
again be used? The whole purpose of a nuclear weapon is a deterrent. It 
is not to be used.
  In this legislation before us, we have provisions that talk about the 
development of new low-yield nuclear weapons. I think that is a 
horrible mistake. We have plenty of nuclear weapons. Our effort ought 
not to be to develop new ones. It ought to be to assume the mantle of 
leadership to stop the spread of nuclear weapons and begin the 
reduction of warheads.
  In this bill, there is a provision that talks about the money that 
needs to be spent to study the development of a new designer bunker 
buster nuclear weapon. What kind of signal does that send to the rest 
of the world--the United States decides it wants to create a new 
nuclear weapon; it wants to

[[Page 12288]]

study the design of a bunker buster nuclear weapon. We say to other 
countries we do not want them to have a nuclear weapon. We do not want 
them to develop a nuclear weapon.
  We are worried about Pakistan and India. They do not like each other. 
They both have nuclear weapons. We are trying to say to them they 
cannot ever even think about using a nuclear weapon.
  Yet we are saying nuclear weapons are all right, what we ought to do 
is develop different kinds, develop more, use them perhaps in the 
future against terrorists who would burrow themselves into caves. What 
a terrible idea. What an awful message for this country to send to the 
rest of the world. The message ought to be we are going to do 
everything that is humanly possible in the United States of America to 
stop the spread of nuclear weapons because our future depends on it.
  We have a lot of challenges. If, in fact, North Korea is now 
producing additional nuclear weapons using those spent fuel rods, if, 
in fact, we have a country that has the capacity and is now building 
nuclear weapons and is perfectly willing to sell them to most anybody, 
can those nuclear weapons end up in the hands of terrorists 12 and 14 
months from now and be used by those terrorists to threaten an American 
city?
  The answer is yes. This is a very serious issue. Is the answer to 
this issue for us to be talking about developing new kinds of nuclear 
weapons so that perhaps we can burrow into a cave somewhere with a 
designer bunker buster nuclear weapon? The answer to that is clearly 
no. Our message, it seems to me, as a country, ought to be to the rest 
of the world that we want to stop the spread of nuclear weapons, and we 
want to reduce the number of nuclear weapons, and we want to in every 
single possible way say to the rest of the world nuclear weapons cannot 
be used, nuclear weapons will not be used.
  So I am hoping to offer an amendment that will strike that money to 
study the development of a new designer bunker buster nuclear weapon. 
We cannot do that. That makes no sense to me. It is exactly the wrong 
message to the rest of the world. Our job is not to begin determining 
how we can create new nuclear weapons. Our job is to find ways to stop 
the spread and to begin the reduction of nuclear weapons. We have 
plenty--thousands and thousands and thousands. The Russians have a 
similar number. A few other countries also have much smaller numbers. 
One defection will cause a catastrophe in this world.
  It just seems to me we cannot be sending a message to the rest of the 
world that we are seriously wanting now to develop a new kind of 
nuclear weapon to bust bunkers. That is just the wrong message to the 
world, in my judgment. I know that both the chairman and ranking member 
will oppose the amendment, but I believe very strongly that this 
country has a leadership responsibility to the rest of the world that 
we are strong, we are going to preserve liberty, we will fight for this 
country's right to preserve liberty, but part of that, in my judgment, 
is to produce stability in the world, to say to other countries we 
don't ever want to see nuclear weapons used again; we want to stop the 
spread of nuclear weapons and we don't want to create new nuclear 
weapons and do not need to create nuclear weapons. Doing so would send 
exactly the wrong message to the rest of the world.
  There is one other issue on which I know the chairman and the ranking 
member will disagree. Senator Lott and I intend to offer an amendment 
to strike the base closing round in 2005. The legislation approving a 
new Base Closure Commission in 2005 was written prior to 9/11. The 
shadow of 9/11 has been long and broad. It has changed almost 
everything. The President came to the Congress and gave one of the most 
remarkable speeches I think I have ever heard a few days after 9/11. He 
said: Everything is changed. We now fight a war against terrorism, and 
that war against terrorism includes a war in Afghanistan, a war in 
Iraq, actions in other parts of the world, and a revamping of homeland 
security.
  The creation and revamping of homeland security in our country, it 
seems to me, says to us that everything has changed. We have a 
Secretary of Defense who wants to dramatically change the entire 
structure of our Defense Department and our military.
  So if everything has changed, then how do we proceed with a Base 
Closure Commission in the year 2005 that was developed in prior to 
2001? Some of us believe we need to strike that 2005 base closing BRAC 
commission, get our breath, evaluate what kind of future we are going 
to have, what kind of base structure we want, both here and abroad, but 
instead of rushing into a mandate that was imposed prior to 9/11, what 
we ought to do is remove that mandate and have the flexibility to 
proceed in a manner that is consistent with the new realities since 9/
11.
  It is interesting to me that there are so many new realities around 
the world. We have heavy mechanized divisions in Western Europe. Well, 
I understood why we would have had tank divisions, for example, when we 
had a Warsaw Pact and Eastern Europe was Communist and we were 
protecting Western Europe from the invasion of the Communists. But 
that, of course, is not the case any more. There is no Warsaw Pact. 
Eastern Europe is democratic and free in almost all cases, and so it 
ought to lead us to ask the question: What are we doing with those 
kinds of divisions in Europe?
  It seems to me there is a lot for us to evaluate in base closing, but 
if we are going to take a look at where the excess capacities exist in 
our military, let us do it with the background of 9/11, understanding 
virtually everything has changed long after we decided to have a base 
closing round in 2005 and the smarter approach for us would be to step 
back a bit, rescind that requirement in 2005, and, with the Secretary 
of Defense and others, try to think through what our new reality is, 
what will our new force structure be, what does this new changing world 
require of us, and what kind of bases will be required to meet that 
need.
  We don't know what the military will look like in 10 or 20 years from 
now. We don't know how big it will be, what the force structure will 
be. We don't know where our forces will be based.
  Just recently, we had a callup of the National Guard and Reserve. God 
knows those wonderful citizen soldiers who leave their homes and their 
loved ones. The 142nd Engineering Battalion in North Dakota got 2 days' 
notice and dug their trucks out of the snow and put them on the road to 
Fort Carson, CO. The fact is they were not ready for them at Fort 
Carson, unfortunately, they did not have the capacity on that base to 
handle the 142nd when they got there.
  Part of it was because the troops got backed up; they could not go 
through Turkey; the ships were backed up; they were not able to move 
soldiers out of Fort Carson, so we had people being mobilized in the 
Guard and Reserve going to Fort Carson, CO, and they didn't have 
facilities to handle them at that point.
  The question is, What needs and requirements will we face in the 
future? We don't know. Everything is changing. Everything has changed 
in the last few years.
  The Secretary of Defense says we should have a base closing round, 
one round in 2005 that closes bases, I believe he said, equivalent to 
the number of bases closed in the first four rounds. I do not see how 
he or anyone else has the knowledge to understand where we would close 
those bases at the moment because we don't understand what the force 
structure will be, what the requirements will be. And that is not a 
decision just for the Defense Department. It is also a decision for the 
Congress.
  Homeland defense may require more bases, not fewer. Homeland defense 
combined with the Defense Department and the efforts of both may 
require bases in different places, may require us to retain a base that 
in another area might otherwise close, may suggest you close a base in 
a circumstance where you otherwise might retain it. We don't know. 
Homeland Security as an agency is less than a year old. We have had 
terrorists exploding bombs

[[Page 12289]]

around the world in recent days--Morocco, Saudi Arabia. The fact is we 
don't know how all of this comes together, and yet we have a mandate 
for a BRAC round, part of which will begin in 2004 with respect to the 
requirements and in 2005 we will have the commission.
  Let me suggest also, in addition to the fact that I don't think it 
makes any sense now, in the shadow of 9/11, to continue with the 
requirement that was imposed prior to 9/11, especially when virtually 
everyone says everything has changed, I don't think it makes any sense 
to stubbornly stick to that requirement. We would be much better off, 
in my judgment, for long-term preparedness and long-term flexibility to 
strike that provision for the 2005 round.
  Let me make one other point. We have an economy that is stuttering. 
Everybody understands that. The Congress and the President are 
struggling to try to find a way to put this economy back together. It 
is not producing jobs. It is losing jobs. We don't have the kind of 
economic growth we want or need. All of us understand that. We all 
understand that.
  Want to talk about a retardant economic growth? Let me tell you what 
that is. Tell every community in this country with a major military 
installation, by the way, if you invest in that community, do not build 
an apartment building now because between now and mid-2005 that base 
may be closed and you have no certainty it will be there beyond 2005 or 
past; so make sure you do not make that long-term investment. In every 
community where there is a major military installation this stunts 
economic growth because there is a target on the front: Get out of 
every military installation in the country. All of them are in play. No 
one knows which may remain open or remain closed. This Commission will 
meet in 2005 and on its own make that decision. Want to stunt economic 
growth, retard the ability of the economy to expand? The quick way to 
do that is to say let's leave in place the 2005 requirement for a base-
closing commission.
  I guarantee, in community after community around this country, we 
have investors who will not, who cannot possibly make the investment in 
those communities because that military installation is a big part of 
the community and its economy and its future and they do not know 
whether it will be there in the future.
  At a time when our economy is sputtering, to have that retardant on 
the economic growth of so many communities in our country, in my 
judgment, is totally counterproductive.
  Mr. WARNER. Will my colleague be willing to engage in a colloquy?
  Mr. DORGAN. I am happy to yield for a question.
  Mr. WARNER. By way of senatorial courtesy, I bring to the Senator's 
attention the unanimous consent request drafted carefully and put into 
the calendar today. Would the Senator be willing to check with the 
Parliamentarian at his earliest opportunity?
  On this amendment, the Senator is a cosponsor, I think I heard.
  Mr. DORGAN. Senator Lott and I.
  Mr. WARNER. Would the Senator be gracious enough to check with the 
Parliamentarian? It seems to me before we get the body stirred up on 
the issue of BRAC, we ought to determine the relevance on that 
amendment with these unanimous consent requests. I say that by way of 
courtesy.
  Mr. DORGAN. Well, I appreciate the Senator's courtesy. Of course, I 
am familiar that last week, perhaps for the last time, the committee 
has gotten unanimous consent requests for relevancy. I say ``for the 
last time'' because I have discovered both last evening and this 
morning that the amendment, as originally drafted, would be 
nonrelevant. Let me describe my surprise at that.
  Mr. REID. Will the Senator yield?
  Mr. DORGAN. Let me finish the explanation and I will be happy to 
yield.
  The Base Closure Commission was established in this bill by this 
committee some years ago. One would expect the ability to strike that 
requirement would be in this bill. That is where it would be relevant, 
in this bill.
  This bill itself contains provisions dealing with base closings 
because the bill contains some hundreds of millions of dollars in 
conformance with the requirements and the costs of previous Base 
Closure Commission actions.
  I was told this morning the way our amendment is currently drafted is 
nonrelevant. I don't have the foggiest idea who could come up with that 
sort of judgment. I will not demean anyone who does, but to say there 
is no way on God's Earth that anybody can suggest that it is not 
relevant in this legislation to deal with base closing because this is 
where base closing came about. This is where it originated.
  If the idea of relevancy is to get unanimous consent to shut people 
out from being able to offer amendments such as this on this bill, it 
is the last time--I say this again--it is the last time any committee 
will ever get a unanimous consent in this Senate as long as I am here 
during this session of the Congress on relevancy. It is the last time 
it will happen.
  I am certainly not upset at the Senator from Virginia, but I am upset 
with this process because I will find a way to draft this so it is 
relevant and we will have a vote on it.
  Frankly, I am upset that we have a Byzantine process by which someone 
says you cannot strike a provision that was put in the bill because it 
is not relevant. What on Earth are we thinking about?
  I say to the Senator, your courtesy is understood. I was aware last 
evening and this morning that there was preparation to say to me, this 
is not relevant the way it is written. Then I will write it the way I 
hope someone around here can think clearly to say it is relevant. There 
is already a provision in this bill that deals with the Base Closure 
Commission; I can cite it.--There is no way my amendment can be 
nonrelevant.
  I will work on that in the next couple of hours. I know the Senator 
from Virginia will want to oppose the amendment, as will the Senator 
from Michigan. I hope the Senator from Virginia will agree with me that 
he will not want a process by which he brings a bill to the floor, as 
chairman of the Armed Services Committee, and will want to prevent 
someone such as me who is not on the committee from offering an 
amendment to strike a provision put in this bill some years ago.
  I don't expect that the Senator from Virginia would want that to be 
happening. I don't think you will want to prevent me from offering an 
amendment that you think is relevant. I appreciate the comment.
  Mr. WARNER. Madam President, I suggest maybe a revision in your 
commentary. It is not in this bill. You keep referring to ``it's in 
this bill.''
  Some years ago this bill, by the authorization committee, did contain 
it. I happen to have been a drafter of it. But it became law. So it is 
in law today. But there is no provision, to my understanding, in this 
bill that relates to the generic subject of the BRAC.
  Mr. DORGAN. When I say ``this bill,'' I am referring generically to 
the Defense Authorization bill that we do each year. This bill is where 
the Senators who wanted to add the base-closing BRAC commission put it. 
It is in this piece of legislation. Generically.
  Now, this bill you wrote this year that comes to the floor does not 
create the BRAC because the BRAC now is in law. I am trying to strike 
it.
  Let me say, however, that on page 349 of your bill:

       For base closure and realignment activities as authorized 
     by the Defense Base Closure and Realignment Act of 1990 (Part 
     A of title XXIX of public law 101-510--

  My point is, that portion of law is already referenced in your bill 
because you are proposing to spend $370 million in pursuit of certain 
requirements there.
  My point is, it is not as if base closing as a concept or as a 
subject is not there. It is there.
  I assume that neither you nor the Senator from Michigan--perhaps I 
should ask both of you. I assume that neither of you would anticipate 
when you propound a unanimous consent request on relevancy that you 
would want to prevent someone from coming to the floor to offer an 
amendment

[[Page 12290]]

that is clearly relevant. I assume you would not want to try to prevent 
this kind of amendment.
  I assume you want to prevent an element that deals with, say, CAFE 
standards on automobiles, having nothing to do with defense or 
something dealing with health care that has nothing to do with defense. 
That is what relevance, in my judgment, is about.
  I ask the Senator from Virginia, if I may reserve my time and ask for 
a response, or perhaps the Senator from Michigan, did you anticipate 
last Thursday preventing amendments such as the amendment I was 
intending to offer with Senator Reid on concurrent receipt, which 
clearly deals with the military, or the amendment that I intend to 
offer on base closing, is that what you intended to prevent with the 
unanimous consent request?
  I am happy to yield.
  Mr. WARNER. Madam President, the distinguished ranking member and 
myself at the time, with the leadership, had no specific subject or 
amendment in mind. We simply recognized the magnitude of this bill, 
some $400 billion, covering many subjects; in years past we have been 
on the floor, I can remember in my 25 years, 2 weeks at a time. Given 
the urgency of this situation, the calendar before the Senate, we 
thought we could best serve the institution of the Senate by proposing 
the Parliamentarian the decisionmaking with reference to relevancy. We 
had nothing in mind, I assure the Senator.
  Mr. DORGAN. Let me ask this, if I might ask the Senator from 
Michigan. I don't disagree with you at all. I understand you don't want 
100 extraneous amendments that have nothing to do with this, so you 
want a relevancy test.
  But as I understand, the provision in law that I reference in my 
amendment is exactly the provision in law that is referenced on page 
349, lines 16 to 19. That will now be prevented, so I will have to 
rewrite this amendment. The Parliamentarian says he thinks it is not 
relevant--their office thinks it is not relevant, ``after consultation 
with both the majority and minority staff of the Armed Services 
Committee.'' I might wonder what kind of consultation exists there. Can 
either of the Senators tell me?
  Mr. LEVIN. If the Senator will yield, I don't know what consultation 
exists between the Parliamentarian and the staffs of committees 
relative----
  Mr. DORGAN. Might I----
  Mr. LEVIN. If I could just complete my statement?
  Mr. DORGAN. Yes, go ahead.
  Mr. LEVIN. Relative to bills that come before them.
  These are complex bills. I assume they consult all the time. I cannot 
imagine it is unusual for the Parliamentarian to talk to either Members 
of the Senate or to our staff.
  By the way, this requirement of relevance is not unusual. I just ask 
the Parliamentarian, is this an uncommon provision? It is not an 
uncommon provision. In fact, it seems to me, in a bill that recently 
came before us it had a provision, although I cannot remember which one 
it was--but it is not an uncommon provision. It was not intended to 
prevent any particular amendment.
  As the Senator from Virginia said, it was just simply intended to 
give some kind of parameter to a very lengthy and complex bill. It was 
not aimed at a BRAC amendment or aimed at any particular amendment.
  Mr. DORGAN. Let me ask the question further, if I might retain my 
right to the floor, if the Parliamentarian's office consulted with the 
Senator from Michigan, would the Senator from Michigan think an 
amendment that would strike the Base Closure Commission is not relevant 
to the bill?
  Mr. LEVIN. I would ask the Parliamentarian for a definition of 
``relevance.'' I would follow his definition. If the Parliamentarian 
asked me whether or not that provision was germane to the bill under 
the common germaneness definition, I would say, Boy, it sure sounds 
germane to me. But the Parliamentarian would tell me, No, sorry, that's 
not germane to the bill.
  I don't know what the technical definition of ``relevance'' is. But 
it is technically defined like the word ``germane.'' It is not just a 
general word which is taken from the dictionary. There is a 
parliamentary definition of the word ``relevant.'' That is the 
definition which is incorporated, I believe, in every single unanimous 
consent request that there be a relevance standard.
  Again, I repeat, and I think it is important we find this out, it is 
not uncommon to have a relevance standard in a unanimous consent 
request to limit amendments to debate so we can keep within the 
parameters of the bill.
  If I could add one other thing, to my friend from North Dakota. It 
seems to me what the Senator from North Dakota may be arguing at the 
moment is that, in fact, his amendment is relevant, or that it could be 
made relevant within the meaning of the word as defined by the 
Parliamentarian. If so, it seems to me that takes care of the issue.
  I know the Senator from North Dakota----
  Mr. DORGAN. But, yes, the Senator is correct. I darn well expect to 
be able to offer this amendment. If I have to reword it, I will reword 
it. But I was trying to ask the question, Is this what you expected to 
try to prevent?
  You say we were just trying to deal with something that was 
``relevant,'' and that is a standard that existed for a long period of 
time. You know and I know that standard has changed over the last 20 
years.
  I, frankly, am surprised this morning at this. I think a number of 
others are as well because I don't think this is what I thought 
relevancy was about.
  My amendment is three lines long. It repeals the base-closing round. 
If this is not what you intended to prevent, let me ask consent that 
you would agree this be deemed as relevant.
  Mr. WARNER. Madam President, I would not agree with that.
  Mr. REID. Will the Senator yield for a question?
  Mr. DORGAN. I will be happy to yield for a question.
  Mr. REID. The Senator is aware, is he not, that on our side we have 
very competent staff, Marty Paone, Lula Davis, who help us with 
parliamentary issues that come before this body; the Senator is aware 
of that, of course?
  Mr. DORGAN. I am.
  Mr. REID. Is the Senator aware that we have been told by them that 
the rulings that have been made on this bill have been a surprise to 
even them, in the many, many years they have served in the Senate? The 
new--I am talking about new in the last few days--determination of what 
is relevant has surprised even our very competent floor staff. Is the 
Senator aware of that?
  Mr. DORGAN. That is correct.
  Mr. REID. Is the Senator aware that, generally speaking, relevance is 
not germaneness? They are two totally different concepts; is that 
correct?
  Mr. DORGAN. The Senator is correct.
  Mr. REID. I was surprised, flabbergasted, disappointed last night 
when the amendment that you and I and Senator McCain--I didn't mention 
his name last night and I apologize for not doing that because I was so 
taken aback by the ruling of the Chair--that our concurrent receipt 
amendment was ruled nonrelevant. That is an amendment to allow the 
military to receive their disability pay and their retirement pay.
  I would have to think this huge bill we have here--there are copies 
on the desk, here it is right here--in this huge bill here, I would 
have to think there is something about pay for the military, about 
retirement pay, about disability. But the Chair ruled that was not the 
case.
  I accept the ruling of the Chair. I do not like it, but I certainly 
support the statement made by the Senator from Michigan last night. I 
thought that was a very fair statement. We have to go along with what 
the Chair rules. There is no other alternative, but that does not take 
away that this has been a tremendous surprise, disappointment to me, 
and I would think to the Senator from North Dakota. Is that a fair 
statement?
  Here is a situation that has arisen that is totally against what we 
have learned has been the rule of relevance. This is not some magical 
concept that

[[Page 12291]]

just came out of the sky, but in the last few hours there is a new 
determination of what relevance is. Is this a fair statement, I say to 
the Senator from North Dakota?
  Mr. DORGAN. That is my feeling. I hope the Senator from Virginia and 
the Senator from Michigan were surprised as well.
  If not, if their suggestion last Thursday of what relevance was, by 
unanimous consent, in effect, was to say: Oh, by the way, those of you 
who want to come with a base-closing round, we are not willing to fight 
you on that; You can't offer it; We will find a way to prevent you from 
offering it.
  It is partly our fault. I had no idea that what you were doing last 
Thursday with a relevancy request, by consent, would have prevented 
Senator Reid from offering the concurrent receipt issue. The fact is, 
we were going to offer the concurrent receipt issue last week on the 
tax bill and decided not to do that, decided to offer it here because 
here is where it ought to be offered.
  When someone works 20 years in the military for this country and then 
retires and earns a retirement pay, if during that time they were 
disabled, what our current law says, in most cases--not all, but in 
most cases--is that you are not going to be able to collect your 
disability and your retirement; concurrent receipt is prohibited.
  That is wrong. We ought to change that. Most of us know we ought to 
change that. The place to change that is on the Defense authorization 
bill. Of course it is the place to change it.
  I am just as stunned that Senator Reid has been told it is not 
relevant as I am about my amendment. I have spent more time this 
morning trying to figure out how on Earth someone could determine that 
this may not be relevant. I do not know what else that someone might 
want to offer here that deals directly with a defense issue, deals 
directly with policy in defense, will now be ruled as nonrelevant. What 
on Earth are we talking about here?
  I hope the two of you, the chairman and the ranking member, will 
agree that at least those issues that appear well within the scope of 
what we have always thought to be relevant, and Senator Reid described 
it exactly, about which those in our caucus who are the experts--I am 
not an expert on relevancy--are surprised, I hope those issues that you 
are preventing with a unanimous consent, at least by this latest rule, 
I hope we will be able to offer them.
  I will try to offer to the Parliamentarian's office some version of 
this amendment that will meet the relevancy test. I hope I can do that. 
If I can't, I hope it is not your intent that relevancy should be 
described in the way that prevents the offering of legislation that 
would strike a provision that you put in the law in 1990 in this very 
Defense authorization bill. I hope that is not your intent.
  Mr. WARNER. I have to say to my friend, I would not want him to leave 
the floor under the illusion that if the amendment fails to meet the 
requirements of the Parliamentarian, that my colleague, the 
distinguished ranking member, and myself, would begin to sit as a 
supreme court with regard to the Parliamentarian's decision and render 
exceptions. If we were to do that, the whole efficiency of this process 
would soon disintegrate and put us in an impossible situation.
  The institution of the Senate relies upon the fairness and 
objectivity of the Parliamentarians. It is an institution since the 
beginning of times here. We, as Members, should not be asked or put in 
a position in which to overrule them, as you are fully aware.
  Mr. DORGAN. The Senator from Virginia has been here longer than I 
have, but he understands when one comes to the floor to manage a bill 
with the ranking member, that there will be dozens of opportunities for 
you, in the next couple of days, to have unanimous consent agreements 
between the two of you. That is the way you manage a bill on the floor 
of the Senate. I am not suggesting some new approach. You will be 
required to ask unanimous consent for a number of things to happen on 
the floor of the Senate. One of those will, I hope, be to say that you 
want to allow to be considered on the floor of the Senate concurrent 
receipt, for example. I think it would be a travesty if you leave the 
floor, or I should say if we leave the floor--the Senate takes the 
floor for final vote on a Defense authorization bill, having prevented 
those retired soldiers who are disabled from having had a vote on this 
issue. What a travesty that is going to be.
  I hope it will not be your intention to prevent that amendment from 
being offered. It is clearly right in the bull's-eye of this bill. 
Clearly it is.
  I guarantee you, to the extent I can guarantee you as a non-
Parliamentarian, that 3 years ago, 5 years ago, or 10 years ago, if 
this were offered on this bill, it would be relevant. We all know that. 
The only reason we are surprised this morning is because relevancy is 
changing in a way that I hope surprises you because I don't expect that 
you last Thursday would have wanted to prevent the concurrent receipts 
being debated and voted on. And I wouldn't expect that you want my 
amendment to be voted on. As I said before, I have great respect for 
the chairman and ranking members of this committee. I think they do 
wonderful work for this country. I have great admiration for them. I 
support much of what they have done. I will offer a couple of 
amendments. One which I very much hope you will allow to be offered is 
the one Senator Reid, myself, and Senator McCain want to offer on 
concurrent receipts. And one that certainly should never be prevented 
from being offered is on the Base Closure Commission. I have already 
made the comments about that amendment and why I think it is important 
and why I think it is timely to offer it today. I know that both 
Senators will object to that. But there is a very solid and strong 
group of Senators who feel the other way. I and Senator Lott intend to 
offer this amendment to the extent that we can find a way to offer it, 
either by rewording it or finding a way to allow us a consent to offer 
it. It would be a mistake not to do this before the bill leaves the 
floor.
  Mr. WARNER. Madam President, I think this colloquy undoubtedly is 
being followed by a number of colleagues. I already now have petitions 
by several on my side of the aisle seeking to ask whether we can go 
ahead and take this up even though the Parliamentarian has indicated to 
those Senators in a formal and appropriate way that it is acting within 
the description of their job function here to say the amendment fails 
the test. Again, I do not intend to sit here in judgment and overrule 
the Parliamentarian. But the Senator is perfectly willing under the 
rules of the Senate to seek to do that.
  Mr. DORGAN. You do not have to overrule the Parliamentarian. If one 
were to move to do that, that would be a different issue. But by 
consent we can--and you know we will--do most anything on the floor of 
the Senate. My point is not to ask you to overrule the Parliamentarian. 
My point is to ask you whether you believe, whether the committee 
believes that it is somehow not relevant to this bill to be talking 
about the Base Closure Commission that was created by the Defense 
authorization bill in the Senate, or to be talking about concurrent 
receipts which affect emolument and reimbursements for veterans and 
retired veterans. Clearly, the Senators from Virginia and Michigan 
could not feel that is somehow outside the scope of this bill. If you 
believe it is in the scope of the bill, let us not be technical. Let us 
by consent allow amendments that are at the heart of this bill to be 
offered.
  That is what I am asking. That is my point.
  Mr. LEVIN. Madam President, if the Senator from North Dakota was 
asking me do I believe that a BRAC amendment is germane to this bill, 
not relevant but germane to this bill--look up the word ``germane'' in 
the dictionary--it sure sounds germane to me. But then I ask the 
Parliamentarian if it is germane, and the Parliamentarian says, no, it 
is not germane to this bill, and if this were a postcloture situation, 
it would be allowed, the Senator could get up and ask, Does the Senator

[[Page 12292]]

from Michigan really believe the BRAC amendment should not be allowed 
on this bill because under the rules of the Senate it is apparently not 
germane? The Parliamentarian has told us that.
  What intrigues me is the relevance standard which the Senator from 
North Dakota has raised as to whether or not, in fact, there has been a 
change. I use the words ``whether or not'' there has been a change in 
the standard of relevancy. It seems to me that is an important issue 
for this body to review, as to whether there has been a change in that 
definition. I haven't talked to the Parliamentarian about it. I don't 
know. Does the Senator from North Dakota suggest that there has been a 
change? Whether there is, has been, would be or not, we should know as 
a body what the standard of relevance is and whether there has been a 
change and, if so, how did it come about.
  I hope the Parliamentarian, given this exchange, would advise the 
Senate as to the standard of relevance and as to whether or not there 
has been a change in that standard. I am not suggesting, obviously, 
that the Parliamentarian speak on the floor at this point. I am 
suggesting the Parliamentarian advise the Senate in some written form 
relative to the standard of relevancy because the Senator is raising an 
absolutely essential issue. We use the word ``relevant'' here all the 
time. If there is a change in the definition of that word, then it 
seems to me we ought to know about it and decide whether or not we are 
comfortable with it.
  Mr. WARNER. Madam President, will the Senator yield?
  Mr. DORGAN. I would be happy to yield to the Senator from Virginia.
  Mr. WARNER. Madam President, let us place before the Chair a 
parliamentary inquiry as to whether or not there has been any change in 
the definition of the word ``relevancy'' as used by the 
Parliamentarian, say, in the last decade.
  Mr. DORGAN. Madam President, the Senator from Michigan made a 
suggestion which is I think perhaps a better approach, to have the 
Parliamentarian communicate with us about that subject. I don't know.
  Mr. REID. Madam President, will my friend yield?
  Mr. DORGAN. I would be happy to yield.
  Mr. REID. I have the greatest affection for my friend from Virginia. 
If there were ever a southern gentleman, he is it. But this question 
will not do the trick. It is like asking Al Capone if he is a criminal. 
I am not saying that the Parliamentarian is a criminal, but you can't 
ask him to defend himself. That is what this amounts to. That is what 
is happening, especially here in the Senate. This is not the way to do 
it. I say to those on that side of the aisle that I have the greatest 
confidence in our floor staff, as they do theirs. They are not Johnny-
come-lately. They have been here a long time. They knew when this 
unanimous consent agreement was entered into what it was. They knew 
what the standard basic definition was. They are dumbfounded as to the 
rulings of the Chair. Marty Paone and Lula Davis--who I lived with on 
this floor, and spend days and weeks and months of my life, I depend on 
for advice and counsel every day, are dumbfounded.
  I say to my friend from Virginia that to ask the Chair to determine a 
change in the definition in the last 2 days is not the way to go.
  Mr. DORGAN. Let me make the point that there has not been a ruling of 
the Chair. The issue is what the Parliamentarian views to be relevant 
and not relevant at this point. There is an important distinction. But 
we don't want to have a half hour of debate on this point.
  The only reason I came to the floor to talk about this was because I 
wanted to talk about two amendments which I wanted to offer, 
recognizing that one of them at this point has been described as not 
relevant. I was stunned by that. I expect to be able to redraft it to 
make it relevant. But I was especially interested in whether the 
managers of the bill, the chairman and ranking member, would want to 
prevent us from offering amendments that are so central to the Defense 
authorization bill. If not now, where would I offer this amendment? I 
ask the question: If not here, where would I offer it? Is there an 
alternative to offering this type of amendment somewhere else? Clearly 
the answer is no. If there is a place, this is the time to offer this 
amendment.
  My hope is that working with the chairman and ranking member I will 
be able to do that. Quite clearly, this amendment is central to the 
consideration of this bill. It is right in the middle of the defense 
authorization. I am not coming here with some amendment that is 
extraneous.
  My colleague from Michigan used the world ``germane'' which 
introduces a new subject. I thought he was going to debate that 
subject. But then he used that to describe its relationship to 
``relevance.'' This will be lost on a lot of people in the country. But 
it would be lost on people as well if they understand what this bill 
is, and then look at the amendment that is proposed to be offered by 
the Senator from Nevada and the amendment that I propose to offer and 
hear that those somehow are not relevant to the bill. They would ask, 
Is there some common sense missing here someplace?
  Clearly, clearly----
  Mr. WARNER. Madam President, if the Senator will yield?
  Mr. DORGAN. I am happy to yield.
  Mr. WARNER. The Senator from Virginia propounded a question to the 
Chair. My distinguished colleague from Nevada suggested maybe we 
shouldn't follow that procedure.
  I have now consulted with the Parliamentarian. They are prepared to 
answer the question propounded by the Senator from Virginia with regard 
to this practice over the last several years. Whatever period of time 
is stipulated I think is not that important. So I once again propound 
to the Chair the question of whether or not the means by which the 
Parliamentarian through the years has judged a question's relevancy--
has it changed, say, in the last 5 years?
  The PRESIDING OFFICER. It has not.
  Mr. LEVIN. I am sorry?
  Mr. WARNER. We can't hear.
  The PRESIDING OFFICER. It has not.
  Mr. WARNER. What did the Chair say?
  Mr. REID. It has not.
  The PRESIDING OFFICER. It has not changed in the past few years.
  Mr. WARNER. Thank you.
  Mr. DORGAN. Well, Madam President, that is patently absurd. The 
chairman asked--the first time he asked the question, he asked in the 
last decade.
  Mr. WARNER. Fine. I will repeat the question.
  Mr. DORGAN. No, no, no. I am not asking him to repeat the question. I 
have the floor.
  He asked the last decade. Then he asked the last several years. Then 
he asked the last 5 years. The fact is, people who watch this, going 
back through several Parliamentarians, are surprised this is not a 
relevant amendment.
  Relevancy is purely judgmental. If I were a Parliamentarian, a member 
of the Parliamentarian's Office, I would say nothing has changed in 200 
years. God bless us.
  Mr. REID. Will the Senator yield for a unanimous consent request?
  I would like the record to reflect, following the statement of the 
Chair, a big smile and a laugh from the Senator from Nevada based on 
that decision by the Chair.
  Mr. DORGAN. Well, Madam President, it is hard to describe the smile 
the Senator from Nevada blesses us with, but if he wishes the record to 
include that, we will do that.
  Look, we have gone on long enough. My interest is in substance, not 
procedure. I understand the Senate operates based on procedures and 
precedent, but I am not very happy today because the fact is, people 
whose judgment I rely on are very surprised by this. I just don't have 
the foggiest idea--not the foggiest idea--how my ability to strike a 
provision that was put in this bill 2 years ago is thwarted because it 
is not relevant to this bill. I don't have any idea.
  I would ask the question, if I can't do it now, then when can I do 
it? If I can't

[[Page 12293]]

do it in this bill, then where can I do it? I don't have any 
understanding of that. Sometimes logic gets turned on its head. That is 
clearly the case here.
  Now, to the Parliamentarian's Office, I say I am sorry we have this 
disagreement. But the fact is that what I heard this morning, both with 
respect to retired veterans who are prohibited from getting their 
disability payments--you know something, they have been shunted around 
this Chamber now for years--for years--and the fact is a whole lot of 
them deserve more than they have gotten from this Congress. These are 
people who served this country, earned a retirement, and then were 
disabled while serving their country and can't collect full disability 
payments. And every time we try to solve that, there is one reason or 
another it can't be done.
  It is just one amendment Senator Reid and I and Senator McCain want 
to offer. But it just does not make sense to me to be in this position. 
I hope my two colleagues, Senator Warner and Senator Levin, would not 
intend for these amendments to be nonrelevant. They have some notion of 
what is relevant, what is nonrelevant in terms of what they wanted to 
prevent, and I assume they didn't want to prevent these types of 
amendments from being offered.
  So I will be working with them and seeing if we can find a way 
through this. I will work with the Parliamentarian's Office. But I must 
tell you, this is the first time--I have been in this Senate for a long 
time. I have never come to the floor ever, not one instance I think you 
will find where I have come to the floor and been upset with the 
Parliamentarian's Office or others. I am not a complainer. But I tell 
you what, this defies common sense. And I think, frankly, in a quiet 
moment, off the floor, the chairman and ranking member would tell me 
they didn't intend to preclude these two amendments. And if that is the 
case--and I think that is the case--then they ought not be precluded, 
and we need to find a way to allow them to be offered.
  So I will come back. I intended to come and speak to the substance 
and raise the question, and then try to solve it. I am sorry we got 
into a longer discussion than that.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Enzi). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Colorado.
  Mr. ALLARD. Mr. President, I have a statement I would like to make on 
the bill. It is my understanding we are in order to move forward with 
the debate.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. ALLARD. Mr. President, today the Senate is considering the 
National Defense Authorization Act of fiscal year 2004. While there 
will be much debate on a few of the provisions in this bill, there is 
one thing we can all agree on--the defense of this Nation is our No. 1 
priority.
  The bill before us is a reflection of that priority. With the passage 
of this bill, we are saying this body is determined to ensure our Armed 
Forces have the resources, tools, and equipment they need to 
effectively combat those who threaten the United States, its interests 
overseas, and its friends and allies. With the passage of this bill we 
are saying our military personnel are the best in the world and should 
be paid and equipped as such. Modern equipment and sophisticated 
technology were certainly critical factors in recent operations. 
However, it was the extensive training, superb leadership, and valiant 
service of thousands of soldiers, sailors, airmen, marines, and 
coastguardsmen which has been the deciding factor time and time again.
  With the passage of this bill, we are also admitting that threats to 
our way of life persist in many parts of the world. The global reach of 
terrorist networks is extensive, as demonstrated by the recent bombings 
in Saudi Arabia. The proliferation of weapons of mass destruction is 
growing. There are reports, for example, that North Korea may try to 
sell a nuclear weapon. These threats and others require us to remain 
vigilant. Our military must be prepared and ready to respond in a 
moment's notice.
  I would like to take a few moments to draw the attention of the body 
to some of the more important provisions in this legislation.
  Section 534 of the bill, which I sponsored, lays out several actions 
the Secretary of Defense and the Secretaries of each military 
department must take to address sexual misconduct at service academies. 
These include promulgating policies on sexual misconduct, conducting 
annual cadet surveys, and submitting a report to Congress on the board 
of visitors of each academy. The recent sexual assault scandal at the 
United States Air Force Academy highlighted the importance of being 
proactive and taking appropriate action at the first sign of trouble. 
This provision will be helpful in discovering sexual misconduct 
problems at the academies. This provision will also help academy 
leaders develop new tools for addressing sexual misconduct and give 
Congress and the board of visitors insight into the size and scope of 
the problem.
  Another provision which I sponsored focuses on improving the Defense 
Department's management of travel credit cards. This provision builds 
on the purchase card legislation of Senators Grassley and Byrd which 
was approved by this body last year in the Defense appropriations bill. 
Federal agencies are required by law to use purchase cards for certain 
transactions and travel cards for official trips. While utilization of 
these cards has yielded considerable savings for the American taxpayer, 
abuse has continued.
  Recent GAO audits have reported these cards have been used at 
brothels, adult clubs, sporting events, and even Internet pornographic 
Web sites. Section 1013 will help address this deficiency. It requires 
the Secretary of Defense to prescribe guidelines and procedures 
regarding disciplinary action against personnel guilty of improper, 
fraudulent, or abusive use of Defense travel cards. The provision 
recommends to the Secretary that he consider enforcing various 
penalties allowed in law, including assessing a fine three times the 
size of the abuse, requiring the guilty party to pay court and 
administrative costs, and firing or court-martialing Department of 
Defense personnel.
  Lastly, the provision requires the Secretary to report to Congress on 
these guidelines and provide legislative proposals should legislative 
action become necessary.
  The bill before us also includes two provisions I sponsored regarding 
military voters. With the current deployments resulting from the war on 
terrorism, Operation Iraqi Freedom, and numerous other military 
actions, we must do all we can to ensure these military men and women 
are given every available opportunity to exercise their right to vote. 
I believe it is our duty to remove as many barriers as possible for 
military voters to be heard.
  One provision included by the Armed Services Committee addresses 
those voters who fall through the cracks when they leave the military 
and move before an election but after the residency deadline. The other 
provision addresses problems with overseas military absentee ballots. 
After the 2000 election there were numerous reports of ballots mailed 
without the benefit of postmarking facilities. Sometimes mail is 
bundled from deployed ships or other distant postings and the whole 
group gets one postmark which would invalidate them under current law. 
The provision adopted will change the law so our military personnel 
would be ensured their votes count.
  I am encouraged by the $40 million added to the President's request 
for formerly-used defense sites, better known as FUDS. As noted in the 
committee report, there are over 9,000 FUDS in the program which 
historically have been underfunded. The

[[Page 12294]]

longer these sites wait to be remediated, the more expensive they 
become. That is why I am pleased to see the extra funds and encourage 
the Army to address these problems in an expeditious and thorough 
manner.
  Turning to the provisions that originated from the Strategic Forces 
Subcommittee, which I chair, these provisions reflect a net increase of 
$85 million in procurement, a net increase of $202 million in research 
and development. They also reflect the requested level of funding for 
the Department of Energy programs and activities. The total net 
increase was $287 million.
  These provisions fully fund the President's $9.1 billion request for 
missile defense. I was pleased that my ranking member, Senator Bill 
Nelson, and I were able to work together effectively on these issues. I 
am hopeful any missile defense amendments considered as part of this 
debate will be noncontroversial.
  Significant funding actions in the committee's bill for missile 
defense include an increase of $100 million for the ground-based 
missile defense system for additional testing and hardware improvements 
to reduce risk and enhance operational effectiveness, and a $70 million 
decrease for the ballistic missile defense system intercept project.
  The bill before us also includes a number of space-related provisions 
that originated from my subcommittee. One would help to more fully 
develop an effective cadre of space professionals. Another would 
establish assured access to space for national security payloads as 
national policy.
  Significant funding actions for space include the following: An $80 
million increase for the GPS III, which is an advanced navigation 
satellite; a $60 million increase for the Advanced EHF Satellite 
communication system; a $60 million increase for assured access to 
space; and a $50 million decrease for the Advanced Wideband system, 
which will put this program on a sounder schedule.
  There are two significant legislative provisions regarding the 
intelligence, surveillance, and reconnaissance, referred to as ISR. The 
first would require establishment of a Department of Defense ISR 
Integration Council, and formulation of a 15-year ISR roadmap to ensure 
the development of an efficient, interoperable, complementary ISR 
architecture for the Department.
  The second reemphasizes the committee's support for the acquisition 
and use of commercial imagery to meet Department of Defense and 
Intelligence Community needs. The bill also adds funds to a number of 
high-priority ISR programs.
  Another set of provisions originated from my subcommittee focuses on 
Department of Energy programs. These provisions authorize the weapons 
activities within the National Nuclear Security Administration at the 
budget request level of $6.4 million; the Naval Reactors program at 
$788 million; and the Defense Environmental Management program at $7.7 
billion.
  Another DOE provision would authorize $21 million for the National 
Nuclear Security Administration to begin research on advanced concepts, 
and $15 million of that research money will be used to continue the 
feasibility study on the robust nuclear earth penetrator. A repeal of 
the ban on low-yield nuclear weapons research and development was also 
included--emphasizing just the repeal, and this involved the research 
and development.
  Mr. President, our Armed Forces are highly capable, superbly led, and 
devoted to the protection of the American people. During Operation 
Enduring Freedom, the Taliban unwittingly discovered our military has 
the capability to deploy and supply thousands of soldiers in the most 
remote of regions of the world. And during Operation Iraqi Freedom, 
Saddam Hussein experienced firsthand the devastating precision 
firepower our forces can unleash from a multitude of platforms.
  Yet despite these capabilities, we cannot stand still because, most 
assuredly, our enemies will not. We must be determined, committed, and 
focused on the task before us. It is our duty.
  The Armed Services Committee, under the outstanding leadership of 
Chairman Warner, has spent many hours developing, analyzing, and 
reviewing the provisions in this bill. I also want to thank the ranking 
member of the Strategic Forces Subcommittee, Senator Bill Nelson, and 
his staff for their cooperation and leadership during our hearings and 
committee markup. While we may not all agree on the merits of some of 
the provisions, we can all agree the overall bill will go a long way 
toward meeting the growing needs of our men and women in uniform.
  The American people depend on us, just as we depend on our Armed 
Forces. Let us do our duty and quickly approve this bill.
  I yield the floor. Seeing no other member seeking recognition, I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I ask unanimous consent that the pending 
amendment be laid aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 711

  Mr. REED. Mr. President, I call up amendment No. 711.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Rhode Island [Mr. Reed], for himself and 
     Mr. Levin, proposes an amendment numbered 711.

  Mr. REED. 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 as follows:

 (Purpose: To provide under section 223 for oversight of procurement, 
performance criteria, and operational test plans for ballistic missile 
                           defense programs)

       Strike section 223, and insert the following:

     SEC. 223. OVERSIGHT OF PROCUREMENT, PERFORMANCE CRITERIA, AND 
                   OPERATIONAL TEST PLANS FOR BALLISTIC MISSILE 
                   DEFENSE PROGRAMS.

       (a) Procurement.--(1) Chapter 9 of title 10, United States 
     Code, is amended by inserting after section 223 the following 
     new section:

     ``Sec. 223a. Ballistic missile defense programs: procurement

       ``(a) Budget Justification Materials.--(1) In the budget 
     justification materials submitted to Congress in support of 
     the Department of Defense budget for any fiscal year (as 
     submitted with the budget of the President under section 
     1105(a) of title 31), the Secretary of Defense shall specify, 
     for each ballistic missile defense system element, the 
     following information:
       ``(A) For each ballistic missile defense element for which 
     the Missile Defense Agency in engaged in planning for 
     production and initial fielding, the following information:
       ``(i) The production rate capabilities of the production 
     facilities planned to be used.
       ``(ii) The potential date of availability of the element 
     for initial fielding.
       ``(iii) The expected costs of the initial production and 
     fielding planned for the element.
       ``(iv) The estimated date on which the administration of 
     the acquisition of the element is to be transferred to the 
     Secretary of a military department.
       ``(B) The performance criteria prescribed under subsection 
     (b).
       ``(C) The plans and schedules established and approved for 
     operational testing under subsection (c).
       ``(D) The annual assessment of the progress being made 
     toward verifying performance through operational testing, as 
     prepared under subsection (d).
       ``(2) The information provided under paragraph (1) shall be 
     submitted in an unclassified form, but may include a 
     classified annex as necessary.
       ``(b) Performance Criteria.--(1) The Director of the 
     Missile Defense Agency shall prescribe measurable performance 
     criteria for all planned development phases (known as 
     ``blocks'') of each ballistic missile defense system program 
     element. The performance criteria shall be updated as 
     necessary while the program and any follow-on program remain 
     in development.
       ``(2) The performance criteria prescribed under paragraph 
     (1) for a block of a program for a system shall include, at a 
     minimum, the following:
       ``(A) One or more criteria that specifically describe, in 
     relation to that block, the types

[[Page 12295]]

     and quantities of threat missiles for which the system is 
     being designed as a defense, including the types and 
     quantities of the countermeasures assumed to be employed for 
     the protection of the threat missiles.
       ``(B) One or more criteria that specifically describe, in 
     relation to that block, the intended effectiveness of the 
     system against the threat missiles and countermeasures 
     identified for the purposes of subparagraph (A).
       ``(c) Operational Test Plans.--The Director of Operational 
     Test and Evaluation, in consultation with the Director of the 
     Missile Defense Agency, shall establish and approve for each 
     ballistic missile defense system program element appropriate 
     plans and schedules for operational testing to determine 
     whether the performance criteria prescribed for the program 
     under subsection (b) have been met. The test plans shall 
     include an estimate of when successful performance of the 
     system in accordance with each performance criterion is to be 
     verified by operational testing. The test plans for a program 
     shall be updated as necessary while the program and any 
     follow-on program remain in development.
       ``(d) Annual Testing Progress Reports.--The Director of 
     Operational Test and Evaluation shall perform an annual 
     assessment of the progress being made toward verifying 
     through operational testing the performance of the system 
     under a missile defense system program as measured by the 
     performance criteria prescribed for the program under 
     subsection (b).
       ``(e) Future-Years Defense Program.--The future-years 
     defense program submitted to Congress each year under section 
     221 of this title shall include an estimate of the amount 
     necessary for procurement for each ballistic missile defense 
     system element, together with a discussion of the underlying 
     factors and reasoning justifying the estimate.''.
       (2) The table of contents at the beginning of such chapter 
     9 is amended by inserting after the item relating to section 
     223 the following new item:

``223a. Ballistic missile defense programs: procurement.''.

       (b) Exception for First Assessment.--For the first 
     assessment required under subsection (d) of section 223a of 
     title 10, United States Code (as added by subsection (a))--
       (1) the budget justification materials submitted to 
     Congress in support of the Department of Defense budget for 
     fiscal year 2005 (as submitted with the budget of the 
     President under section 1105(a) of title 31, United States 
     Code) need not include such assessment; and
       (2) the Director of Operational Test and Evaluation shall 
     submit the assessment to the Committees on Armed Services of 
     the Senate and the House of Representatives not later than 
     July 31, 2004.

  Mr. REED. I thank the Chair.
  Mr. President, there is a very simple, but important, premise 
underlying this amendment. I believe Congress should know the 
capabilities of any missile defense system that is deployed, and that 
these capabilities should be subject to rigorous testing. I understand 
this information may very well be classified, and we would receive it 
on a classified basis, but it is essential for us, as we make decisions 
about a huge program, not only in terms of dollars, but in terms of 
consequences to our security, that we know how capable this program is.
  My amendment would request and require the Department of Defense 
develop measurable performance criteria for missile defense systems and 
an operational test plan for those systems, and an estimate of when 
operational testing would be done to verify the performance criteria 
are met. The performance criteria would include the characteristics of 
the threat missiles that each missile defense system is being designed 
to counter.
  The amendment would require the Secretary of Defense to submit the 
performance criteria and operational test plan to the Congress each 
year.
  The amendment would also require the Director of Operational Test and 
Evaluation to provide an annual assessment of the progress being made 
to verify, through operational testing, whether the systems are meeting 
their established performance criteria.
  Both the performance criteria and test plans could be revised as 
necessary by the Department of Defense, but I do believe we need to 
have an idea at least of the capabilities of these systems and also, 
again, these capabilities must be established by operational testing.
  The Patriot PAC-3 system, the only currently deployed ballistic 
missile defense system, conducted operational testing to prove it met 
established performance criteria prior to being deployed. This is the 
right way to develop a missile defense system; indeed, all defense 
programs. This amendment would model other missile defense programs on 
the very successful PAC-3 program in terms of performance criteria, 
operational testing, and then deployment.
  There are a number of important things this amendment will not do. 
This amendment does not reduce funding for any missile defense system.
  It would not prevent the administration from fielding missile defense 
by 2004, although, hopefully, we will have an idea of exactly what they 
field in 2004, and, frankly, I do not think this Congress has such an 
idea at this moment.
  It would not dictate what performance any missile defense system 
should have, nor does it establish any dates for when certain 
performance must be attained.
  It would, however, enable Congress to understand what missile defense 
capabilities are being bought for the $9.1 billion provided in the 
defense bill for missile defense. I think that is a threshold issue our 
constituents expect us to know. If we are investing $9.1 billion, we 
have to know, and the American people should feel confident we know, 
what are we buying, how much will it protect us against what type of 
threat.
  I believe also it would improve the chances of developing effective 
missile defenses by establishing clear standards of performance.
  Currently, none of the missile defense programs under development, 
under the Missile Defense Agency, have established performance 
criteria, meaning essentially there are no standards for when a system 
reaches any particular milestone or has completed its development. 
These standards did exist under the Clinton administration but were 
removed by the current administration.
  The administration claims it cannot develop performance criteria for 
missile defense because the systems are too complex and difficult, and 
no one can predict how they will perform.
  However, despite this seeming quandary about not knowing what will 
happen, the administration plans to field both ground- and sea-based 
missile defenses in 2004 and possibly an airborne missile defense by 
2005. Frankly, a system that is ready to be fielded is presumably far 
enough along to be able to tell its performance, or one can only assume 
a system is being fielded without any knowledge of how it actually will 
work. That to me would not be a very prudent or a very wise deployment.
  Other defense programs are also complex and difficult, yet they have 
measurable performance criteria against which they are tested. The F/A-
22 aircraft program is a very complex and difficult system, as is the 
V-22 Osprey program. Yet both of these programs have well-established 
performance criteria.
  In fact, all major military programs, except missile defense, have 
performance criteria or requirements which were approved relatively 
early in a system's development and revised as necessary as the program 
matures. I do not think it is incompatible to have a flexible system 
that can be adapted, yet still have performance criteria, but it seems 
in our discussion of missile defense these two notions are completely 
separated: Flexibility, innovation, seizing technological 
breakthroughs, and simple performance criteria. They should be part and 
parcel of any program we undertake.
  For example, all unmanned aerial vehicle programs, such as the 
Predator, have requirements stating how long they need to stay aloft, 
how high they should fly, and how well their sensors can see. Yet this 
has not interfered with their innovation, their development, and their 
deployment.
  The administration has claimed because it has adopted the new spiral 
development, capabilities-based acquisition approach, that establishing 
actual performance criteria and operational test plans is not 
appropriate because we just do not know for sure what missile defense 
capabilities will ultimately emerge. But there are a number of other 
spiral development programs in

[[Page 12296]]

the Department of Defense, and all of them, except missile defense, 
have performance criteria and operational test plans.
  For example, the Global Hawk Unmanned Aerial Vehicle, which saw 
service in Afghanistan and Iraq, is a spiral development program. Yet 
it has well-established performance requirements and a documented 
operational test plan.
  There is absolutely no reason that missile defense should not have 
the same sort of yardsticks for measuring progress.
  Ballistic missile programs used to have performance criteria, such as 
how many incoming missiles they should be able to engage, and how much 
area a system should defend. This enabled Congress to understand the 
characteristics of missile defense programs that were being funded and 
why they were necessary. Such criteria have been removed, and Congress 
does not know, for example, how many incoming missiles each missile 
defense system is being designed to defend against or how much area the 
system is being designed to defend.
  Without such information, Congress is essentially writing an $8 
billion to $9 billion blank check each year to the administration for 
missile defense.
  Over the previous 2 years, Congress has tried and tried again to get 
the administration to provide the most basic information on its missile 
defense programs. Time and again, the administration has refused to 
provide it.
  In fiscal year 2002, Congress directed the Department of Defense to 
provide its most basic cost, schedule and performance goals for missile 
defense.
  We also asked the General Accounting Office to assess the progress 
being made towards achieving these goals.
  As late as the end of fiscal year 2002, when the first GAO assessment 
was due, the Department had still not established a single meaningful 
goal for its missile defense programs. GAO was forced to write to 
Congress saying that it could not complete its assess because there 
were no goals to measure missile defense programs.
  Lately, in response to continued Congressional pressure, the 
administration has begun to establish a few very broad, very near-term 
goals. But even these goals are misleading.
  Secretary Aldridge, the Pentagon's acquisition chief, recently 
testified before the Senate Armed Services Committee that he thought 
the administration's 2004 missile defense would have a 90 percent 
chance of hitting an incoming warhead from North Korea.
  Whether this is a firmly established goal or simply the individual 
opinion of a very sophisticated observer but nevertheless an individual 
opinion, it is hard to tell. Indeed, one can raise many questions about 
whether this 90-percent figure as a goal is being achieved and can be 
achieved by 2004. Secretary Rumsfeld has said in public that the 2004 
system is rudimentary. Does that mean a 90-percent goal will be 
achieved or does it mean something less?
  Indeed, if we look at the system closely, there are many issues that 
emerge which would suggest that this is such a situation in which there 
are no goals. For example, the booster for the system that is designed 
to be deployed in 2004 has yet to be flown in an actual intercept. So 
there is the question of making it work with the actual kill vehicle in 
an operationally feasible mode. That is a pretty significant issue when 
it comes to whether this system will have a certain degree of 
reliability.
  The radar for the system was never designed for missile defense and 
can never be actually tested in an actual intercept attempt. The 
Pentagon's chief tester has told the Senate Armed Services Committee 
that the 2004 missile defense, in his words, has not yet demonstrated 
operational capability. Yet it seems clear that, regardless, there is 
an intention to field this system in 2004.
  All of these issues raise real questions as to the capability of this 
system. If we accept, in fact, that it might be 90 percent, is it 90 
percent of hitting a missile with defense decoys or 90 percent of 
hitting a missile without a decoy? These are important points that I 
think can be answered and should be answered by the Department of 
Defense as we go forward to invest something on the order of $9 billion 
a year in missile defense.
  The administration also claims that the missile defense system it 
plans to field in 2004 will protect all 50 States, but if we look at 
the details such a defense is only possible if we have Navy ships 
constantly patrolling the waters of North Korea using their radars to 
pick up any ICBM launches headed towards Hawaii.
  Initially, in the Clinton proposal there was a plan to build a very 
large radar designed particularly for ballistic missile defense that 
was intended to and had established criteria that would include 
protecting and covering all 50 States.
  This new approach may in fact be effective, but, once again, we are 
not sure--the Congress is not officially on record in either an 
unclassified or a classified sense--of what is the standard. Is it all 
50 States? Is it 50 States assuming that the Navy will have ships 
constantly patrolling the waters off North Korea? Indeed, it is not 
quite sure whether those ships can constantly be patrolling the waters 
off of North Korea given the numerous missions in the war on terror, 
given the numerous military operations. That, too, has to be looked at 
and examined based upon some clear criteria.
  Another point is that the radar on these ships is being adapted, but 
it was not originally designed to identify and track ICBM-type targets. 
There is a question of whether the radar would be accurate enough to 
perform this mission.
  If the Navy ships are not there, if the radar truly does not work as 
they hope it works or it is not modified quickly enough, there is a 
real question about the coverage of the system.
  All of these points are being made to say in order to assess what we 
are buying, it helps to have these performance goals, to have them 
clearly delineated, to have the assumption laid out, and to have all of 
this operationally tested, so when we deploy a system we can say with 
great confidence to the American people that it will provide this level 
of protection. I do not think we can say that at this point.
  This amendment in no way inhibits the administration from fielding a 
system, any type of system, in 2004, but what it will give us is an 
opportunity to measure that system. How effective is that system? What 
threats will this system engage? That type of knowledge is very 
important for us as we make our decisions. It is also incumbent upon 
the administration to provide such knowledge. Again, I emphasize it can 
be done either on a classified or unclassified basis because I 
understand there is a utility sometimes to have a system which our 
adversaries might assume is 100-percent effective. But at least the 
Congress must know this information.
  The other fact of this lack of clarity and goals is it inhibits 
operational testing. Administrative witnesses have testified as to the 
need for operational testing. We have passed laws establishing 
operational testing. This is the traditional routine way in which we 
verify whether a system works and also, as we improve the system, how 
effective the modifications and improvements are.
  Every major defense program I can think of, except missile defense, 
has established plans for operational testing. Without these criteria 
for performance and operational testing, I do not know if we can, in 
fact, create and deploy a system of which we can be confident.
  As we reestablish these performance criteria for missile defense 
programs and require a plan for operational testing, Congress will 
regain an important tool to understand how well our missile defense 
program is succeeding, how our money is being spent--not our money, 
frankly, but the American people's money. Without such criteria and 
operational testing, none of that clarity will be available to us.
  I think something else will be very important. It will require the 
Department of Defense to face squarely these tough issues: What type of 
threats can we defeat? How wide is the coverage of

[[Page 12297]]

our system? What additional resources must we bring to bear to make it 
effective? Is this investment cost effective and cost efficient in 
terms of protecting the American people?
  Right now all of that is very amorphous, very nebulous because there 
is no standard to measure it, even a general standard, these general 
goals I talked about. I hope this amendment could be accepted because 
it builds on provisions in the law that were adopted by the committee.
  I commend Senator Allen for his efforts to include more cost data, 
more lifetime cycles of the cost, what it will cost to field this 
system. This is an attempt to build on that foundation. I hope my 
colleagues will see it as such, agree to this amendment, and provide 
the kind of goals, operational testing and clarity that are needed so 
we can assure the American public that when we deploy a missile defense 
system, it will live up at least to the standards that are disclosed to 
the U.S. Congress.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I rise in opposition to the Reed 
amendment. First, there have been a number of issues that Senator Reed 
and myself have worked together on, and I think quite effectively. It 
is with considerable regret that I stand today and oppose his 
amendment.
  It is an amendment that would add a number of reporting requirements 
for the Missile Defense Agency and the Office of Test and Evaluation. I 
cannot buy into the argument that a few good, well-thought-out 
regulations does the job; that if we just put in more regulations it is 
even better. There is a good balance we need to sustain. We have found 
that balance. This is an issue that in previous years has been hotly 
debated within the Armed Services Committee and within my subcommittee 
in which this issue comes out.
  This year we did not have any amendment--we had some debate but no 
amendment in the Subcommittee on Strategic Forces, which I chair; we 
did not have any amendments in the full committee. Now we are dealing 
with this issue in the Senate.
  The Missile Defense Agency is attempting to develop an effective 
missile defense system as rapidly as possible. They are structuring the 
program to meet the threats we currently face, while recognizing that 
the missile threats will unpredictably evolve in the future. That is 
one of the problems I have with the Reed amendment, its 
unpredictability. To do so, the Missile Defense Agency has taken a 
capabilities-based approach that focused on developing a number of 
systems.
  The Reed amendment attempts to relate ballistic missile defense 
element performance criteria to specific threats that these elements 
are designed to defeat. If it takes effect, the amendment would push 
the Missile Defense Agency back toward threat specific development and 
acquisition, away from capabilities-based development and acquisition.
  Why is that a problem? We do not always understand the threat facing 
the United States. I can take us back to a couple of current situations 
where we did not understand what was happening with potential 
adversaries. In 1991, for example, in the Persian Gulf conflict, we got 
into Iraq. Only then did we begin to recognize how far along the 
nuclear development program was in Iraq. That was 1991. The people in 
the Defense Department, our experts, were surprised. People in defense 
intelligence were surprised. We looked back to the North Korea 
situation. For some time we suspected there was, perhaps, nuclear 
development going on but we were not able to get that confirmed until 
just recently where North Korea finally admitted they were developing 
nuclear weapons.
  My point is, when we have the development of a weapons program based 
on what you think the threats are, it may not truly reflect what is 
happening. The best thing we can do is decide, for example, on missile 
defense, it is a capability that we need to have and we base it on the 
capability of being able to develop that technology so we have the best 
technology. That is where we get the best deterrence in a program such 
as the ballistic missile system.
  The systems or capabilities will be upgraded on a 2-year spiral, or 
blocks, as the technology matures. The Missile Defense Agency is 
seeking to develop a single integrated missile defense system 
consisting of a seamless web of sensors and shooters tied together by 
command and control, battle management and communication systems. Each 
system element, such as THAAD or PAC-3 or the sea-based aegis systems, 
can support the other, and it makes the other more effective.
  Congress has already approved a number of Missile Defense Agency 
reporting and process requirements in the fiscal year 2002-2003 
National Defense Authorization Acts. Yet the Reed amendment requires 
another layer of reporting requirements.
  In response to the previous 2 years of legislation, the Missile 
Defense Agency provided a 300-plus-page system capability specification 
that describes block 2004 system specifications and metrics in painful 
detail, including battle manager, sensor, weapons by each element such 
as THAAD, PAC-3, and ABL and ground-based, midcourse, among others.
  ABL also provided over 1,000 pages of a 2-volume adversary 
capabilities document which describes all the performance 
characteristics that might be embodied in foreign threat missiles that 
U.S. missile defense systems might have to defeat. The budget 
justification document provides a funding breakdown by element and 
block--a detailed set of goals for 2004 and more general goals for 
block 2006 and beyond.
  The amendment in question appears to require much that is already 
provided by the Missile Defense Agency as well as reporting that is 
already required by law. The Director of the Missile Defense Agency 
already provides performance criteria. The Director of OTNE already 
established and provides operational test plans for missile defense 
systems and also provides an annual assessment of the Missile Defense 
Agency test plan.
  Here we are, saying a few well-thought-out regulations are good, they 
are fine, and we are making the assumption if a few are good, more 
regulations ought to be better. I don't agree with that. That takes 
away from and delays a program that needs to be moving forward in an 
expeditious and thoughtful way. What we have in the present system 
provides the accountability we need as lawmakers.
  The other point is, when you tailor your development of your 
technology to the threats or perceived threats from your enemy, you 
will be left in the dust. We do not always know what our enemies or 
potential enemies are doing. We have a capability to defend this 
country. If we want a strong defense system, we need to move ahead with 
that defense system. It does have a deterrent effect.
  It should be noted that the Missile Defense Agency already provides 
more reporting than any other program in the Department of Defense. 
There is no reason for Congress to require duplicative reporting on top 
of what is already authored or required. We cannot and should not be in 
the business of micromanaging missile defense.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sessions). The Senator from Rhode Island.
  Mr. REED. I listened to Chairman Allard and I commend him for his 
leadership on the committee's subcommittee. The committee addressed a 
series of issues and in this legislation they have made progress on 
trying to do something we are all committed to do.
  I point out in terms of reporting requirements, the legislation 
itself includes additional reporting requirements. For each ballistic 
missile defense element, the production rate capabilities, the 
potential data availability, the expected cost, et cetera, the notion 
of having more reporting requirements has already found its way into 
the legislation.
  My point is that we are not, as yet, asking effectively--we have 
asked before but ineffectively--for some simple language about what are 
the goals, and also how are we going to validate these goals through 
operational testing.

[[Page 12298]]

  I do know the value of a capabilities approach but you have to ask a 
more detailed question: The capability to defeat what? The Missile 
Defense Agency can answer what they know they are not going to defeat. 
They have absolutely no plans at this point to be able to engage a 
sophisticated MIRVed weapon with multiple decoys. They tell you that 
flat, that is not 2004. What they will not tell us is what they prepare 
to engage, what they can engage.
  I think, if they clearly understand they are not attempting a 
capability to defeat one or multiple missiles launched from a 
significant power, such as Russia or China, they can tell us what 
precisely they are engaged in trying to defeat.
  So the notion about capabilities cannot be divorced from threats. 
That is not possible in any type of military concept. The notion they 
have to have a capabilities base does not excuse them from that because 
they defined already their capability. It is a limited capability.
  So I guess I would ask the question: What are the limits to that 
capability?
  What I am proposing is not inconsistent with the notion of 
capabilities in an evolving system. This amendment clearly lets them 
revise these criteria daily, if they like. But at least it insists that 
there be some criteria, some goals.
  The reluctance to provide us this information has, perhaps, many 
reasons. One possibility is they don't know. But if they don't know 
this, that is even more shocking. We are spending $9 billion a year and 
they don't know, in the Missile Defense Agency, what type of threat 
they are trying to defeat with this deployment in 2004? The alternative 
is they know but they will not tell us, and that is equally disturbing.
  Frankly, I think this amendment makes sense. It does not restrict 
deployment. It does not restrict funding. Every major weapons 
development system has goals, has operational testing plans, except for 
the Missile Defense Program.
  I, again, urge my colleagues to accept or adopt or support this 
amendment because it answers a very fundamental question, a question I 
think every Member of this body and every American wants answered: What 
are we buying for $9 billion each year? How will it protect us? From 
what will it protect us?
  I think the people of my State--capability--threats--they want to 
know what this system will be valuable to do.
  I am happy to yield to the chairman.
  Mr. WARNER. Mr. President, I would like to ask the following 
question: We have a process in our committee that is not unlike what 
other committees do. We have our subcommittee structure where these 
issues are brought up and worked through the subcommittee. Then they 
are fully worked in the full committee in a series of two markups.
  I say to my distinguished colleague from Rhode Island, one for whom I 
have tremendous admiration, you have been a watchdog on this subject 
for some period of time. I have listened carefully to the debate today.
  Where I am perplexed is that in our bill, on pages 26 and 27--you 
need not go to that; I will just read it to you--``Oversight and 
procurement of ballistic missile defense,'' we enumerate a series of 
matters that we have in the nature of reports. This was carefully 
worked out by the staff of the majority and staff of the minority. Your 
concerns were not raised, as I understand it, at the subcommittee 
level. They were not raised at the full markup level. Here we are now 
confronting the entire Senate with the issue of whether we should go 
into more reporting requirements, above and beyond what is in the bill.
  I say to my distinguished colleague, if you go back--for instance, 
last year you had similarly at the last minute, the last amendment on 
the bill, a series of further reporting requirements. We ended up 
working that out, accepting parts of it, and went ahead with the bill. 
But according to my calculation, the Armed Services Committee receives 
more than 2,000 pages of reporting each year now from the Missile 
Defense Agency. I repeat, 2,000 pages. We are putting more and more 
requirements on this Agency, requiring more and more staff on subjects 
which, for reasons perhaps you will give now, you did not raise in the 
subcommittee and you didn't raise in the full committee.
  The purpose of our staffs is to try to work out and reconcile, in the 
course of the preparation of the bill before it is finally marked up 
and brought to the Senate, such matters as this. After all, reporting 
requirements are fairly arcane and as a general rule we try to accede 
to the requests of Members who feel strongly about it. Unfortunately, 
they pile up and become quite onerous, but nevertheless, the practice 
of the Senate is to accord courtesy to fellow Members.
  But now we are up to 2,000 pages from one agency of the Department of 
Defense. To the best of my knowledge, I don't know how many people on 
the committee, members and staff, go through all these 2,000 pages at 
the moment.
  Could the Senator, then, advise me as to the procedure in the 
subcommittee, procedure in the full committee, and why the staff didn't 
have these matters under their cognizance at the time they were trying 
to reconcile the differences and prepare the bill language on reporting 
requirements?
  Mr. REED. I will be happy to respond to the chairman.
  First, this is an issue I think is not only important but at a level 
where it is not just a detail of reporting. I think it goes to the 
heart of the accountability, not just for our committee but for the 
whole Senate.
  Frankly, all of our colleagues have to be able to answer the question 
to their constituents: How much protection are we getting for these 
resources?
  I understand the Missile Defense Agency, as so many Department of 
Defense organizations, is required to submit reports. But they 
certainly have the resources to do these reports.
  What I find striking--again, it is a reflection, too, of the previous 
years--we have in the past tried to get this information. We required 
goal setting and a GAO assessment. I was, frankly, amazed--and this 
amazement came about in the preparation, not only for the committee 
markup but also coming to the floor--that the GAO simply sort of threw 
up its hands because the Missile Defense Agency says we really don't 
have any goals; we can't tell you; they are too imprecise.
  So I think this is an issue that should be engaged by the entire 
Senate. There was no intention on my part to undermine the procedures 
on the committee, the Armed Services Committee or the subcommittee. I 
was not aware in order to bring a matter to the floor one had to offer 
it first in subcommittee or full committee.
  I think this is an issue that is of a magnitude and of a degree of 
clarity that Members of the entire Senate can make a judgment and 
should make a judgment. That is my response.
  Mr. WARNER. I take it from your reply that one Senator thinks it is a 
matter of enormous importance. Was there a reason it wasn't brought up 
in the subcommittee of jurisdiction? We have the distinguished chairman 
here. So those members who, on our committee, have the first--should we 
say the first response? I like that phrase, first response--to look at 
matters of this nature, if it is that important why wasn't it brought 
up then? Then we had the subsequent markup session. If it was that 
important, why wasn't it brought up then?
  It seems to me that the way the members of the committee can best 
serve the Senate is to take those entrusted with specific subjects, put 
their minds on it, put it in the bill. If you had endeavored to put it 
in, it was rejected at subcommittee, rejected at full committee, then 
come on out on the floor and roll it out with all the guns and say: 
Look, colleagues, the committee didn't do its work.
  Mr. REED. If I may reclaim my time, first, I do not assume--just on a 
procedural basis--that is a requirement. I think by law every Member of 
the Senate can offer amendments on any bill when it comes to the floor, 
whether you are on the committee or not. Being on the committee does 
not prevent you from offering an amendment if you did not offer it 
before.

[[Page 12299]]


  Mr. WARNER. I am not contesting that. You recognize that. I am just 
pointing out, in 25 years, how the committee has to do its work.
  Mr. REED. If there are procedural oppositions to the bill, that is 
one thing. But I think the substance is compelling enough to respond, 
and I think everyone here is capable to respond in substance. Either 
you are going to let the system continue to operate, which I think 
either because of--whatever number of reasons, it has not clearly 
identified goals and objectives, has not conducted robust testing that 
I think we all believe should be concomitant with the defense program. 
I am trying to remedy those issues. I think this is a perfectly 
appropriate place to introduce such an amendment, to have the committee 
engaged. All our colleagues are here. The staff is here. The arguments 
can be made here, and I hope they will be. I think it is an important 
issue. I am prepared to submit it to a vote. That is my understanding 
of the procedure.
  Mr. WARNER. Mr. President, I do not in any way contest the Senator's 
assertion that this is an important subject. I simply ask, can't we as 
a committee better serve our colleagues if we make an assessment first 
at the subcommittee, where the members are fully conversant with all 
these issues, and then at the full committee where, again, members are 
conversant, rather than to spring it out on the floor?
  If I may say to my good friend, it is almost as if the chairman of 
the subcommittee didn't do his work and the ranking member didn't do 
his work and the members of the committee didn't do their work because 
this matter is of such great importance because it goes to the very 
heart of the Missile Defense Program.
  Mr. ALLARD. Mr. President, if I might make a comment or two?
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Our committee has worked and put in hours of effort and 
testimony on this issue of spiral development, or whether we have an 
inflexible program, which I think the Reed amendment leads us, to where 
you have specific timelines for specific parts of the system. What 
happens if you run into a problem in one particular part of the system? 
It delays the whole development.
  With the spiral concept, it gives the developers of the system, the 
Missile Defense Agency, the opportunity to move forward in other 
aspects of development. It is a multifaceted system. It has to do with 
communications for a number of different systems and parts.
  In my view, one of the problems we have had in the past, with cost 
overruns and whatnot, is where you have had inflexibility in the system 
and you find one real problem area and then all of a sudden it ties up 
moving forward.
  That is the whole concept between spiral development. We have had 
hours upon hours of this concept of spiral development. We have General 
Kadish and many of the individuals who are ``in the know'' testify 
about how important it is that we take this new approach so we can move 
forward with some of the more difficult and more technologically 
advanced programs, such as missile defense.
  Again, the assumption is that we have some regulations which I think 
are reasonable which we put in bills in years past, and we put some 
more in this year's bill. The assumption has been made that if we have 
fewer regulations, it is better. That is not an assumption we should 
make. I think there is a proper balance. I think the committee has 
worked and studied that issue.
  That we didn't have any amendments in the Strategic Subcommittee, as 
well as the Armed Services Committee, indicates that members of those 
committees having heard testimony for hours upon hours are comfortable 
where we are right now.
  I hope we oppose the Reed amendment.
  Mr. WARNER. Mr. President, may I pose a question to my colleague? I 
see that Senator Bill Nelson of Florida is the ranking member on this 
subcommittee, together with Senator Byrd, Senator Reed, Senator Nelson 
of Nebraska, and Senator Dayton.
  The Senator has looked at this very carefully. Is there a means by 
which to work this out in some way--as to portions of it which you 
believe we will not go back over, and the issue of why it wasn't raised 
but now that it is raised--is there a means by which we can do it 
rather than taking up further time in the Senate on reporting 
requirements?
  Mr. ALLARD. I think maybe we can sit down and have some further 
discussion. All of a sudden, this gets brought up on the floor of the 
Senate and we need some time to maybe talk with the parties.
  As the Senator mentioned in his comments, we felt as if we pretty 
well worked this out in committee. The various members on my 
subcommittee who are knowledgeable on the subject, the Senator from 
Virginia and myself have worked out what we thought was a reasonable 
level of rules and regulations. Now we have an amendment that is 
calling for more rules and regulations. We might be able to work it 
out. I think we need some time. I hope this could be set aside at least 
for the time being to give us an opportunity to kind of work this issue 
a little bit more on the floor of the Senate and then perhaps come back 
to it at a later time.
  Mr. WARNER. Is that an acceptable offer?
  Mr. REED. Mr. President, I have no opposition to taking some time 
prior to coming forward to see if we can reach an agreement, if we 
can't ask for a vote. I have absolutely no opposition to setting aside 
and working it to try to come up with something with which we feel 
comfortable.
  Mr. WARNER. Mr. President, I ask unanimous consent that the amendment 
be laid aside with due diligence and good faith to see what might be 
added. I will come back to the 2,000 pages.
  Mr. LEVIN. If the Senator will withhold that for a moment, I would 
like to add one quick comment on this amendment as to what the stakes 
are.
  First, I want to commend Senator Reed for bringing this amendment to 
the attention of the Senate. This is not, in all fairness, simply a 
reporting amendment. This is not just more reports. This tells the 
Missile Defense Office to adopt performance criteria which are 
measurable, adopt an operational test plan for your systems, adopt a 
timetable, all of which can be changed any time they want to. I don't 
think it is fair to characterize this as some inflexible thing which is 
laid upon the Ballistic Missile Defense Office. It is highly flexible. 
It just tells the Ballistic Missile Defense Office to do whatever other 
program managers do, of every major weapons system--adopt a measurable 
performance criteria and adopt an operational test plan, including some 
kind of timetable. It is neither inflexible, nor is it unusual.
  I don't know of any other major weapons system that does not have 
these kind of criteria. I just didn't agree with that characterization 
of it. Where I do agree totally with our chairman is that if there is a 
way to work this matter out, it should be worked out. This is an 
important system. The issue is no longer whether a ballistic missile 
defense is going to be fielded. That is not the issue anymore. The 
question now is whether it will have any kind of performance criteria 
by which it can be judged. That is the issue.
  It seems to me we ought to be grateful as a body to the Senator from 
Rhode Island for bringing to our attention the fact that these 
important measurements are absent. But in fairness, I think it is not 
simply more reports to the Congress. It is saying to the Ballistic 
Missile Defense Office: We want you to adopt performance criteria that 
are measurable. It is not a matter of reporting to us. It is a matter 
of doing it for yourself and for the American people. That is what the 
issue is here. Send us a copy, by the way, will you?
  Mr. WARNER. I simply say to my colleague that if there was a serious 
issue in the function of the Missile Defense Agency, in your judgment--
and you attach enormous importance to this--why did we not consider it 
in the course of the subcommittee hearing?

[[Page 12300]]


  Mr. LEVIN. There are all kinds of amendments that have not been 
considered. Senator Reed is one human being who has taken upon himself 
a huge amount of material to digest and present to the committee. He 
did a magnificent job. I think my good friend from Virginia would agree 
with that. There are other things which, as a matter of time, one is 
not able to put together and present to the committee at that moment 
but which are important to present to the entire Senate. I don't think 
we can fault Senator Reed in that regard. That is purely a matter, it 
seems to me, of what human limitations might be in terms of what one 
human being can do. But he surely did more than his share in terms of 
the work that was presented to the committee.
  Mr. WARNER. It simply says: Agency, if it is that important in your 
judgment in reporting, it goes to the very heart of the oversight 
process. We should have raised it in subcommittee, adopted an amendment 
of this type, and worked it out.
  I was told the staff worked very closely with one another on the 
provisions we did put in the bill as to reporting on missile defense 
which we believed was a closed-out item.
  Mr. LEVIN. It is always ideal to try to bring matters before the 
committee. The chairman knows I agree with him on that. Sometimes it is 
not possible just it terms of the workload to do that. I don't think we 
can fault any member of the committee if and when that load is such 
that they have to present it to the floor because they were not able to 
get together in place all the material at the time of the committee 
hearings. The Senator from Rhode Island would be involved in the debate 
on many nuclear weapons systems even though those matters in some cases 
were brought to the attention of the committee.
  There are new formulations just because new thinking has been brought 
to bear since our committee hearings and markup on those subjects.
  But, in any event, I fully concur with the Senator from Virginia. If 
we can possibly work this out to fill in an omission in what the 
Ballistic Missile Defense Office should be doing, which is to develop 
these performance criteria which are measurable for this major system 
to have an operational test plan for this major weapons system, it 
seems to me if that can be worked out either over lunch or during the 
afternoon, I fully concur with the chairman that we ought to do that.
  Mr. WARNER. I thank both of my colleagues. We have had a good 
colloquy.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I want to clarify. We are putting this aside 
for a period of time to work on this. But if we can't reach--and I hope 
we can--an understanding, we will have a vote, I presume, early in the 
evening.
  I think that is correct.
  Mr. WARNER. Those are matters we delegate to the leadership, the 
majority leader, and the Democratic leader. There is no way we will 
deny you a vote, if we fail to work it out.
  Mr. REED. I will endeavor to reach an understanding, and hopefully we 
can.
  Mr. LEVIN. Mr. President, parliamentary inquiry. Is the Reed 
amendment now laid aside? Has that action been taken?
  The PRESIDING OFFICER. That is correct.
  Mr. LEVIN. So that we now at this point have three amendments which 
are laid aside, and there is no amendment which is pending before the 
Senate, is that correct?
  The PRESIDING OFFICER. I believe there are two first degrees and a 
second-degree amendment laid aside.
  Mr. LEVIN. Did the Chair say two first-degree amendments and one 
second degree?
  The PRESIDING OFFICER. That is correct.
  Mr. WARNER. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Is the Republican manager of the bill ready to move forward 
on any unanimous consent requests?
  Mr. WARNER. We are about to work out a timing for the vote on the 
Daschle-Graham or Graham-Daschle amendment. I simply ask that the 5 
minutes equally divided be expanded to 10 minutes, so I think we are 
prepared to go ahead and set that, if that is the desire of the leader.
  Mr. REID. That would be certainly fine.
  Mr. WARNER. I believe we will propound that UC in a moment. In the 
meantime I will attend to some other housekeeping matters.

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