[Congressional Record (Bound Edition), Volume 150 (2004), Part 10]
[Senate]
[Pages 13534-13568]
[From the U.S. Government Publishing Office, www.gpo.gov]




   NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005--Continued

  Mr. WARNER. In consultation with the majority leader, the 
distinguished Democratic leader, and the Democratic whip, Senator Levin 
and I have worked out a series of steps we are going to begin to take 
in seriatim at this time. The first step is that I yield the floor such 
that the Chair can recognize the Senator from Wisconsin.
  The PRESIDING OFFICER. The Senator from Wisconsin.


                           Amendment No. 3400

  Mr. FEINGOLD. I ask for regular order with regard to amendment No. 
3400.
  The PRESIDING OFFICER. The amendment is now pending.
  Mr. FEINGOLD. Mr. President, I understand there will be a second-
degree amendment offered to my amendment which is to bring a small 
measure of relief to military families by allowing the FMLA-eligible 
family members of deployed personnel to be able to use the FMLA 
benefits for issues directly related to or resulting from their loved 
one's deployment. This has been accepted by the body previously and put 
into other legislation. It was certainly my hope that we would be able 
to move forward with this. It is something our military families 
desperately need. However, it is my understanding that this second-
degree amendment would require protracted debate. It is in our interest 
to move this important Department of Defense authorization bill 
forward.
  Mr. WARNER. If the Senator would withhold.
  Mr. FEINGOLD. I yield to the Senator.


                Amendment No. 3475 to Amendment No. 3400

       (Purpose: To enable military family members to take time 
     off to attend to deployment-related business, tasks, and 
     other family issues.)

  Mr. WARNER. There is at the desk a second-degree amendment which I 
submit on behalf of Senator Gregg and myself.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. Gregg, for 
     himself and Mr. Warner, proposes an amendment 3475 to 
     amendment 3400.

  (The amendment is printed in today's Record under ``Text of 
Amendments.'')

[[Page 13535]]


  Mr. GREGG. Mr. President, Senator Feingold has offered an amendment 
intended to help military families who have a family member activated 
in support of a contingency operation. First of all, I make it clear 
that all of us want to assist families placed in the difficult position 
of operating with one family member called to duty.
  That is why the underlying bill contains provisions such as 
permanently increasing the Family Separation Allowance, FSA, payable to 
deployed servicemen and women with dependents up to $250 a month.
  But the proposal made by Senator Feingold to expand the Family 
Medical Leave Act is not the right approach. I rise to offer an 
alternative proposal as a second-degree amendment. The amendment I am 
offering today presents military families a much better method for 
obtaining the flexibility they may need to prepare for activation and 
to keep the family running while a family member is called to duty.
  The Feingold amendment would offer some employees unpaid leave. My 
amendment will offer paid leave. While the Feingold amendment applies 
only to those military family members that work for employers with 50 
or more employees, and offers no assistance at all to individuals who 
work for smaller employers, my amendment will apply to all military 
family employees subject to the Fair Labor Standards Act.
  The Feingold amendment will also create uncertainty and animosity in 
the workplace by giving employees the vaguely defined right to take 
intermittent leave with minimal notice for any ``issue relating to 
``the family member's service''--a phrase which can be interpreted to 
cover just about any activity.
  My amendment, on the other hand offers a clear method for earning and 
using paid leave time.
  The Feingold amendment is a mandate in search of a problem--no need 
has been demonstrated for it and in fact, in a recent survey of 
activated Armed Service members' spouses, 80 percent stated that their 
employers were supportive of their need to complete pre-activation 
tasks.
  In light of this existing support by employers, my amendment creates 
a voluntary system of adding flextime to the work schedule. Therefore, 
employers who already have programs in place to accommodate military 
families will have the option of maintaining those programs or adopting 
a flextime initiative, they will not be forced to add another 
complicated layer onto the already confusing Family and Medical Leave 
law.
  I also point out that the Feingold amendment has never been the 
subject of a single House or Senate hearing. I am sure that many of my 
colleagues, like me, have heard from businesses concerned about the 
difficulties they will face in interpreting and implementing the 
Feingold amendment.
  Flextime proposals, however, have been vetted in no fewer than 8 
hearings in the Senate and the U.S. House of Representatives. There is 
also concerns that the Feingold amendment may threaten the operation of 
military bases. According to the Department of Defense. ``If a major 
military unit were deployed from a single base, this policy could 
effectively shut down the installation depending upon the number of 
family member employees covered.''
  My amendment would not present such a threat to military 
installations because it does not apply to public employees.
  Finally, Mr. President, I recognize that all of us want to do what we 
can to ease the burden on families who have a family member--be it a 
spouse, parent or child--serving to protect our nation. The sacrifice 
they are willing to make is nothing short of remarkable. I believe the 
approach I am offering here today is the best way to help these 
families. I urge my colleagues to support my amendment.
  Mr. KENNEDY. Mr. President, the Feingold amendment builds on a time 
tested law, the Family Medical Leave Act, to allow family members 
flexibility to prepare to send their loved ones to Iraq, Afghanistan, 
and elsewhere abroad to fight on behalf of their Nation. The Family 
Medical Leave Act has helped more than 35 million Americans over the 
last 10 years. It will help even more under the Feingold amendment. The 
amendment will allow family members to take the time off they need to 
meet child care needs, care for elderly parents, and otherwise balance 
their family responsibilities as their loved ones prepare for active 
duty.
  The reason this laudable Feingold amendment is being withdrawn is 
because our colleagues on the other side of the aisle want to give our 
military families a pay cut.
  Corporate profits are growing, while worker wages are not. Yet 
Republicans keep trying to implement more policies that are bad for 
workers. First, Republicans took away overtime protections from 
millions of Americans. Now, they want to give employers additional 
power to decide how workers are to be compensated for their overtime 
work.
  The Fair Labor Standards Act, FLSA, currently requires employers to 
pay workers time-and-a-half for hours worked in excess of 40 per week. 
When workers put in overtime hours now, they have a right to time and 
half pay, and they have total control over how or when to use that pay.
  The Gregg amendment would allow employers to pay workers nothing for 
overtime work at the time the work is performed, in exchange for a 
promise of a new schedule. Under current law, employers are free to 
offer more flexible schedules. The only difference is that they have to 
pay workers for their overtime hours.
  For those who work overtime, overtime pay constitutes 25 percent of 
their pay. Middle class families, already squeezed in today's economy, 
rely on these added earnings for their children's college tuition, 
their own retirement, or even to meet their monthly bills. In fact, 
millions of workers depend on cash overtime to make ends meet and pay 
their housing, food and healthcare bills.
  The Gregg proposal has insufficient enforcement provisions to ensure 
that employees will not be forced to change their schedules instead of 
getting overtime pay. This will mean a pay cut for millions of 
Americans. Workers deserve a pay raise, not a pay cut.
  Mr. LEAHY. Mr. President, I rise today to express my strong support 
for the amendment offered by Senator Feingold.
  Senator Feingold's amendment, which I am proud to cosponsor, would 
allow the work of the Inspector General of the Coalition Provisional 
Authority, CPA-IG, to continue its work uninterrupted after the June 30 
handover.
  This is critical. Congress provided more than $18 billion to rebuild 
Iraq, roughly the same amount that we spend on the rest of the world 
combined. Congress jammed through the Iraq supplemental appropriations 
bill in an extremely short time, without a sufficient number of 
hearings, into a very chaotic environment without the usual financial 
controls.
  Recognizing this reality, Congress created a strong, independent 
inspector general to help police these funds.
  In the months that followed passage of the Iraq supplemental, we 
heard numerous reports of waste, fraud, and abuse. If anything, this 
should have sent a clear signal to the administration and Congress that 
we need more--not less--oversight of these funds.
  It defies logic then that the State Department is now proposing to 
weaken the one entity that Congress specifically tasked with keeping 
track of these tax dollars.
  The State Department's plan could undermine the independence of this 
inspector general and disrupt this important work, reducing Congress's 
ability to account for these funds. It is unlocking the vault to those 
who want to cheat us.
  The State Department also has told the Appropriations Committee that 
it will have to create 25 new positions to handle the work in Iraq.
  Let me get this straight. We want to close down an IG that has about 
60 people in place, which are actively conducting audits and rooting 
out waste, fraud, and abuse.
  After the administration is finished closing down that office, they 
will turn

[[Page 13536]]

around and hire 25 new people to do the same work--only through at a 
lower level office at the State Department.
  Why on Earth would we want to do this? At a time when we are hearing 
weekly reports of abuse by Halliburton and others, why would we want to 
reinvent the wheel? Why would we downgrade the status of the CPA-IG and 
undermine its independence? It just does not make any sense.
  This is why the amendment offered by the Senator from Wisconsin is so 
important.
  This is why I support his amendment.
  Last year Senator Feingold and I offered an amendment to the 
supplemental bill for Iraq and Afghanistan that established an 
inspector general for the Coalition Provisional Authority so that there 
would be one auditing body completely focused on ensuring taxpayer 
dollars are spent wisely and efficiently, and that this effort is free 
of waste, fraud, and abuse.
  Today the CPA, as we all know, is phasing out, but the reconstruction 
effort has only just begun. According to the Congressional Research 
Service, as of May 18, only $4.2 billion of the $18.4 billion Congress 
appropriated for reconstruction in November had even been obligated. 
This amendment would ensure that the inspector general's office can 
continue its important work even after June 30 rather than being 
compelled to start wrapping up and shutting down while so much 
important work remains to be done.
  It renames the Office of the CPA IG, changing it to Special Inspector 
General for Iraq Reconstruction. The amendment establishes that this 
inspector general shall continue operating until the lion's share of 
the money Congress has appropriated to date for the Iraq relief and 
reconstruction fund has been obligated.
  American taxpayers have been asked to shoulder a tremendous burden 
when it comes to the reconstruction of Iraq. Over 20 billion taxpayer 
dollars have been appropriated for the Iraq relief and reconstruction 
fund. That is more than the entire fiscal year 2004 Foreign Operations 
annual appropriation. It is more than the entire fiscal year 2004 
Foreign Operations annual appropriation. This is a tremendous sum to 
devote to one country.
  We all agreed last year that it required an entity on the ground, 
exclusively focused on this effort, to ensure adequate funding and 
oversight. We agreed that we need a qualified, independent watchdog 
with all the powers and the authorities that accrue to inspectors 
general under the Inspector General Act of 1978. We agreed that 
business as usual whereby individual agency IG's attempt to oversee 
this mammoth effort in addition to everything else the agency does it 
simply not appropriate in this case.
  There is nothing ordinary about the nature of the U.S. taxpayer 
investment in Iraq. Ordinary measures will not suffice.
  This amendment modifies the legislation creating this IG to ensure 
that it does not disappear along with the CPA, but instead continues to 
operate until the amount of reconstruction spending in Iraq more 
closely resembles other large bilateral foreign assistance programs, 
which are overseen by existing agency inspectors general. Specifically, 
to phases out the special IG after 80 percent of the Iraq Relief and 
Reconstruction Fund appropriated to date is obligated. If that fund 
grows substantially in the next calendar, then Congress can consider 
the wisdom of adjusting this mandate accordingly.
  Let there be no confusion, this inspector general is only tasked with 
overseeing how U.S. taxpayer dollars are spent. It does not have a 
mandate to oversee Iraqi resources. That is not what this is about. So 
there is nothing at all in continuing this operation that is 
inconsistent with the transfer of sovereignty on June 30.
  Because the Department of Defense has responsibility for what is 
happening to some reconstruction dollars and the Department of State 
will have responsibility going forward, it makes good sense to have a 
focused IG on the ground who is able to see the entire picture at 
once--not being completely required to just focus on the State 
Department position or just focus on the Department of Defense portion. 
This amendment is in no way hostile to the reconstruction effort. This 
amendment is about trying to get it right.
  Suggesting that a special inspector general's office continues to be 
in order in Iraq is hardly revolutionary. As I have mentioned, the 
reconstruction budget for Iraq is bigger than the entire fiscal year 
2004 Foreign Operations Appropriations bill. Yet five different 
inspectors general--at USAID, at the State Department, at the Defense 
Department, at the Treasury, and at the Export-Import Bank--are charged 
with overseeing portions of that account. In fact, currently some 41 
Federal establishments and designated Federal entities with annual 
budgets less than $21 billion have their own, independent, statutorily 
mandated inspector general, from the Railroad Retirement Board to the 
Smithsonian Institution. We ask for focused accountability when 
taxpayer dollars are a stake in these situations. We must demand the 
same in Iraq.
  Obviously, when you are talking about $20 billion just for this Iraq 
situation, we have to do the same thing. We must demand the same in 
Iraq.
  To date, the Inspector General for the Coalition Provisional 
Authority has made important progress, and has some 30 active 
investigations and 19 audits underway. A whistleblower hotline 
established by the inspector general has received hundreds of calls. 
This is clearly not the time to pull the plug on his important effort.
  I urge my colleagues to support this amendment. This is the critical 
point: To oppose this amendment is to vote for less oversight of the 
reconstruction effort in Iraq than we have today. It is a step backward 
if we don't. We cannot abdicate our oversight responsibility. The 
stakes are far too high for that.


                      Amendment No. 3400 Withdrawn

  Mr. FEINGOLD. In light of the offering of the second-degree 
amendment, I am about to ask unanimous consent to withdraw my 
amendment, but I first indicate how important it is we provide this 
FMLA benefit to these families. Obviously, this issue will return, but 
in the spirit of trying to resolve this issue and move the bill 
forward, I now ask unanimous consent to withdraw my amendment No. 3400.
  Mr. WARNER. No objection.
  The PRESIDING OFFICER. The amendment is withdrawn.


                      Amendment No. 3475 Withdrawn

  Mr. WARNER. And the second-degree amendment likewise is withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Nevada.
  Mr. REID. Before the Senator from Wisconsin leaves the Senate, I want 
the record to indicate he has worked hard on issues relating to 
veterans. This is no exception.
  I know the Senator, when he travels home to Wisconsin, will meet with 
American Legion, Veterans of Foreign Wars, and other such assembled 
groups. By looking at this record, they should understand what the 
Senator from Wisconsin has tried to do for the veterans of this 
country. I applaud and commend the Senator from Wisconsin for his 
tenacity. And he will be back, knowing the Senator from Wisconsin, to 
fight another day.
  The PRESIDING OFFICER. The Senator from Wisconsin.


                           Amendment No. 3288

  Mr. FEINGOLD. Mr. President, I now ask for the regular order with 
regard to amendment No. 3288.
  The PRESIDING OFFICER. The amendment is pending.
  Mr. FEINGOLD. Mr. President, for this amendment, which I offered 
earlier and had the yeas and nays ordered on, I now ask unanimous 
consent that the yeas and nays be vitiated.
  The PRESIDING OFFICER. Is there objection?
  Mr. WARNER. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, I thank the chairman of the committee 
for his cooperation and for his support on this important amendment, 
which I understand will be accepted. This amendment allows the 
important work of the Inspector General of the CPA in Iraq to continue 
after the June 30 transition.

[[Page 13537]]

  We are talking here about $20 billion of American taxpayers' dollars. 
Only about $4.5 billion has already been contracted for. So the 
remainder is still going to be expended. There are a great deal of 
audits and other efforts being made on the ground. That should 
continue. This has to do with protecting the American taxpayers.
  I am delighted both the chairman and ranking member have expressed 
support for this amendment. I am confident, with their assurances, that 
this amendment will make it all the way through the process and become 
the law of the land so this fine work of this inspector general can 
continue.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, the matter has been discussed between 
myself, Senator Levin, Senator Harry Reid, and the distinguished 
Senator from Wisconsin. The concept of the inspector general is a 
proven concept. It is a valuable concept in the administration of our 
expenditures to have accountability.
  We shall work on it to see that from that conference evolves, 
hopefully, an amendment that is a part of the statute to be 
incorporated eventually from the conference report that reflects the 
goals the Senator has set out. That is correct.
  Mr. FEINGOLD. Mr. President, as to the amendment as we have crafted 
it, which was carefully and specifically crafted, I take the chairman's 
comment to indicate the approach we have taken in the Senate is the 
approach he will be advocating in conference.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I thank and congratulate the Senator from 
Wisconsin for this amendment. He has been an absolute bulldog when it 
comes to protecting taxpayers' dollars, just as he has been a fighter 
for veterans, as in his previous discussion.
  I want to tell him I know we will be fighting with all of our energy 
in conference to retain this provision. It is vitally important there 
be this kind of an inspector general review and an inspector general 
who has the kind of independent power the Senator from Wisconsin has 
always fought for. We intend to do exactly that, to carry out, to wage 
his battle in conference to retain this provision.
  Mr. WARNER. Mr. President, I join in thanking the Senator for his 
cooperation.
  I draw the attention of the ranking member to suggest at this point 
in time we clear a package of managers' amendments.
  Mr. LEVIN. We need to pass this amendment first.
  Mr. WARNER. Yes, please.
  The PRESIDING OFFICER. The Feingold amendment is still the pending 
question.
  Mr. FEINGOLD. Mr. President, I urge that the amendment be adopted.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 3288) was agreed to.
  Mr. WARNER. I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEAHY. Mr. President, I rise today to speak about a very simple 
amendment that everyone should support. This amendment requires the 
Inspector General of the Department of Defense (DOD-IG), in 
consultation with the Inspectors General of the State Department and 
the CIA, to conduct a comprehensive investigation into the programs and 
activities of the Iraqi National Congress.
  Over the last 10 years, we have seen funds from the U.S. Government 
spent in highly questionable, if not fraudulent ways, including money 
spent on oil paintings and health club memberships.
  But this is only the tip of the iceberg. A number of serious 
questions remain unanswered concerning the INC. Here are a couple of 
examples:
  First, the INC spent millions in setting up offices around the world, 
including London, Prague, Damacus, and Tehran. The State Department's 
internal documents indicated that they really had no idea of what was 
happening in some of these offices--especially Tehran. In light of the 
recent press reports about INC intelligence sharing with Iran, I think 
the DOD-IG should take a look at this issue and see what was happening 
in the Tehran office. We need to get to the bottom of this.
  Second, the INC spent millions to set up radio and television 
broadcasting inside Iraq. The radio program seemed redundant as the 
U.S. Government was, at the time, funding Radio Free Iraq. A New York 
Times article questioned the effectiveness of the TV broadcasting 
program. Kurdish officials indicated that, despite repeated attempts, 
they could never pickup the INC's TV broadcast inside Iraq. This, 
again, raises questions about how this money is being spent. The IG 
should examine this issue. We need to get to the bottom of this.
  Third the INC's Informaiton Collection Program--funded initially by 
the State Department and later by the Defense Department--continues to 
be a source of controversy and mystery. I have a memo here, written by 
the INC to Appropriations Committee staff, detailing the INC's 
Information Collection Program. In this memo, the INC claims to have 
written numerous reports to senior Administration officials, who are 
listed in this memo, on topics including WMD proliferation. The 
Administration disputes this claim. Again, we need to get to the botton 
of this.
  I could go on and on. However, in the interests of time, I will 
simply say that there are many, serious unanswered questions about the 
INC's activities.
  What was the INC doing with U.S. taxpayer dollars? What was going on 
in the Tehran office? Did the Information Collection Program contribute 
to intelligence failures in Iraq? Were the broadcasting programs at all 
effective in gathering support for U.S. efforts in Iraq?
  To be sure, there have been a few investigations into INC. However, 
these have been incomplete, offering only a glimpse of what occurred.
  A few years ago, the State Department Inspector General issued two 
reports on the INC. But these reports only covered $4.3 million and 
examined only the Washington and London Offices. The State Department 
IG informed my office yesterday that these are the only two audits they 
conducted and have no plans to conduct audits on this issue.
  A GAO report, published earlier this year, summarized the different 
grant agreements that the State Department entered into with the INC, 
but this report did not attempt to answer the myriad questions that 
remain about the INC.
  Another GAO report is underway, but this looks only at the narrow 
question of whether the INC violated U.S. laws concerning the use of 
taxpayer funds to pay for public propaganda.
  Finally, according to press reports, the Intelligence Committee is 
looking to a few issues related to the INC.
  My amendment is consistent with these investigations. The DOD-IG does 
not have to reinvent the wheel. It can build off this existing body of 
work to answer questions that will remain long after these 
investigation have been completed.
  Mr. President, my amendment is about transparency. My amendment is 
about accountability. My amendment is about getting to the bottom of 
one of the most mismanaged programs in recent history.
  Most importantly, my amendment is about learning from our mistakes so 
we do not repeat them in the future. I urge my colleague to support my 
amendment.
  The PRESIDING OFFICER. The Senator from Nevada.


                    Amendment No. 3315, As Modified

  Mr. REID. Mr. President, there is an amendment pending by Senator 
Landrieu; is that true?
  The PRESIDING OFFICER. That is correct.
  Mr. REID. The number of that amendment?
  The PRESIDING OFFICER. Amendment No. 3315.
  Mr. REID. Mr. President, I ask unanimous consent that there be a 
modification to the amendment offered by

[[Page 13538]]

Senators Landrieu, Snowe, Ensign, and Mikulski.
  The PRESIDING OFFICER. Is there objection to the modification?
  Mr. WARNER. Mr. President, there is no objection. The matter has been 
carefully worked through the course of the evening, and it is ready for 
action by the Chair.
  The PRESIDING OFFICER. Without objection, the amendment is modified.
  The amendment (No. 3315), as modified, is as follows:

       On page 130, after line 9, insert the following:

     SEC. 642. FULL SBP SURVIVOR BENEFITS FOR SURVIVING SPOUSES 
                   OVER AGE 62.

       (a) Phased Increase in Basic Annuity.--
       (1) Increase to 55 percent.--Subsection (a)(1)(B)(i) of 
     section 1451 of title 10, United States Code, is amended by 
     striking ``35 percent of the base amount.'' and inserting 
     ``the product of the base amount and the percent applicable 
     for the month. The percent applicable for a month is 35 
     percent for months beginning before October 2005, 40 percent 
     for months beginning after September 2005 and before October 
     2008, 45 percent for months beginning after September 2008, 
     and 55 percent for months beginning after September 2014.''.
       (2) Reserve-component annuity.--Subsection (a)(2)(B)(i)(I) 
     of such section is amended by striking ``35 percent'' and 
     inserting ``the percent specified under paragraph (1)(B)(i) 
     as being applicable for the month''.
       (3) Special-eligibility annuity.--Subsection (c)(1)(B)(i) 
     of such section is amended--
       (A) by striking ``35 percent'' and inserting ``the 
     applicable percent''; and
       (B) by adding at the end the following: ``The percent 
     applicable for a month under the preceding sentence is the 
     percent specified under subsection (a)(1)(B)(i) as being 
     applicable for the month.''.
       (4) Conforming amendment.--The heading for subsection 
     (d)(2)(A) of such section is amended to read as follows: 
     ``Computation   of   Annuity.--''.
       (b) Phased Elimination of Supplemental Annuity.--
       (1) Decreasing percentages.--Section 1457(b) of title 10, 
     United States Code, is amended--
       (A) by striking ``5, 10, 15, or 20 percent'' and inserting 
     ``the applicable percent''; and
       (B) by inserting after the first sentence the following: 
     ``The percent used for the computation shall be an even 
     multiple of 5 percent and, whatever the percent specified in 
     the election, may not exceed 20 percent for months beginning 
     before October 2005, 15 percent for months beginning after 
     September 2005 and before October 2008, and 10 percent for 
     months beginning after September 2008.''.
       (2) Repeal of program in 2014.--Effective on October 1, 
     2014, chapter 73 of such title is amended--
       (A) by striking subchapter III; and
       (B) by striking the item relating to subchapter III in the 
     table of subchapters at the beginning of that chapter.
       (c) Recomputation of Annuities.--
       (1) Requirement for recomputation.--Effective on the first 
     day of each month referred to in paragraph (2)--
       (A) each annuity under section 1450 of title 10, United 
     States Code, that commenced before that month, is computed 
     under a provision of section 1451 of that title amended by 
     subsection (a), and is payable for that month shall be 
     recomputed so as to be equal to the amount that would be in 
     effect if the percent applicable for that month under that 
     provision, as so amended, had been used for the initial 
     computation of the annuity; and
       (B) each supplemental survivor annuity under section 1457 
     of such title that commenced before that month and is payable 
     for that month shall be recomputed so as to be equal to the 
     amount that would be in effect if the percent applicable for 
     that month under that section, as amended by this section, 
     had been used for the initial computation of the supplemental 
     survivor annuity.
       (2) Times for recomputation.--The requirements for 
     recomputation of annuities under paragraph (1) apply with 
     respect to the following months:
       (A) October 2005.
       (B) October 2008.
       (C) October 2014.
       (d) Recomputation of Retired Pay Reductions for 
     Supplemental Survivor Annuities.--The Secretary of Defense 
     shall take such actions as are necessitated by the amendments 
     made by subsection (b) and the requirements of subsection 
     (c)(1)(B) to ensure that the reductions in retired pay under 
     section 1460 of title 10, United States Code, are adjusted to 
     achieve the objectives set forth in subsection (b) of that 
     section.

     SEC. 643. OPEN ENROLLMENT PERIOD FOR SURVIVOR BENEFIT PLAN 
                   COMMENCING OCTOBER 1, 2005.

       (a) Persons Not Currently Participating in Survivor Benefit 
     Plan.--
       (1) Election of sbp coverage.--An eligible retired or 
     former member may elect to participate in the Survivor 
     Benefit Plan under subchapter II of chapter 73 of title 10, 
     United States Code, during the open enrollment period 
     specified in subsection (f).
       (2) Election of supplemental annuity coverage.--An eligible 
     retired or former member who elects under paragraph (1) to 
     participate in the Survivor Benefit Plan at the maximum level 
     may also elect during the open enrollment period to 
     participate in the Supplemental Survivor Benefit Plan 
     established under subchapter III of chapter 73 of title 10, 
     United States Code.
       (3) Eligible retired or former member.--For purposes of 
     paragraphs (1) and (2), an eligible retired or former member 
     is a member or former member of the uniformed services who on 
     the day before the first day of the open enrollment period is 
     not a participant in the Survivor Benefit Plan and--
       (A) is entitled to retired pay; or
       (B) would be entitled to retired pay under chapter 1223 of 
     title 10, United States Code, but for the fact that such 
     member or former member is under 60 years of age.
       (4) Status under sbp of persons making elections.--
       (A) Standard annuity.--A person making an election under 
     paragraph (1) by reason of eligibility under paragraph (3)(A) 
     shall be treated for all purposes as providing a standard 
     annuity under the Survivor Benefit Plan.
       (B) Reserve-component annuity.--A person making an election 
     under paragraph (1) by reason of eligibility under paragraph 
     (3)(B) shall be treated for all purposes as providing a 
     reserve-component annuity under the Survivor Benefit Plan.
       (b) Election To Increase Coverage Under SBP.--A person who 
     on the day before the first day of the open enrollment period 
     is a participant in the Survivor Benefit Plan but is not 
     participating at the maximum base amount or is providing 
     coverage under the Plan for a dependent child and not for the 
     person's spouse or former spouse may, during the open 
     enrollment period, elect to--
       (1) participate in the Plan at a higher base amount (not in 
     excess of the participant's retired pay); or
       (2) provide annuity coverage under the Plan for the 
     person's spouse or former spouse at a base amount not less 
     than the base amount provided for the dependent child.
       (c) Election for Current SBP Participants To Participate in 
     Supplemental SBP.--
       (1) Election.--A person who is eligible to make an election 
     under this paragraph may elect during the open enrollment 
     period to participate in the Supplemental Survivor Benefit 
     Plan established under subchapter III of chapter 73 of title 
     10, United States Code.
       (2) Persons eligible.--Except as provided in paragraph (3), 
     a person is eligible to make an election under paragraph (1) 
     if on the day before the first day of the open enrollment 
     period the person is a participant in the Survivor Benefit 
     Plan at the maximum level, or during the open enrollment 
     period the person increases the level of such participation 
     to the maximum level under subsection (b) of this section, 
     and under that Plan is providing annuity coverage for the 
     person's spouse or a former spouse.
       (3) Limitation on eligibility for certain sbp participants 
     not affected by two-tier annuity computation.--A person is 
     not eligible to make an election under paragraph (1) if (as 
     determined by the Secretary concerned) the annuity of a 
     spouse or former spouse beneficiary of that person under the 
     Survivor Benefit Plan is to be computed under section 1451(e) 
     of title 10, United States Code. However, such a person may 
     during the open enrollment period waive the right to have 
     that annuity computed under such section 1451(e). Any such 
     election is irrevocable. A person making such a waiver may 
     make an election under paragraph (1) as in the case of any 
     other participant in the Survivor Benefit Plan.
       (d) Manner of Making Elections.--An election under this 
     section shall be made in writing, signed by the person making 
     the election, and received by the Secretary concerned before 
     the end of the open enrollment period. Any such election 
     shall be made subject to the same conditions, and with the 
     same opportunities for designation of beneficiaries and 
     specification of base amount, that apply under the Survivor 
     Benefit Plan or the Supplemental Survivor Benefit Plan, as 
     the case may be. A person making an election under subsection 
     (a) to provide a reserve-component annuity shall make a 
     designation described in section 1448(e) of title 10, United 
     States Code.
       (e) Effective Date for Elections.--Any such election shall 
     be effective as of the first day of the first calendar month 
     following the month in which the election is received by the 
     Secretary concerned.
       (f) Open Enrollment Period.--The open enrollment period 
     under this section shall be the one-year period beginning on 
     October 1, 2005.
       (g) Effect of Death of Person Making Election Within Two 
     Years of Making Election.--If a person making an election 
     under this section dies before the end of the two-year period 
     beginning on the effective date of the election, the election 
     is void and the amount of any reduction in retired pay of the 
     person that is attributable to the election shall be paid in 
     a lump sum to the person who would have been the deceased 
     person's beneficiary under the voided election if the 
     deceased person had died after the end of such two-year 
     period.

[[Page 13539]]

       (h) Applicability of Certain Provisions of Law.--The 
     provisions of sections 1449, 1453, and 1454 of title 10, 
     United States Code, are applicable to a person making an 
     election, and to an election, under this section in the same 
     manner as if the election were made under the Survivor 
     Benefit Plan or the Supplemental Survivor Benefit Plan, as 
     the case may be.
       (i) Additional Premium.--The Secretary of Defense shall 
     prescribe in regulations premiums which a person electing 
     under this section shall be required to pay for participating 
     in the Survivor Benefit Plan pursuant to the election. The 
     total amount of the premiums to be paid by a person under the 
     regulations shall be equal to the sum of--
       (i) the total amount by which the retired pay of the person 
     would have been reduced before the effective date of the 
     election if the person had elected to participate in the 
     Survivor Benefit Plan (for the same base amount specified in 
     the election) at the first opportunity that was afforded the 
     member to participate under chapter 73 of title 10, United 
     States Code;
       (ii) interest on the amounts by which the retired pay of 
     the person would have been so reduced, computed from the 
     dates on which the retired pay would have been so reduced at 
     such rate or rates and according to such methodology as the 
     Secretary of Defense determines reasonable; and
       (iii) any additional amount that the Secretary determines 
     necessary to protect the actuarial soundness of the 
     Department of Defense Military Retirement Fund against any 
     increased risk for the fund that is associated with the 
     election.
       (B) Premiums paid under the regulations shall be credited 
     to the Department of Defense Military Retirement Fund.
       (C) In this paragraph, the term ``Department of Defense 
     Military Retirement Fund'' means the Department of Defense 
     Military Retirement Fund established under section 1461(a) of 
     title 10, United States Code.


                           Amendment No. 3467

  The PRESIDING OFFICER. The question is on agreeing to the second-
degree amendment, No. 3467, offered by the Senator from Nevada.
  Mr. WARNER. Mr. President, I urge adoption of the second-degree 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 3467) was agreed to.


                    Amendment No. 3315, As Modified

  The PRESIDING OFFICER. The question now is on agreeing to the first-
degree amendment.
  Mr. WARNER. No objection.
  The PRESIDING OFFICER. Without objection, the first-degree amendment, 
as modified, is agreed to.
  The amendment (No. 3315) was agreed to.
  Mr. REID. I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, we have worked with the Senator from 
Louisiana for many hours today on this amendment. There was an article 
written, and I joke with the Senator from Louisiana. She was the 
feature of a veterans publication. They had a picture of her with her 
sleeves rolled up, muscles showing: ``Military Mary.''
  Mary Landrieu is someone who looks out for the military. And I call 
her, joke with her, and ask her: How is ``Military Mary'' doing? She is 
very proud of this name she has picked up. Tonight is an indication of 
why she deserves that name. She has been outstanding in her advocacy 
for American veterans. This agreement we have here tonight indicates 
she is not only a good advocate for the military but a very fine 
Senator.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, just one word, now that we have adopted the 
Landrieu amendment. Chairman Warner and I used to have the privilege of 
having Senator Landrieu on the Armed Services Committee. We saw 
firsthand what a tigress she is and was relative to military matters. 
She is no longer on our committee, and we do miss her, indeed. But she 
brings and displays that fervor here on the floor frequently. We thank 
her for her tenacity. Talk about tenacity, she has a full supply of it. 
We commend and congratulate her.
  Mr. WARNER. Mr. President, reference was made to the hard work 
Senator Landrieu performed on this amendment. Indeed, I was witness to 
that. But it did bring back a fond memory to me. In the period during 
the war in Vietnam, there was a very colorful and strong chairman in 
the House Armed Services Committee named Eddie Hebert from New Orleans, 
LA, and a gentleman who worked very closely with him, named Moon 
Landrieu. They were quite a team. They did a great deal working 
together for the men and women of the U.S. military.
  When reference was made to Senator Landrieu's accomplishments, I am 
sure she would agree with me that the teachings of her distinguished 
father and the former chairman of the House Armed Services Committee 
have vested in her a lot of wisdom about military matters.
  I also recognize the work done by Senators Ensign and Snowe. I have 
been working with both of them over a period of time. Senator Ensign 
and Senator Snowe each have put in previous pieces of legislation which 
basically covered this same subject. In the course of the past 48 
hours, those two Senators have been working in collaboration with 
Senator Landrieu in an effort to get the Senate to take the action that 
we just took on that amendment. So I thank the Senator from Maine and 
the Senator from Nevada for their work.
  As veterans look to the action taken by the Senate, they can decide 
for themselves on the work done by these Senators, and all Senators, 
because there was a unanimous vote on this amendment. I think we 
fulfilled our obligation to that very important class of individuals, 
the veterans; and particularly in this case, this provides benefits for 
the widows primarily--there are a few remaining spouses--but basically 
the widows who are at a critical time in their life and there is need 
for special consideration as it relates to personal finances. So I 
thank the Presiding Officer and I yield the floor.
  Ms. SNOWE. Mr. President, I rise today in support of the Landrieu-
Snowe amendment because it corrects an injustice being visited upon the 
survivors of our servicemembers killed in action and military retirees 
under the current military Survivor Benefit Plan, or SBP.
  As the program currently operates, the widows or widowers of those 
who have ``borne the battle'' receive an annuity equal to 55 percent of 
the servicemember's retirement pay. That is, until they turn 62. At 
that time, under current law, a surviving spouse's SBP benefits must be 
reduced either by a Social Security offset, or a reduction in payments 
to 35 percent of retired pay--a drop of almost 40 percent--simply 
because they have reached the age of 62.
  For example, let's take the widow of a Navy chief petty officer or E-
7 who had served 20 years before retiring. Before she reaches 62, this 
widow will receive $786 per month, but on her 62nd birthday, that 
benefit drops to only $500 per month--a loss of $2,432 per year.
  For a retired O-5, say a Marine Corps lieutenant colonel, the widow's 
benefit would drop by $6,960 a year as soon as she turns 62. That is 
quite a birthday gift.
  But the inequities don't stop there. For example, the military 
Survivor Benefit Plan does not measure up to the federal Survivor 
Benefit Plan in terms of benefits paid to survivors. Survivors of 
federal civilian retirees under the original Civil Service Retirement 
System receive 55 percent of their spouse's retired pay for life--with 
no drop in benefits at age 62. Under the newer Federal Employee 
Retirement System, survivors still receive 50 percent of retired pay 
for life, again with no drop at age 62.
  Mr. President, yet another reason that we should adopt this 
legislation is that members of the military pay more than their share 
of Survivor Benefit Plan program costs, as compared to their federal 
civilian counterparts.
  Originally, the Congress intended the government to subsidize 40 
percent of the cost of military Survivor Benefit Plan premiums--similar 
to the government's contribution to the federal civilian plan. Over the 
last several decades, however, there has been a significant decline in 
the government's cost

[[Page 13540]]

share, and Department of Defense actuaries advise that the government 
subsidy is now down to less than 20 percent. This means that military 
retirees are now paying more than 80 percent of program costs from 
their retired pay versus the intended 60 percent.
  Contrast this to the federal civilian SBP, which has a 52 percent 
cost share for those under the Civil Service Retirement System and a 67 
percent cost share for those employees, including many of our own 
staff, under the Federal Employees Retirement System. While it is true 
that there are differences between the civilian and military premium 
costs, with federal civilians paying more, it is also true that 
military retirees generally retire earlier than their federal civilian 
counterparts, and as a result, pay premiums for many more years.
  This amendment will raise, over a 3\1/2\-year period, the percentage 
of the retirement annuity received by the survivor from 35 percent to 
55 percent after age 62. During the first year, fiscal year 2005, an 
open enrollment period will be held to allow new enrollees to sign up 
for the program in order to reduce retired pay outlays by increasing 
deductions of SBP premiums from retired pay, thus offsetting part of 
the cost of the survivor benefit increase.
  Beginning on Oct. 1, 2005, the age-62 SBP annuity would increase to 
40 percent of retired pay, followed by additional increases to 45 
percent on April 1, 2006, 50 percent on April 1, 2007 and 55 percent on 
April 1, 2008 after which all survivors would receive the 55 percent of 
the annuity.
  Once again, I ask my colleagues to support our Nation's military 
widows and widowers. In the National Defense Authorization Act of 2001, 
we included a Sense of the Congress on increasing the military SBP 
annuity. This year, we have a chance to carry out this intent by 
enacting this important measure, and I ask my colleagues to join with 
me in support of this legislation.
  Mr. WARNER. Mr. President, I think we are ready to do a package of 
amendments, if I could get the attention of the ranking member.


    Amendments Nos. 3414, As Modified; 3280, As Modified; 3355, As 
    Modified; 3220; 3373, As Modified; 3459, As Modified; 3311, As 
Modified; 3476; 3477; 3478; 3479; 3480; 3481; 3342, As Modified; 3482; 
                             3483; and 3484

  Mr. President, I send a series of amendments to the desk which have 
been cleared by myself and the ranking member. Therefore, I ask 
unanimous consent that the Senate consider those amendments en bloc, 
the amendments be agreed to, and the motions to reconsider be laid upon 
the table. Finally, I ask unanimous consent that any statements 
relating to any of these individual amendments be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEVIN. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments were agreed to, as follows:


                    amendment no. 3414, as modified

       At the end of title XI, insert the following:

     SEC. 1107. REPORT ON HOW TO RECRUIT AND RETAIN INDIVIDUALS 
                   WITH FOREIGN LANGUAGE SKILLS.

       (a) Findings.--Congress makes the following findings:
       (1) The Federal Government has a requirement to ensure that 
     the employees of its departments and agencies with national 
     security responsibilities are prepared to meet the challenges 
     of this evolving international environment.
       (2) According to a 2002 General Accounting Office report, 
     Federal agencies have shortages in translators and 
     interpreters and an overall shortfall in the language 
     proficiency levels needed to carry out their missions which 
     has adversely affected agency operations and hindered United 
     States military, law enforcement, intelligence, 
     counterterrorism, and diplomatic efforts.
       (3) Foreign language skills and area expertise are integral 
     to, or directly support, every foreign intelligence 
     discipline and are essential factors in national security 
     readiness, information superiority, and coalition 
     peacekeeping or warfighting missions.
       (4) Communicating in languages other than English and 
     understanding and accepting cultural and societal differences 
     are vital to the success of peacetime and wartime military 
     and intelligence activities.
       (5) Proficiency levels required for foreign language 
     support to national security functions have been raised, and 
     what was once considered proficiency is no longer the case. 
     The ability to comprehend and articulate technical and 
     complex information in foreign languages has become critical.
       (6) According to the Joint Intelligence Committee Inquiry 
     into the 9/11 Terrorist Attacks, the Intelligence Community 
     had insufficient linguists prior to September 11, 2001, to 
     handle the challenge it faced in translating the volumes of 
     foreign language counterterrorism intelligence it collected. 
     Agencies within the Intelligence Community experienced 
     backlogs in material awaiting translation, a shortage of 
     language specialists and language-qualified field officers, 
     and a readiness level of only 30 percent in the most critical 
     terrorism-related languages that are used by terrorists.
       (7) Because of this shortage, the Federal Government has 
     had to enter into private contracts to procure linguist and 
     translator services, including in some positions that would 
     be more appropriately filled by permanent Federal employees 
     or members of the United States Armed Forces.
       (b) Report.--In its fiscal year 2006 budget request, the 
     Secretary of Defense shall submit to the Committees on Armed 
     Services of the Senate and the House of Representatives and 
     the Select Committee on Intelligence of the Senate and the 
     Permanent Select Committee on Intelligence of the House of 
     Representatives, a plan for expanding and improving the 
     national security foreign language workforce of the 
     Department of Defense as appropriate to improve recruitment 
     and retention to meet the requirements of the Department for 
     its foreign language workforce on a short-term basis and on a 
     long-term basis.


                           amendment no. 3280

       At the appropriate place, insert the following:

     SEC.  . ENERGY SAVINGS PERFORMANCE CONTRACTS.

       (a) In General.--Section 801(c) of the NationalEnergy 
     Conservation Policy Act (42 U.S.C. 8287(c)) is amended by 
     striking ``2003'' and inserting ``2005''.
       (b) Payment of Costs.--Section 802 of the National Energy 
     Conservation Policy Act (42 U.S.C. 8287a) is amended by 
     inserting ``, water, or wastewater treatment'' after 
     ``payment of energy''.
       (c) Energy Savings.--Section 804(2) of the National Energy 
     Conservation Policy Act (42 U.S.C. 8287c(2)) is amended to 
     read as follows:
       ``(2) The term `energy savings' means a reduction in the 
     cost of energy, water, or wastewater treatment, from a base 
     cost established through a methodology set forth in the 
     contract, used in an existing federally owned building or 
     buildings or other federally owned facilities as a result 
     of--
       ``(A) the lease or purchase of operating equipment, 
     improvements, altered operation and maintenance, or technical 
     services;
       ``(B) the increased efficient use of existing energy 
     sources by cogeneration or heat recovery, excluding any 
     cogeneration process for other than a federally owned 
     building or buildings or other federally owned facilities; or
       ``(C) the increased efficient use of existing water sources 
     in either interior or exterior applications.''.
       (d) Energy Savings Contract.--Section 804(3) of the 
     National Energy Conservation Policy Act (42 U.S.C. 8287c(3)) 
     is amended to read as follows:
       ``(3) The terms `energy savings contract' and `energy 
     savings performance contract' mean a contract that provides 
     for the performance of services for the design, acquisition, 
     installation, testing, and, where appropriate, operation, 
     maintenance, and repair, of an identified energy or water 
     conservation measure or series of measures at 1 or more 
     locations. Such contracts shall, with respect to an agency 
     facility that is a public building (as such term is defined 
     in section 3301 of title 40, United States Code), be in 
     compliance with the prospectus requirements and procedures of 
     section 3307 of title 40, United States Code.''.
       (e) Energy or Water Conservation Measure.--Section 804(4) 
     of the National Energy Conservation Policy Act (42 U.S.C. 
     8287c(4)) is amended to read as follows:
       ``(4) The term `energy or water conservation measure' 
     means--
       ``(A) an energy conservation measure, as defined in section 
     551; or
       ``(B) a water conservation measure that improves the 
     efficiency of water use, is life-cycle cost-effective, and 
     involves water conservation, water recycling or reuse, more 
     efficient treatment of wastewater or stormwater, improvements 
     in operation or maintenance efficiencies, retrofit 
     activities, or other related activities, not at a Federal 
     hydroelectric facility.''.
       (f) Review.--Not later than 180 days after the date of the 
     enactment of this Act, the Secretary of Energy shall complete 
     a review of the Energy Savings Performance Contract program 
     to identify statutory, regulatory, and administrative 
     obstacles that prevent Federal agencies from fully utilizing 
     the program. In addition, this review shall identify all 
     areas for increasing program flexibility and effectiveness, 
     including audit and measurement verification requirements, 
     accounting for energy use in determining savings, contracting 
     requirements, including the identification of additional 
     qualified contractors, and energy efficiency services 
     covered. The Secretary shall report these findings to 
     Congress and shall implement identified administrative and 
     regulatory changes

[[Page 13541]]

     to increase program flexibility and effectiveness to the 
     extent that such changes are consistent with statutory 
     authority.
       (g) Extension of Authority.--Any energy savings performance 
     contract entered into under section 801 of the National 
     Energy Conservation Policy Act (42 U.S.C. 8287) after October 
     1, 2003, and before the date of enactment of this Act, shall 
     be deemed to have been entered into pursuant to such section 
     801 as amended by subsection (a) of this section.


                    AMENDMENT NO. 3355, AS MODIFIED

       On page 280, after line 22, insert the following:

     SEC. 1068. CLARIFICATION OF FISCAL YEAR 2004 FUNDING LEVEL 
                   FOR A NATIONAL INSTITUTE OF STANDARDS AND 
                   TECHNOLOGY ACCOUNT.

       For the purposes of applying sections 204 and 605 of the 
     Departments of Commerce, Justice, and State, the Judiciary, 
     and Related Agencies Appropriations Act, 2004 (division B of 
     Public Law 108-199) to matters in title II of such Act under 
     the heading ``National Institute of Standards and 
     Technology'' (118 Stat.69), in the account under the heading 
     ``industrial technology services'', the Secretary of Commerce 
     shall make all determinations based on the Industrial 
     Technology Services funding level of $218,782,000 for 
     reprogramming and transferring of funds for the Manufacturing 
     Extension Partnership program and shall submit such a 
     reprogramming or transfer, as the case may be, to the 
     appropriate committees within 30 days after the date of the 
     enactment of this Act.


                           AMENDMENT NO. 3220

   (Purpose: To repeal the authority of the Secretary of Defense to 
 recommend that installations be placed in inactive status as part of 
 the recommendations of the Secretary during the 2005 round of defense 
                     base closure and realignment)

       At the end of subtitle B of title XXVIII, add the 
     following:

     SEC. 2814. REPEAL OF AUTHORITY OF SECRETARY OF DEFENSE TO 
                   RECOMMEND THAT INSTALLATIONS BE PLACED IN 
                   INACTIVE STATUS DURING 2005 ROUND OF DEFENSE 
                   BASE CLOSURE AND REALIGNMENT.

       Section 2914 of the Defense Base Closure and Realignment 
     Act of 1990 (part A of title XXIX of Public Law 101-510; 10 
     U.S.C. 2687 note) is amended by striking subsection (c).


                    AMENDMENT NO. 3373, AS MODIFIED

       At the end of subtitle C of title III, add the following:

     SEC. 326. REPORT REGARDING ENCROACHMENT ISSUES AFFECTING UTAH 
                   TEST AND TRAINING RANGE, UTAH.

       (a) Report Required.--(1) The Secretary of the Air Force 
     shall prepare a report that outlines current and anticipated 
     encroachments on the use and utility of the special use 
     airspace of the Utah Test and Training Range in the State of 
     Utah, including encroachments brought about through actions 
     of other Federal agencies. The Secretary shall include such 
     recommendations as the Secretary considers appropriate 
     regarding any legislative initiatives necessary to address 
     encroachment problems identified by the Secretary in the 
     report.
       (2) It is the sense of the Senate that such recommendations 
     should be carefully considered for future legislative action.
       (b) Submission of Report.--Not later than one year after 
     the date of the enactment of this Act, the Secretary shall 
     submit the report to the Committee on Armed Services of the 
     House of Representatives and the Committee on Armed Services 
     of the Senate.
       (c) Prohibition on Ground Military Operations.--Nothing in 
     this section shall be construed to permit a military 
     operation to be conducted on the ground in a covered 
     wilderness study area in the Utah Test and Training Range.
       (e) Communications and Tracking Systems.--Nothing in this 
     section shall be construed to prevent any required 
     maintenance of existing communications, instrumentation, or 
     electronic tracking systems (or the infrastructure supporting 
     such systems) necessary for effective testing and training to 
     meet military requirements in the Utah Test and Training 
     Range.


                    AMENDMENT NO. 3459, AS MODIFIED

       At the end of subtitle C of title X, add the following:

     SEC. 1022. REPORTS ON MATTERS RELATING TO DETAINMENT OF 
                   PRISONERS BY THE DEPARTMENT OF DEFENSE.

       (a) Reports Required.--Not later than 90 days after the 
     date of the enactment of this Act, and annually thereafter, 
     the Secretary of Defense shall submit to the appropriate 
     committees of Congress a report on the population of persons 
     held by the Department of Defense for more than 45 days and 
     on the facilities in which such persons are held.
       (b) Report Elements.--Each report under subsection (a) 
     shall include the following:
       (1) General information on the foreign national detainees 
     in the custody of the Department on the date of such report, 
     including the following:
       (A) The best estimate of the Department of the total number 
     of detainees in the custody of the Department as of the date 
     of such report.
       (B) The countries in which such detainees were detained, 
     and the number of detainees detained in each such country.
       (C) The best estimate of the Department of the total number 
     of detainees released from the custody of the Department 
     during the one-year period ending on the date of such report.
       (2) For each foreign national detained and registered with 
     the National Detainee Reporting Center by the Department on 
     the date of such report the following:
       (A) The Internment Serial Number or other appropriate 
     identification number.
       (B) The nationality, if available.
       (C) The place at which taken into custody, if available.
       (D) The circumstances of being taken into custody, if 
     available
       (E) The place of detention.
       (F) The current length of detention.
       (G) A categorization as a civilian detainee, enemy prisoner 
     of war/prisoner of war, or enemy combatant.
       (H) Information as to transfer to the jurisdiction of 
     another country, including the identity of such country.
       (3) Information on the detention facilities and practices 
     of the Department for the one-year period ending on the date 
     of such report, including for each facility of the Department 
     at which detainees were detained by the Department during 
     such period the following:
       (A) The name of such facility.
       (B) The location of such facility.
       (C) The number of detainees detained at such facility as of 
     the end of such period.
       (D) The capacity of such facility.
       (E) The number of military personnel assigned to such 
     facility as of the end of such period.
       (F) The number of other employees of the United States 
     Government assigned to such facility as of the end of such 
     period.
       (G) The number of contractor personnel assigned to such 
     facility as of the end of such period.
       (c) Form of Report.--Each report under subsection (a) shall 
     be submitted in unclassified form, but may include a 
     classified annex.
       (d) Appropriate Committees of Congress Defined.--In this 
     section, the term ``appropriate committees of Congress'' 
     means--
       (1) the Committee on Armed Services and the Select 
     Committee on Intelligence of the Senate; and
       (2) the Committee on Armed Services and the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives.


                    AMENDMENT NO. 3311, AS MODIFIED

       In lieu of the matter proposed to be inserted, insert the 
     following:

     SEC. __. REPORT ON OFFSET REQUIREMENTS UNDER CERTAIN 
                   CONTRACTS.

       Section 8138(b) of the Department of Defense Appropriations 
     Act, 2004 (Public Law 108-87; 117 Stat. 1106; 10 U.S.C. 2532 
     note) is amended by adding at the end the following new 
     paragraph:
       ``(4) The extent to which any foreign country imposes, 
     whether by law or practice, offsets in excess of 100 percent 
     on United States suppliers of goods or services, and the 
     impact of such offsets with respect to employment in the 
     United States, sales revenue relative to the value of such 
     offsets, technology transfer of goods that are critical to 
     the national security of the United States, and global market 
     share of United States companies.''.


                           AMENDMENT NO. 3476

(Purpose: To provide for appropriate coordination in the preparation of 
         the management plan for contractor security personnel)

       On page 188, beginning on line 17, strike ``Congress'' and 
     all that follows through line 20, and insert ``the 
     congressional defense committees, the Select Committee on 
     Intelligence of the Senate, and the Permanent Select 
     Committee on Intelligence of the House of Representatives a 
     plan for the management and oversight of contractor security 
     personnel by Federal Government personnel in areas where the 
     Armed Forces are engaged in military operations. In the 
     preparation of such plan, the Secretary shall coordinate, as 
     appropriate, with the heads of other departments and agencies 
     of the Federal Government that would be affected by the 
     implementation of the plan.''.


                           AMENDMENT NO. 3477

(Purpose: To provide for appropriate coordination in the preparation of 
  the report on contractor performance of security, intelligence, law 
     enforcement, and criminal justice functions, and to add other 
           congressional committee recipients for the report)

       On page 192, after line 22, insert the following:
       (c) Coordination.--In the preparation of the report under 
     this section, the Secretary of Defense shall coordinate, as 
     appropriate, with the heads of any departments and agencies 
     of the Federal Government that are involved in the 
     procurement of services for the performance of functions 
     described in subsection (a).
       (d) Additional Congressional Recipients.--In addition to 
     submitting the report under this section to the congressional 
     defense committees, the Secretary of Defense

[[Page 13542]]

     shall also submit the report to the Select Committee on 
     Intelligence of the Senate and the Permanent Select Committee 
     on Intelligence of the House of Representatives.


                           AMENDMENT NO. 3478

(Purpose: To provide for appropriate coordination in the preparation of 
      the report on contractor security in Iraq, and to add other 
           congressional committee recipients for the report)

       On page 246, between lines 7 and 8, insert the following:
       (d) Coordination.--In the preparation of the report under 
     this section, the Secretary of Defense shall coordinate with 
     the heads of any other departments and agencies of the 
     Federal Government that are affected by the performance of 
     Federal Government contracts by contractor personnel in Iraq.
       (e) Additional Congressional Recipients.--In addition to 
     submitting the report on contractor security under this 
     section to the congressional defense committees, the 
     Secretary of Defense shall also submit the report to any 
     other committees of Congress that the Secretary determines 
     appropriate to receive such report taking into consideration 
     the requirements of the Federal Government that contractor 
     personnel in Iraq are engaged in satisfying.


                           AMENDMENT NO. 3479

    (Purpose: To provide for the space posture review to be a joint 
  undertaking of the Secretary of Defense and the Director of Central 
                             Intelligence)

       On page 249, line 16, strike ``(d)'' and insert the 
     following:
       (4) The reports under this subsection shall also be 
     submitted to the Select Committee on Intelligence of the 
     Senate and the Permanent Select Committee on Intelligence of 
     the House of Representatives.
       (d) Joint Undertaking With the Director of Central 
     Intelligence.--The Secretary of Defense shall conduct the 
     review under this section, and submit the reports under 
     subsection (c), jointly with the Director of Central 
     Intelligence.
       (e) * * *


                           AMENDMENT NO. 3480

(Purpose: To add the Select Committee on Intelligence and the Permanent 
  Select Committee on Intelligence of the House of Representatives as 
 recipients of the report of the panel on the future of military space 
                                launch)

       On page 252, beginning on line 10, strike ``and the 
     congressional defense committees'' and insert ``, the 
     congressional defense committees, the Select Committee on 
     Intelligence of the Senate, and the Permanent Select 
     Committee on Intelligence of the House of Representatives''.


                           AMENDMENT NO. 3481

 (Purpose: To add the Director of Central Intelligence as an approving 
 official for Department of Defense assistance to Iraq and Afghanistan 
             military and security forces in certain cases)

       On page 269, line 16, before the period at the end insert 
     ``and, in any case in which section 104(e) of the National 
     Security Act of 1947 (50 U.S.C. 403-4(e)) applies, the 
     Director of Central Intelligence''.


                    AMENDMENT NO. 3342, AS MODIFIED

 (Purpose: To require a plan on the implementation and utilization of 
  flexible personnel management authorities in Department of Defense 
                             laboratories)

       At the end of title XI add the following:

     SEC. 1107. PLAN ON IMPLEMENTATION AND UTILIZATION OF FLEXIBLE 
                   PERSONNEL MANAGEMENT AUTHORITIES IN DEPARTMENT 
                   OF DEFENSE LABORATORIES.

       (a) Plan Required.--The Under Secretary of Defense for 
     Acquisition, Technology, and Logistics and the Under 
     Secretary of Defense for Personnel and Readiness shall 
     jointly develop a plan for the effective utilization of the 
     personnel management authorities referred to in subsection 
     (b) in order to increase the mission responsiveness, 
     efficiency, and effectiveness of Department of Defense 
     laboratories.
       (b) Covered Authorities.--The personnel management 
     authorities referred to in this subsection are the personnel 
     management authorities granted to the Secretary of Defense by 
     the provisions of law as follows:
       (1) Section 342(b) of the National Defense Authorization 
     Act for Fiscal Year 1995 (Public Law 103-337; 108 Stat. 
     2721), as amended by section 1114 of the Floyd D. Spence 
     National Defense Authorization Act for Fiscal Year 2001 (as 
     enacted into law by Public Law 106-398 (114 Stat. 1654A-
     315)).
       (2) Section 1101 of the Strom Thurmond National Defense 
     Authorization Act for Fiscal Year 1999 (Public Law 105-261; 5 
     U.S.C. 3104 note).
       (3) Such other provisions of law as the Under Secretaries 
     jointly consider appropriate for purposes of this section.
       (c) Plan Elements.--The plan under subsection (a) shall--
       (1) include such elements as the Under Secretaries jointly 
     consider appropriate to provide for the effective utilization 
     of the personnel management authorities referred to in 
     subsection (b) as described in subsection (a), including the 
     recommendations of the Under Secretaries for such additional 
     authorities, including authorities for demonstration programs 
     or projects, as are necessary to achieve the effective 
     utilization of such personnel management authorities; and
       (2) include procedures, including a schedule for review and 
     decisions, on proposals to modify current demonstration 
     programs or projects, or to initiate new demonstration 
     programs or projects, on flexible personnel management at 
     Department laboratories
       (d) Submittal to Congress.--The Under Secretaries shall 
     jointly submit to Congress the plan under subsection (a) not 
     later than February 1, 2006.


                           AMENDMENT NO. 3482

 (Purpose: To express the sense of the Senate regarding the return of 
members of the Armed Forces to active service upon rehabilitation from 
                       service-related injuries)

       On page 112, between the matter following line 5 and line 
     6, insert the following:

     SEC. 574. SENSE OF THE SENATE REGARDING RETURN OF MEMBERS TO 
                   ACTIVE DUTY SERVICE UPON REHABILITATION FROM 
                   SERVICE-RELATED INJURIES.

       (a) Findings.--Congress makes the following findings:
       (1) The generation of young men and women currently serving 
     on active duty in the Armed Forces, which history will record 
     as being among the greatest, has shown in remarkable numbers 
     an individual resolve to recover from injuries incurred in 
     such service and to return to active service in the Armed 
     Forces.
       (2) Since September 11, 2001, numerous brave soldiers, 
     sailors, airmen, and Marines have incurred serious combat 
     injuries, including (as of June 2004) approximately 100 
     members of the Armed Forces who have been fitted with 
     artificial limbs as a result of devastating injuries 
     sustained in combat overseas.
       (3) In cases involving combat-related injuries and other 
     service-related injuries it is possible, as a result of 
     advances in technology and extensive rehabilitative services, 
     to restore to members of the Armed Forces sustaining such 
     injuries the capability to resume the performance of active 
     military service, including, in a few cases, the capability 
     to participate directly in the performance of combat 
     missions.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that--
       (1) members of the Armed Forces who on their own initiative 
     are highly motivated to return to active duty service 
     following rehabilitation from injuries incurred in their 
     service in the Armed Forces, after appropriate medical review 
     should be given the opportunity to present their cases for 
     continuing to serve on active duty in varied military 
     capacities;
       (2) other than appropriate medical review, there should be 
     no barrier in policy or law to such a member having the 
     option to return to military service on active duty; and
       (3) the Secretary of Defense should develop specific 
     protocols that expand options for such members to return to 
     active duty service and to be retrained to perform military 
     missions for which they are fully capable.


                           AMENDMENT NO. 3483

(Purpose: To authorize, and authorize the appropriation of, $18,140,000 
 for military construction at Navy Weapons Station, Charleston, South 
Carolina, for the construction of a consolidated electronic integration 
     and support facility to house the command and control systems 
  engineering and design work of the Space and Naval Warfare Systems 
 Center, Charleston, and to provide offsets, including the elimination 
  of the authorization of appropriations of $10,358,000 for military 
 construction at Charleston, South Carolina, for the construction of a 
             readiness center for the Army National Guard)

       On page 305, in the table preceding line 1, insert after 
     the item relating to Naval Station Newport, Rhode Island, the 
     following new item:


------------------------------------------------------------------------
 
------------------------------------------------------------------------
South Carolina.....................  Naval Weapons           $18,140,000
                                      Station, Charleston.
------------------------------------------------------------------------

       On page 305, in the table preceding line 1, strike the 
     amount identified as the total in the amount column and 
     insert ``$833,718,000''.
       On page 307, line 8, strike ``$1,825,576,000'' and insert 
     ``$1,843,716,000''.
       On page 307, line 11, strike ``$676,198,000'' and insert 
     ``$694,338,000''.
       On page 314, line 7, strike ``$2,493,324,000'', as 
     previously amended, and insert ``$2,485,542,000''.
       On page 315, line 3, strike ``$863,896,000'' and insert 
     ``$856,114,000''.
       On page 322, line 15, strike ``$371,430,000'' and insert 
     ``$361,072,000''.


                           AMENDMENT NO. 3484

 (Purpose: To add an amount for a bed-down initiative to enable the C-
   130 aircraft of the Idaho Air National Guard to be the permanent 
carrier of the SENIOR SCOUT mission shelters of the 169th Intelligence 
                Squadron of the Utah Air National Guard)

       On page 24, between lines 9 and 10, insert the following:

[[Page 13543]]



     SEC. 133. SENIOR SCOUT MISSION BED-DOWN INITIATIVE.

       (a) Amount for Program.--The amount authorized to be 
     appropriated by section 103(1) is hereby increased by 
     $2,000,000, with the amount of the increase to be available 
     for a bed-down initiative to enable the C-130 aircraft of the 
     Idaho Air National Guard to be the permanent carrier of the 
     SENIOR SCOUT mission shelters of the 169th Intelligence 
     Squadron of the Utah Air National Guard.
       (b) Offset.--The amount authorized to be appropriated by 
     section 421 is hereby reduced by $2,000,000, with the amount 
     of the reduction to be derived from excess amounts provided 
     for military personnel of the Air Force.

  Mr. WARNER. I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           amendment no. 3280

  Mr. BINGAMAN. Mr. President, I am pleased to support this amendment, 
which I have cosponsored with the Senator from Oklahoma, to extend the 
Energy Savings Performance Contract program through the end of fiscal 
year 2005.
  Our amendment is urgently needed to stem the damage being done to a 
very successful program that brings private sector expertise, and 
private sector financing, to efficiency projects that reduce the 
Federal Government's energy use, and energy costs.
  Since the 1970's Federal Government agencies have been setting an 
example for the Nation on how to reduce energy waste and save money by 
improving their energy efficiency--spending $2.3 billion less for 
energy in FY2000 than in FY1985. One of the reasons for this success is 
the availability of Energy Savings Performance contracts, ESPCs. These 
contracts offer a way to make energy savings improvements at Federal 
facilities at no cost to the Government, by leveraging private capital. 
The Department of Defense has been a leader in the use of Energy 
Savings Performance contracts.
  Under the ESPC authority enacted in 1992, private sector companies 
enter into contracts with Federal agencies to install energy savings 
equipment and make operational and maintenance changes to improve 
building efficiency. The company pays all of the up-front costs for 
making the energy efficiency improvements and guarantees the agency 
savings through the term of contract. The energy service company then 
recovers its investment, over time, by receiving a portion of the 
agency's energy cost savings.
  Since 1992, this program has brought nearly $1.1 billion in private 
sector investments to Federal agencies, resulting in hundreds of 
millions of dollars in permanent savings to the taxpayers. The ESPC 
program has the support of a broad and diverse coalition of businesses, 
environmental groups and labor--including the U.S. Chamber of Commerce, 
U.S. PIRG, and the Teamsters.
  Unfortunately, the statutory authority for the ESPC program expired 
at the end of FY2003. As a result of the program lapse, over $300 
million in energy efficiency projects have been halted nationwide. 
Pending contacts are in limbo along with over 3,000 new jobs associated 
with these projects. Although I and others have made several efforts to 
extend the program, these efforts have been unsuccessful, primarily 
because the Congressional Budget Office assigns a cost to the program, 
unlike the Office of Management and Budget which considers the program 
to be budget neutral.
  While the debate over proper scoring of the program goes on, the loss 
of new business and experienced personnel has put this program into 
crisis. With each passing week, the benefits and potential of ESPCs are 
bleeding away. At a time of high energy costs, high deficits, and high 
unemployment, Congress should act as soon as possible to extend ESPC 
authority.
  I thank the managers of the bill for accepting this short-term 
extension amendment. I also pledge to continue working with Senator 
Inhofe and other supporters of the ESPC program to enact a permanent 
extension of this valuable efficiency program.
  I ask unanimous consent that a letter from Secretary Abraham 
expressing administration support for the ESPC Program be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                      The Secretary of Energy,

                                    Washington, DC, April 8, 2004.
     Hon. Pete Domenici,
     Chairman, Committee on Energy and Natural Resources, U.S. 
         Senate, Washington, DC.
       Dear Mr. Chairman: The Administration strongly supports 
     enactment, as soon as possible, of legislation to extend the 
     authority for Federal agencies to enter into Energy Savings 
     Performance Contracts (ESPCs).
       Congress established the ESPC program in 1992 as an 
     innovative way to improve the Government's energy efficiency 
     by harnessing private-sector resources to fund necessary 
     energy-efficient improvements. However, authority to enter 
     into new ESPC contracts expired on October 1, 2003. A short-
     term, one-year reauthorization would allow Federal agencies 
     to continue making investments in energy efficiency that save 
     energy and money and help agencies meet Federal energy 
     conservation goals.
       The Administration continues to support long-term 
     reauthorization of the ESPC program as part of the 
     comprehensive energy legislation currently under 
     consideration in Congress. The legislation itself extending 
     ESPC authority is considered budget neutral and does not 
     require additional resources, as the Office of Management and 
     Budget classifies all budget authority and outlays for ESPCs 
     as absorbing discretionary resources. However, ESPCs actually 
     save the government money, because the upfront costs of ESPC 
     efficiency improvements are recovered through the energy 
     savings that result. Moreover, payments to the contractors 
     are contingent upon realizing a guaranteed stream of future 
     cost savings.
       Improved energy efficiency and conservation of Federal 
     facilities is an important component of this Administration's 
     commitment to the cost-effective use of public dollars and 
     protection of the environment. The Administration urges 
     Congress to act quickly to extend the authorization of this 
     important program.
           Sincerely,
                                                  Spencer Abraham.

  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I am prepared to enter into a unanimous 
consent agreement with the distinguished Senator from Nevada.
  Mr. President, I ask unanimous consent that all pending amendments be 
withdrawn, with the exception of the following: Daschle, No. 3409, as 
amended; Leahy, No. 3387, which will have a second degree by Senator 
Leahy or designee; and a series of amendments which have been cleared 
by both managers; I further ask consent that at 9:30 tonight the Senate 
proceed to a vote in relation to the Daschle amendment No. 3409, with 
no second degrees in order to the amendment prior to the vote; provided 
further that following the disposition of the Daschle amendment, the 
Senate vote in relation to the Leahy amendment No. 3387. I further ask 
consent that following the disposition of the Leahy amendment, and the 
disposition of the cleared amendments, the bill be read a third time 
and the Senate proceed to a vote on passage of the bill, with no 
intervening action or debate.
  Before the Chair rules, I ask unanimous consent that the votes occur 
in reverse order than listed above.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Nevada.
  Mr. REID. Mr. President, it is my understanding that, first of all, 
it will be the Daschle amendment No. 3409, as amended.
  Mr. WARNER. That is correct. If I failed to read it, it is as 
amended.
  Mr. REID. And that the Leahy amendment No. 3387--we all know Senator 
Leahy is going to offer a second-degree amendment to the underlying 
amendment.
  Mr. WARNER. That is correct. It is in the script.
  Mr. REID. And also, I say to the Senator, I want to make sure we 
would have the Daschle vote second and the Leahy vote first.
  Mr. WARNER. If that is the preference, so granted.
  Mr. REID. That would be for the convenience of the Democratic leader. 
I would also think it would be appropriate to have 2 minutes evenly 
divided prior to each vote. I would ask unanimous consent that the 
distinguished chairman of the committee allow the modification of his 
unanimous consent request as I have outlined it.

[[Page 13544]]


  Mr. WARNER. I concur in the modification.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. I thank the Chair.
  Mr. LEAHY. Mr. President, will the Senator yield, not to speak on my 
amendment but to call it up and offer the second degree now?
  The PRESIDING OFFICER. Without objection, the Daschle second degree 
No. 3468 is agreed to.
  The amendment (No. 3468) was agreed to.


                Amendment No. 3485 To Amendment No. 3387

  Mr. LEAHY. Mr. President, I ask that amendment No. 3387 be called up, 
and I send to the desk a second-degree amendment on behalf of myself 
and Mr. Corzine.
  The PRESIDING OFFICER. The clerk will report the second-degree 
amendment.
  The legislative clerk read as follows:

       The Senator from Vermont [Mr. Leahy], for himself and Mr. 
     Corzine, proposes an amendment numbered 3485 to amendment No. 
     3387.

  Mr. LEAHY. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To direct the Attorney General to submit to the Committee on 
  the Judiciary of the Senate all documents in the possession of the 
 Department of Justice relating to the treatment and interrogation of 
         individuals held in the custody of the United States)

       At the appropriate place, insert the following:

     SEC. __. REQUEST FOR DOCUMENTS AND RECORDS.

       The Attorney General shall submit to the Committee on the 
     Judiciary of the Senate all documents and records produced 
     from January 20, 2001, to the present, and in the possession 
     of the Department of Justice, describing, referring or 
     relating to the treatment or interrogation of prisoners of 
     war, enemy combatants, and individuals held in the custody or 
     under the physical control of the United States Government or 
     an agent of the United States Government in connection with 
     investigations or interrogations by the military, the Central 
     Intelligence Agency, intelligence, antiterrorist or 
     counterterrorist offices in other agencies, or cooperating 
     governments, and the agents or contractors of such agencies 
     or governments.

  Mr. LEAHY. I thank the distinguished manager and yield the floor.
  Mr. REID. 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. BENNETT. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. Mr. President, as the debate on the Defense 
authorization bill began, I announced my intention to offer an 
amendment to that bill with respect to the nuclear penetrator, or, as 
it is known around here, the RNEP. I have been dissuaded from offering 
that amendment by the arguments of some of my friends who insist it is 
unnecessary because it would be simply a statement of existing law. I 
wanted to be sure that was the case, and therefore I sought assurances 
from both the Department of Energy and the Department of Defense. I 
have handed the letters from those two Departments to my friend from 
Michigan. I ask if I could reclaim those letters so I might quote from 
them.
  Mr. LEVIN. That is a fair request.
  Mr. BENNETT. Linton F. Brooks, who is the Administrator of the 
National Nuclear Security Administration, wrote me on June 15, and he 
says the following things:

     . . . let me state unequivocally this Administration has no 
     current plans or requirements to conduct an underground 
     nuclear test.

  That is important to understand, that the administration has no plans 
to conduct an underground nuclear test of any kind.
  With respect to RNEP, he says:

     . . . I know you are concerned that the ongoing RNEP study 
     could lead to the resumption of underground nuclear testing. 
     The RNEP study will not require an underground nuclear test.

  That is a very firm, unequivocal statement.
  He goes on to talk about possibilities, and he says:

       Should the President support, and the Congress approve, 
     full-scale engineering development of RNEP, the 
     Administration does not intend to conduct a nuclear test. 
     From the beginning, we have operated under the assumption 
     that resuming testing to certify RNEP is not an option. . . .

  Those are firm assurances from the Department of Energy. But I wanted 
to be sure this was not just Ambassador Linton Brooks' attitude, so I 
had a conversation with Paul Wolfowitz at the Department of Defense. 
Dated June 23, he sent me a letter reaffirming what Administrator 
Brooks had said and makes it clear that the Department of Defense 
agrees there will be no nuclear test with respect to RNEP under the 
current administration.
  So I am heartened by these assurances I have received from the 
Department of Defense and the Department of Energy that there is no 
plan or requirement to conduct an underground nuclear explosive test of 
any kind, and I accept these assurances. But here in the Congress I 
have those to whom I look for guidance on these matters. I want to be 
sure that should some future administration decide to change the policy 
that has been outlined by the Bush administration, that the present law 
would hinder future administrations from conducting these same tests 
without there being a vote of Congress; particularly with respect to 
RNEP, that there would be no underground nuclear test without a 
congressional vote.
  I have asked the Senator from Arizona, who is an expert on these 
matters, if he would agree. I also discussed it with the Senator from 
Michigan, who is the ranking member on the Armed Services Committee.
  If I may, Mr. President, I ask the Senator from Arizona, Mr. Kyl, if 
he agrees that under current law, a vote from Congress would have to 
occur before a test could be conducted on RNEP?
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I answer the Senator from Utah, yes, I agree 
Congress would have to vote before a test could be conducted.
  Mr. BENNETT. I thank the Senator from Arizona, Mr. President.
  I would now like to address the same question to the Senator from 
Michigan, with his great background in the area of law concerning this.
  Does the Senator from Michigan agree that under current law, a vote 
from Congress would have to occur before a test could be conducted for 
RNEP?
  Mr. LEVIN. Yes. I, too, agree that Congress would have to vote before 
a test could be conducted.
  Mr. BENNETT. I thank the Senator from Michigan. I thank the Senator 
from Arizona.
  On the basis of their assurances, along with the written assurances I 
have received from this administration--two Departments speaking--I 
will not offer my amendment.
  Mr. President, I now ask unanimous consent those two letters be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Department of Energy, National Nuclear Security 
           Administration,
                                    Washington, DC, June 15, 2004.
     Hon. Robert Bennett,
     U.S. Senate,
     Washington, DC.
       Dear Senator Bennett: Thank you for taking the time to meet 
     with me on June 3, 2004, to discuss your concerns regarding 
     the Robust Nuclear Earth Penetrator (RNEP) study and 
     underground nuclear testing at the Nevada Test Site (NTS). I 
     appreciate your concerns and I hope to address them in this 
     letter.
       First, let me state unequivocally this Administration has 
     no current plans or requirements to conduct an underground 
     nuclear test. The Stockpile Stewardship Program is working 
     today to ensure that America's nuclear deterrent is safe, 
     secure and reliable. Currently there are no issues of 
     sufficient concern to warrant a nuclear test. I certainly 
     understand the concerns you and your constituents in Utah 
     have with nuclear testing at the Nevada Test Site. However, I 
     believe it is critical to maintain a readiness capability at 
     the NTS to conduct such a test in

[[Page 13545]]

     the future if called for by the President of the United 
     States, in order to ensure the safety and/or reliability of a 
     weapon system. Therefore, I believe it is important for us to 
     work together to ensure that the NNSA test readiness program 
     continues to make safety a top priority.
       Furthermore, I know you are concerned that the ongoing RNEP 
     study could lead to the resumption of underground nuclear 
     testing. The RNEP study will not require an underground 
     nuclear test. Should the President support, and Congress 
     approve, full-scale engineering development of RNEP, the 
     Administration does not intend to conduct a nuclear test. 
     From the beginning, we have operated under the assumption 
     that resuming testing to certify RNEP is not an option and 
     for that reason, more than any other, the RNEP study is only 
     looking at two existing weapon systems, the B-61 and the B-
     83. Both are well-proven systems with an extensive test 
     pedigree from the 1970s and 80s. I would be happy to work 
     with you and the Senate Armed Services Committee to address 
     your concerns on this sensitive matter.
       If you have any further questions or concerns, please do 
     not hesitate to contact me or C. Anson Franklin, Director, 
     Office of Congressional, Intergovernmental and Public Affairs 
     at (202) 586-8343.
           Sincerely,
                                                 Linton F. Brooks,
     Administrator.
                                  ____

                                      Deputy Secretary of Defense,
                                    Washington, DC, June 23, 2004.
     Hon. Robert Bennett,
     U.S. Senate, Dirksen Senate Office Building,
     Washington, DC.
       Dear Senator Bennett: I understand that you have concerns 
     about the Department's plans to study options for a Robust 
     Nuclear Earth Penetrator (RNEP) that would give the United 
     States the capability to threaten hardened, deeply buried 
     targets in hostile nations. Specifically, you have raised 
     concerns that the development of such a system could require 
     the resumption of underground nuclear testing.
       I want to assure you that the Administration has no plans 
     to conduct an underground nuclear test associated with the 
     development of RNEP. As National Nuclear Security 
     Administration Administrator Linton Brooks recently wrote to 
     you, ``the RNEP study is only looking at two existing weapon 
     systems, the B-61 and B-83. Both are well-proven systems with 
     an extensive test pedigree from the 1970s and 80s.''
       If RNEP were to move from its current study phase to 
     development, such plans would be part of the Administration's 
     annual budget request to Congress. The Administration's 
     intentions concerning underground nuclear testing during RNEP 
     development, if different from our current intentions, would 
     be explicit in that request. Congress would have the 
     opportunity at that time to debate and pass judgment on those 
     plans.
       Thank you for the opportunity to address your concerns 
     about the Department's development of RNEP. If I can be of 
     further assistance, I hope you will let me know.
           Sincerely,
                                                   Paul Wolfowitz.

  Mrs. DOLE. Mr. President, I wonder if I might engage the 
distinguished Chairman in a brief colloquy.
  Mr. WARNER. Certainly.
  Mrs. DOLE. I thank my colleagues. Mr. President, as a member of the 
Personnel Subcommittee, I am acutely sensitive to the enormous 
challenges confronting our National Guard and Reserve forces, and their 
families, as they are called upon to defend our Nation in the war on 
terrorism. North Carolina is at the forefront of National Guard and 
Reserve mobilizations, with 31 percent of our State's 23,300 National 
Guard and Reserve members currently mobilized.
  The University of North Carolina, in partnership with a wide range of 
universities and community organizations, is developing a National 
Demonstration Program for Citizen-Soldier Support to augment, 
strengthen, and refine the existing framework of support for National 
Guard and Reserve personnel, and their families. The objectives of the 
demonstration program are to strengthen communication and information 
dissemination; strengthen community support systems; strengthen support 
systems for children and adolescents; strengthen health and mental 
health care systems; strengthen employment support networks; and 
address proactively emerging issues of importance to our personnel and 
their families. This National Demonstration Program of Citizen-Soldier 
Support has been presented to a wide variety of civilian and military 
leaders, and has been uniformly supported as timely, substantive, and 
highly promising as an adjunct to existing Department of Defense 
programs and services.
  Unfortunately, as a relatively new initiative, this National 
Demonstration Program for Citizen-Soldier Support was not included as 
part of the President's budget request and was not authorized within 
the bill now before the Senate. It is my understanding that the 
decision to not include the National Demonstration Program for Citizen-
Soldier Support in the FY05 Defense Authorization bill was not made 
with prejudice to the program but, rather, was based on the emerging 
nature of the structure and deliverables associated with this program--
a program that is focusing on how to best assist our Reservists and 
their families in their newly emerging roles in the war on terror.
  Mr. WARNER. Mr. President, the Senator from North Carolina is 
correct. At the time that the Armed Services Committee was preparing 
its mark, there was not sufficient data available concerning the 
specific elements of the proposed program, and its interrelationship 
with other existing and emerging programs within the Department, to 
fully assess the merits of the National Demonstration Program for 
Citizen-Soldier Support. The absence of this proposed program in the 
bill should not be interpreted as a negative assessment.
  Mrs. DOLE. I thank the Chairman. I might also ask the Chairman if he 
would agree with me that our Nation's security depends on the mission-
readiness and retention of our citizen-soldiers, and that for the total 
force to function effectively, we must make certain that these men and 
women, their families, and employers have needed support while they 
prepare for, carry out, and eventually return from active military 
service.
  Mr. WARNER. I would agree wholeheartedly with the Senator from North 
Carolina's statement. At at time when we are relying more and more on 
our National Guard and Reserve forces to defend our national security, 
we must continue to provide direct and substantive support to these 
personnel and their families.
  Mrs. DOLE. I thank the distinguished Chairman. Given this concurrence 
on the importance of ensuring necessary and effective support for our 
National Guard and Reserve families, I ask the Chairman if he would be 
willing to support my effort to bring this proposed Demonstration 
Program for Citizen-Soldier Support to the attention of the appropriate 
Department of Defense offices. This effort will require modifying 
elements of the proposed program, where appropriate, to maximize 
synergies with ongoing Department of Defense initiatives and exploring 
options within the defense budget for funding implementation of the 
program.
  Mr. WARNER. I commend the distinguished Senator from North Carolina 
for her steadfast advocacy for our men and women in uniform, and their 
families, and I would be pleased to work with her on this important 
issue.
  Mrs. DOLE. I thank the distinguished Chairman for his courtesy.
  Mr. ALLEN. Mr. President, I wonder if I might take just a minute to 
ask the Chairman whether I am correct that developing a reliable, 
automated three-dimensional facial recognition capability has 
significant implications for our fight against terrorism and would be 
of great interest to the defense, intelligence and transportation 
security agencies.
  Mr. WARNER. Yes, that is certainly my understanding.
  Mr. ALLEN. I also understand that one very promising approach would 
be to use laser radar to acquire such a three-dimensional image. This 
technology is highly accurate, and is already used in industrial 
applications to measure such things as minute imperfections in airplane 
wings. Unlike more traditional photography, it also would work in a 
greater variety of lighting conditions and at a much greater distance. 
It also has the advantage of avoiding allegations of racial profiling 
because it makes no use of skin color, instead measuring facial 
features.
  Mr. WARNER. I understand that accuracy has been a problem with some 
systems developed to date so new approaches would be welcomed.
  Mr. ALLEN. Does the Chairman agree it would be worthwhile to explore

[[Page 13546]]

taking existing industrial technology and applying it to the problem of 
quickly and reliably identifying at a distance moving individuals at 
such locations as airports and border crossings?
  Mr. WARNER. Yes, I think that if there were funding for such a 
development project it offers the prospect of significant security 
benefits.


                                 AFRTS

  Mr. WARNER. In discussions with my good friend and colleague, Senator 
Inhofe, I have been made aware of the fact that questions have arisen 
about the intent of amendment 3316 regarding the American Forces Radio 
and Television Service, or AFRTS, submitted by Senator Harkin. That 
amendment to the pending legislation was accepted on June 14, 2004.
  Mr. INHOFE. That is correct. Numerous concerns have been expressed 
from my home State, and, I believe, many other States, about this 
amendment. There is a belief that this amendment is intended to be 
critical of the AFRTS and the manner in which it makes current 
programming decisions regarding radio and television shows featuring 
political commentary.
  Mr. WARNER. Thank you for offering me the opportunity to clarify this 
point. In my view, the intent of this amendment was not to call into 
question the performance of the AFRTS. Indeed, as my staff and I 
examined the proposed amendment originally submitted by Senator Harkin, 
we saw that it called for the establishment of a Presidential Advisory 
Board to examine the manner in which AFRTS carries out its mission and 
to submit recommendations on how the AFRTS should carry out 
programming. As we looked at the manner in which the Office of the 
Secretary of Defense for Public Affairs and AFRTS perform its mission, 
however, it became clear that the case had not been made that changes 
were necessary or that such an Advisory Board was needed.
  Mr. INHOFE. Is it correct to say, then, that this Harkin amendment 
expressing the sense of the Senate was actually intended to be an 
expression of support for the current approach of the Department of 
Defense to the AFRTS which provides programming representing a cross-
section of popular American radio and television offerings and 
emulating stateside programming seen and heard in the United States?
  Mr. WARNER. Absolutely. The amendment cites word for word relevant 
portions of the current Department of Defense Directive concerning 
AFRTS, including a statement of the mission to be accomplished and the 
key principles that should be followed in order to provide a free flow 
of political programming from U.S. commercial and public networks. The 
amendment specifically states that the mission statement is 
appropriate. Recognizing that there are several hundred satellite 
stations or ``outlets'' around the globe at which programming decisions 
are made on a daily basis, the amendment goes on to recommend that the 
Secretary of Defense ensure that these important principles, which can 
be summarized as fairness and balance in presenting shows on various 
topics, including political commentary, are being accomplished.
  Mr. INHOFE. Is it correct to say that those who make the programming 
decision for AFRTS have an obligation to consider the popularity and 
desirability of radio and television programming? In other words, 
should the AFRTS take note of national commercial ratings as well as 
local and worldwide formal audience surveys as to what their audience 
desires to see and hear on their AFRTS programming?
  Mr. WARNER. Yes. That would clearly be one factor among several that 
should be considered, consistent with the goal of providing the same 
type and quality of American radio and television news, information, 
and entertainment that would be available to military personnel and 
their families if they were in the continental United States. Other 
factors should also be considered in achieving the AFRTS goals of 
fairness and balance in presenting all sides of important public 
questions, and the amendment was intended to underscore the importance 
of those goals.
  Mr. INHOFE. I thank the chairman for that clarification.


                           Air National Guard

  Mr. BIDEN. I would like to take a moment to engage the Senator from 
Michigan in a discussion about information operations in the Air 
National Guard. Before we begin, I would also like to thank my 
colleague for his willingness to have this discussion on an issue of 
great importance to national security and to many of the Air National 
Guard personnel in my State.
  Let me start by saying that I think most of my colleagues understand 
that while the world today has changed, some things have stayed the 
same. When you are trying to stop terrorists, just like organized 
crime, you have to follow the money. These days, in order to follow the 
money, you have to have the very best in information operations skills. 
You have to understand the computerized financial networks and security 
systems used by financial institutions. In addition, you have to be 
able to protect your own information. This is a critical aspect of the 
war on terrorism and one where the Government needs more capability.
  Last year, the Defense Authorization Conference Report provided 30 
additional Air Guard personnel that we had hoped would be used to stand 
up a new unit in Delaware to do this mission. This year, Senator Carper 
and I had hoped to finish that work by providing a total of 60 
personnel for that unit. Unfortunately, we are not able to do that 
because the Department of Defense has not evaluated this proposal to 
determine whether it is a mission that should be assigned to the Air 
National Guard.
  We understand that the Department of Defense has an established 
process for assigning missions and determining the manning necessary to 
support those missions. Expanding the information operations capability 
of a unit or units within the Air National Guard has not been 
considered through this process.
  Mr. LEVIN. My colleague from Delaware is correct. The Department of 
Defense has a rigorous process for determining whether a new mission 
should be assumed as a military mission and that expansion of the 
information operations capability of the Air National Guard has not 
been considered by this process. Additionally, the Department of 
Defense is conducting a complete review of the Guard's roles and 
missions right now.
  Mr. BIDEN. I hope that we can agree that the Department's review 
should include an examination of using the Air National Guard for 
emerging missions like information operations.
  Mr. LEVIN. I can commit to the Senator from Delaware that I will do 
all that I can to ensure that this area is included in the Department's 
review and given full consideration.
  Mr. BIDEN. I also hope that we will have their input regarding the 
mission and its suitability for the Air Guard before we take up next 
year's Defense Authorization bill. I would also like to make sure that 
the consideration of this particular mission takes into account the 
unique skills present in the Delaware Air National Guard and the work 
that they have already done in this area.
  Mr. LEVIN. Again, I commit to my colleague that we will work with him 
and the Department of Defense to get that thorough and timely 
consideration.
  Mr. BIDEN. I thank my colleague for those assurances and look forward 
to working with him over the next year to make sure our information 
operations needs are met.
  Now, let me explain why I think it is so important to stand this unit 
up in Delaware.
  Delaware is uniquely situated to provide the skills needed for 
information assurance and financial tracking. Delaware is host to 7 of 
the top 10 banking institutions in the U.S. Delaware also has the 
highest amount of computer networking per capita of any State. In 
addition, major research companies like DuPont and Astra-Zeneca make 
their headquarters in Delaware. Last, Delaware has the highest number 
of scientists and engineers per capita in the U.S.

[[Page 13547]]

  All of those statistics mean that many members of Delaware's Air 
National Guard have civilian employment in banks or other institutions. 
They understand what is required to protect financial information and 
to track it. They are on the cutting-edge of information protection 
today.
  Their skills cannot be used by the Government, however, because banks 
and financial institutions are very sensitive about the employees of 
other banks reviewing their financial transactions. To do this type of 
work, a person must be a Government employee. One of the best ways to 
provide the benefit of these private sector skills to Government 
agencies fighting terror is through the National Guard. Guard personnel 
stay on the cutting edge of these skills because of their private 
sector jobs. They can then provide that knowledge to the Government, 
something that a civilian government employee cannot do.
  In 2003, the National Security Agency and the Air Intelligence Agency 
recognized their shortfalls in information assurance and tracking 
skills and started asking some of these Delaware Guardsmen and women to 
help them meet their requirements. NSA will have spent $945,000 between 
2003 and 2004 to make use of the Delaware Air Guard's expertise. They 
would like to spend an additional $900,000 in 2005. AIA is spending 
$150,000 in 2004 on these missions. They are spending this money 
because a real need exists.
  Last year, the Senate, and then the full Congress, agreed that this 
mission needed support and a full-time unit. Thirty personnel were 
added to the Air National Guard's end-strength to create this new 
information operations unit. This year, we had hoped to finish the job 
by providing the full complement of 60 personnel needed for the mission 
and the $3.997 million needed to fully fund this unit. That is $2.75 
million for personnel costs and $1.247 million for operations and 
maintenance. Unfortunately that will not be possible.
  Some may wonder why we sought an amendment to add the personnel and 
funding needed. The reason is simple. The Delaware Air National Guard 
is too small to move people to this mission and still do their primary 
tactical airlift mission. The 166th tactical airlift wing has had its 
C-130s fully tasked to support operations in Afghanistan and Iraq. When 
I wrote Lieutenant General James at the Guard Bureau about standing up 
this new unit, he replied that he thought Delaware's Guard was well-
postured for the mission, but his ``end strength cap makes it 
challenging to resource new initiatives.'' Our amendment would have 
taken care of that challenge.
  Up to now, the personnel who have been working with NSA and AIA so 
far have been working three jobs. Let me say that again, three jobs. It 
is simply not sustainable. They cannot continue to do their regular Air 
Guard mission in the 166th tactical airlift wing, their civilian job, 
and the third job of helping NSA and AIA. With a new unit, we can 
provide the critical information operations skills needed to fight 
terrorism without harming the on-going tactical airlift mission that is 
supporting troops in Afghanistan and Iraq.
  I know end strength increases are controversial, but we need to look 
at the big picture. Remember, Congress agreed that a new unit was 
needed to do these missions last year. The facts on the ground have not 
changed. This is exactly the type of new mission the Air Guard should 
be doing. Only with the Guard can you get the commercial expertise and 
cutting edge knowledge needed to protect information systems and to 
track financial transactions. I look forward to hearing the Pentagon's 
thoughts about this new mission.
  Again, I think it's important to stress that information assurance 
and financial information operations are critical to the war on 
terrorism and to a transformed military. This is a growing area, not a 
shrinking one. We have looked carefully at all of our opportunities to 
provide the needed highly-skilled personnel to the fight. It is my 
belief that we can only do this if we create a unit to take advantage 
of the experienced and knowledgeable personnel available. No matter how 
patriotic people are, they cannot continue to work three jobs for years 
on end. Creating the new 166th information operations unit in the 
Delaware Air National Guard will enhance national security. It was the 
right thing to do last year and it's still the right thing to do. I 
hope that the Air Force will recognize that as we move forward in the 
war on terrorism.


                               JOINTSTARS

  Mr. CHAMBLISS. Mr. President, I rise today to discuss the heavily 
tasked, high value asset of the E-8C JointSTARS fleet, which provides 
real-time surveillance and targeting for our armed forces. This 
critical asset, operated by an integrated wing located in my home State 
of Georgia, has worldwide commitments and is essential to the effective 
execution of the combined air-land strategy and tactics for our forces. 
However, the current engines do not provide sufficient power for the E-
8C JointSTARS fleet to meet all of its operational requirements.
  Mr. WARNER. The Senator from Georgia is quite correct in his 
observation and assessment and our committee has urged the Department 
to move forward with its economic analysis of engine alternatives for 
this critical fleet of aircraft. The Senator from Georgia should be 
proud of the 116th wing of the Georgia Air National Guard, as the work 
that this integrated wing performs on a daily basis is responsible for 
saving many soldiers' lives. As he stated, the E-8C JointSTARS fleet 
provides critical airborne battle management command and control.
  Mr. CHAMBLISS. As the chairman has mentioned, the conference report 
on the fiscal year 2004 National Defense Authorization Act required the 
Secretary of Defense to submit a report to the congressional defense 
committees providing an economic analysis comparing the options of 
maintaining the current engines on the E-8C JointSTARS aircraft, 
purchasing and installing new engines, and leasing and installing new 
engines. This report was to have been submitted by February 13, 2004, 
but has yet to be received.
  The engines that currently power the E-8C JointSTARS aircraft fleet 
are the same engines we have gone to great lengths to replace over the 
last decade in the Air Force's tanker fleet. The engines are old, 
provide marginal power to support the E-8C's taskings, and are 
expensive to operate and maintain compared to new engines currently 
available in the commercial market. These are not just my observations. 
Let me quote from a recent memorandum from the Vice Commander of Air 
Combat Command to the Air Force Vice Chief of Staff:

       This letter provides a brief update on our efforts to re-
     engine JSTARS, which continues to be one of our top 
     initiatives for the E-8. The current TF-33-102C engines do 
     not satisfy desired safety margins or meet operational needs. 
     An Air Force Flight Standards Agency critical field length 
     waiver is required to support takeoffs with current engines. 
     Additionally, Operations ALLIED FORCE, ENDURING FREEDOM, AND 
     IRAQI FREEDOM highlighted significant JSTARS engine 
     performance shortfalls. A lack of thrust and fuel efficiency 
     combined to reduce mission operating altitudes and on-station 
     times. The current TF33 engines are the number one driver of 
     the Non-Mission Capable for Maintenance rate and are the 
     leading cause of sortie aborts and code-3 landings. It is 
     projected that re-engining will reduce the NMCM rate by 10 
     percent and positively increase the overall system Mission 
     Capable rates by four percent. E-8C crews have also 
     experienced several instances of engine over temps on 
     takeoffs, which have mandated reduced thrust takeoffs. Re-
     engining JSTARS makes sense operationally and from a 
     sustainability perspective.

  We have included language in the report accompanying this bill that 
states should the Secretary of Defense recommend in his report that a 
re-engining program be pursued for the E-8C, the committee encourages 
the Air Force to initiate this program, taking into account the 
recommendations of the Secretary's report on how best to implement it. 
I am optimistic that the Air Force report will be delivered to the 
committee in the near term. I am hopeful that as our bill moves from 
floor consideration and to conference with the House, we can work to 
ensure that this re-engine initiative is given every consideration 
based on the data

[[Page 13548]]

and analysis provided for our consideration.
  There are many aspects to consider in taking care of our soldiers, 
sailors, airmen and marines who are sent into harm's way. In times like 
these, preserving the assets that help to ensure the well-being of our 
men and women in uniform should be given the investment necessary to 
see that the equipment is the best that we can provide and at the best 
value for our armed forces.
  Mr. WARNER. I thank the Senator from Georgia for his leadership on 
this issue, and I look forward to working with him on this important 
issue.
  Mr. CHAMBLISS. We owe it to the men and women who crew the E-8C 
JointSTARS to ensure that these aircraft are powered by engines that 
provide desired safety margins and on-station operating times that 
accomplish the aircraft's mission without degradation. At the same time 
we owe it to the taxpayers of this Nation to ensure that these aircraft 
are powered by engines that are fuel efficient and supportable for our 
armed forces.


                          competitive sourcing

  Mr. THOMAS. Mr. President, I would like to take a moment to engage 
with the distinguished Senator from Virginia regarding some of the 
measures included in this very important bill. First, I want to commend 
the Senator from Virginia for his tireless efforts in managing this 
bill. He is always very fair and considerate, and his outstanding 
leadership is appreciated.
   Mr. President, I am concerned that some amendments adopted by 
Unanimous Consent may have a negative impact on the President's 
Competitive Sourcing Initiative, and ultimately adversely impact the 
President's ability to administer the bureaucracy of the Department of 
Defense. As a longtime supporter of a more accountable and responsible 
federal government, I strongly support President Bush's competitive 
sourcing initiative which seeks to improve the way federal agencies 
operate. However, I recognize how critical it is in these times of war 
that we move this bill quickly and not allow it to be held up further 
by partisan politics. So I do not object to accepting these measures in 
the larger interest of getting a Defense bill through the Senate.
  Every president for the last 50 years, Republican and Democrat alike, 
has endorsed the elimination of commercial functions in the federal 
workforce, but their plans were not vigorously implemented or enforced. 
As a result, nearly half of today's civilian federal workforce is doing 
work that could be done more efficiently by the private sector.
  Mr. WARNER. I believe we looked to remedy this with the FAIR Act in 
1998. Am I not correct in stating that this law basically says that 
federal agencies should inventory government services that are 
commercial in nature, and then review whether these activities should 
continue to be performed in the public sector?
  Mr. THOMAS. That's correct. The Clinton Administration did the first 
inventory and found that more than 850,000 Federal employees out of 1.8 
million were in jobs that were commercial in nature. The federal 
government was paying individuals to do jobs that could also be found 
in the Yellow Pages. Unfortunately, the Clinton Administration did not 
follow up. These positions should have been reviewed and solutions 
explored to return these jobs to where they belonged--the private 
sector. Unfortunately, there were no follow up reviews. It was only 
when George W. Bush was elected that a program was implemented to 
actually do the reviews of these 850,000 positions. Competitive 
sourcing could then be employed to see if it would be more effective 
and accountable to have these activities performed by the private 
sector.
  Contrary to misinformation by some of our colleagues and labor 
unions, competitive sourcing is not about eliminating or privatizing 
federal workers. Simply put, competitive sourcing, which relies on the 
A-76 Circular for public-private competitions, is a useful tool that 
allows federal agencies to evaluate whether or not commercial functions 
should be performed in the future by federal employees or the private 
sector. As it is now, many federal employees who work in commercial 
functions are stuck in inefficient bureaucracies performing activities 
that are non-inherently governmental.
  The competitive sourcing process is good government. As numerous 
independent reports to Congress have shown, competitive sourcing saves 
taxpayers between 10 to 40 percent--regardless of who wins. The record 
is that every position reviewed by competitive sourcing shows savings 
regardless of whether that position stays in-house or gets contracted. 
Federal employees win an overwhelming majority of the competitions. But 
clearly, the taxpayer is the real winner in this process. Inefficient 
monopolies that waste taxpayer dollars and divert much-needed federal 
resources from our government's most pressing programs should always be 
examined. There are activities which are inherently governmental, and 
should be performed by the government. No one would argue this. 
However, government should not be engaged in activities which are 
already offered in the private sector. As we look for ways to reduce 
its size, cost and scope, we need always remember that government 
should be the provider of last resort with the free enterprise system 
being the provider of the first choice. To do otherwise is a disservice 
to the American taxpayer. Would the Senator from Virginia agree with 
us?
  Mr. WARNER. Mr. President, I certainly agree with my friend from 
Wyoming that we should continue to evaluate the way the federal 
government operates. Competitive sourcing is an important tool 
available to the government to ensure that high quality governmental 
services are acquired at the lowest cost to the taxpayer.
  I believe the Senator wanted to share some of his concerns with an 
amendment offered by the Senator from Massachusetts and the Senator 
from Georgia.
  Mr. THOMAS. I do. The amendment offered by Senators Kennedy and 
Chambliss would all but eliminate use of the streamlined process 
contemplated under the revised Office of Management and Budget Circular 
A-76. This process applies to competitions of 65 or fewer full-time 
equivalents. By making the use of A-76 competitions arbitrary, as 
opposed to strategic, the Department of Defense's necessary flexibility 
in procurement is removed. The amendment also includes provisions 
designed to give in-house employees unfair advantages over the private 
sector in the competitive sourcing process and makes it difficult for 
small businesses to be competitive in job contests.
  Unfortunately, with the country at war, I'm afraid that these 
measures would be very counterproductive, costly, and present 
unnecessary hurdles for the Department in this very crucial period of 
time. In fact, the Administration, in a statement of administration 
policy issued by OMB, has declared its opposition to any final defense 
measure that limits DOD's competitive sourcing flexibility. The White 
House has, in fact, threatened to veto this bill if it contained these 
provisions. I am sure the distinguished Senator from Virginia is well 
aware of the importance the President places on this issue.
  Mr. WARNER. Yes, I am. I certainly understand the Senator's concerns, 
and I can tell him that I am hopeful that as we move forward and 
reconcile this very important bill with that of the House in 
conference, we will take a very careful look at these measures and work 
out acceptable language that will not burden the DOD or hamper the 
President in his role as administrator of the federal bureaucracy in 
these critical times.
  Mr. THOMAS. I think it is very important that we revisit these 
proposals. In the interest of moving this defense bill in a time of 
war, we have forgone an important debate. So I thank the Chairman for 
his attention to this matter and again say to him that I appreciate his 
strong leadership.

[[Page 13549]]




                  Manufacturing Extension Partnership

  Mr. KOHL. Mr. President, Senator Reed and I filed an amendment to 
ensure the soundness of our Nation's defense supply chains through the 
support of the Manufacturing Extension Partnership, MEP, Centers. We 
would like to thank our colleagues, Senators Warner, Levin, Gregg, 
Hollings and McCain for accepting the modified amendment. Senator Reed 
and my amendment clarifies that the Department of Commerce has the 
ability to transfer and reprogram $21.8 million to the MEP Program in 
fiscal year 2004.
  The vitality and viability of our Nation's small manufacturers has 
tremendous consequences for our Nation. Without a strong manufacturing 
base, we risk losing wealth for our Nation, we risk good jobs for our 
citizens, and we risk irreparably harming our Nation's defense supply 
base at a critical time.
  The MEP assists America's small manufacturers and helps boost 
productivity, sales, investment in modernization, and employment. I 
have a very simple, but vital, message to deliver--manufacturing 
matters--MEP matters. But I am worried that President Bush does not 
understand this simple message. This fiscal year 2004, the 
administration's budget slashed the MEP Program by 88 percent. Due to 
the efforts of Senators Gregg and Hollings, the Senate fiscal 2004 
appropriations bill restored funding for the program to $106 million. 
However, the Omnibus Appropriations Act for fiscal year 2004 reduced 
that level to only $39.6 million.
  As a Federal-State-private partnership, MEP is a network of over 60 
centers with 400 locations across the country and Puerto Rico providing 
technical assistance and business support services to small 
manufacturers. These not-for-profit centers employ more than 2,000 
professionals who work with manufacturers to help them adopt and use 
the latest and most efficient technologies, processes, and business 
practices. As a result, our small manufacturers are better able to 
compete with low wage countries, maintain jobs in America, and continue 
driving a higher standard of living in the U.S. In fiscal year 2002, 
MEP's clients reported sales of $2.8 billion, 35,000 new or retained 
workers, $681 million in cost savings, and $941 million invested in new 
plant and equipment as a direct result of their MEP projects.
  However, funding constraints and budget cuts have forced every MEP 
Center in the country to downsize. According to a recent Modernization 
Forum survey, MEP Centers have closed 58 regional offices and reduced 
staffing by 15 percent, which will leave small manufacturers across the 
country without the invaluable technical and business assistance that 
helps them remain competitive edge in the global marketplace.
  Senator Reed's and my amendment will help address this issue by 
clarifying that the Secretary of Commerce can reprogram $21.8 million 
to the MEP Program this year. Fifty-five Senators requested that the 
Secretary reprogram funding to the MEP Centers this year. 
Unfortunately, the Department refused this request; leaving the MEP 
Centers and small manufacturers without the resources they need. In a 
response to the Senate request for reprogramming, Secretary Evans 
implied that the Department of Commerce does not consider it worthwhile 
to reprogram funding to the MEP program because the appropriations act 
would only allow the transfer and reprogramming of $3.9 million. In 
discussions with the Appropriations Committee and the Congressional 
Research Service, however, this appears to be a very narrow reading of 
the statute by the Department of Commerce. The appropriate level of 
funding that can, and should, be transferred and reprogrammed is $21.8 
million. This amendment clarifies that level of funding for transfer 
and reprogramming.
  The administration needs to make resources available to help our 
Nation's small manufacturers. That is why I, along with my colleague 
Senator Reed, continue to call on the administration to reprogram $21.8 
million to support the MEP Centers this year. And we call on the 
administration to send a Budget Amendment to Congress to support 
$106.9M for the MEP Program in fiscal 2005.
  Mr. REED. Mr. President, I thank my colleagues Senators Warner, 
Levin, Gregg, Hollings and McCain for working with Senator Kohl and I 
on this important amendment preserving the Manufacturing Extension 
Partnership, MEP, Program. I particularly want to thank Senators 
Hollings and Gregg for their strong support of the MEP Program and 
their efforts to restore funding to a program that is vital to our 
Nation's small manufacturers. I look forward to working with them this 
year to ensure funding is restored in fiscal year 2005.
  Senator Kohl and my amendment clarifies that the Secretary of 
Commerce has the ability to transfer and reprogram $21.8 million to the 
MEP Program this fiscal year in order to assist our nation's small 
manufacturers. Senator Gregg, Hollings, Kohl and I believe that the 
Secretary already has the ability to transfer and reprogram this 
funding; however, rather than honor the request of 55 Senators and work 
with the Senate and Congress to help reprogram funds, the Department of 
Commerce has chosen to hide behind a legal interpretation that it lacks 
such authority.
  Small manufacturers have a direct impact on national security. Small 
manufacturers are the backbone of our defense production capacities. 
Firms with fewer than 500 employees comprise more than 80 percent of 
the defense supply chains. Small businesses are responsible for a 
significant share of defense contracting. They receive 21 percent of 
prime contracts and 41 percent of the subcontracts awarded to 
businesses by, or on behalf of, the Department of Defense.
  The National Coalition for Advanced Manufacturing in a 2002 report 
identified five key challenges that confront the defense industrial 
base. First, the loss of small and medium-sized firms that participate 
in the defense supply chain is taking its toll on our Nation's defense 
readiness as many makers of components and spare parts for the larger 
defense contractors have left the marketplace or are ill-prepared to 
respond to swift increases in orders. There is no known source of 
supply for over 11,000 products used by the Department of Defense. 
Second, our Nation needs to maintain sufficient surge production 
capacity to meet unanticipated national defense needs. The production 
of platform systems, components and munitions is constrained by the 
surge capacity of prime contractors and the capabilities of the 
supplier base. Being able to provide for these defense needs is vital 
to our military. Third, outdated and aging manufacturing systems and 
processes are involved in the production of major weapon systems. The 
need for quality and technology improvements along with increased 
productivity and cost reduction makes the shortage of capable small 
manufacturers more problematic. Fourth, large defense companies often 
have the knowledge and resources to make investments in productivity 
and efficiency improvements; however, small manufacturers frequently 
lack the necessary technical knowledge, staff and resources to take 
advantage of new techniques and technology. Lastly, to increase 
participation in defense production, small manufacturers need 
assistance adapting commercial production practices and techniques to 
the needs of the defense industrial base.
  The MEP program can help our Nation address these challenges. MEP 
Centers have a strong track record of solving supply management issues. 
MEP helps preserve and strengthen domestic production of unique defense 
technologies and provides a strong strategic edge over threats to 
national security. MEP is active within U.S. defense supply chains 
assisting small sub-tier suppliers to cut costs, boost productivity, 
integrate technology and accelerate delivery times. Officials from 
Boeing, General Dynamics, Lockheed Martin, Northrop Grumman, and 
Raytheon expressed their reliance on MEP for cost and quality 
improvements at small manufacturing firms on which they rely for 
component parts and assemblies.

[[Page 13550]]

  To date, the actions of the Department of Commerce have been 
unacceptable. The administration needs to make resources available to 
help our Nation's small manufacturers. The administration should 
immediately reprogram $21.8 million to support the MEP Centers this 
year as directed by Senator Kohl and my amendment. Given the broad 
bipartisan and national support for this program, the administration 
should send a Budget Amendment to Congress to support $106.9M for the 
MEP program in fiscal 2005.


                           fuel cell program

  Mr. AKAKA. Mr. President, I wonder if I might discuss an important 
matter with the Chairman of the Armed Services Committee regarding the 
program to advance fuel cell technology for support of armed forces.
  Mr. WARNER. Mr. President, I would be happy to discuss this issue 
with the Senator from Hawaii.
  Mr. AKAKA. Mr. President, the Senate report accompanying National 
Defense Authorization Act for Fiscal Year 2005 included language on a 
program to demonstrate proton exchange membrane (PEM) fuel cell designs 
at Department of the Navy installations. In particular, the language 
referred to an uninterruptible substation using fuel cells based on 
proton exchange membrane technology. This was a program that the 
Congress supported last year.
  I believe that the program the Committee intended to support this 
year was somewhat more narrowly focused on the developing technology to 
improve the membranes for those fuel cells that might be used in the 
substation program that was the subject of discussion last year or for 
other important Defense Department applications.
  Mr. WARNER. Mr. President, I agree with the Senator from Hawaii that 
improving the membrane technology for fuel cells was the program for 
which the Committee recommended an addition to the Defense 
authorization this year.
  Mr. AKAKA. Mr. President, I thank the chairman of the Committee for 
clarifying this situation.
  Mr. BENNETT. Mr. President, 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. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The DOD authorization.
  Mr. HATCH. Thank you, Mr. President. That is what I want to talk 
about today, in part.
  I rise today to respond to a few of the comments made yesterday by 
several of my Democratic colleagues. They have attacked the President 
and the administration for not being forthcoming in releasing documents 
notwithstanding the fact that the White House just declassified and 
released approximately 260 pages of legal memoranda that they sent to 
Senator Leahy and myself.
  Let me take a moment to review the history.
  On June 8, 2004, the Judiciary Committee held an oversight hearing of 
the Department of Justice. During the course of the hearing, Senator 
Kennedy asked the Attorney General for any legal memoranda that had 
been leaked to the public. Contrary to the suggestions of some, the 
Attorney General at no time refused to answer any question posed by 
Senators on the committee. He just gave answers with which my 
Democratic Colleagues did not agree.
  Specifically, the Attorney General declined to agree--on the spot--to 
produce internal executive branch legal memoranda citing the 
President's right to have confidential advice from his staff. The 
Attorney General believed he did not have authority to release these 
documents. He believed that only the President could release them.
  Instead, that same day after the hearing, the Department of Justice 
wrote a detailed letter responding to the inquiries of the ranking 
Democratic member of the Judiciary Committee on legal issues related to 
wartime decisions. The letter summarizes the Justice Department's legal 
opinion on whether various statutes and treaties apply on this war on 
terror, including the Uniform Code of Military Justice, the Special 
Maritime and Territorial Jurisdiction, the Military Extraterritorial 
Jurisdiction Act, the torture statute, Geneva Conventions, and the War 
Crimes Act.
  These topics are precisely the subject matter of the documents at 
issue in the hearing. The Attorney General is not trying to cover up 
anything. There can be no question that the Justice Department wanted 
to be responsive to the committee but it was not in a position to 
release the documents without further consultation within the 
administration, including the White House and the Defense Department. 
That is only fair. It is prudent during time of war when some of the 
documents reveal potential interrogation techniques.
  Yet they made the Attorney General of the United States a punching 
bag, which they have done consistently day in, day out in the Judiciary 
Committee on various markup days and hearings as well.
  It is as though they literally hate the Attorney General of the 
United States. A man who I think is doing a bang-up, tremendous job. In 
fact, last week the Attorney General and the White House counsel both 
assured me that they would work with me to fairly resolve the matter. I 
represented that to the committee members and that wasn't enough. I was 
sarcastically challenged on that by more than one member of the 
committee on the Democratic side. I just calmly said: Give them a 
little time. They said they would work with us, and they will. And Mr. 
President, they did.
  Last Tuesday, the Democratic members of the Judiciary Committee 
submitted a letter to the Attorney General, not just seeking the three 
documents mentioned at the hearing that Senator Kennedy made an issue 
of in the hearing, but seeking a total of 23 legal memoranda.
  In addition to that, they provided a laundry list of document 
requests so broad that it could take a year to search the files of the 
entire Federal Government to comply with such a request. We would have 
to go all the way back to the Spanish-American War to give every 
document that has ever been brought forth, if you followed the kind of 
reasoning that they had.
  Let me give you some examples. They asked for ``any other memoranda 
or documents from Alberto Gonzales, William Haynes, William Howard 
Taft, IV, or any senior administration, and in the possession of the 
Department of Justice, regarding the treatment or interrogation of 
individuals held in the custody of the U.S. Government.''
  Any other senior administration official? That involves hundreds, if 
not thousands, of people. Come on.
  For each of the 23 requested memos, the Democratic Senators wanted to 
know what has been redacted and why. They want an explanation for each 
classification status, and they want an indication of to whom each was 
circulated with copies of all cover letters and transmittal sheets.
  When is it going to end? That kind of stuff is way out of bounds. It 
was an incredibly imprudent request. It was so broad that nobody in his 
or her right mind would try to fulfill it--and certainly not a White 
House that is responsible.
  In addition to the 23 requested memos, this request includes 19 other 
broadly worded questions that require lengthy investigation and 
responses. They want all of this by June 30. That is in just 15 days, 
as if they were entitled to all of that.
  This document request appears to be an old-fashioned fishing 
expedition of the lowest order. Any objective observer would have to 
conclude that this is not a legitimate exercise of our oversight 
function. They just want to use the typical go-to-the mattresses, 
scorched earth, litigation-like tactics to bury the Attorney General 
with a request so broad that no one could possibly comply with it.

[[Page 13551]]

  Last Wednesday, before the ink was dry on the document request letter 
submitted last Tuesday, the ranking minority member circulated a 
proposed resolution to formally subpoena documents from the Department 
of Justice.
  The Democrats did not even give the Attorney General the courtesy of 
a few days to respond to the original document request.
  Yet, while the Democrats were engaging in this conspiracy, I was 
working with the White House and the Department of Justice. I told the 
entire committee of all my efforts last week. In fact, it is because of 
my efforts and the efforts of the President and the Department of 
Defense and the Justice Department that these documents have been 
declassified and disseminated so quickly.
  Significantly, the three documents originally at issue in the 
Attorney General's hearing have been produced--that is, the actual 
documents that they called for in the hearing where you heard so much 
bad-mouthing of the Attorney General.
  I got the cooperation of both the Attorney General and Alberto 
Gonzales himself last week.
  I have put up with continual complaints by our friends on the other 
side of the aisle on the Judiciary Committee as to how poorly the 
committee is being run. I am sick and tired of it.
  It is about time we got rid of some of these snotty, ridiculous, 
demeaning, and below-the-belt type of tactics and start respecting the 
President of the United States, the Attorney General, the Secretary of 
Defense, our young men and women overseas, and quit undermining what 
they are doing. We gave them the three documents they asked for and now 
there are all kinds of requests for more. We will never satisfy these 
types of voracious, problem-seeking people.
  Of course, it is not good enough for some of my colleagues to just 
give them the documents they asked for. The administration could have 
sent 1,000 memos and some of my Democratic colleagues would still not 
have been satisfied. Talk about transparency, their strategy is 
transparent. No matter what is sent, some will no doubt scream and 
complain it is not good enough, and they will get on this floor, with 
their holier-than-thou language, and say we must have transparency 
because that is the way we in the United States are.
  If that is true, we do not need the CIA, we do not need the 15 
intelligence agencies, and we do not need to protect our young men and 
women overseas anymore. We just have to have transparency. That is so 
ridiculous it is hard for me to believe how the American people can 
even give any kind of consideration to that kind of talk. Yet we are 
getting that kind of nonsense on the Senate floor almost constantly 
from people on the other side of the aisle.
  This lack of good faith suggests this is more about trying to attack 
the Attorney General and the administration than about obtaining 
documents necessary for legitimate exercise of oversight. It is clear 
they want to subpoena to build a case to hold the Attorney General in 
contempt of Congress. Why they hate this former Member of Congress, 
this former Member of the Senate, I will never understand. There is not 
a more decent, honorable, religious, kind person I know than John 
Ashcroft, but he is being treated like dirt. This threatens to rapidly 
devolve into a political witch hunt of the worst order.
  It is sad to see this blatant political posturing. It is particularly 
sad to see this uncalled-for partisan wrangling over an issue of 
national security in an election year. I don't think they are fooling 
anybody by their histrionics, and we sure had a lot of them over the 
last number of days--even the last couple of weeks. Really, you can go 
back in time, ever since President George Bush was elected.
  The amendment offered yesterday by the Senator from Nevada and the 
amendment offered here is not limited to the three documents that were 
at issue in the hearing. Those documents have already been produced. It 
has not been limited to the 23 documents listed in the first part of 
their document request. It is a broadly worded subpoena that would 
encompass all documents and records on this subject since January 20, 
2001, regardless of whether the documents were written by someone at 
the Department of Justice.
  Talk about a fishing expedition, we are talking here about deep sea 
fishing--and the worst type. Do you know how many people work at the 
Department of Justice? It would take forever just to ask each of the 
112,000 individuals at the Justice Department if they possessed any 
relevant documents. That is how ridiculous the request is.
  Moreover, the Justice Department subpoena is poorly written, as I 
have been saying. It requests all documents and records ``describing, 
referring, or relating to the treatment or interrogation of prisoners 
of war, enemy combatants, and individuals held in the custody or 
physical control of the United States Government . . . in connection 
with the investigation of terrorist activity.'' And the subpoena is not 
limited to Justice Department records but also records possessed by the 
Department of Justice, written by other agencies, including the CIA or 
any military branch. This is simply too broad and they know it.
  In addition, the subpoena requires records relating to the treatment 
of prisoners. That broad term would appear to include all the 
interrogation or treatment records and all of the medical records of 
Zacarias Moussaoui and any other individual DOJ has prosecuted or is 
prosecuting on terror-related charges subsequent to 2001. This could 
include any interrogation, medical records shared between the 
Department of Defense and the FBI relating to detainees held at 
Guantanamo Bay or in Iraq, Afghanistan, or elsewhere. This information 
request can involve hundreds, if not thousands, of POW and other enemy 
combatants and hundreds of thousands of pages of records.
  That is the type of base political activity that is going on in this 
body right now. It demeans, insults, and undermines our young men and 
women overseas fighting for us and risking their lives every day. I, 
for one, am sick and tired of it. I hope the American people wake up to 
this type of foolish conduct all in the interest of Presidential 
politics or just politics in general.
  I don't see the practical utility of providing all of these records 
pertaining to individual detainees to the Judiciary Committee. Under 
the proposed subpoena, this information could conceivably include 
prosecution strategy memos. Can you imagine? Surveillance materials. 
Can you imagine? Information provided by and the identities of 
confidential informants. Can you imagine that? As well as FISA, that 
is, the Foreign Intelligence Surveillance Act materials. We normally do 
not get these types of documents in either Democrat or Republican 
administrations. And there is a good reason. Because this place is a 
sieve. You can't keep anything secret up here. It is easy to see why 
administrations do not like to give confidential, secret, or top secret 
or covert information, you name it, classified information, to people 
up here.
  Their language is simply too broad. I am also troubled by the way in 
which the language appears to stray far away from general policy 
questions concerning the legal status of certain classes of detainees 
such as suspected al-Qaida members into matters affecting ongoing 
intelligence gathering and the prosecution of individual terrorist 
subjects.
  Give me a break. Let's give our country a break. Let's give our 
President a break. Let's give our Attorney General a break. Above all, 
let's give our young men and women overseas a break from these types of 
partisan, political activities.
  Let me say when the shoe was on the other foot, the Democrats have 
advocated just as I have. Four years ago, when President Clinton was in 
office, my colleague from Vermont, advocated the following practice:

       Our standard practice should be to issue subpoenas only 
     when attempts to obtain documents by other means have failed. 
     At a minimum, we should at least request documents in writing 
     before attempting to compel their production. . . . As part 
     of this

[[Page 13552]]

     duty, the Committee should take every reasonable effort to 
     see whether subpoenas are actually necessary before publicly 
     requesting them.

  That is the distinguished ranking member of the Judiciary Committee 
from Vermont speaking. Let's go through that one more time. When the 
shoe was on the other foot, and our side was asking for some documents, 
the quote was:

       Our standard practice should be to issue subpoenas only 
     when attempts to obtain documents by other means have failed.

  That is a quote.
  The fact is, they didn't even give the Attorney General time to even 
think about it before they were slapping a subpoena down in last week's 
markup, just a few days after. And then, four years ago my colleague 
from Vermont continued:

       At a minimum, we should at least request documents in 
     writing before attempting to compel their production.

  I guess 2 days in writing is more than an ample request in their eyes 
now that they are in the minority and now that John Ashcroft is 
Attorney General.

       As part of his duty, the committee should take every 
     reasonable effort to see whether subpoenas are actually 
     necessary before publicly requesting them.

  No, they pursued a subpoena. We had to vote on it. It was a party-
line vote. I guess they thought they could get at least one Republican 
to allow their nefarious scheme to go forward. They did not try to use 
every reasonable effort to see whether subpoenas were actually 
necessary. And I am sure the reason, they will say, is because John 
Ashcroft has not appeared before the committee in a long time.
  My gosh, the man almost died this year. And I don't blame anybody for 
not wanting to come up in front of this bunch when all you do is get 
demeaned, with implications that you are a liar, that you are not 
cooperative, that you are not doing a good job, and many other 
implications, as well, that are derogatory in nature.
  When are we going to start treating administration people with 
respect and dignity? Here the Democrats are not making any reasonable 
effort to attempt to obtain any of the documents by other means. They 
did not even give the Justice Department a day to respond to their 
written questions before drafting a subpoena. What kind of bullying 
tactic is that? We know what the Democrats are up to because the 
Senator from Vermont told us what the purpose of a subpoena was just 4 
years ago.
  He said:

       [I]ssuing subpoenas may make for a good show of partisan 
     force by the majority but certainly continues the erosion of 
     civil discourse that has marked this Congress. Why is that 
     true then but not now? Let me suggest that my Democratic 
     colleagues are trying to take this one step further, as well. 
     The minority is attempting to make a show of partisan force 
     by distorting the facts for the American public.

  Especially where the administration has indicated its willingness to 
be cooperative, issuing a subpoena would not merely continue the 
erosion of civil discourse; it would accelerate it by exponential 
proportions.
  To suggest that the Senate issue a subpoena before the deadline to 
comply with a document request has even passed irreparably debilitates 
the credibility of my colleagues and shows they are merely 
grandstanding and not pursuing a legitimate oversight function, in 
spite of the holier-than-thou approach that some of them use.
  Now, we have seen holier-than-thou approaches on both sides, I 
suppose, but I have never seen it worse than it is right now.
  Yesterday, the President released not only the three documents at 
issue in the DOJ oversight hearing but 260 pages of documents, at my 
request--something I said I thought I could get them to do, after 
having talked with the Attorney General of the United States and Judge 
Gonzales. That was not good enough at the time. They were moaning and 
picking and groaning at me, saying they would never do it. But they 
did.
  Thus far, the administration has released 13 lengthy memoranda 
relating to the treatment or interrogation of detainees, including 
relevant documents that were not specifically requested by the 
committee.
  Come on. This administration has bent over backwards, and they will 
never satisfy these naysayers on the other side who want to make 
political points and who want to damage the Attorney General of the 
United States, the Secretary of Defense, and, above all, the President 
of the United States. I have to say, they are really good at playing 
this political game. They have a lot of help in our media in this 
country that seems to just go right along with it.
  This may not be the end of the document production by the Departments 
of Justice and Defense, et cetera. The Department of Justice has until 
June 30, 2004, to respond to the Democrats' document request. It may 
well be that after June 30, 2004, there may be additional documents 
that we will need to see. But to seek such a broadly worded subpoena 
prematurely makes absolutely no sense. It flies in the face of 
reasonableness.
  But let me say that it appears from what we know now--and I will 
expect the administration to correct me if I am wrong on this point--we 
have already gotten the most important documents. But I guess they just 
have not given the Democrats enough fodder with which they can attack 
the Attorney General and the President and others in this 
administration. After all, most of them were legal documents, legal 
opinions, where you can differ, and in most cases where they say, well, 
this is what the law is, but there is another side to it that could be 
argued, and the courts might find something to it. That is what you 
expect in a legal opinion. But they not only ask for the legal 
opinions; they ask for the preparatory documents that were leading up 
to the legal opinions.
  I heard my colleague from Vermont mention, repeatedly: Like water, 
government policy flows downhill. I must say that I agree with him. 
Clearly, the most important document of those released by the White 
House is the one that the President of the United States signed on 
February 7, 2002. You do not get any higher than the President in this 
country, from a political standpoint.
  In that memo, the President acknowledged that even though he was 
advised that he was not legally obligated to provide the protections of 
the Geneva Conventions to the Taliban or to the detainees at Guantanamo 
Bay, Cuba, that he intended to do so anyway.
  But that is not enough for them. Here is the now unclassified White 
House memorandum for the Vice President, the Secretary of State, the 
Secretary of Defense, the Attorney General, the chief of staff to the 
President, the Director of Central Intelligence, the assistant to the 
President for National Security Affairs, the Chairman of the Joint 
Chiefs of Staff.
  These are documents that are usually never given up by Presidents, by 
the way.
  The subject: ``Humane Treatment of al Qaeda and Taliban Detainees.'' 
The part shown at the bottom on this page of the letter is in yellow. 
Let me read the paragraph just above that. Let me read No. 2:

       Pursuant to my authority as Commander in Chief and Chief 
     Executive of the United States, and relying on the opinion of 
     the Department of Justice dated January 22, 2002, and on the 
     legal opinion rendered by the Attorney General in his letter 
     of February 1, 2002, I hereby determine as follows:

  Now, this is a finding, by the way:

       a. I accept the legal conclusion of the Department of 
     Justice and determine that none of the provisions of Geneva 
     apply to our conflict with al Qaeda in Afghanistan or 
     elsewhere throughout the world because, among other reasons, 
     al Qaeda is not a High Contracting Party to Geneva.

  I think that sounds pretty logical to a logical person. But look at 
this:

       b. I accept the legal conclusion of the Attorney General 
     and the Department of Justice that I have the authority under 
     the Constitution to suspend Geneva as between the United 
     States and Afghanistan, but I decline to exercise that 
     authority at this time. Accordingly, I determine that the 
     provisions of Geneva will apply to our present conflict with 
     the Taliban. I reserve the right to exercise this authority 
     in this or future conflicts.

  There is good reason why he reserved the right to exercise this 
authority--a

[[Page 13553]]

very good reason--and that is, we are not fighting a conventional war; 
we are fighting a war in the most unconventional way, against people 
who do not wear uniforms, who do not represent a particular country, 
who are helter-skelter all over the world, who are vicious, brutal 
killers and murderers and terrorists, who have more than shown us how 
vicious they are. They do not deserve, in the eyes of many legal minds, 
the type of protections that Geneva would provide. But he is going to 
provide it to them anyway.
  But that is not good enough over here. They have to find something, 
in some documents, in these hundreds of pages of documents, that can 
help to bring down this President.
  Well, look, go to No. 3:

       Of course, our values as a nation, values that we share 
     with many nations in the world, call for us to treat 
     detainees humanely, including those who are not legally 
     entitled to such treatment.

  Our Nation has been, and will continue to be, a strong supporter of 
Geneva and its principles. As a matter of policy, the U.S. Armed Forces 
shall continue to treat detainees humanely and, to the extent 
appropriate and consistent with military necessity, in a manner 
consistent with the principles of Geneva.
  I do not know how you say it much more clearly than that. But you 
have read all the newspapers condemning the President. Yet the 
President is following Geneva. But he did. To hear the other side, you 
would think that he did not.
  Look at No. 5:

       I hereby reaffirm the order previously issued by the 
     Secretary of Defense--

  ``[P]reviously issued by the Secretary of Defense''--

     to the United States Armed Forces requiring that the 
     detainees be treated humanely and, to the extent appropriate 
     and consistent with military necessity, in a manner 
     consistent with the principles of Geneva.

  I do not know what my colleagues need further, but that is what the 
President signed. My gosh, there is the President's signature right at 
the bottom of this letter.

       I hereby direct the Secretary of State to communicate my 
     determinations in an appropriate manner to our allies, and 
     other countries and international organizations cooperating 
     in the war against terrorism of global reach.

  My gosh, what is this all about? I will tell you what it is all 
about. It is about politics, pure and simple. They cannot win fairly, 
so they do it by distorting what is going on.
  If they could win by distorting, that would be great, hunky-dory for 
them, I suppose. Well, it is not for me.
  Paragraph 2b:

       I accept the legal conclusion of the Attorney General . . .

  This is the fellow they are maligning all the time. This awful 
Attorney General, John Ashcroft. But he says:

       I accept the legal conclusion of the Attorney General and 
     the Department of Justice that I have the authority under the 
     Constitution to suspend Geneva as between the United States 
     and Afghanistan, but I decline to exercise that authority at 
     this time.

  He determines that the provisions of the Geneva will apply.

       Of course, our values as a Nation, values that we share 
     with the other nations in the world, call for us to treat 
     detainees humanely . . .

  The fact is some of our knuckleheads--darn few of them--have treated 
detainees inhumanely. You would think the President himself went over 
there and did those awful things, or that Donald Rumsfeld, who has done 
a fantastic job in helping to change the whole military structure in 
many ways in this country for the better, had gone over there and done 
this, or General Abizaid.
  That letter blows away these types of phony arguments.
  After hundreds of pages of analysis, after months of research and 
writing, the most severe punishment the Secretary of Defense authorized 
is the ``use of mild, noninjurious physical contact such as grabbing, 
poking in the chest with the finger and light pushing.''
  I could tell you, having studied it, there is a whole panoply of 
acceptable Geneva interrogation techniques. I can tell you not all of 
them were used. The top level of very stressful ones were not 
authorized to be used.
  Everything I have seen says that. Why this body would want to issue a 
subpoena that, one, failed in committee--they couldn't get it through 
committee because everybody there recognized it was a political 
exercise, brought very prematurely, without giving the administration a 
chance to comply, in disregard of the committee chairman's, my, offer 
to bring about a release of documents, and with a release of documents 
that is, by any measure, impressive--and two, is not ripe since the 
deadline to respond to the document request has not even come and gone. 
Why they would do that is beyond me.
  I said earlier today I am one of the few people who has gone to and 
gone completely through Guantanamo. I can only speak for the time I was 
at Guantanamo and that was a few weeks ago. But I went and witnessed 
their interrogation techniques. I saw two interrogations that were not 
staged for me--one with a very uncooperative al-Qaida member they would 
occasionally get something from and another with another one who has 
been very cooperative because of the techniques that have been used, 
that have been fair and reasonable, within the Geneva Conventions rules 
and techniques. I saw how they handled the prisoners. I saw the 
incentive systems to get the detainees to try to cooperate.
  I saw the assault record of some of these vicious detainees who I 
think some on the other side would like to coddle right to bed every 
night. Dozens of assaults made against our soldiers, including, since 
these are open wire cells, on a number of occasions throwing urine and 
feces all over the soldiers who have to walk up and down the halls.
  I don't know about you, but if somebody did that to me, I wouldn't be 
very happy. If I recall correctly, there have only been three times 
where they have had to discipline soldiers because the rest of them 
stood and took it, even though that is one of the most offensive things 
that could be done to somebody, three times. One was acquitted, the 
other two suffered severe punishment.
  In other words, we have punished our soldiers for getting mad because 
somebody threw feces and urine on them. I would be mad. I am for our 
soldiers. I wish--I am not going to second-guess the military courts, 
but I wish they had not been punished other than maybe reprimanded. 
There are some down there who are so vicious they would kill our 
soldiers if they had a chance. And they have done things like this 
repeatedly. Dozens and dozens of assaults on our young men and women 
down there.
  What bothers me, almost more than anything else, is I have described 
one of the Presidential findings, and there are others that are being 
read on the sides of mountains by Zarqawi and by Osama bin Laden, top 
secret documents that have been given up because of these types of 
shenanigans. These types of things put our young men and women at risk. 
These political games are putting young men and women at risk. To 
disclose anything about interrogations puts our young men and women at 
risk. That does not mean we should not prosecute those who have 
violated the President's order of humane treatment. But interestingly 
enough, in the Abu Ghraib prison situation, the minute it became known 
these types of activities were going on, investigations started and 
prosecutions have resulted. But that is not good enough because there 
is a demand that they have to go right up to the top which means even 
the President, as if he were over there in Abu Ghraib himself, or 
Rumsfeld was over in Abu Ghraib or General Abizaid, they should be 
punished, or there should at least be some responsibility on their part 
for this aberration of conduct by so few in the Abu Ghraib prison.
  Let me tell you, I am getting sick of it. I am getting sick of this 
partisan activity. I don't have much of a voice right now because I am 
so doggone sick of it. Frankly, it is beneath the dignity of the 
Senate. I think there might come a time for subpoenas, if there had 
been no cooperation, if there had been plenty of honorable time given 
to the administration to comply, if there had

[[Page 13554]]

been no compliance, if there hadn't been any effort by the chairman to 
try and obtain these documents, if there had been no response by the 
White House counsel or the White House itself, or if there had been no 
desire on the part of the Attorney General to cooperate. They now have 
all the documents they asked for at that hearing. And now we get a 
request, a broad request for so many more that would tie up all of 
these important people to such a degree that I think it damages our 
young men and women not only in Iraq but Afghanistan as well.
  Why? Why is it? Why do we hear these holier than thou rantings? 
Because we have to make sure this administration does its job because 
we don't trust them, I guess. At least that seems to be the tenor of 
the argument, and that this administration must be doing something 
wrong because it had legal memoranda and legal opinions that indicated 
maybe the Geneva Conventions don't apply in this unconventional war, 
with unconventional, murderous, and vicious terrorists.
  Well, let me say, I am disappointed they ignore these types of 
documents. I am disappointed we get all these documents and they are 
not satisfactory. I am disappointed there is a call for transparency of 
all these things. I guess Osama bin Laden can read these things as 
well, or even Zarqawi, and know everything we are thinking, everything 
we do. He ought to be able to cut off a lot of heads with the knowledge 
we are giving him.
  The fact is, almost any time anything is released here, it shows up 
in the liberal media. It shows up to the disadvantage of our country, 
to the disadvantage of our young men and women over there. I don't 
think anybody on this side is saying we should not be transparent in 
the ways we should be transparent, but to use that transparent argument 
and push it to its ultimate extreme means we should not have 15 
intelligence agencies where we have classified information to protect 
our country. If you push it to the extreme, that is what you are 
saying. I believe it has been pushed to exactly that extreme.
  I believe the demands have been extreme. They are unconscionable in 
some ways--not all of them. That is why the documents are being given 
to them. It was important to meet the reasonable requests for those 
three documents. They have been given. I don't see anything wrong with 
that.
  I also believe we ought to respect the need to keep some matters from 
transparency in the best interests of our young men and women. I have 
to say I know that not all of our servants act appropriately. Everybody 
makes mistakes. Certainly, the things that happened in Abu Ghraib and 
in Afghanistan should never have happened. They need to be 
investigated, and, where appropriate, prosecutions have to take place. 
Nobody should be spared who participated in those wrongful, illegal 
activities that fly in the face of what the President approved and what 
the Secretary of Defense approved. I stand with my colleagues on the 
other side with regard to that. There is no doubt in my mind about 
that.
  But when it comes to just playing crass politics and demanding more 
and more so it can be released to the public so ``transparency'' can be 
had over documents that should not be released to the public, then I 
have to call it what it is. It is crass political activity that flies 
in the face of what is right. I think directly and indirectly it hurts 
our young men and women overseas.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. REID. Mr. President, the chairman of the Judiciary Committee, my 
friend, has spoken for about 55 minutes, which leaves little time for 
the ranking member of the Judiciary Committee, the person going to 
offer the amendment. I will not offer a unanimous consent agreement 
until such time as the manager of the bill or someone from the majority 
is able to respond, but I am going to ask unanimous consent that the 
Senator from Vermont be allowed to speak until the hour of 9:45.
  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. Mr. President, I ask unanimous consent that the order be 
extended to allow the Senator from Vermont to speak for 15 minutes, and 
that following his speech, we vote on the pending amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. WARNER. Mr. President, we want to accommodate the Senator. 
Whatever happened, happened. We are glad to, in an equitable way, offer 
him this time. I will try to take the floor in the area of 9:40, if 
that is convenient.
  Mr. LEAHY. How about 9:45?
  Mr. WARNER. OK. Thank you.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I appreciate the continuing courtesy of my 
dear friend, the senior Senator from Virginia. I said earlier on the 
floor of the Senate that he and I have been friends for over a quarter 
of a century. I have aged in that time, but he has not. I do appreciate 
his continuing courtesies.
  Mr. WARNER. I thank my colleague. We have served together these 26 
years now in this body.
  Mr. LEAHY. Mr. President, I have listened to some of the debate in 
the last 30 or 40 minutes, and it is sort of like a tempest in a 
teapot--a great deal of shouting and carrying on, but not really 
hitting the central point.
  I spent years as a prosecutor. It was one of the best jobs I ever 
had. I had the great opportunity to try a lot of cases. I was in the 
courtroom several days every week in Burlington, VT. We had a saying 
there, as we do in many States, that if you have the facts on your 
side, you pound the facts. If you have the law on your side, you pound 
the law. Of course, if you have neither on your side, you pound the 
table. We have heard a lot of table pounding tonight.
  The fact is that every American, Republican or Democrat, knows that 
some terrible things happened at Abu Ghraib prison. Some apparently 
happened in Afghanistan and some in Guantanamo. These are acts that are 
beneath a great and wonderful country such as the United States, a 
country blessed with a Constitution and laws and values that serve as a 
shining beacon for much of the rest of the world.
  This did not happen here, and it is not answered by going out and 
cashiering a couple of corporals or a couple of privates and saying: 
There, look what we have done.
  We all know that the 140,000 American men and women serving in Iraq 
and in Afghanistan and Guantanamo are obeying the laws, and upholding 
the best ideals of the United States. And many of our soldiers have 
been told they are going to serve much longer than their Government 
originally told them they would have to.
  There are some, however, who did the same wrong things in Iraq as 
they did in Afghanistan and as they did in Guantanamo. Who gave them 
the green light? Don't tell me it is just a handful of bad actors. If 
so, those few bad actors must have a wonderful frequent flyer program 
to be able to show up in Abu Ghraib one day, Afghanistan the next, and 
Guantanamo the next. Somewhere there was some core permission given. It 
went to those who were willing to follow a wrong order.
  My colleagues can table my amendment, but it will aid the coverup of 
what has become an international prisoner abuse scandal. If this 
amendment is tabled, as it may be, it says that the Republican Senators 
have decided to join the Republican administration in circling the 
wagons of the unfolding prisoner abuse scandal.
  The American public--Republicans, Democrats, and Independents--are 
sick and tired of being lied to. They are sick of the secrecy. They are 
demanding answers all over this Nation, but the wagons continue to 
circle.

[[Page 13555]]

  My amendment would require the administration to cooperate with a 
thorough congressional investigation into the abuse of prisoners in 
U.S. custody by releasing all documents relevant to the scandal. We 
call for the release of all relevant documents, not a tiny subset of 
documents selected by the administration when the political heat was 
on.
  The question for us as Senators is, Are we content to see the Senate 
serve as an arm of the executive branch, or are there some of us--at 
least a majority of us--who actually read the Constitution and realize 
we are an independent branch of Government? The distinguished senior 
Senator from West Virginia has reminded us that we do not serve under 
Presidents, we serve with Presidents. He has reminded us that there are 
three branches of Government, each independent of the other. 
Nonetheless, we hear arguments on the floor that we can't ask for these 
documents because the executive branch does not want to show them to 
us. But, we are independent Senators, all 100 of us.
  Somewhere in the upper reaches of this administration, a process was 
set in motion that seeped forward until it produced this awful scandal. 
So to put the scandal behind us--which all of us want to do--we have to 
understand what happened.
  The President of the United States has said they want to get to the 
bottom of this. So do I, but you cannot get to the bottom of this until 
you have a clear picture of what is on the top. We have heard the party 
line on this scandal. The Senator from Alabama argued that the whole 
thing boils down to just a few people on the midnight shift in Abu 
Ghraib prison who got out of control. He said that a few people came in 
at midnight and somehow they got out of control. That line has become 
harder and harder to swallow as every day new evidence surfaces that 
the abuses were widespread.
  The photographs may be limited to a small group of soldiers at Abu 
Ghraib, but the abuses were not. It is not right for any of us to claim 
this was just a small thing when every one of us has seen how extensive 
the photographs are, those that have been revealed to the public and 
those that have not.
  I question the idea that it was only in Abu Ghraib. As I said, 
somebody must be getting frequent flyer miles because the same thing 
was happening at Abu Ghraib prison, Afghanistan, and Guantanamo. Just 
last week, a Federal grand jury indicted a CIA contractor for brutally 
beating a prisoner in Afghanistan in June of last year. Why did they 
indict him? Because the prisoner died the day after he was beaten.
  The Army has opened a criminal investigation into injuries suffered 
by a U.S. soldier who was posing as an uncooperative detainee during 
training with military police at Guantanamo Bay. That soldier suffered 
traumatic brain injury. This was a brave American soldier who went into 
a training program. Suddenly, apparently, the rules changed, He used a 
code word to stop it. He said: I am an American soldier. They kept on 
doing what somebody higher up had given them the order to do, and he 
suffered traumatic brain injury.
  I could go on and on about this. My point is, it is not just a few 
bad apples in Abu Ghraib. These things have happened in Afghanistan, 
Iraq, and Guantanamo. Does anybody seriously think that the American 
public is going to fall for a lie that it is a coincidence that a bunch 
of MPs in Iraq were abusing prisoners with the very same tactics that 
were being debated at the highest levels of Government, such as the use 
of hoods, the use of dogs, the removal of clothing? Do we think these 
people are somehow telepathic, that they can read the minds of those at 
the White House or the Pentagon?
  Yesterday, the White House released a tiny subset of the materials we 
sought. This was not all the material we requested. It was a tiny 
subset. All of those documents should have been provided earlier to 
Congress. Much more remains held back from public view.
  The documents that were released raised more questions than they 
answered.
  After January 2002, did the President sign any other orders or 
directives? Did he sign any with regard to prisoners in Iraq? Why did 
Secretary Rumsfeld issue and later rescind interrogation techniques?
  How did these interrogation techniques come to be used in Iraq even 
though the administration has maintained it followed the Geneva 
Conventions there?
  Why is the White House withholding relevant documents produced after 
April 2003?
  Where is the remaining 95 percent of the materials requested by 
members of the Senate Judiciary Committee?
  We have heard on the floor there was a broad-brush request made for 
the documents. But it was actually a request for 23 specific documents. 
The White House gave 3 of the 23 and said that it had complied. 
Incidentally, of those three, two had already appeared on the Internet. 
The press had found them out before the White House gave them to us.
  So even though they gave only one that had not been made public 
before, I will give them credit for all three. Where are the other 20?
  When are we, as Senators, going to stop sitting on our hands, 
becoming a rubberstamp for an administration cloaked in secrecy?
  We have the legal right, we have the constitutional obligation, and I 
remind Senators we have the moral authority to ask questions and demand 
answers today.
  We have been blessed in this country with a great and wonderful 
country, but that is a blessing that comes with some responsibilities. 
We are not maintaining that responsibility unless we keep the pressure 
on, until we get honesty and we get answers.
  So I urge my colleagues, vote down the motion to table. Let us show 
the Senate is willing to stand up. Let us do what Senators have done in 
the past. We did it during the Watergate era. We have done it at other 
times. Let us stand up and ask the questions the American public wants 
us to ask.
  The press seems to be doing it for us. After extensive investigation, 
the Guardian uncovered widespread evidence of violent abuse and sexual 
humiliation of prisoners at Baghram and other U.S. detention centers 
around Afghanistan. We should have found that out, and we should have 
stopped it. As I said before, a Federal grand jury indicted a CIA 
contractor for brutally assaulting a detainee in Afghanistan June 2003. 
We should have found that out. Instead, we turned a blind eye.
  Defense Secretary Rumsfeld admitted in November 2003 that he ordered 
a prisoner be held incommunicado, off the prison rolls, and out of the 
sight of the Red Cross. This ghost detainee got lost in the system for 
7 months. Despite his high intelligence value, this ghost detainee 
received only a cursory initial interview while in detention.
  Major General Taguba later criticized the practice of keeping ghost 
detainees as deceptive, contrary to Army doctrine, and in violation of 
international law.
  The New York Times reported that military lawyers and some colonels 
received memos citing complaints of abuse at Abu Ghraib in November 
2003, 2 months before photographic evidence of abuse prompted the 
military to launch an investigation. At the same time, the letters I 
had written to the Department of Defense and others about what we had 
heard were not answered.
  In fact, it turns out now that the majority of detainees at 
Guantanamo Bay are not the worst of the worst, as the administration 
asserted, but rather low-level recruits or even innocent men swept up 
in the chaos of war. This is why, after years, not a single one has 
been brought before a military tribunal. This is not the mark of a 
great country. This is not the mark of a moral country.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LEAHY. I ask unanimous consent that materials provided under the 
amendment be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


[[Page 13556]]

       The materials provided under the amendment should include, 
     at a minimum, the following:
       (A) Memorandum for Timothy E. Flannigan, Deputy Counsel to 
     the President, from John Yoo, Deputy Assistant Attorney 
     General, Office of Legal Counsel, Re: The President's 
     constitutional authority to conduct military operations 
     against terrorists and nations supporting them (Sept. 25, 
     2001);
       (B) Memorandum for Alberto Gonzales, Counsel to the 
     President, from Patrick F. Philbin, Deputy Assistant Attorney 
     General, Office of Legal Counsel, Re: Legality of the use of 
     military commissions to try terrorists (Nov. 6, 2001);
       (C) Memorandum for William J. Haynes, General Counsel, 
     Department of Defense, from John Yoo, Deputy Assistant 
     Attorney General, and Patrick F. Philbin, Deputy Assistant 
     Attorney General, Re: Possible habeas jurisdiction over 
     aliens held in Guantanamo Bay (Dec. 28, 2001);
       (D) Draft Memorandum for William J. Haynes, General 
     Counsel, Department of Defense, from John Yoo, Deputy 
     Assistant Attorney General, and Robert J. Delahunty, Special 
     Counsel, Office of Legal Counsel, Re: Application of treaties 
     and laws to al Qaeda and Taliban detainees (Jan. 9, 2002), 
     and any final version of this Draft Memorandum;
       (E) Memorandum from William Howard Taft IV, Department of 
     State Office of Legal Advisor, Re: Response to the January 9 
     Yoo/Delahaunty memo (Jan. 11, 2002);
       (F) Draft Memorandum for the President from Alberto 
     Gonzales, Counsel to the President, Re: Decision re 
     application of the Geneva Convention on Prisoners of War to 
     the conflict with al Qaeda and the Taliban (Jan. 25, 2002), 
     and any final version of this Draft Memorandum;
       (G) Memorandum for Alberto Gonzales, Counsel to the 
     President, from Secretary of State Colin Powell, Re: Response 
     to the Gonzales draft memo of January 25, 2002 (Jan. 26, 
     2002);
       (H) Memorandum for John Yoo, Deputy Assistant Attorney 
     General, Office of Legal Counsel, from James C. Ho, Attorney-
     Advisor, Office of Legal Counsel, Re: Possible 
     interpretations of Common Article 3 of the 1949 Geneva 
     Convention Relative to the Treatment of Prisoners of War 
     (Feb. 1, 2002);
       (I) Memorandum for Alberto Gonzales, Counsel to the 
     President, from William Howard Taft IV, Department of State 
     Office of Legal Advisor, Re: Comments on your paper on the 
     Geneva Convention (Feb. 2, 2002);
       (J) Memorandum for William J. Haynes, II, General Counsel, 
     Department of Defense, from Jay S. Bybee, Assistant Attorney 
     General, Office of Legal Counsel, Re: The President's power 
     as Commander in Chief to transfer captured terrorists to the 
     control and custody of foreign nations (Mar. 13, 2002);
       (K) Memorandum for Daniel J. Bryant, Assistant Attorney 
     General, Office of Legal Counsel, from Patrick F. Philbin, 
     Deputy Assistant Attorney General, Office of Legal Counsel, 
     Re: Swift Justice Authorization Act (Apr. 8, 2002);
       (L) Memorandum for General James T. Hill from Defense 
     Secretary Rumsfeld, Re: Coercive interrogation techniques 
     that can be used with approval of the Defense Secretary (Apr. 
     2003);
       (M) Memorandum from CJTF-7, Re: Applicability of Army Field 
     Manual 34-52 and sensory deprivation (Sept. 10, 2003);
       (N) Directive of Lt. General Ricardo Sanchez entitled 
     ``Interrogation and Counter-Resistance Policy'' (Sept. 12, 
     2003);
       (O) Memorandum from CJTF-7 on interrogations (Sept. 28, 
     2003);
       (P) Memorandum for MI personnel at Abu Ghraib, Re: 
     Interrogation rules of engagement (Oct. 9, 2003);
       (Q) Memorandum for Commander of MI Brigade from Lt. General 
     Ricardo Sanchez, Re: Order giving military intelligence 
     control over almost every aspect of prison conditions at Abu 
     Ghraib with the explicit aim of manipulating the detainees' 
     ``emotions and weaknesses'' (Oct. 12, 2003);
       (R) Memorandum for Review and Appeal Board at Abu Ghraib 
     from Detainee Assessment Branch (Nov. 1, 2003 through Jan. 
     31, 2004);
       (S) Memorandum for MP and MI personnel at Abu Ghraib from 
     Colonel Mac Warren, the top legal adviser to Lt. General 
     Ricardo Sanchez, Re: New plan to restrict Red Cross access to 
     Abu Ghraib (Jan. 2, 2004);
       (T) Memorandum for Superiors from Maj. General Antonio 
     Taguba, Re: Results of investigation into the 800th MP 
     Brigade's actions in Abu Ghraib (Mar. 12, 2004);
       (U) Memorandum from the Department of Justice, Re: 
     Liability of interrogators under the Convention Against 
     Torture and the Anti-Torture Act when a prisoner is not in 
     U.S. custody.
       (V) Review, study, or investigation report by LTC 
     Chamberlain, Re: State of prisons in Iraq (addressing the 
     high proportion of innocent people in the prisons and the 
     lack of release procedures for detained Iraqis).

  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. The distinguished Senator from Utah will address the 
Senate. We are ready to go to votes.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I move to table the underlying Leahy amendment and ask for 
the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion.
  The clerk will now call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Kansas (Mr. 
Brownback) and the Senator from New Hampshire (Mr. Sununu) are 
necessarily absent.
  I further announce that if present and voting the Senator from Kansas 
(Mr. Brownback) would vote ``yes.''
  Mr. REID. I announce that the Senator from New Mexico (Mr. Bingaman), 
the Senator from South Carolina (Mr. Hollings) and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  The PRESIDING OFFICER (Mr. Coleman). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 45, nays 50, as follows:

                      [Rollcall Vote No. 143 Leg.]

                                YEAS--45

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--50

     Akaka
     Baucus
     Bayh
     Biden
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     DeWine
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Graham (SC)
     Hagel
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Specter
     Stabenow
     Wyden

                             NOT VOTING--5

     Bingaman
     Brownback
     Hollings
     Kerry
     Sununu
  The motion was rejected.


                           amendment No. 3485

  Mrs. FEINSTEIN. Mr. President, I rise this evening in support of 
Senator Leahy's second-degree amendment which seeks to compel, by law, 
the Executive Branch to provide certain important documents to 
Congress.
  I wish to focus on one particular issue that has been raised by those 
who oppose this effort--that provision of these documents will endanger 
our national security by informing our enemies of the details of our 
interrogation tactics.
  I believe this objection is misplaced and the danger of compromising 
national security can be easily and simply eliminated.
  I am a member of the Select Committee on Intelligence, and as my 
colleagues know, that committee regularly receives information of the 
highest classification involving our Intelligence community. Similarly, 
the Armed Services Committee receives information about the most 
sensitive of our military secrets. The Judiciary Committee receives 
information about extremely sensitive law enforcement matters. In 
short, the Congress and its committees are regularly provided the most 
sensitive of our Nation's secrets.
  In the present case I accept that some of the documents we have 
sought from the Department of Justice and Department of Defense about 
the law, policy and procedures governing interrogations may be properly 
classified. In other words, I quote from the governing executive order, 
Executive Order 12958, which describes ``top secret'' as being 
information ``the unauthorized disclosure of which reasonably could be 
expected to cause exceptionally grave damage to the national 
security.''
  But the question of classification is unrelated to the question of 
whether the Congress should have access to information which is needed. 
We have

[[Page 13557]]

procedures, administered by the Office of Senate Security, which 
ensures that such information is handled properly, safely, and 
securely. simply put, providing information to the Congress is not the 
same as making it public, or providing it to terrorists.
  As some of my colleagues know, I asked the Attorney General directly 
whether any of the material which he was refusing to provide to the 
Congress was classified. He did not answer my question, but if the 
answer is yes, then the Congress has the ability to receive such 
information.
  It is important to focus on the issue at hand, which is what 
information should, and must, be provided to Congress so it can perform 
its constitutional role to legislate and conduct oversight. The issue 
is not what information to provide to the terrorists.
  Mr. DURBIN. Mr. President, I rise today in support of the Leahy 
second-degree amendment. I am proud to cosponsor the Leahy second-
degree amendment. The Leahy amendment would require the administration 
to provide the Senate with all documents in the Justice Department's 
possession relating to the treatment and interrogation of detainees.
  Since the world learned about the horrible abuses at Abu Ghraib 
prison, there has been mounting evidence that high-ranking members of 
this administration authorized the use of interrogation tactics that 
violate our longstanding treaty obligations. There is increasing 
pressure on the administration to come clean and provide the Congress 
with all documents related to the use of torture.
  Yesterday, in a transparent effort to stop the pressure for full 
disclosure, the administration provided Congress with a 2-inch stack of 
documents. But a cursory review of these documents reveals that the 
administration is withholding a lot of crucial information. If 
anything, the documents that were released yesterday make it even more 
clear that we need complete disclosure from the administration. As the 
Chicago Tribune reported today:

       The memos left unanswered at least as many questions as 
     they answered. White House officials acknowledged that the 
     documents provided only a partial record of the 
     administration's actions concerning treatment of prisoners.

  What do the documents that were released show? In a January 2002 
memo, the President concluded that ``new thinking in the law of war'' 
was needed. Under our Constitution, it is Congress's job to make the 
laws. If the President wants to change the law of war, which has served 
our country well since the time of President Abraham Lincoln, he must 
come to the Congress and ask us, the people's representatives, to 
change the law. He cannot change the law by executive fiat. The memo 
from the President was stamped for declassification in 2012, so clearly 
this administration had no intention to consult with Congress or the 
American people about their plans to change the law of war.
  In response to the President's mandate, in August 2002, the Justice 
Department sent a memo to the White House on the use of torture. It 
makes unprecedented claims about the President's power that violate 
basic constitutional principles. The Justice Department concludes that 
the torture statute, which makes torture a crime, does not apply to 
interrogations conducted under the President's Commander in Chief 
authority. They also adopt a new, very restrictive definition of 
torture. They state that torture involves:

     . . . intense pain or suffering of the kind that is 
     equivalent to the pain that would be associated with serious 
     physical injury so severe that death, organ failure, or 
     permanent damage resulting in a loss of significant body 
     function will likely result.

  This contradicts what Attorney General John Ashcroft told the 
Judiciary Committee just 2 weeks ago. He said that it is Congress's job 
to define torture and that the administration had not adopted a new 
definition of torture.
  The Defense Department, relying on the Justice Department's work, 
also responded to the President's call for new thinking about the law 
of war. In a November 2002 memo, Defense Secretary Rumsfeld approved 
the use of coercive interrogation techniques at Gauantanamo Bay. These 
included ``removal of clothing,'' using dogs to intimidate detainees, 
sensory deprivation, and placing detainees in stress positions, 
including forced standing for up to 4 hours. Rumsfeld's only comment on 
these procedures was a personal note at the bottom of the approval 
memo, ``I stand for 8-10 hours a day. Why is standing limited to four 
hours?''
  Let me answer that question.
  In the 1930s, Stalin's secret police forced dissidents to stand for 
prolonged periods to coerce confessions for show trials. In 1956, 
experts commissioned by the CIA documented the effects of forced 
standing. They found that ankles and feet swell to twice their normal 
size, the heart rate increases, some people faint, and the kidneys 
eventually shut down.
  After military officers raised moral and legal concerns about the 
tactics Rumsfeld has approved, he rescinded his approval while the 
Pentagon conducted an internal review.
  In an April 2003 memo, Rumsfeld issued revised rules. These allowed 
for interrogation tactics with truly Orwellian names. These included:
  ``Sleep adjustment,'' which the DOD claims is not the same as sleep 
deprivation;
  ``Dietary manipulation,'' which DOD claims is not the same as food 
deprivation; and
  ``Environmental manipulation,'' which DOD acknowledges ``some 
nations'' may view as ``inhumane.''
  White House Counsel Alberto Gonzales said these memos show that the 
administration engaged in a ``thorough and deliberative process'' on 
interrogation practices.
  There is just one problem: Congress was not involved in the process. 
Article 1 of the Constitution says that it is Congress that makes the 
laws, not the President. The President cannot change the law of war or 
the definition of torture. Only Congress can.
  The memos that were released yesterday leave many questions 
unanswered. They include directives related to Defense Department 
interrogations of detainees at Guantanamo Bay. But they do not tell us 
what interrogation techniques were approved for use by the CIA or other 
government agencies. They do not tell us what interrogation techniques 
were approved for use in Iraq. Yesterday, White House Counsel Gonzales 
said, ``We categorically reject any connection'' between the 
Administration's torture memos and abuses at Abu Ghraib.
  But how can the administration reject these connections when the 
techniques that Rumsfeld approved for use in Guantanamo were also used 
in Abu Ghraib prison? And what about the Justice Department torture 
memo? According to press reports today, the administration is now 
disavowing the memo.
  But what does that mean? The memo was apparently vetted by the 
Justice Department, sent to the White House, and was the basis for the 
Defense Department's memos on torture.
  Who requested the Justice Department memo and what was done in 
response to the memo? Were the legal arguments contained in the memo 
used to justify the use of torture?
  Yesterday, the President said, ``We do not condone torture. I have 
never ordered torture. I will never order torture.''
  What definition of torture is the President using? Is it the one that 
the Justice Department created? What about other forms of cruel 
treatment that are prohibited by the Constitution, treaties and laws of 
the United States?
  This is a very serious issue for our Nation. The world is watching 
us. They are asking whether the United States will stand behind its 
treaty obligations in the age of terrorism.
  The Senate has an obligation to the Constitution and the American 
people to answer these questions The only way to do that is to obtain 
all of the relevant documents from the administration.
  The great challenge of our age is combating terrorism while remaining 
true to the principles upon which our country was founded--liberty and 
the

[[Page 13558]]

rule of law. Our laws must not fall silent during time of war.
  I urge my colleagues to support the Leahy amendment.
  The PRESIDING OFFICER. The Senator from Virginia.


                           Amendment No. 3485

  Mr. WARNER. Mr. President, the Senate now turns to the second-degree 
amendment and an up-or-down vote.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to Amendment No. 3485.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from New Mexico (Mr. Bingaman) 
and the Senator from Massachusetts (Mr. Kerry) are necessarily absent.
  Mr. McCONNELL. I announce that the Senator from Kansas (Mr. 
Brownback) and the Senator from New Hampshire (Mr. Sununu) are 
necessarily absent.
  I further announce that, if present and voting, the Senator from 
Kansas (Mr. Brownback) would vote ``no.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 46, nays 50, as follows:

                      [Rollcall Vote No. 144 Leg.]

                                YEAS--46

     Akaka
     Baucus
     Bayh
     Biden
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                                NAYS--50

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Talent
     Thomas
     Voinovich
     Warner

                             NOT VOTING--4

     Bingaman
     Brownback
     Kerry
     Sununu
  The amendment (No. 3485) was rejected.
  Mr. WARNER. Mr. President, I move to reconsider the vote.
  Mr. DASCHLE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3387

  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
3387.
  The amendment (No. 3387) was agreed to.


                           Amendment No. 3468

  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I believe the veterans health care 
amendment is next; is that correct?
  The PRESIDING OFFICER. There are 2 minutes of debate evenly divided.
  Mr. DASCHLE. Mr. President, one of the surprising aspects of the 
debate about the amendment now pending has been the testimonials from 
some colleagues who say they like the current VA funding system.
  If you believe you can look veterans in the eye and tell them they 
are well served by the current VA health care system, then my amendment 
is not for you.
  If you are satisfied with telling 500,000 veterans they cannot enroll 
at the VA, then this amendment is not for you.
  If you think the system is performing well that results in hundreds 
of thousands of veterans waiting months, sometimes years, to see a 
doctor to get prescription drugs, then vote no on this amendment.
  If you feel good about voting to ask veterans to contribute more than 
a billion dollars out of pocket for their health care costs and send 
out the bill collectors to hunt them down and make sure it works, this 
amendment is not for you.
  Lastly, if you think it is appropriate to ask hundreds of thousands 
of men and women to sacrifice everything for their country and not 
ensure that they can get access to health care when they return, my 
amendment is not for you.
  Those considering opposing my amendment should take a look around. 
President Bush's own veterans health care task force, as well as the 
chairman and ranking member of the House Committee on Veterans Affairs, 
believe the current system is broken and that it urgently needs fixing 
and have endorsed the concept underlying this amendment. Every single 
veterans group in the country has done so as well.
  If you believe we have an obligation to our troops, I urge you to 
back it up with action by voting for this amendment.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. NICKLES. Mr. President, I urge my colleagues to vote against this 
amendment. This amendment creates a new entitlement program, set up by 
a formula designed to add benefits based on eligible people. My father-
in-law is eligible, but he doesn't receive VA benefits. Now we are 
going to set that up as an entitlement that would cost $300 billion--
three-fourths of the cost of the Medicare bill expansion last year? We 
have a lot of people saying we believe in paying for these. This was 
not paid for. This would increase the deficit by $300 billion.
  We are doing a lot for veterans right now. If you look at it, we 
didn't do a lot during the Clinton administration, but we have done a 
lot under the Bush administration--up 50 percent in the last few years. 
We are going from 2004, $61 billion, to $70 billion in 2005, a 15-
percent increase. Yet some people say that is still not enough.
  I think this amendment is not so much about helping veterans. I think 
it is trying to help politicians. I urge my colleagues to sustain the 
budget point of order.
  The pending amendment offered by the Senator from South Dakota, Mr. 
Daschle, increases mandatory spending and, if adopted, would cause the 
underlying bill to exceed the committee's allocation section 302(a) 
allocation. Therefore, I raise a point of order against the amendment 
pursuant to 302(f) of the Congressional Budget Act of 1974.
  Mr. DASCHLE. Mr. President, I move to waive the relevant sections of 
the Budget Act for my amendment, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Kansas (Mr. 
Brownback) and the Senator from New Hampshire (Mr. Sununu) are 
necessarily absent.
  I further announce that if present and voting the Senator from Kansas 
(Mr. Brownback) would vote ``nay.''
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 49, nays 48, as follows:

                      [Rollcall Vote No. 145 Leg.]

                                YEAS--49

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller

[[Page 13559]]


     Sarbanes
     Schumer
     Snowe
     Specter
     Stabenow
     Wyden

                                NAYS--48

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Stevens
     Talent
     Thomas
     Voinovich
     Warner

                             NOT VOTING--3

     Brownback
     Kerry
     Sununu
  The PRESIDING OFFICER. On this vote, the yeas are 49, the nays are 
48. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected. The point of order is 
sustained, and the amendment falls.
  The Senator from Virginia.
  Mr. WARNER. Mr. President, I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Virginia.


                      Amendment No. 3467 Withdrawn

  Mr. WARNER. Mr. President, I ask unanimous consent to vitiate the 
action on the Ensign second-degree amendment No. 3467 and withdraw it. 
That is a technical requirement.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           amendment no. 3121

  Mr. ALEXANDER. Mr. President, I have submitted an amendment that 
makes sure that military families don't lose eligibility for Head 
Start, the School Breakfast and Lunch Programs, Child Care and 
Development Block Grants, and the Low Income Energy Assistance Program 
when a parent is sent off to war.
  Currntly, military families living on the margin, who qualify for 
Federal benefits, are at risk of losing those benefits if the service 
member in the family qualifies for special pay. If, for example, an 
active duty parent is deployed to a combat zone, and begins to receive 
additional combat pay, the temporary increase in income may result in 
his or her family losing eligibility for vital social services. My 
amendment would preclude additional military pay, specifically combat 
pay and the family separation allowance, from being counted as income 
for purpose of determining eligibility for certain federal benefits.
  The Federal programs that are affected are those that are available 
to all Americans and where Federal law determines eligibility and 
generally provide food, child care, educational, and energy assistance 
to needy families. More specifically, the programs that would be 
affected are: The School Breakfast and Lunch Programs, Child Care and 
Development Block Grants, Head Start, and the Low Income Energy 
Assistance Program.
  The Subcommittee on Children and Families, which I chair, in 
cooperation with the Armed Services Subcommittee on Personnel, chaired 
by the Senator from Georgia, Mr. Chambliss, has put a special focus on 
helping military parents raising children. Together we have held six 
hearings since June of last year--five in the field, and one here in 
Washington. A number of issues have come to the attention of Senators 
through these hearings. This amendment addresses one of them.
  Among the many military personnel I have head from during this 
process are Sergeant First Class Luis Rodriguez, his wife Lilliam, and 
their two young daughters. Sgt. Rodriguez, with the 101st Airborne, 
stationed out of Fort Campbell, and his family line in Clarksville, TN. 
When Sgt. Rodriguez and his family moved to Fort Campbell, they tried 
to get one of their daughters, who was 4 years old at the time, 
enrolled in their local Head Start program before Sgt. Rodriguez was 
shipped out to Iraq. However, the Rodriguezes were informed that they 
couldn't access Head Start because they were over-income because of 
receiving the special pay. Sgt. Rodriguez left for Iraq and in November 
the truck he was driving in Mosul hit an improvised explosive device, 
and he lost most of his right leg. Currently, he is recovering down the 
road at Walter Reed Medical Center, and Lilliam is spending her time 
among traveling up here to see her husband, tending to her girls in 
Tennessee, and trying to help provide for her family. I am sure if you 
went to Walter Reed and talked to Lilliam or Luis, they would tell you 
that there is something wrong when those who wear our country's uniform 
and their families can no longer benefit from Head Start, the School 
Lunch Program, or some other federal program because they've become 
ineligible due to the additional special pay received when they're off 
in harm's way protecting our country.
  I thank the distinguished chairman of the Armed Services Committee 
for his assistance in crafting this amendment. I look forward to 
continuing to work with the chairman on the issue of military families, 
and how best to help them shoulder the burdens they face.
  We rely on our servicemen and women to defend our freedom and 
America's interests overseas, but at times, we forget that our soldiers 
have a support structure of their own: their families. We should do all 
we can to support our service members and their families in these tough 
times.


                           AMENDMENT NO. 3441

  Mr. McCAIN. Mr. President, why is this amendment needed? 
Congressional guidance is needed where the Air Force's conduct on its 
Tanker Lease Program has, to date, been unacceptable.
  First, the Air Force has provided Congress inaccurate information in 
an attempt to justify its original proposal to lease 100 Boeing KC-
767As. For example, Air Force Secretary Jim Roche has repeatedly 
advised Congress that, in the existing KC-135 fleet, ``corrosion is 
significant, pervasive, and represents an unacceptable risk.'' 
Secretary Roche has also emphasized to Congress increased operating 
costs in the current fleet as a basis for entering into the tanker 
lease. Air Force leadership has indicated that these elements create an 
``urgent'' need to recapitalize the fleet. However, a Defense Science 
Board, DSB, task force found that the Air Force's claims of 
unmanageable corrosion problems and cost growth were overstated.
  Remarkably, the task force recommended that corrosion not be cited as 
a justification for tanker recapitalization. As such, the task force 
concluded that ``[t]here is no compelling material or financial reason 
to initiate a replacement program prior to the completion of the 
[Analysis of Alternatives (AoA)] and the [Mobility Capabilities Study 
(MCS)].'' Thus, the task force jettisoned the ``dominant reason'' 
Secretary Roche first cited in his July 10, 2003, report to Congress as 
the basis for having taxpayers pay billions of dollars more for leasing 
tankers than they would for buying them. The Air Force's 
representations on this issue remains a matter of continuing 
investigative concern.
  In another example, to comply with the original authorizing statute, 
the Air Force misrepresented to Congress that its proposal to lease 100 
Boeing KC-767 tankers was merely an operating lease. This would have 
obviated the requirement that the White House obtain advance budget 
authority for the whole lease proposal. But, the DOD-Office of the 
Inspector General, OIG, and Program Analysis and Evaluation, PA&E, as 
well as the Congressional Budget Office, CBO, and the General 
Accounting Office, GAO, found that the procurement of these tankers is, 
in fact, a lease-purchase. In addition, facts surrounding the original 
lease proposal made it clear that the transaction was a lease-purchase: 
under the original proposal, the Air Force conceded that the DOD is 
``committed to earmark[ing] an additional $2B in fiscal year 2008 and 
fiscal year 2009 for the purchase of aircraft covered by the multiyear 
program under the terms of the proposed contract'' to head off a 
funding spike over the Future-Years Defense Program.

[[Page 13560]]

  Second, the DOD-OIG and the National Defense University, NDU, 
concluded that the Air Force's commercial item procurement strategy 
``prevented any visibility into Boeing's costs and required the Air 
Force to use a fixed-price type contract . . . The strategy also 
exempted [Boeing] from the requirement to submit cost or pricing data. 
The strategy places the Department at high risk for paying excessive 
prices and precludes good fiduciary responsibility for DOD funds.'' The 
NDU similarly concluded that ``[i]n a sole source, monopoly commercial 
environment, the government is not served well with limited price 
data'' and suggested that the Air Force neglected its fiduciary/
stewardship responsibilities.
  Third, the DOD-OIG and the NDU also concluded that the operational 
requirements document, ORD, for tankers was not tailored, as it should 
have been, to the requirements of the warfighter, but rather to closely 
correlate to the Boeing KC-767A. The DOD-OIG found that senior Air 
Force staff directed that the ORD closely correlate to the Boeing KC-
767A that was being developed for a foreign government, in anticipation 
of the authorizing legislation. This is particularly troubling where, 
according to an internal Boeing document regarding the ORD, Boeing 
planned to ``[e]stablish clearly defined requirements in ORD for the 
USAF Tanker configuration that results in an affordable solution that 
meets the USAF mission needs and will prevent an AOA from being 
conducted.'' Under the current proposal, the first 100 tankers produced 
will not be capable of, among other things, interoperability with Navy, 
Marine, or coalition assets, or simultaneously refueling more than one 
receiver aircraft. Rear Adm. Mark P. Fitzgerald recently suggested that 
in theater, such a limitation restricts the Navy's long-range striking 
capability and fosters a needlessly risky aerial refueling environment.
  Finally, documents suggest that the Air Force allowed Boeing to 
modify the requirements in the ORD while it was being developed. 
Documents also reflect that the Air Force induced the Joint 
Requirements Oversight Council, JROC, into approving and validating the 
corrupted ORD by falsely representing that it was not tailored to a 
specific aircraft. This is of continuing investigative interest to the 
Committee.
  As I've described, the history of the Air Force's attempt to 
recapitalize its tanker fleet has been riddled with corporate scandal, 
public corruption and political controversy.
  This amendment attempts to make sure that any effort by the Air Force 
to replace its fleet of tankers is done responsibly. The amendment 
achieves this by doing six things.
  First, the amendment seeks to have the Secretary of Defense ensure 
that the Air Force Secretary not acquire any aerial refueling aircraft 
for the Air Force, by lease or contract, either with full or open 
competition, until at least 60 days after the Secretary of Defense has 
reviewed all documentation for the acquisition, including the completed 
AoA, the completed aerial refueling portion of the MCS, a new, 
validated capabilities document and the approval of a Defense 
Acquisition Board. And until the Secretary of Defense has submitted to 
the congressional defense committees a written determination that the 
acquisition is in compliance with all currently applicable laws and 
regulations.
  Among the authorities with which the acquisition decision must comply 
is OMB Circular A-11, revised for 2003. In other words, without 
substantial private-party participation, any third-party financing 
arrangement, particularly those structured around a ``special purpose 
entity,'' will be deemed to be a transaction of the government. So, 
under OMB Circular A-11, the transaction must be reflected in the 
President's budget the year that obligations arising from it are 
incurred. The DOD-OIG, the Congressional Budget Office, the 
Congressional Research Service, and others have concluded that the 
proposed lease of tankers is a lease-purchase--for which renegotiation 
of the current contract or independent authorization may be required. 
Therefore, under OMB Circular A-11, budget authority would be needed 
for the entire obligation in the first year of the lease term.
  Second, not less than 45 days after the Secretary of Defense submits 
this determination, the Comptroller General and the DOD-OIG shall 
submit to the congressional defense committees a report on whether the 
acquisition complies with all currently applicable laws and 
regulations, as well as the requirements of the amendment itself, and 
is consistent with the AoA and the other documentation referred to in 
this amendment.
  Third, the acquisition by lease or contract of any aerial refueling 
aircraft for the Air Force beyond low-rate initial production shall be 
subject to (and the Secretary of Defense will comply with) the 
requirements of sections 2366 and 2399 of title 10, United States Code.
  Fourth, before selecting the provider of integrated support for the 
tanker fleet, the Secretary of Defense shall perform all analysis 
required by law of the costs and benefits of the alternative of using 
Federal Government personnel and contractor personnel to provide such 
support. The amendment also requires the Secretary to conduct all 
analysis required by law of the core logistics requirements, the use of 
performance-based logistics and the length of the contract period. The 
Secretary of Defense shall then select the provider on the basis of 
fair, full and open competition as defined by the Office of Federal 
Procurement Policy Act.
  Fifth, before the Secretary of Defense commits to any acquisition of 
aerial refueling aircraft, the Secretary shall require the manufacturer 
to provide, with respect to commercial items covered by the lease or 
contract, information on the prices at which the same or similar items 
have been sold that is adequate for evaluating the reasonableness of 
the price for those, and other commercial, items.
  Finally, the Secretary of the Air Force shall contact the DOD-OIG for 
the review and approval of any Air Force use of non-Federal audit 
services for any acquisition of aerial refueling aircraft.
  A few notes about the amendment.
  First, this amendment opens the process to oversight by getting the 
DOD-OIG, the DOD-Comptroller General, and the Defense Acquisition 
Board, DAB, actively involved in the process. Indeed, everyone who has 
independently looked into how the original proposal went through had 
major problems with the lack of transparency. For example, DAB was 
completely cut out of the process. As the NDU noted, if allowed to 
participate, the DAB would have exercised responsibility over the 
selection of a preferred system alternative, acceptance of the overall 
acquisition strategy, and compliance with applicable policies and 
statutes. This amendment deals the DAB back in the process to discharge 
its vital function in providing comprehensive senior management review.
  As another example, under this amendment, the DOD-OIG will determine, 
among other things, whether the data provided by the aircraft and 
engine manufacturer is sufficient to determine the reasonableness of 
the price of those items. Coupled with the amendment's requirement that 
the DOD-OIG approve the Air Force's use of an outside auditor, the 
taxpayers' interests will be protected. Furthermore, I believe that the 
DOD-OIG's, the NDU's, and Institute for Defense Analyses' 
recommendations that the Air Force Secretary negotiate the price of the 
engines for the tankers with the engine manufacturers need to be 
implemented.
  The bottom line here is this. The amendment does much to inject much 
needed sunlight in a program whose development has been largely 
insulated from public scrutiny. In so doing, the amendment allows us to 
discharge our oversight obligations the next time around on this multi-
billion dollar procurement proposal, responsibly and effectively.
  Second, the amendment gives the Secretary of Defense sufficient 
flexibility to pursue a lease only after,

[[Page 13561]]

among other things, an AoA is completed. The Secretary has already 
committed to not going forward on replacing the current fleet until an 
AoA (and a MCS) are completed. While giving the Secretary appropriate 
flexibility, the amendment requires that the Air Force go through 
certain hoops to make sure that any acquisition of tankers in the 
future, is done the right way. These hoops were loosely drawn from the 
recommendations of the DOD-OIG, the DSB, and the NDU, whose input the 
Secretary specifically asked for. I will have printed a list of 
findings, conclusions, and recommendations by each at the end of this 
statement. They must all be fully considered before any decision to 
recapitalize the tanker fleet is made.
  Third, it generally requires the DOD and the Air Force to do nothing 
more than comply with currently applicable statutes, regulations and 
OMB Circulars. Those who looked into the Air Force's conduct regarding 
the original proposal agreed that the Air Force did not comply extant 
statutory requirements. This amendment forces the Air Force to do that.
  I ask unanimous consent that the list to which I referred be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Department of Defense Inspector General's Acquisition of the Boeing KC-
                          767A Tanker Aircraft


                            recommendations

       Fully develop system engineering requirements to convert 
     the commercial non-developmental aircraft into an integrated 
     military configuration. Without fully developed system 
     engineering requirements the Boeing KC-767A Tanker aircraft 
     may not meet operational requirements for a 40-year service 
     life as well as command, control, communications computers, 
     and intelligence (C4I) support plan requirements, etc.
       Tailor the first spiral or increment of the Operational 
     Requirements Document (ORD) to warfighter requirements in the 
     mission needs statement (MNS) for future aerial refueling 
     aircraft not a specific aircraft. As a result, the first 100 
     KC-767A Tankers will not meet the operational requirement for 
     interoperability and will not meet the mission capabilities 
     in the Operational Requirements Document to conduct secondary 
     missions, such as cargo/passenger, aeromedical evacuation 
     mission, etc.
       The Tanker Lease Program must comply with Sections 2366 and 
     2399 of title 10, United States Code for determining the 
     operational effectiveness, suitability, and survivability of 
     the Boeing 767A tanker aircraft before proceeding beyond low-
     rate initial production (LRIP). By not complying with the 
     statutory provisions in Sections 2366 and 2399, the Boeing 
     KC-767A tanker aircraft delivered to the warfighter may not 
     be operationally effective, suitable, and survivable.
       Discontinue the commercial item procurement strategy for 
     the Boeing KC-767A Tanker Lease Program and replace fixed-
     price contracts for initial development, modification, and 
     integrated fleet support with cost or fixed-price incentive 
     type contracts that would require Boeing to provide cost or 
     pricing data as appropriate.
       Require that Boeing provide cost or pricing data for the 
     Boeing 767-200ER aircraft, and require DOD to negotiate 
     prices for aircraft engines directly with the engine 
     manufacturers.
       Require that the Air Force contact the Office of the 
     Inspector General for the Department of Defense for review 
     and approval of non-federal audit services in any lease or 
     other contract.
       Reduce the negotiated price calculated for integrated fleet 
     support by $465 million for the misapplication of KC-10 
     support costs and ``performance aircraft availability.''
       Perform statutory analyses of the costs and benefits of 
     organic or contractor support, core logistics requirements, 
     performance based logistics, and contract length before 
     selecting a provider for integrated fleet support.
       Not enter into the proposed lease for 20 Boeing KC-767A 
     Tanker aircraft until after either obtaining new statutory 
     authority to enter into a lease-purchase contract or 
     renegotiating lease terms to meet Office of Management and 
     Budget Circulars No. A-11 and A-94 requirements for an 
     operating lease.
       Determine whether leasing rather than purchasing 20 Boeing 
     KC-767A Tanker aircraft represents the best value to the 
     government.
       Ensure the General Counsel of the Department of Defense 
     review the limitation of earning clause and determine whether 
     it creates a prohibited cost-plus-a-percentage-of-cost system 
     of contracting and review clauses C-016 ``Aircraft 
     Quantity,'' C-024 ``Anti-Deficiency Act,'' and C-103 
     ``Termination for Convenience--Pre-Construction Aircraft'' in 
     the proposed contract to determine whether the contract 
     clauses and audit rights provide sufficient controls to 
     adequately define the extent of the Government's termination 
     liability and to prevent a possible Anti-Deficiency Act 
     violation if less than the full quantity of aircraft and 
     fleet support years are leased and purchased.
       Ensure that the Program Director, KC-767A System Program 
     Office:
       Establishes a process to develop a performance metric for 
     verifying that the tanker aircraft will meet the 40-year 
     service life requirement.
       Revises the system specification for the proposed tanker 
     aircraft to include a requirement for protective measures to 
     control corrosion and to include requirements in the 
     Operational Requirements Document (ORD) for interoperability 
     with other systems, integration of secure communications, and 
     combat identification.
       Completes the command, control, communications, computers, 
     and intelligence support plan for the tanker aircraft; 
     include it in the statement of work before award of the 
     contracts and resolve issues identified before the system 
     acceptance testing.
       Ensure that the system specifications developed for the 
     first spiral of the air refueling aircraft include at least 
     all key performance parameters (KPPs) and that spiral two and 
     three requirements are subsequently included in the first 100 
     and future aerial refueling aircraft.
       Comply with the statutory provisions by conducting 
     operational and survivability testing on production 
     representative aircraft before committing to the production 
     of all 100 Boeing KC-767A tanker aircraft.

Defense Science Board Task Force Findings and Recommendations on Aerial 
                               Refueling


                                Findings

       Corrosion can be controlled.
       KC-135 tanker Operation and Support (O&S) cost growth is 
     not as large as was once projected. The Air Force overstated 
     the case for an increase in these costs for KC-135 tankers.
       The total requirement for tankers is uncertain; the 
     Mobility Capabilities Study (MCS) needs to resolve this 
     issue.
       There is a need to embark on a tanker recapitalization 
     program upon the completion of the Analysis of Alternatives 
     (AOA) and the Mobility Capabilities Study (MCS); which 
     doesn't necessarily mean acquiring new aircraft.


                            Recommendations

       Do not use corrosion as a justification for tanker 
     recapitalization.
       Air Force has a robust corrosion control program.
       Depot Major Structural Repairs (MSRs) appear to be 
     decreasing.
       Consensus view on corrosion is that it is manageable--DSB 
     structural experts, commercial entities (i.e., FEDEX), other 
     government entities (Department of the Navy (DON), U.S. Air 
     Force 2001 Extended Service Life Study (ESLS), Congressional 
     Research Service (CRS), General Accounting Office (GAO)).
       Corrosion can be controlled with proper maintenance 
     procedures to help reduce the cost of replacement.
       Basic field level maintenance and inspection;
       60-month (or shorter) cycle for depot maintenance;
       Innovative procedures have reduced time in maintenance; and
       Further improvements possible (i.e., sheltering, basing 
     rotation, etc.).
       It is acceptable to tolerate manageable growth in KC-135 
     Operation & Support (O&S) costs and defer major near-term 
     recapitalization investments.
       2001 USAF ESLS estimated--0.9% increase in O&S cost per 
     year.
       Corrosion is manageable.
       Very recent USAF projection shows O&S peaked in FY04 and 
     may turn down.
       Update Tanker Requirements Study 05 (TRS05) to accommodate 
     new tanker CONOPS.
       Tanker Requirements Study 05 (TRS05) completed in FY01 was 
     never promulgated.
       TRS 05 concluded 500-600 tankers are adequate for current 
     contingencies.
       TRS 05 needs to be updated for changing tanker CONOPS.
       Potential increases in requirements--``Efficiency tanking'' 
     for loitering aircraft in kill boxes;
       New planning scenarios;
       Homeland defense needs--could this requirement be 
     contracted out (i.e., Omega Air, etc.); and
       Potential decreases in requirements (i.e., re-engining of 
     B-52's, F-22/JSF CONOPS, etc.).
       Consider 2001 Defense Science Board Task Force 
     recommendation to re- engine KC-135Es and February 2004 
     Defense Science Board Task Force recommendation which 
     reconfirmed value of B-52 re-engining: 10,000 mile mission 
     (US to Afghanistan and return) would only require one 
     refueling versus two; Fuel offload demand declines from 276K 
     pounds to 118K pounds; and F-22/JSF capabilities may allow 
     refueling on mission egress only.

[[Page 13562]]

       No compelling material or financial reason to initiate a 
     replacement program prior to the completion of the Analysis 
     of Alternatives (AoA) and the Mobility Capabilities Study 
     (MCS).
       Resolve long-term requirements through a thorough Mobility 
     Capabilities Study (MCS).
       Consider the following near-term options: lease/buy a new 
     tanker aircraft, re-engine the KC-135Es, convert retired 
     commercial aircraft, encourage commercial sources for CONUS 
     tanking.
       Consider refurbishing KC-10's in the near-term:
       FEDEX has converted retired DC-10s for use as cargo 
     carriers with 20-year life for $25-$30 million per aircraft. 
     Northwest Airlines is flying 22 DC-10s with average cycles 
     less than 20,000.
       The design service goal for DC-10s is 42,000 cycles. There 
     are 37 large DC-10s currently in the desert with average 
     cycles of only 18,500 cycles. Cost to refurbish KC-10s in the 
     desert is $1-$7 million.
       Aerial refueling capability installation costs based on the 
     Institute for Defense Analyses (IDA) estimate is $20M per 
     airframe.
       We should replace the 63 remaining KC-135Es with 25 
     refurbished KC-10s. Dutch KDC-10 tanker conversion total cost 
     approximately $30-$45M each. One KC-10 is the equivalent of 
     2.4 KC-135Es equivalents.
       Consider a potential hybrid recapitalization tanker 
     program:
       Consider retiring 61 KC-135Es in the near-term, under the 
     USAF plan and make the KC-135E tanker aircraft available to 
     commercial entities for use as commercial tankers for CONUS 
     missions such as training and homeland defense operations.
       Phase out the remaining 63 KC-135E tankers by FY 2011 and 
     replace them with converted KC-10s by leveraging the 
     mothballed DC-10s in the desert and the Northwest Airlines 
     fleet.
       Work with major airframe manufacturers to develop new 
     tanker options with more modern airframes versus the more 
     than 20-year old Boeing 767 design.

  Industrial College of the Armed Forces, National Defense University 
     Tanker Lease Program Acquisition ``Lessons Learned'' or ``The 
                         Innovator's Dilemma''


                                Findings

       The enactment of Section 8159 of the FY 2002 Appropriations 
     Act authorized a previously unarticulated requirement and 
     specified the use of an operating lease, when it should not 
     have done so.
       The DOD budget process was by-passed with considerable 
     risk, especially with the lost opportunity of vetting 
     legitimate competing needs and beginning to identify total 
     tanker program costs.
       Leases, by their very nature, cost more than purchases.
       The Operational Requirements Document (ORD) was not 
     capabilities-based, as it should have been. Contractor 
     selection was a foregone conclusion and was tailored to the 
     Boeing 767 in the Joint Requirements Oversight Council (JROC) 
     based on perceived guidance in the FY 2002 Appropriations 
     Act, Section 8159.
       There is a need to establish a definitive, consistent early 
     requirements statement addressing warfighter needs founded on 
     substantive analysis--this was not done in the Tanker Lease 
     Program.
       A program that operates in a sole source, commercial 
     environment is especially hard pressed to carry out its 
     charge of ensuring the government receives a fair price.
       Defense program personnel do have adequate tools or 
     training to obtain the fullest understanding of relevant 
     commercial buying practices in acquisition of military items.
       Innovation requires top-level management's constant 
     involvement including direction, consultation and 
     responsibility plus timely and frequent meetings of the 
     empowered and the informed.
       It should be clear that certain regulatory/statutory 
     requirements were waived in the Tanker Lease Program: 
     testing, independent cost estimates, Analysis of 
     Alternatives, DAB approval, etc.
       The Leasing Review Panel (LRP) was not a substitute for the 
     Defense Acquisition Board (DAB).


                            recommendations

       Although leasing is not a preferred strategy, if DOD would 
     pursue a lease, it needs to publish more explicit guidance on 
     leasing in acquisition policy directives and the FAR/DFAR, at 
     a minimum, to include the requirement to:
       Formulate an early, transparent, comprehensive acquisition 
     processes to be utilized and those to be bypassed with an 
     assessment of associated internal and external risks.
       Develop an early definitive, consistent requirements 
     statement founded on substantive analysis and supported by a 
     subsequent Analysis of Alternatives (AOA).
       Establish an acceptable lease financing plan supported by 
     an independent cost estimate (i.e., DOD IG, Comptroller 
     General, etc.)
       Develop a plan to maximize competition.
       In all cases, convene a Defense Acquisition Board to 
     provide for comprehensive senior management review.
       DOD needs to understand when and how commercial buying 
     practices are appropriate to satisfy military needs, if ever.
       There is a need to establish procedures or authority to 
     require both cost and pricing data for significant sole 
     source, commercial leases or where supplier monopoly power is 
     present. The government is not well served with only price 
     data, particularly in a monopoly-monopsony relationship. 
     Absent real competitive market forces, one cannot rely on 
     pricing data to determine the appropriateness of a 
     transaction. Legitimate monopolies are regulated by detailed 
     cost data and prices are set on that basis. To do otherwise 
     is to place too great a reliance for fair dealing on profit 
     maximizing firms and to ignore the reality that firms 
     appropriately act in their best interest.
       Regardless of the foregoing, due diligence and fiduciary/
     stewardship responsibilities cannot be waived.
       Ensure that an Analysis of Alternatives (AOA) is completed: 
     A less than rigorous exploration/evaluation of alternative 
     solutions than a formal Analysis of Alternatives (AOA) is 
     unsatisfactory. There is no such thing as an ``informal'' 
     AOA.
       Authors of innovation need to develop action plans to 
     ``accommodate'' those internal and external stakeholders who 
     have a legitimate interest or say in the program. Ignoring 
     such stakeholders, even if allowed by an appropriations act 
     or management direction, is done with some peril and 
     consequence as the stakeholders' unanswered or discounted 
     objections may be encountered later as the program 
     progresses.
       There is no one, uniform commercial market. Each market has 
     unique features that must be understood in order to obtain 
     the best contract conditions, tailored to each buyer's needs.
       Ensure the Leasing Panel focuses on ways and means of 
     leasing.
       The Tanker Lease Program should be approved by a Defense 
     Acquisition Board (DAB) in accordance with DOD regulations.
       A Defense Acquisition Board (DAB) would have exercised 
     responsibility over the substantive acquisition review issues 
     such as: The selection of the preferred system alternative; 
     acceptance of the overall acquisition strategy; compliance 
     with policy and statute; and would have required a 
     substantial review and documentation to support analyses.
       Relying on Section 8159 of the FY 2002 Defense 
     Appropriations Act, the USAF/DoD by-passed many elements of 
     the ``normal'' acquisition system. The Tanker Lease Program 
     system solution and the acquisition strategy (i.e., Boeing 
     767 & operating lease scenario) were foregone conclusions 
     based on Section 8159 of the FY 2002 Appropriations Act. The 
     Leasing Review Panel was not an adequate substitute for the 
     Defense Acquisition Board (DAB), which was never convened. 
     Furthermore, the Leasing Review Panel (LRP) never recommended 
     the lease of 100 Boeing 767 tankers.
       DOD needs to follow cost and pricing guidelines.
       There should be discussion and debate, within DOD, whether 
     a realistic price was arrived at.
       The government should not have very limited cost and 
     pricing data.
       The government should expend considerable time and 
     resources to acquire commercial pricing analysis skills.
       The Tanker Lease Program approved by DOD made only limited 
     use of considerable government buying power and leverage to 
     obtain maximum discounts.
       DOD needs to utilize competitive processes, including 
     negotiating directly with the engine manufacturer for 
     engines, the contractor logistics support (CLS) function and 
     the tanker modification. The USAF appeared to rely on Section 
     8159 of the FY 2002 Appropriations Act for commercial sole 
     source authority. Competitive processes were not used in the 
     February 2002 RFI to Boeing and EADS (also a finding of the 
     DOD IG), because there was informal information gathering, 
     and little expectation that Congress would allow leasing of 
     Airbus aircraft. Competitive processes were not used June 
     2002 for the JROC briefing and the Operational Requirements 
     Document (ORD) was written for a specific aircraft. (i.e., 
     Boeing KC-767) and not based on the best capabilities for the 
     warfighter.
       Publish explicit DOD guidance on leasing to include policy 
     directives and the FAR/DFAR.
       Innovation requires more, not less up-front planning (e.g., 
     development of an acquisition strategy establishing work-
     arounds for processes, requirements and stakeholders that are 
     planned to be by-passed.)
       Establish procedures to require both cost and pricing data 
     on sole source or monopoly, commercial leases.
       Big ticket acquisitions is a public process, despite the 
     level of innovation, managers must always exercise good 
     stewardship and fiduciary responsibility--this was not the 
     case in the Tanker Lease Program.
       It is prudent, at a minimum, to develop a full operational 
     testing plan, to perform a much more substantive analysis of 
     alternatives, and to do an independent cost estimate based on 
     cost, not price.

  Mr. LEAHY. Mr. President, I rise today to speak about a very simple

[[Page 13563]]

amendment that everyone should support. This amendment requires the 
Inspector General of the Department of Defense, DOD-IG, in consultation 
with the Inspectors General of the State Department and the CIA, to 
conduct a comprehensive investigation into the programs and activities 
of the Iraqi National Congress, INC.
  Over the last 10 years, we have seen funds from the United States 
Government spent in highly questionable, if not fraudulent, ways 
including money spent on oil paintings and health club memberships. But 
this is only the tip of the iceberg. A number of serious questions 
remain unanswered. Here are a couple of examples:
  First, the INC spent millions in setting up offices around the world, 
including London, Prague, Damascus, and Tehran. The State Department's 
internal documents indicate that they really had no idea of what was 
happening in some of these offices--especially Tehran. In light of the 
recent press reports about INC intelligence sharing with Iran, I think 
the DOD-IG should take a look at this issue and see what was happening 
in the Tehran office. We need to get to the bottom of this.
  Second, the INC spent millions to set up radio and television 
broadcasting inside Iraq. The radio program seemed redundant as the 
U.S. Government was, at the time, funding Radio Free Iraq. A New York 
Times article questioned the effectiveness of the TV broadcasting 
program. Kurdish officials indicated that, despite repeated attempts, 
they could never pick up the INC's TV broadcast inside Iraq. This, 
again, raises questions about how this money was being spent. The IG 
should examine this issue. We need to get to the bottom of this.
  Third, the INC's Information Collection Program--funded initially by 
the State Department and later by the Defense Department--continues to 
be a source of controversy and mystery. I have a memo written by the 
INC to Appropriations Committee staff, detailing the INC's Information 
Collection Program. In this memo, the INC claims to have written 
numerous reports to senior administration officials, who are listed in 
this memo, on topics including WMD proliferation. The administration 
disputes this claim. Again, we need to get to the bottom of this.
  I could go on and on. However, in the interest of time, I will simply 
say that there are many serious unanswered questions about the INC's 
activities. What was the INC doing with U.S. taxpayer dollars? What was 
going on in the Tehran office? Did the Information Collection Program 
contribute to intelligence failures in Iraq? Were the broadcasting 
programs at all effective in gathering support for U.S. efforts in 
Iraq?
  To be sure, there have been a few investigations into INC. However, 
these have been incomplete offering only a glimpse of what occurred. A 
few years ago, the State Department Inspector General issued two 
reports the INC. But these reports only covered $4.3 million and 
examined only the Washington and London offices. The State Department 
IG informed my office yesterday that these are the only two audits they 
conducted and have no plans to conduct future audits on this issue.
  A GAO report, published earlier this year, summarized the different 
grant agreements that the State Department entered into with the INC, 
but this report did not attempt to answer the myriad questions that 
remain about the INC.
  Another GAO report is underway, but this looks only at the narrow 
question of whether the INC violated U.S. laws concerning the use of 
taxpayer funds to pay for publicity or propaganda.
  Finally, according to press reports, the Intelligence Committee is 
looking into a few issues related to the INC. My amendment is 
consistent with these investigations. The DOD-IG does not have to re-
invent the wheel. It can build off this existing body of work to answer 
questions that will remain long after these investigations have been 
completed.
  My amendment is about transparency. My amendment is about 
accountability. My amendment is about getting to the bottom of one of 
the most mismanaged programs in recent history. Most importantly, my 
amendment is about learning from our mistakes so we do not repeat them 
in the past. I urge my colleagues to support my amendment.


                    amendment no. 3399, as modified

  Mr. FEINGOLD. Mr. President, I thank the chairman and the ranking 
member of the Armed Services Committee for working with me to accept 
this amendment, which represents a first step toward enhancing and 
strengthening transition services that are provided to our military 
personnel. I also thank my cosponsor, the Senator from Maine, Ms. 
Snowe, for her contributions to this amendment.
  As we debate the Department of Defense authorization bill today, 
thousands of our brave men and women in uniform are in harm's way in 
Iraq, Afghanistan, and elsewhere around the globe. These men and women 
serve with distinction and honor, and we owe them our heartfelt 
gratitude.
  We also owe them our best effort to ensure that they receive the 
benefits to which their service in our Armed Forces has entitled them. 
I have heard time and again from military personnel and veterans who 
are frustrated with the system by which they apply for benefits or 
appeal claims for benefits. I have long been concerned that tens of 
thousands of our veterans are unaware of Federal health care and other 
benefits for which they may be eligible, and I have undertaken numerous 
legislative and oversight efforts to ensure that the Department of 
Veterans Affairs makes outreach to our veterans and their families a 
priority.
  While we should do more to support our veterans, we must also ensure 
that the men and women who are currently serving in our Armed Forces 
receive adequate pay and benefits, as well as services that help them 
to make the transition from active duty to civilian life. I am 
concerned that we are not doing enough to support our men and women in 
uniform as they prepare to retire or otherwise separate from the 
service or, in the case of members of our National Guard and Reserve, 
to demobilize from Active Duty assignments and return to their civilian 
lives while staying in the military or preparing to separate from the 
military. We must ensure that their service and sacrifice, which is 
much lauded during times of conflict, is not forgotten once the battles 
have ended and our troops have come home.
  For those reasons, last month, I introduced the Veterans Enhanced 
Transition Services Act, VETS Act, which would improve transition 
services for our military personnel. My legislation would help to 
ensure that all military personnel receive the same services by making 
a number of improvements to the existing Transition Assistance Program/
Disabled Transition Assistance Program, TAP/DTAP, and to the Benefits 
Delivery at Discharge program, by improving the process by which 
military personnel who are being demobilized or discharged receive 
medical examinations and mental health assessments, and by ensuring 
that military and veterans service organizations and State departments 
of veterans affairs are able to play an active role in assisting 
military personnel with the difficult decisions that are often involved 
in the process of discharging or demobilizing.
  I am pleased that my original legislation is supported by a wide 
range of groups that are dedicated to serving our men and women in 
uniform and veterans and their families. These groups include: the 
American Legion; the Enlisted Association of the National Guard of the 
United States; the Paralyzed Veterans of America; the Reserve Officers 
Association; the Veterans of Foreign Wars; the Wisconsin Department of 
Veterans Affairs; the Wisconsin National Guard; the American Legion, 
Department of Wisconsin; Disabled American Veterans, Department of 
Wisconsin; the Wisconsin Paralyzed Veterans of America; the Veterans of 
Foreign Wars, Department of Wisconsin; and the Wisconsin State Council, 
Vietnam Veterans of America. I will continue to work with these and 
other veterans and military organizations on these important issues.
  The amendment that I am offering today on behalf of myself and 
Senator

[[Page 13564]]

Snowe is based on that legislation. This amendment will require the 
General Accounting Office, GAO, to undertake a comprehensive analysis 
of existing transition services for our military personnel that are 
administered by the Departments of Defense, Veterans Affairs, and Labor 
and to make recommendations to Congress on how these programs can be 
improved.
  This study will focus on two issues: how to achieve the uniform 
provision of appropriate transition services to all military personnel, 
and the role of postdeployment and predischarge health assessments as 
part of the larger transition program.
  I have heard from a number of Wisconsinites and members of military 
and veterans service organizations that our men and women in uniform do 
not all have access to the same transition counseling and medical 
services as they are demobilizing from service in Iraq, Afghanistan, 
and elsewhere. I have long been concerned about reports of uneven 
provision of services from base to base and from service to service. 
All of our men and women in uniform have pledged to serve our country, 
and all of them, at the very least, deserve to have access to the same 
services in return.
  This amendment will require GAO to conduct an analysis of transition 
programs, including a history of how the programs were intended to be 
used when they were created and how they are being used now; whether 
the programs adequately address the specific needs of military 
personnel, including members of the National Guard and Reserve; and how 
transition programs differ among the services and across military 
installations. The GAO will also be required to make recommendations on 
how these programs can be improved, including an analysis of additional 
information that would be beneficial to members participating in 
transition briefings.
  Under current law, the Department of Defense, together with the 
Departments of Veterans Affairs--VA--and Labor, provide preseparation 
counseling for military personnel who are preparing to leave the 
service. This counseling provides service members with valuable 
information about benefits that they have earned through their service 
to our country such as education benefits through the GI Bill and 
health care and other benefits through the VA. Personnel also learn 
about programs such as Troops to Teachers and have access to employment 
assistance for themselves and, where appropriate, their spouses.
  Currently, participation in this program is encouraged, but not 
mandatory. Thus, most of the responsibility for getting information 
about benefits and programs falls on the military personnel themselves. 
Participation in preseparation counseling through a TAP/DTAP program is 
a valuable tool for personnel as they transition back to civilian life. 
The Department of Defense should make every effort to ensure that all 
members participate in this important program, and my amendment would 
require the GAO to analyze participation rates and make recommendations 
on how the Department of Defense could better encourage participation, 
and whether participation in a transition program should be mandatory.
  In addition, GAO would be required to make recommendations on any 
information that should be added to the transition briefings, such as 
information on procurement opportunities for veterans with service-
connected disabilities and for other veterans. I thank the Senator from 
Maine, Ms. Snowe, the chairman of the Small Business Committee, for 
making the important point that Federal law requires that a certain 
percentage of contracts be awarded to firms owned by veterans with 
service-connected disabilities. Additionally, the Small Business 
Administration and other agencies administer programs to make all 
veterans aware of procurement opportunities. I agree with her that the 
transition process is a commonsense place to make these personnel aware 
of these opportunities. For that reason, our amendment also requires 
that the Department of Defense include information about these 
contracting opportunities in its transition program.
  The amendment would also require the GAO to study how the transition 
programs administered by the VA and by the Department of Labor fit into 
this transition effort. This analysis would include a discussion of the 
joint DOD-VA Benefits Delivery at Discharge program, which assists 
personnel in applying for VA disability benefits before they are 
discharged from the military. This very successful program has helped 
to cut the redtape and to speed the processing time for many veterans 
who are entitled to VA disability benefits.
  In addition, under current law, the Secretary of Defense may make use 
of the services provided by military and veterans service organizations 
as part of the transition process. But these groups tell me that they 
are not always allowed access to transition briefings that are 
conducted for our personnel. For that reason, this amendment would 
require GAO to include an analysis of the participation of military and 
veterans service organizations in preseparation briefings, including 
recommendations on how the Department of Defense could make better use 
of representatives of veterans service organizations who are recognized 
by the Secretary of Veterans Affairs for the representation of military 
personnel in VA proceedings.
  The demobilization and discharge process presents our service members 
with a sometimes confusing and often overwhelming amount of information 
and paperwork that must be digested and sometimes signed in a very 
short period of time. The opportunity to speak with fellow veterans who 
have been through this process and who have been accredited to 
represent veterans in VA proceedings by the VA can be invaluable to 
military personnel as they seek to wade through this maze of paperwork. 
These veterans can offer important advice about benefits and other 
choices that military personnel have to make as they are being 
discharged or demobilized. I commend the Senator from Louisiana, Ms. 
Landrieu, for offering an amendment which has already been accepted to 
this bill that reaffirms the importance of allowing veterans service 
organizations to participate in transition briefings and that also 
encourages their involvement in counseling members of the National 
Guard and Reserve who have been demobilized. The Landrieu amendment is 
consistent with provisions in my legislation, the VETS Act, and I am 
pleased that the Senate has gone on record in support of allowing these 
dedicated members of our veterans service organizations, who have taken 
the time to get accredited by the Secretary of Veterans Affairs in 
order to counsel and represent their fellow veterans, to participate in 
transition briefings.
  In addition to the uneven provision of transition services, I have 
long been concerned about the immediate and long-term health effects 
that military deployments have on our men and women in uniform. I 
regret that, too often, the burden of responsibility for proving that a 
condition is related to military service falls on the personnel 
themselves. Our men and women in uniform deserve the benefit of the 
doubt, and should not have to fight the Department of Defense or the VA 
for benefits that they have earned through their service to our Nation.
  Part of the process of protecting the health of our men and women in 
uniform is to ensure that the Department of Defense carries out its 
responsibility to provide postdeployment physicals for military 
personnel. I am deeply concerned about stories of personnel who are 
experiencing long delays as they wait for their postdeployment 
physicals and who end up choosing not to have these important physicals 
in order to get home to their families that much sooner. I am equally 
concerned about reports that some personnel who did not receive such a 
physical--either by their own choice or because such a physical was not 
available--are now having trouble as they apply for benefits for a 
service-connected condition.
  I am pleased that the underlying bill contains a provision that would 
require postdeployment physicals for military personnel who are 
separating from Active-Duty service. I firmly believe, as

[[Page 13565]]

do the military and veterans groups that support my VETS Act 
legislation, that our men and women in uniform are entitled to a 
prompt, high quality physical examination as part of the demobilization 
process. These individuals have voluntarily put themselves in harm's 
way for our benefit. We should ensure that the Department of Defense 
makes every effort to determine whether they have experienced--or could 
experience--any health effects as a result of their service.
  I am also pleased that the Senate has already adopted an amendment 
offered by the Senator from New York, Mrs. Clinton, and the Senator 
from Missouri, Mr. Talent, that will help to improve the medical 
readiness of our men and women in uniform and to ensure their health is 
monitored before, during, and after deployments so that there is a 
record of any service-connected conditions or exposures.
  Building on this effort, my amendment would require the GAO to 
include in its study of transition services an analysis of the use of 
postdeployment and predischarge health screenings and whether and how 
these screenings and the transition program could be integrated into a 
single, coordinated preseparation program for military personnel who 
are being discharged or released from active duty. The analysis would 
also include information on how postdeployment questionnaires are used, 
the extent to which military personnel waive physical exams, and how 
and the extent to which personnel are referred for followup health 
care.
  I am also concerned about the implementation of current law with 
respect to the current requirement that postdeployment medical 
examinations include a mental health assessment. Our men and women in 
uniform serve in difficult circumstances far from home, and too many of 
them witness or experience violence and horrific situations that most 
of us cannot even begin to imagine. These men and women, many of whom 
are just out of high school or college when they sign up, may suffer 
long-term physical and mental fallout from their experiences and may 
feel reluctant to seek counseling or other assistance to deal with 
their experiences.
  We can and should do more to ensure that the mental health of our men 
and women in uniform is a top priority, and that the stigma that is too 
often attached to seeking assistance is ended. To that end, this 
amendment requires that GAO include in its analysis a discussion of the 
current process by which mental health screenings are conducted, 
followup mental health care is provided for, and services are provided 
in cases of posttraumatic stress disorder and related conditions in 
connection with discharge and release from active duty. This will 
include an analysis of the number of persons treated, the types of 
interventions, and the programs that are in place for each branch of 
the Armed Forces to identify and treat cases of PTSD and related 
conditions.
  As part of its study on these important issues, GAO is directed to 
obtain views from the Secretary of Defense and the Secretaries of the 
military departments; the Secretaries of Veterans Affairs and Labor; 
military personnel who have received the transition assistance programs 
covered by this study and personnel who have declined to participate in 
these transition programs; representatives of military and veterans 
service organizations; and persons with expertise in health care, 
including mental health care, provided under the Defense Health 
Program, including personnel from the Departments of Defense and 
Veterans Affairs and persons in the private sector.
  Finally, in response to concerns I have heard from a number of my 
constituents, this amendment also directs the Secretaries of Defense 
and Labor to jointly report to Congress on ways in which DOD training 
and certification standards could be coordinated with Government and 
private-sector training and certification standards for corresponding 
civilian occupations.
  Again, I thank the chairman and the ranking member of the committee 
for working with me to include these provisions in the bill. I will 
continue to work to ensure that we provide those serving in our Armed 
Forces with the help they need and deserve in making the often-
difficult transition back to civilian life.


                     military housing privatization

  Mr. CHAMBLISS. Mr. President, I rise today to discuss a very 
important matter to me, to my home State of Georgia and to our Nation's 
military. A few years ago this Congress authorized the military housing 
privatization initiative. This program, which brings to bear private 
sector experience and financial strength to improve the quality of life 
for our soldiers, sailors, airmen, Marines and their families, has been 
a resounding success. To date, the U.S. Armed Forces have privatized 
over 60,000 housing units, leveraging more than $10 for every 
Government dollar invested. Out-dated, and World War II era, housing is 
being replaced with modern homes and amenities that our servicemen and 
women so richly deserve. This process is taking place across the 
country, from Camp Pendleton Marine Corps Base in California to Fort 
Bragg in North Carolina to Fort Benning, GA.
  However, there is an issue which threatens the livelihood and 
progress of this program and which the Congress must act now to 
address. The way the Congressional Budget Office is scoring 
expenditures for this program causes the program to exceed the 
authorized spending cap. The CBO scoring assumes that the Government 
guarantees and the management of the housing projects in question have 
direct budget implications. However, military families sign leases and 
rent the units and private companies assume the investment risk, so the 
CBO scoring, incorrectly in my opinion, treats these costs as an 
obligation on behalf of the Government. I believe we need to either 
significantly raise the current cost cap for the program or eliminate 
it entirely in order to make available an adequate funding stream to 
see this important project through to completion.
  The Department of Defense has established a master plan which will 
privatize approximately 160,000-170,000, or over 70 percent, of 
existing family housing units. Currently, DoD is about half way towards 
completing that goal. We should allow this well-functioning program to 
continue for the benefit of our men and women in uniform, and we should 
follow the traditional scoring guidelines which we have used for the 
past 5 years in order to accurately determine the actual costs.
  I thank the Chair for the opportunity to discuss this very important 
issue, and I look forward to working with my colleagues in the relevant 
committees to resolve this situation in a positive manner.
  Mr. FEINGOLD. Mr. President, I support passage of this year's Defense 
authorization bill because it contains many provisions that our brave 
men and women in uniform need and deserve. But before I go into the 
details of why I am supporting this legislation, I must first thank the 
members of the United States Armed Forces for their service to our 
country. They are performing admirably under difficult circumstances 
all over the world. Our soldiers, sailors, airmen, and Marines, along 
with their families, are making great sacrifices in service to our 
country. I am voting for this legislation to support these people who 
are serving the country with such courage.
  I strongly support the 3.5 percent across-the-board pay raise for 
military personnel that this bill provides. We must make sure that our 
professional military is paid a fair wage. This bill also makes 
permanent the increase in family separation allowance and imminent 
danger pay, another important policy for our men and women in uniform. 
Once again, I was proud to support the expansion of full-time TRICARE 
health insurance for our National Guard and Reserve. The reserve 
component is being used more than at any other time since World War II. 
Forty percent of our troops in Iraq are reserve component troops. These 
citizen soldiers face additional burdens when they transition in and 
out of their civilian life and providing them and their families with 
TRICARE is one way we can ease those burdens.

[[Page 13566]]

  Another aspect of this bill that I strongly support is the increased 
funding for force protection equipment. Last year, concerned 
Wisconsinites contacted my office telling me that they or their 
deployed loved ones were fighting for their country in Iraq without the 
equipment they needed. This situation is unconscionable. I have 
repeatedly pressed the Pentagon to fix this situation and I and my 
colleagues went a long way in addressing these shortages in the 
supplemental spending bill for Iraq and Afghanistan. The $925 million 
for additional up-armored HUMVEES and other ballistic protection as 
well as the $600 million in force protection gear and combat clothing 
in this bill above what was in the President's proposed budget further 
ensures that our troops have the equipment they need to perform their 
duties on the ground.
  I am pleased that the Senate approved my amendment to ensure that the 
Inspector General for the Coalition Provisional Authority will continue 
to oversee U.S. reconstruction efforts in Iraq after June 30 of this 
year as the Special Inspector General for Iraq reconstruction. The 
American taxpayers have been asked to shoulder a tremendous burden in 
Iraq, and we must ensure that their dollars are spent wisely and 
efficiently. Today, the CPA is phasing out, but the reconstruction 
effort has only just begun. As of mid-May, only $4.2 billion of the 
$18.4 billion that Congress appropriated for reconstruction in November 
had even been obligated. With multiple agencies involved and a budget 
that exceeds the entire foreign operations appropriation for this 
fiscal year, U.S. taxpayer-funded reconstruction efforts should have a 
focused oversight effort. My amendment will ensure that the Inspector 
General's office can continue its important work even after June 30, 
rather than being compelled to start wrapping up and shutting down 
while so much remains to be done. This is good news for the 
reconstruction effort, and good news for American taxpayers.
  I also want to thank the chairman and the ranking member of the Armed 
Services Committee for working with me to accept the amendment that I 
offered with the Senator from Maine, Ms. Snowe, which represents a 
first step toward enhancing and strengthening transition services that 
are provided to our military personnel. This amendment will require the 
General Accounting Office to undertake a comprehensive analysis of 
existing transition services for our military personnel that are 
administered by the Department of Defense, Veterans Affairs, and Labor 
and to make recommendations to Congress on how these programs can be 
improved. This study will focus on two issues: how to achieve the 
uniform provision of appropriate transition services to all military 
personnel, and the role of post-deployment and pre-discharge health 
assessments as part of the large transition program. I very much look 
forward to reviewing the results of this study.
  The Senate version of the Defense authorization bill also includes a 
provision finally fulfilling a goal for which I have been fighting for 
years--making sure that every State and territory has at least one 
Weapons of mass Destruction Civil Support Team, WMD-CST. I was 
delighted earlier this year when Wisconsin was chosen as one of 12 
States to receive a WMD-CST authorized and appropriated for in FY2004, 
but I was also disappointed that the President's proposed budget for 
FY2005 included funding for only 4 of the 11 outstanding teams. I, 
along with 28 of my colleagues, wrote the Senate Armed Services 
Committee chairman and ranking member asking them to fully fund all 11 
remaining teams. The chairman and ranking member have been very 
supportive of my efforts in this area over the years, and I thank them 
again this year for funding all 11 remaining WMD-CSTs.
  This authorization bill addresses the grave threat our Nation faces 
from unsecured nuclear materials. It includes $409 million for the 
Cooperative Threat Reduction program and $1.3 billion for the 
Department of Energy nonproliferation programs. I was also proud to 
cosponsor the amendment offered by Senator Domenici and Senator 
Feinstein that authorizes the Department of Energy to secure the tons 
of fissile material scattered around the world. This bipartisan 
initiative aims to dramatically accelerate current efforts to the 
world. This bipartisan initiative aims to dramatically accelerate 
current efforts to secure this dangerous material so that it cannot 
fall into the hands of those who aim to harm us. Time is of essence, 
and I was pleased to hear that the administration is fully supportive 
of this efforts through the Global Threat Reduction Initiative.
  I also voted for an amendment offered by Senator Reed that boosts the 
Army's end strength by 20,000. I did so because it has become clear 
that the Army is currently overstretched, and I believe that we need to 
ensure readiness to handle threats in the future. A recent Brookings 
Institution report says that the military is being stretched so thin 
that if we don't expand its size, it could break the back of our all-
volunteer Army. One does not have to support all of the deployment 
decisions that brought us to this point today to see that we need to 
have the capacity to handle multiple crises with sufficient manpower 
and strength. I do not take lightly the decision to lock in a 
significant increase in spending. The need is great, however, and the 
deliberative defense authorization process, not the emergency 
supplemental process, is the place to do it.
  I must note that, unfortunately, this bill has many of the same 
problems that I've been fighting to fix for years. Once again, we are 
spending billions upon billions of dollars for weapons systems more 
suited for the Cold War than the fight against terrorism. I was very 
disappointed that the Senate did not agree to Senator Levin's amendment 
that would have used a small percentage of the over $10 billion 
authorized for missile defense for critical unfunded homeland defense 
needs. This amendment, which I cosponsored, would have used $515.5 
million now slated for additional untested interceptors and spent it 
instead on the top unfunded Department of Defense homeland defense 
priorities, research and development programs, radiation detection 
equipment at seaports, and other important defenses against terrorism. 
Budgeting is about setting priorities and I am sad to say that when the 
Senate failed to adopt Senator Levin's amendment, it missed a golden 
opportunity to adjust its priorities in order to face our country's 
most pressing threat--the threat of terrorism.
  I was disappointed that the Senate failed to reduce the retirement 
age for those in the National Guard and Reserve from 60 to 55. Our 
country has placed unprecedented demands upon the Guard and Reserve 
since September 11, 2001, and will continue to do so for the 
foreseeable future. Considering the demands we are placing on them, it 
is time that we lower the Guard and Reserve's retirement age to the 
same level as civilian Federal employees.
  Although my support for reducing the reserve component retirement age 
has been unwavering, because of the significant budgetary impact of 
this measure I had hoped that Congress would first receive reviews of 
reserve compensation providing all of the information that we need to 
address this issue responsibly. I patiently waited for several studies 
on this issue, including by the Defense Department, but when the 
studies came out they called for further study. This matter cannot 
continue to languish unaddressed indefinitely. As retired U.S. Air 
Force Colonel Steve Strobridge, government relations director for the 
Military Officers Association of America, MOAA, put it, ``It is time to 
fish or cut bait.'' I agree with MOAA's analysis that, ``Further delay 
on this important practical and emotional issue poses significant risks 
to long-term (Guard and Reserve) retention'' and I was proud to vote 
for the amendment offered by the Senator from New Jersey, Mr. Corzine.
  I also believe that the Senate missed an opportunity to provide a 
small but needed measure of relief to military families when it failed 
to adopt my Military Family Leave Act amendment. This amendment would 
have allowed a spouse, child, or parent who already qualifies for 
Family and Medical

[[Page 13567]]

Leave Act, FMLA benefits--unpaid leave--to use those existing benefits 
for issues directly arising from the deployment of a family member. The 
Senate adopted a similar amendment by unanimous consent when I offered 
it to the Iraq supplemental spending bill. This amendment has the 
support of the Military Officers Association of America, the Enlisted 
Association of the National Guard of the United States, the Reserve 
Officers Association, the National Guard Association of the United 
States, the National Military Family Association, and the National 
Partnership for Women and Families.
  I regret that a harmful second degree amendment was offered to my 
amendment and that I was not given the opportunity to have a straight 
up or down vote. Rather than taking up the Senate's time in a 
protracted debate about the second degree amendment, I withdrew my 
amendment so that this important Defense authorization bill could move 
forward. However, the need addressed by my amendment remains, and I 
will continue to fight to bring some relief to military families that 
sacrifice so much for all of us.
  I want to bring attention to another element of the Defense 
Authorization bill that raises concerns for me. The Defense 
Authorization bill includes language that raises troop caps in Colombia 
from 400 to 800 military personnel and from 400 civilian contractors to 
600. I am disappointed that Senator Byrd's amendment was not approved 
by the Senate, which would have limited the increases in these caps to 
the levels established by the bill. Most importantly, I worry about 
placing more Americans in harm's way in Colombia. Further deployments 
bring greater risks to an already overstretched military. We do not 
want to risk being drawn further into Colombia's civil war--certainly 
not without a thorough debate that the American people can follow. In 
addition, many of my constituents and I remain concerned that by 
raising these caps, the U.S. devotes greater resources to the military 
side of the equation in Colombia without balancing our approach through 
greater support for democratic institutions, increasing economic 
development, and supporting human rights.
  There are other provisions in this bill with which I disagree, and 
the Senate rejected a number of amendments that would have made this 
bill better. However, on balance this legislation contains many good 
provisions for our men and women in uniform and their families and that 
is why I will vote for it.
  Mr. McCAIN. Mr. President, I strongly support the passage of S. 2400, 
the National Defense Authorization Act for Fiscal Year 2005. This 
legislation funds $422.2 billion for defense programs, which is a 3.4 
percent increase or $20.9 billion above the amount approved by Congress 
last year. I commend the bill managers, Senators Warner and Levin, for 
their leadership both in the Committee and on the floor these past 
weeks. This is a very important bill, and I am pleased we are about to 
proceed to final passage.
  Yesterday, I had a lengthy statement on the Boeing 767 Tanker Lease 
Program so I will not take up more of the Senate's time now, except to 
say that the amendment that was included in this bill is critical 
because congressional guidance is needed where the Air force's conduct 
on its Tanker Lease Program has, to date, been unacceptable. With 
regard to the Boeing 767 Tanker Lease Program, the Department of 
Defense and the Air Force leadership have obfuscated, delayed, and 
withheld information from Congress and the taxpayers. Therefore, the 
tanker amendment attempts to make sure that any effort by the Air Force 
to replace its fleet of tankers is done responsibly. We should expect 
no less from the Air Force.
  The adopted amendment does much to inject needed sunlight on a 
program whose development has been largely insulated from public 
scrutiny. It will allow us to discharge responsibly and effectively our 
oversight obligations the next time around on this multi-billion dollar 
procurement proposal.
  The men and women of our nation's Armed Forces put their lives on the 
line every day to protect the very freedoms we as Americans hold dear. 
It is our obligation to provide key quality of life benefits to the 
members of our military. Great strides will be made by this bill 
towards accomplishing that goal. For example, this bill authorizes a 
3.5 percent across-the-board pay raise for all military personnel. It 
also repeals the requirement for military members to pay subsistence 
charges while hospitalized, and adds $7.8 million for expanded care and 
services at the Walter Reed Amputee Patient Care Center. Also included 
in the legislation is a permanent increase in the rate of family 
separation allowance from $100 per month to $250 per month as well as a 
permanent increase in the rate of special pay for duty subject to 
hostile fire or imminent danger from $150 per month to $225 per month.
  We continue to be increasingly reliant on the men and women of our 
Reserve forces and National Guard. In fact, 40 percent of all the 
ground troops in Iraq and Afghanistan are composed of National Guard 
and Reserve forces as well as nearly all of the ground forces in 
Kosovo, Bosnia, and the Sinai. Many of these soldiers and sailors leave 
behind friends, families, and careers to defend our Nation. 
Accordingly, it is the responsibility of policy makers to ensure that 
we look after the needs of these patriots. Included in the legislation 
is the authorization for full medical and dental examinations and 
requisite inoculations when reservists mobilize and demobilize as well 
as a new requirement for pre-separation physical examinations for 
members of the reserve component. This provision is critical to 
maintain, and in some circumstances, will help to increase the 
readiness of the Total Force.
  The Senate also adopted an important amendment to authorize an 
increase in the size of our Army by 20,000. This increase is absolutely 
vital in our Army's ability to carry out its mission in the Global War 
on Terror. There is no shortage of evidence supporting an increase in 
Army end strength. Recently, the Army pulled 3,600 troops out of South 
Korea to fill critical needs in Iraq. The Army is also looking to 
deploy to Iraq the 11th Armored Calvary Regiment. This is an elite unit 
that serves in desert training exercises. In addition, for the first 
time in over 10 years, the Army is pulling people out of the Individual 
Ready Reserve to fill critical needs. The Department of Defense should 
be able to move troops around as needed to address critical needs, 
however, in this instance, we are sacrificing our readiness on the 
Korean peninsula because we do not have enough soldiers serving in the 
Army.
  After returning home for a short period of time, soldiers and Marines 
are already making preparations for their second tour in Iraq or 
Afghanistan in as many years. This is not good for morale, this is not 
good for retention, this is not good for readiness, and this is not 
good for the soldier's families. Eventually, recruitment will be 
seriously affected by these trends.
  Additionally, the Army recently announced a new stop-loss policy. 
While I certainly recognize the Army's authority and necessity to issue 
stop loss orders, their issuance in this instance is yet another reason 
why we need to increase the size of the Army. For all the benefits in 
group cohesion that results from extended tours, the Army will be 
facing a serious crisis when it comes time for these soldiers to 
reenlist on their own accord. I am concerned about the effect that 
these stop-loss orders will have on the morale of our Army. While I 
still do not believe that we need a draft, we do need to increase the 
size of the Army to carry out important defense missions.
  These are some aspects of this legislation that I do not support. For 
example, once again, this bill lent the opportunity for protectionist 
Buy America amendments. In a similar fashion as last year, the Senate 
had to beat back an amendment that sought to protect parochial 
interests at the cost of our defense industry and American jobs. It 
seems as if every year, we fight the same fight on the Senate floor.
  A sound policy which the Senate has adopted in the past is that we 
need to provide American servicemen and

[[Page 13568]]

women with the best equipment at the best price for the American 
taxpayer. This is the policy we need to continue to follow.
  The international considerations of this amendment are immense. such 
an isolationist, go-it-alone approach would have serious consequences 
on our relationship with our allies. Furthermore, our country is 
threatened when we ignore our trade agreements. Currently, the U.S. 
enjoys a trade balance in defense exports of 6-to-1 in its favor with 
respect to Europe, and about 12-to-1 with respect to the rest of the 
world. We don't need protectionist measures to insulate our defense or 
aerospace industries. If we stumble down the road of protectionist 
policies, our allies will retaliate and the ability to sell U.S. 
equipment as a means to greater interoperability with NATO and non-NATO 
allies would be seriously undercut. Critical international programs, 
such as the Joint Strike Fighter and missile defense, would likely be 
terminated as our allies reassess our defense cooperative trading 
relationship.
  On another important policy consideration, the Senate also 
successfully defeated an amendment aimed at canceling the upcoming BRAC 
round. BRAC has taken on a new significance in the War against Terror. 
Never has there been a time in recent memory when it has been more 
important not to waste money on non-essential expenditures. To continue 
to sustain an infrastructure that exceeds our strategic and tactical 
needs will make less funding available to the forces that we are 
relying on to destroy the international network of terrorism.
  The Department of Defense has come out with very fair and reasonable 
criteria used to select what bases are chosen for BRAC. I have every 
confidence the Secretary of Defense will carry out this round of BRAC 
in a just and consistent manner. Sooner or later, surplus bases must be 
closed. Delaying or canceling BRAC would only make the process more 
difficult and painful than need be. The sooner the issue is addressed, 
the greater will be the savings that will ultimately go toward defense 
modernization and better pay and benefits for our hard-working service 
members.
  I understand some of my colleagues may be concerned about the 
potential negative effects a base closure may have on their local 
economy. Previous base closure rounds have had many success stories. 
For example, after England Air Force Base closed in 1992, Alexandria, 
LA, benefited from the creation of over 1,400 jobs--nearly double the 
number of jobs lost. Across the U.S., about 60,000 new jobs have been 
created at closing military bases. At bases closed more than 2 years, 
nearly 75 percent of the civilian jobs have been replaced. This is not 
to say that base closures are easy for any community, but it does 
suggest that communities can and will continue to thrive.
  Americans are blessed with nearly limitless freedoms and liberties. 
In exchange for all our country gives to us, it does not demand much in 
return. Yet throughout our history, millions of people have volunteered 
to give back to their nation through military service. The selfless 
acts of courage and sacrifice made by the men and women in our armed 
services have elevated our Nation to the greatness we enjoy today.
  America is defined not by its power but by its ideals. One of the 
great strengths of the American public is the desire to serve a cause 
greater than our own self interest. All too often, our younger 
generations are accused of selfishness and an unwillingness to 
sacrifice. I disagree. I see generations of people yearning to serve 
and help their fellow citizens. Each year, thousands of our young 
Americans decide to dedicate a few years or even a full career to 
protecting the rights and liberties of others. They often do this with 
very real risks to their lives. They volunteer to do this not for 
profit, nor for self-promotion, but out of a sense of duty, service, 
and patriotism.
  I urge my colleagues to support this important legislation.
  Mr. WARNER. Mr. President, I wish to thank so many who made possible 
the next vote. First, our leadership and the members of our committee, 
our committee staff, and particularly my distinguished ranking member, 
with a special thanks to both the Democratic whip and the Republican 
whip for their special time on the floor.
  I ask for the third reading of the bill.
  The PRESIDING OFFICER. The question is on the engrossment and the 
third reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. WARNER. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The bill having been read the third time, the question is, Shall the 
bill pass?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Kansas (Mr. 
Brownback) and the Senator from New Hampshire (Mr. Sununu) are 
necessarily absent.
  I further announce that if present and voting the Senator from Kansas 
(Mr. Brownback) would vote ``yea.''
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 97, nays 0, as follows:

                      [Rollcall Vote No. 146 Leg.]

                                YEAS--97

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--3

     Brownback
     Kerry
     Sununu
  The bill (S. 2400) was passed.
  (The bill will be printed in a future edition of the Record.)
  Mr. WARNER. Mr. President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. WARNER. Mr. President, I ask unanimous consent that S. 2400 as 
amended be printed as passed.
  The PRESIDING OFFICER. Without objection.
  Mr. WARNER. Mr. President, I ask unanimous consent that the Senate 
proceed immediately to the consideration en bloc of S. 2401 through S. 
2403--Calendar Order Nos. 504, 505 and 506; that all after the enacting 
clause of those bills be stricken and the appropriate portion of S. 
2400, as amended, be inserted in lieu thereof, according to the 
schedule which I am sending to the desk; that these bills be advanced 
to third reading and passed; that the motions to reconsider en bloc be 
laid upon the table; and that the above actions occur without 
intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________