[Congressional Record (Bound Edition), Volume 150 (2004), Part 9]
[Senate]
[Pages 11922-11952]
[From the U.S. Government Publishing Office, www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 2400, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 2400) to authorize appropriations for fiscal 
     year 2005 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe 
     personnel strengths for such fiscal year for the Armed 
     Services, and other purposes.

  Pending:

       Kennedy amendment No. 3263, to prohibit the use of funds 
     for the support of new nuclear weapons development under the 
     Stockpile Services Advanced Concepts Initiative or for the 
     robust nuclear earth penetrator, RNEP.

  Mr. WARNER. We are hopeful to get off to a vigorous start this 
afternoon. In consultation with the leadership on both sides at a later 
time, we will confirm the likelihood of at least one, and possibly two, 
votes occurring sometime after 5 o'clock. We will address that later.
  At this time, the distinguished Senator from Colorado is going to lay 
down an amendment which could result in a second degree; then 
colleagues on the other side, and the distinguished Senator from 
Nevada, will lay down an amendment. We will have a flurry of activity 
for a little while.
  I congratulate the distinguished majority leader for a very fine set 
of remarks regarding his trip. For those Senators who were not able to 
hear the remarks, I hope they will take the time to examine them in the 
Record. It is a very helpful perspective about the current situation in 
Iraq. I found it encouraging and upbeat.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. ALLARD. What is our order of business?
  The PRESIDING OFFICER. The Kennedy amendment is pending.
  Mr. ALLARD. I ask unanimous consent that we lay aside the Kennedy 
amendment so I can send an amendment to the desk.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3322

  Mr. ALLARD. Mr. President, I call up amendment No. 3322.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Colorado [Mr. Allard] proposes an 
     amendment numbered 3322.

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

[[Page 11923]]



   (Purpose: To promote international cooperation on missile defense)

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

     SEC. 1068. MISSILE DEFENSE COOPERATION.

       (a) Department of State Procedures for Expedited Review of 
     Licenses for the Transfer of Defense Items Related to Missile 
     Defense.--
       (1) Expedited procedures.--The Secretary of State shall, in 
     consultation with the Secretary of Defense, establish 
     procedures for considering technical assistance agreements 
     and related amendments and munitions license applications for 
     the export of defense items related to missile defense not 
     later than 30 days after receiving such agreements, 
     amendments, and munitions license applications, except in 
     cases in which the Secretary of State determines that 
     additional time is required to complete a review of a 
     technical assistance agreement or related amendment or a 
     munitions license application for foreign policy or national 
     security reasons, including concerns regarding the 
     proliferation of ballistic missile technology.
       (2) Study on comprehensive authorizations for missile 
     defense.--The Secretary of State shall, in consultation with 
     the Secretary of Defense, examine the feasibility of 
     providing major project authorizations for programs related 
     to missile defense similar to the comprehensive export 
     authorization specified in section 126.14 of the 
     International Traffic in Arms Regulations (section 126.14 of 
     title 22, Code of Federal Regulations).
       (3) Report.--Not later than 180 days after the date of the 
     enactment of this Act, the Secretary of State shall, in 
     consultation with the Secretary of Defense, submit to the 
     Committee on Foreign Relations and the Committee on Armed 
     Services of the Senate and the Committee on International 
     Relations and the Committee on Armed Services of the House of 
     Representatives a report on--
       (A) the implementation of the expedited procedures required 
     under paragraph (1); and
       (B) the feasibility of providing the major project 
     authorization for projects related to missile defense 
     described in paragraph (2).
       (b) Department of Defense Procedures for Expedited Review 
     of Licenses for the Transfer of Defense Items Related to 
     Missile Defense.--
       (1) Procedures.--Not later than 180 days after the date of 
     the enactment of this Act, the Secretary of Defense shall, in 
     consultation with the Secretary of State, prescribe 
     procedures to increase the efficiency and transparency of the 
     practices used by the Department of Defense to review 
     technical assistance agreements and related amendments and 
     munitions license applications related to international 
     cooperation on missile defense that are referred to the 
     Department.
       (2) Report.--Not later than 180 days after the date of the 
     enactment of this Act, the Secretary of Defense, in 
     consultation with the Secretary of State, shall submit to the 
     Committee on Armed Services and the Committee on Foreign 
     Relations of the Senate and the Committee on Armed Services 
     and the Committee on International Relations of the House of 
     Representatives a report--
       (A) describing actions taken by the Secretary of Defense to 
     coordinate with the Secretary of State the establishment of 
     the expedited review process described in subsection (a)(1);
       (B) identifying key defense items related to missile 
     defense that are suitable for comprehensive licensing 
     procedures; and
       (C) describing the procedures prescribed pursuant to 
     paragraph (1).
       (c) Definition of Defense Items.--In this section, the term 
     ``defense items'' has the meaning given that term in section 
     38(j)(4)(A) of the Arms Export Control Act (22 U.S.C. 
     2778(j)(4)(A)).

  Mr. ALLARD. I rise today to offer this amendment in order to draw 
attention to the importance of encouraging missile defense 
international cooperation.
  My amendment accomplishes the following: First, it requires the 
Secretary of State, in consultation with the Secretary of Defense, to 
establish an expedited process for considering the transfer of missile 
defense-related agreements and licenses within 30 days. The Secretary 
of State may use more time if he determines the proposed transfer 
necessitates a careful review to prevent the proliferation of U.S. 
ballistic missile technology.
  Second, the amendment requires the Secretary of State, in 
consultation with the Secretary of Defense, to conduct a study on major 
project authorizations for missile defense. The purpose of this study 
would be to examine the feasibility of providing major project 
authorizations for projects related to missile defense.
  Third, the amendment requires the Secretary of Defense to prescribe 
procedures to increase the efficiency and transparency of the practices 
used by the Department of Defense to review applications for technical 
assistance agreements and licenses related to missile defense.
  These provisions are limited in scope and have been refined 
considerably over the last month. They are specifically designed to 
provide a mechanism for increasing our cooperation on missile defense 
with our closest allies.
  Why is this amendment important? Why should we work with our closest 
allies on missile defense? Let me take a moment to explain why.
  Widespread proliferation of ballistic missiles and illegal weapons 
technology is a major threat to the United States as we enter the 21st 
century. Today, unfortunately, the United States remains defenseless 
against a ballistic missile attack.
  President Bush, who is committed to eliminating this vulnerability, 
has taken extraordinary measures to remove obstacles to developing a 
missile defense capability. The technology has been proven. The timing 
is right. As a result, the President's vision for a national missile 
defense system will likely become a reality this fall.
  Yet we must acknowledge this complex system could become even more 
complicated without the assistance of other nations. We need early 
warning and tracking sensors in other countries in order to predict and 
intercept an incoming ballistic missile. We also need intelligence 
other countries may have on the activities of those who may threaten 
our Nation.
  Without this information, it could become extremely difficult for us 
to defeat a ballistic missile attack. A prudent step on our part would 
then be to recognize the value of this assistance and exhibit a 
willingness to help those who have been so willing to help us.
  We cannot forget that while the United States may have a legitimate 
missile defense capability, most of our allies do not. For example, 
Japan, Australia, and South Korea are perhaps more vulnerable than the 
United States due to their close proximity to the North Korean 
ballistic missile threat. Yet these three close allies are defenseless 
against most ballistic missile attacks. Our NATO allies in Europe are 
also vulnerable to a similar threat from the Middle East.
  We also cannot forget hundreds of thousands of U.S. soldiers, 
sailors, airmen, and marines are deployed in many tough regions around 
the world, and many of these regions have rogue states that have 
substantial offensive ballistic missile capability. We cannot ignore 
this looming threat to our troops overseas. Having allies with missile 
defenses would greatly reduce the threat offensive ballistic missiles 
could pose against our troops overseas.
  Some might suggest cooperation on missile defense could lead to the 
proliferation of ballistic missile technologies. This is a legitimate 
concern, and I certainly agree we must do everything we can to protect 
our most sensitive technologies. That is why I included in my amendment 
an exception that authorizes the Secretary of State to conduct an 
extended review of a proposed transfer if there is a concern about the 
transfer of ballistic missile technologies. None of us want to see 
ballistic missile technologies fall into the wrong hands.
  We must recognize, though, that international cooperation on missile 
defense can greatly reduce the proliferation of ballistic missiles. It 
does so by directly devaluing the ballistic missile as an offensive 
weapon of terror. With missile defenses deployed, as in Operation Iraqi 
Freedom, an enemy can no longer be assured of success when considering 
a missile attack. It thus acts as a counterproliferation tool that 
forces our adversaries to think twice about investing billions of their 
scarce resources into ballistic missiles.
  I commend President Bush for already taking the lead on international 
cooperation on missile defense. At his direction, the Pentagon is 
planning wide-ranging cooperative missile defense activities with the 
United Kingdom, Australia, Japan, Germany, Italy, other NATO allies, 
and friends. The Pentagon is also looking into other opportunities with 
Russia in the wake of the decision to cancel the Russian-American 
Observation Satellite, or what we refer to as the RAMOS Program.

[[Page 11924]]

  Yet our Government has only limited experience with large-scale 
missile defense cooperation abroad. This limited experience has drawn 
out inefficiencies and problems that could limit cooperative missile 
defense programs. Here are two recent examples that have troubled me.
  First, it took almost 6 months to execute the United States-Japanese 
cooperative program on the Aegis-based Standard Missile-3. This holdup 
was despite Japan's sterling nonproliferation reputation, a detailed 
United States and Japan memorandum of understanding, and a United 
States-Japanese exchange of diplomatic notes underpinning the MOU.
  Similarly, for our joint operations centers in NORAD, where we 
conduct missile defense operator training and exercises, we require 
numerous special authorizations, taking months to review, to permit our 
industry experts to work with Canadian military operators already in 
place behind the computer terminals providing missile defense early 
warning in Colorado Springs.
  I believe we should be thinking beyond our own borders and begin 
looking at ways to assist our friends and allies. My amendment takes a 
small step forward in this direction. It still provides for a case-by-
case review and permits a careful and close review of a transfer that 
might be of vital importance to our Nation. Perhaps most importantly, 
it upholds the virtue of our nonproliferation regimes and helps develop 
another counterproliferation tool for the President's use in the 
future.
  I urge my colleagues to support this amendment.
  I yield the floor.
  Mr. INHOFE. Mr. President, will the Senator yield?
  Mr. ALLARD. I will yield to the Senator from Oklahoma.
  Mr. REID. Mr. President, I have no objection to the Senator speaking, 
but he has no right to yield to him.
  The PRESIDING OFFICER. The Senator may yield for a question.
  Mr. ALLARD. I yield to the Senator from Oklahoma for a question.
  Mr. INHOFE. Well, I appreciate that. First of all, I appreciate all 
the Senator from Colorado has done in this field.
  I say to the Senator, in your statement, when you talked about that 
some of our allies, some of our friends, such as the Japanese, might be 
more susceptible because of their proximity to North Korea, I remind my 
colleagues what happened 6 years ago this coming August when the North 
Koreans did in fact fire a multistage rocket that had the capability of 
reaching the United States of America. So that threat is still there 
for us.
  I was going to ask my colleague a couple questions about his 
amendment. But if somebody else desires the floor, that is perfectly 
all right.
  Mr. REID. Mr. President, I have no objection if the Senator from 
Oklahoma wishes to speak. I am simply going to offer a second-degree 
amendment.
  Mr. INHOFE. I will ask one question. In your amendment, you talked 
about 30 days for considering technical assistance agreements and 
licenses. Will you explain what that 30 days is and the significance of 
that?
  Mr. ALLARD. Well, the 30-day mandate is to emphasize the importance 
of considering these agreements and licenses for international 
cooperation on missile defense in a timely manner, not being dragged 
out forever and ever. Too often, applications for technical assistance 
programs and licenses for missile defense are held up for months at a 
time, causing our allies needless frustrations, in my view.
  The process is so cumbersome for missile defense agreements and 
licenses that it takes weeks to get an application approval for 
something as simple as permitting the British Ministry of Defense 
officials to attend the Missile Defense Agency's annual conference we 
have here in DC.
  We are trying to bring a stroke of common sense in our cooperation 
with our allies. There are cases, obviously, when more time is needed. 
So the judgment can be applied by the Secretary of Defense, as well as 
the Secretary of State, to use more time to determine the feasibility 
of extending licensing agreements to our allies.
  What we are trying to reach is a proper balance. There are times when 
it is not necessary to delay this for extended times. Sometimes we may 
take longer because of the type of technology we are dealing with. We 
are trying to have a proper balance so we can adequately protect our 
technical systems, defense systems, as well as to have a format out 
here so we can work in an effective manner with our friends and allies.
  Mr. INHOFE. I thank the Senator.
  The PRESIDING OFFICER. The Senator from Nevada.


                Amendment No. 3449 To Amendment No. 3322

  Mr. REID. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Reid], for Mr. Levin, proposes 
     an amendment numbered 3449 to amendment No. 3322.

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

 (Purpose: To express the sense of Congress on the nonproliferation of 
                          ballistic missiles)

       Beginning on page 2, line 4, of the amendment, strike ``not 
     later than 30 days'' and all that follows through the end and 
     insert ``on an expedited basis, except in cases in which the 
     Secretary of State determines that additional time is 
     required to complete a review of a technical assistance 
     agreement or related amendment or a munitions license 
     application for foreign policy or national security reasons, 
     including concerns regarding the proliferation of ballistic 
     missile technology.
       (2) Study on comprehensive authorizations for missile 
     defense.--The Secretary of State shall, in consultation with 
     the Secretary of Defense, examine the feasibility of 
     providing major project authorizations for programs related 
     to missile defense similar to the comprehensive export 
     authorization specified in section 126.14 of the 
     International Traffic in Arms Regulations (section 126.14 of 
     title 22, Code of Federal Regulations).
       (3) Report.--Not later than 180 days after the date of the 
     enactment of this Act, the Secretary of State shall, in 
     consultation with the Secretary of Defense, submit to the 
     Committee on Foreign Relations and the Committee on Armed 
     Services of the Senate and the Committee on International 
     Relations and the Committee on Armed Services of the House of 
     Representatives a report on--
       (A) the implementation of the expedited procedures required 
     under paragraph (1); and
       (B) the feasibility of providing the major project 
     authorization for projects related to missile defense 
     described in paragraph (2).
       (b) Department of Defense Procedures for Expedited Review 
     of Licenses for the Transfer of Defense Items Related to 
     Missile Defense.--
       (1) Procedures.--Not later than 180 days after the date of 
     the enactment of this Act, the Secretary of Defense shall, in 
     consultation with the Secretary of State, prescribe 
     procedures to increase the efficiency and transparency of the 
     practices used by the Department of Defense to review 
     technical assistance agreements and related amendments and 
     munitions license applications related to international 
     cooperation on missile defense that are referred to the 
     Department.
       (2) Report.--Not later than 180 days after the date of the 
     enactment of this Act, the Secretary of Defense, in 
     consultation with the Secretary of State, shall submit to the 
     Committee on Armed Services and the Committee on Foreign 
     Relations of the Senate and the Committee on Armed Services 
     and the Committee on International Relations of the House of 
     Representatives a report--
       (A) describing actions taken by the Secretary of Defense to 
     coordinate with the Secretary of State the establishment of 
     the expedited review process described in subsection (a)(1);
       (B) identifying key defense items related to missile 
     defense that are suitable for comprehensive licensing 
     procedures; and
       (C) describing the procedures prescribed pursuant to 
     paragraph (1).
       (c) Definition of Defense Items.--In this section, the term 
     ``defense items'' has the meaning given that term in section 
     38(j)(4)(A) of the Arms Export Control Act (22 U.S.C. 
     2778(j)(4)(A)).

     SEC. 1069. POLICY ON NONPROLIFERATION OF BALLISTIC MISSILES.

       (a) Policy.--It is the policy of the United States to 
     develop, support, and strengthen international accords and 
     other cooperative efforts to curtail the proliferation of 
     ballistic missiles and related technologies which could 
     threaten the territory of the United States, allies and 
     friends of the United States, and deployed members of the 
     Armed Forces of the United States with weapons of mass 
     destruction.

[[Page 11925]]

       (b) Sense of Congress.--(1) Congress makes the following 
     findings:
       (A) Certain countries are seeking to acquire ballistic 
     missiles and related technologies that could be used to 
     attack the United States or place at risk United States 
     interests, forward-deployed members of the Armed Forces, and 
     allies and friends of the United States.
       (B) Certain countries continue to actively transfer or sell 
     ballistic missile technologies in contravention of standards 
     of behavior established by the United States and allies and 
     friends of the United States.
       (C) The spread of ballistic missiles and related 
     technologies worldwide has been slowed by a combination of 
     national and international export controls, forward-looking 
     diplomacy, and multilateral interdiction activities to 
     restrict the development and transfer of such weapons and 
     technologies.
       (2) It is the sense of Congress that--
       (A) the United States should vigorously pursue foreign 
     policy initiatives aimed at eliminating, reducing, or 
     retarding the proliferation of ballistic missiles and related 
     technologies; and
       (B) the United States and the international community 
     should continue to support and strengthen established 
     international accords and other cooperative efforts, 
     including United Nations Security Council Resolution 1540 and 
     the Missile Technology Control Regime, that are designed to 
     eliminate, reduce, or retard the proliferation of ballistic 
     missiles and related technologies.

  The PRESIDING OFFICER. The Senator from Nevada.


                           Amendment No. 3292

  Mr. REID. Mr. President, I ask unanimous consent that the amendment 
that is now pending be set aside and that I be allowed to call up 
Senator Leahy's amendment No. 3292.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Reid], for Mr. Leahy, proposes 
     an amendment numbered 3292.

  Mr. REID. 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 amend title 18, United States Code, to prohibit 
    profiteering and fraud relating to military action, relief, and 
                        reconstruction efforts)

       At the appropriate place, and insert the following:

     SEC. ___. WAR PROFITEERING PREVENTION.

       (a) Prohibition of Profiteering.--Chapter 47 of title 18, 
     United States Code, is amended by adding at the end the 
     following:

     ``Sec. 1038. War profiteering and fraud relating to military 
       action, relief, and reconstruction efforts

       ``(a) Prohibition.--
       ``(1) In general.--Whoever, in any matter involving a 
     contract or the provision of goods or services, directly or 
     indirectly, in connection with the war, military action, or 
     relief or reconstruction activities in Iraq, Afghanistan, or 
     any other country in which members of the United States Armed 
     Forces are engaged in any military or combat activities, 
     knowingly and willfully--
       ``(A) executes or attempts to execute a scheme or artifice 
     to defraud the United States or Iraq, Afghanistan, or such 
     other country;
       ``(B) falsifies, conceals, or covers up by any trick, 
     scheme, or device a material fact;
       ``(C) makes any materially false, fictitious, or fraudulent 
     statements or representations, or makes or uses any 
     materially false writing or document knowing the same to 
     contain any materially false, fictitious, or fraudulent 
     statement or entry; or
       ``(D) materially overvalues any good or service with the 
     specific intent to excessively profit from the war, military 
     action, or relief or reconstruction activities in Iraq, 
     Afghanistan, or such other country,

     shall be fined under paragraph (2), imprisoned not more than 
     20 years, or both.
       ``(2) Fine.--A person convicted of an offense under 
     paragraph (1) may be fined the greater of--
       ``(A) $1,000,000; or
       ``(B) if such person derives profits or other proceeds from 
     the offense, not more than twice the gross profits or other 
     proceeds.
       ``(b) Extraterritorial Jurisdiction.--There is 
     extraterritorial Federal jurisdiction over an offense under 
     this section.
       ``(c) Venue.--A prosecution for an offense under this 
     section may be brought--
       ``(1) in accordance with chapter 211;
       ``(2) in any district where any act in furtherance of the 
     offense took place; or
       ``(3) in any district where any party to the contract or 
     provider of goods or services is located.''.
       (b) Table of Sections.--The table of sections for chapter 
     47 of title 18, United States Code, is amended by adding at 
     the end the following:

``1038. War profiteering and fraud relating to military action, relief, 
              and reconstruction efforts.''

       (c) Civil Forfeiture.--Section 981(a)(1)(C) of title 18, 
     United States Code, is amended by inserting ``1038,'' after 
     ``1032,''.
       (d) Criminal Forfeiture.--Section 982(a)(2)(B) of title 18, 
     United States Code, is amended by striking ``or 1030'' and 
     inserting ``1030, or 1038''.
       (e) Money Laundering.--Section 1956(c)(7)(D) of title 18, 
     United States Code, is amended by inserting ``section 1038 
     (relating to war profiteering and fraud relating to military 
     action, relief, and reconstruction efforts),'' after 
     ``liquidating agent of financial institution),''.


                           Amendment No. 3307

  Mr. REID. Mr. President, I ask unanimous consent that the pending 
amendment be set aside, and I call up amendment No. 3307.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Reid] proposes an amendment 
     numbered 3307.

  Mr. REID. 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 require that any plan for compensation to individuals in 
military prisons in Iraq include provisions for compensation to former 
         prisoners of war held by the regime of Saddam Hussein)

       At the end of subtitle F of title X, insert the following:

     SEC. 1055. COMPENSATION FOR FORMER PRISONERS OF WAR.

       Any plan of the Secretary of Defense to provide 
     compensation to an individual who was injured in a military 
     prison under the control of the United States in Iraq shall 
     include a provision to address the injuries suffered by the 
     17 citizens of the United States who were held as prisoners 
     of war by the regime of Saddam Hussein during the First Gulf 
     War.

  Mr. REID. Mr. President, this amendment is very straightforward. The 
Secretary of Defense, in testimony to Congress several weeks ago, said 
that he is looking at ways to compensate the Iraqi nationals who were 
abused in American run prisons. I have no doubt that may be 
appropriate, but as the Defense Department considers its compensation 
plan, we should not forget about the American servicemen who were 
tortured and brutalized in this same prison, the Abu Ghraib prison, 
during the first Gulf War. I know many of my colleagues will remember 
the 17 American servicemen--including Colonel Jeff Tice from Las 
Vegas--who were captured and subjected to weeks of torture, beatings, 
electrocutions, starvation, and other despicable acts ordered by Saddam 
Hussein and carried out by the Iraqi intelligence service.
  The Federal Government, unfortunately, has turned its back on these 
heroes. Instead of working with them to deliver some means of 
compensation for their many injuries,--in fact, the money at one time 
was Saddam Hussein's money--the Bush administration has been 
outmaneuvering them at every turn, fighting them in court, moving to 
vacate earlier judgments they received, and trying to quash any efforts 
to bring them some relief. In fact, just last week the judgment was 
rescinded.
  I regret to say that the Justice Department has been effective, 
prevailing on the American POWs in this recent court of appeals case. 
The American POWs are back to square one. They have nothing except the 
permanent wounds which they suffered in Saddam's prisons.
  My amendment says that as the Secretary develops the compensation 
plan for the Iraqi nationals, he also needs to include a provision 
which addresses the injuries suffered by brave American prisoners of 
war. I don't know what the provision will say or should say, but the 
Defense Department cannot continue to turn its back on the brave men we 
sent into battle. I welcome their entry into this debate. They have 
been silent about this issue for too long. Nothing about this amendment 
prevents the Iraqis from being compensated; it just asks for some 
fairness.

[[Page 11926]]

Our own brave service men and women are entitled to it.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, before we started addressing the bill, the 
Senator from Nevada and I discussed this matter. I think we can work on 
this one. But the other amendment--I do not recall your mentioning that 
you were going to bring up a Leahy amendment.
  Mr. REID. I did not specifically mention that. I said I would be 
offering an amendment. Senator Leahy will not be here until Wednesday, 
so he asked that I lay it down. He will not be in the Senate until 
Wednesday. He has a personal situation that does not allow him to be 
here until the day after tomorrow. He asked me last week to do this.
  Mr. WARNER. So there will be no further addressing of that amendment 
until Wednesday.
  Mr. REID. Senator Leahy will not be back until Wednesday.
  Mr. WARNER. But you felt the necessity to it put it down now.
  Mr. REID. Yes. He has been waiting around. He wanted to lay it down 
after Senator Kennedy, but, of course, with the circumstances we have 
had, he has been unable to do that. The only amendment I did discuss 
with you was mine. I didn't discuss Senator Dodd's.
  Mr. WARNER. I understand. I discussed it with the Senator from 
Connecticut.
  Mr. REID. I thought we were trying to get some amendments down. Some 
of them, the managers will decide, along with the leadership, as to 
votes that may even take place this evening. We can pick and choose 
what will be done with these other amendments. The only thing I 
mentioned to the distinguished chairman of the committee is that it is 
our understanding the junior Senator from Idaho is going to lay down an 
amendment, which we have no objection to his laying that down, but we 
would not want to vote on that until there is a side-by-side with 
Senator Cantwell. That is the issue that has held up this bill for some 
time.
  Mr. WARNER. Mr. President, the distinguished leader made that very 
clear to me. It is just the Leahy amendment which caught me somewhat 
unprepared. I would hope I would have a chance to look at it.
  Mr. REID. If the Senator is concerned, I would be happy to discuss 
this prior to laying down any future amendments.
  Mr. WARNER. I would hope so.
  Mr. REID. Senator Leahy has been very patient.
  Mr. WARNER. I am not suggesting that anyone else has been impatient. 
It is just the first we have heard of it. I would hope to have, as a 
matter of comity, an amendment from this side and an amendment from 
that side, and we would go back and forth and not have too many up 
here, gatekeepers to hold, have to lay them all aside seriatim.
  Mr. REID. Maybe I should have waited until you offered one on the 
Republican side before I offered mine.
  Mr. WARNER. The distinguished leader and I have never had a problem 
we could not work out. If this is a problem, we will work it out
  Mr. REID. Our next amendment will be by the senior Senator from 
Connecticut.
  Mr. WARNER. I understand. We are prepared to address that amendment. 
For the moment, I will take a look at the Leahy amendment and figure 
out if there is a problem, and then I will bring it to the Senator's 
attention.
  I turn now to the Senator from Colorado, his second-degree amendment. 
Is he prepared to address that?
  Mr. ALLARD. Mr. President, I haven't had an opportunity to review 
this particular amendment that I understand has just been laid down to 
my amendment, and I need a little time to review that. I did have 
another amendment that we are sharing with the other side, expecting 
them to introduce another amendment. I am going to have to take some 
time here and look at this particular amendment because I have not seen 
this amendment.
  Mr. WARNER. I fully understand that. So that we can then have the 
efficiency of time, perhaps the Senator from Connecticut could then 
move to introduce his.


                    Amendment No. 3312, As Modified

  Mr. DODD. Mr. President, I would be glad to. I am impressed by the 
distinguished chairman's indulgence and patience as we wander through 
this maze of amendments. I believe I have to ask unanimous consent to 
set aside the pending amendment, and I make such a request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Mr. President, I call up amendment No. 3312 and send a 
modification of that amendment to the desk.
  The PRESIDING OFFICER. Without objection, the amendment is so 
modified. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Connecticut [Mr. Dodd] proposes an 
     amendment numbered 3312, as modified.

  Mr. DODD. 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 require the Secretary of Defense to provide reimbursement 
for certain protective, safety, or health equipment purchased by or on 
behalf of members of the Armed Forces for deployment in connection with 
 Operation Noble Eagle, Operation Enduring Freedom, or Operation Iraqi 
                                Freedom)

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

     SEC. 1068. REIMBURSEMENT FOR CERTAIN PROTECTIVE, SAFETY, OR 
                   HEALTH EQUIPMENT PURCHASED BY OR FOR MEMBERS OF 
                   THE ARMED FORCES FOR DEPLOYMENT IN OPERATIONS 
                   IN IRAQ AND CENTRAL ASIA.

       (a) Reimbursement Required.--(1) Subject to subsections (c) 
     and (d), the Secretary of Defense shall reimburse a member of 
     the Armed Forces, or a person or entity referred to in 
     paragraph (2), for the cost (including shipping cost) of any 
     protective, safety, or health equipment that was purchased by 
     such member, or such person or entity on behalf of such 
     member, before or during the deployment of such member in 
     Operation Noble Eagle, Operation Enduring Freedom, or 
     Operation Iraqi Freedom for the use of such member in 
     connection with such operation if the unit commander of such 
     member certifies that such equipment was critical to the 
     protection, safety, or health of such member.
       (2) A person or entity referred to in this paragraph is a 
     family member or relative of a member of the Armed Forces, a 
     non-profit organization, or a community group.
       (b) Covered Protective, Safety, and Health Equipment.--(1) 
     Subject to paragraph (2), protective, safety, and health 
     equipment for which reimbursement shall be made under 
     subsection (a) shall include personal body armor, collective 
     armor or protective equipment (including armor or protective 
     equipment for high mobility multi-purpose wheeled vehicles), 
     and items provided through the Rapid Fielding Initiative of 
     the Army such as the advanced (on-the-move) hydration system, 
     the advanced combat helmet, the close combat optics system, a 
     Global Positioning System (GPS) receiver, and a soldier 
     intercommunication device.
       (2) Non-military equipment may be treated as protective, 
     safety, and health equipment for purposes of paragraph (1) 
     only if such equipment provides protection, safety, or health 
     benefits, as the case may be, such as would be provided by 
     equipment meeting military specifications.
       (c) Limitations Regarding Date of Purchase of Equipment.--
     (1) In the case of armor or protective equipment for high 
     mobility multi-purpose wheeled vehicles (known as HUMVEEs), 
     reimbursement shall be made under subsection (a) only for 
     armor or equipment purchased during the period beginning on 
     September 11, 2001, and ending on July 31, 2004 or any date 
     thereafter as determined by the Secretary of Defense.
       (2) In the case of any other protective, safety, and health 
     equipment, reimbursement shall be made under subsection (a) 
     only for equipment purchased during the period beginning on 
     September 11, 2001, and ending on December 31, 2003 or any 
     date thereafter as determined by the Secretary of Defense.
       (d) Limitation Regarding Amount of Reimbursement.--The 
     aggregate amount of reimbursement provided under subsection 
     (a) for any protective, safety, and health equipment 
     purchased by or on behalf of any given member of the Armed 
     Forces may not exceed the lesser of--
       (1) the cost of such equipment (including shipping cost); 
     or

[[Page 11927]]

       (2) $1,100.
       (e) Ownership of Equipment.--The Secretary may provide, in 
     regulations prescribed by the Secretary, that the United 
     States shall assume title or ownership of any protective, 
     safety, or health equipment for which reimbursement is 
     provided under subsection (a).
       (f) Funding.--Amounts for reimbursements under subsection 
     (a) shall be derived from amounts any amounts authorized to 
     be appropriated by this Act.

  Mr. DODD. Mr. President, I will go through and explain what this 
amendment does. At the outset of my remarks, let me begin by commending 
the distinguished Senator from Virginia, the chairman of the Armed 
Services Committee, and Senator Levin of Michigan. The amendment I am 
raising here has been in many ways addressed by actions taken by the 
Armed Services Committee. I begin my comments by commending the 
chairman and the ranking member for the tremendous job they have done 
of improving what was a request by the administration in the area I am 
going to cover. I commend them as well for other matters but 
particularly on this point.
  Like all of my colleagues, without regard to party or ideology, we 
have been concerned over the last number of months with the increasing 
number of reports that our men and women in uniform have had to dig 
deep into their own pockets to pay for their own safety equipment. Most 
disheartening have been the news accounts of men and women in uniform 
having to buy their own body armor here at home or having it bought for 
them by their loved ones before they deploy to Iraq and Afghanistan or 
while they have been on duty.
  There are stories like that of SPC Bill Palifka, a member of the 
Connecticut National Guard's 248th Engineering Company which was 
stationed in the west of Baghdad last year. He learned shortly before 
deploying that his unit wouldn't have the interceptor vests that it 
needed in order to be safe in Iraq. So his mother Pene, from East 
Hartford, CN, went out and bought a vest for $1,100 from a private 
company.
  These stories, unfortunately, have been all too common, as this chart 
shows. I brought up the news article from the New York Times, reported 
just 3 weeks ago, an article entitled ``Bulletproof Vests Collected To 
Help A Son's Unit in Iraq.'' A New Jersey couple solicited donations of 
body armor from the New Jersey City police so their son could lay down 
protecting vests on the floor of his Humvee, currently in Iraq. I 
quote:

       Before his unit shipped from Kuwait to Iraq in March, First 
     Lt. Christian Boggiano, 23, made a special appeal to his 
     mother, Mary, by e-mail message. Please, he asked, scrounge 
     around for a few old police bulletproof vests and mail them 
     to [me]. ``Once I get up north, we'll use them on the doors 
     and floors of the Humvees so that when roadside bombs go off, 
     they'll catch a lot of shrapnel.''

  This is what the young lieutenant wrote to his parents, a 2002 
graduate of West Point.
  The Jersey Police Department and about 50 other police departments 
across New Jersey came through for Lt. Boggiano.
  His unit came through in ways our Government did not.
  In my mind, no U.S. soldier should have to get his mother or father 
to help send body armor for his missions in Iraq. But people like Mr. 
and Mrs. Baggiano and the good citizens associated with New Jersey 
police departments were driven to act. Why? Because there was a 
critical need to fully equip our troops. Unfortunately, Lt. Baggiano is 
not alone. A USA Today article recently reported on the village of 
Foley, AL, which held fundraisers, and eventually raised enough money 
to build and assemble their own protective steel armor for the Humvees 
of the AL National Guard's 711th Signal Battalion Charlie Company. That 
community should be commended. But this situation seems ludicrous to 
me. Our troops and their loving neighbors should not be spending their 
own money to make sure our soldiers can have the protection they need.
  For this reason, I am introducing an amendment today that will give 
our troops the support they deserve. My amendment will require the 
Secretary of Defense to reimburse soldiers, loved ones, and nonprofit 
organizations who have dug deep into their own pockets to provide our 
troops with the equipment their Government should have provided them 
all along. This amendment will serve the health, safety, and protection 
of our soldiers, covering expenditures on items such as body armor, 
vehicle protection, hydration equipment, advanced combat helmets, and 
other gear needed to serve our troops in Iraq and Afghanistan.
  Not a day goes by when we don't hear of an incident in Iraq where a 
so-called ``improvised explosive device'' or IED, has detonated, 
killing or maiming some of our brave men and women. At the outset of 
our post-war operations, it was reported that nearly one-quarter of 
American troops serving in Iraq did not have ceramic plated body armor, 
which can stop bullets fired from assault rifles and shrapnel. It took 
months and hundreds of U.S. casualties before the administration 
finally changed its priorities and decided to outfit all our deployed 
troops with the most modern interceptor body armor, and to outfit their 
vehicles with protective armor.
  In addition, according to the Army, soldiers have been spending 
upward of $300 per person on equipment to outfit themselves for war. In 
response, the Army established the ``Rapid Fielding Initiative'' 
designed to outfit our soldiers with the most modern equipment 
available so that they do not have to spend their own money on the 
latest combat helmets or hydration systems. With this program, our 
soldiers--many of whom are less than the age of 21, making under 
$20,000 a year--will have the right gear for their mission, and they 
won't have to dig deep into their own pockets to buy their own 
equipment. But unfortunately, not all of our soldiers in Iraq have 
access to this program, because in the past, it hasn't been fully 
funded. That needs to be remedied, and my amendment will make sure that 
our troops don't have to shell out their own money to get the Camelbak 
hydration systems, advanced combat helmets, and proper clothing they 
need to do their jobs.
  This chart shows what an average foot soldier is wearing in Iraq--60 
pounds of body armor plus tactical equipment in the hot desert heat, 
heavy Kevlar vests, high-tech GPS compass gear, special frame 
backpacks, and other survival gear. In 120 degrees, carrying all of 
this equipment becomes quite burdensome, and has made special hydration 
systems necessary for our troops to safely survive the desert heat. 
Water-pack systems called Camelbaks are now being attached to soldiers' 
backpacks, to allow them easy access to water even while they are in 
patrolling the streets of Iraq. And let's be honest about this. 
Camelbaks are no longer a matter of convenience. If a soldier has to 
stop moving to take out his canteen for a sip of water, he may be a 
sitting duck for a sniper or insurgent fire.
  Unfortunately, with a shortage of funds, the Army cannot afford to 
equip all its soldiers with this kind of equipment, so many soldiers 
are still using bulky canteens that quickly heat up in the desert sun. 
Most of the canteens do not have adequate capacity to carry all the 
water they need in Iraq's extreme heat. In other cases, soldiers are 
paying hundreds of dollars out of their own pocket to buy the equipment 
themselves, everything ranging from these Camelbaks to radios, because, 
in spite of the Army's stated priorities, the administration did not 
procure enough personal equipment for our fighting men and women. We 
need to do better than this.
  I want to commend the Armed Services Committee for recognizing the 
importance of this program as well as that of critical body armor 
systems. I was pleased to see the Senate Armed Services Committee 
override the President's considerably low budget request for force 
protection. Under the leadership of Senators Warner and Levin, the 
Armed Services Committee increased the Rapid Fielding Initiative from 
the Bush administration's requested $57.2 million to $262 million. They 
also demonstrated their usual good sense and further added to the

[[Page 11928]]

President's considerably low-budget request for personal body armor and 
armored vehicles. The Army told Congress the President's budget was 
shortchanging them by $295 million in interceptor body armor. And the 
Marines said they would be short $16.6 million if the Bush budget were 
to prevail. In spite of the President's proposals, the committee fully 
funded those programs.
  In addition, $905 million was put toward the Stryker armored vehicles 
that are already proving valuable in military operations in Iraq. 
Almost $1.1 billion, an increase of $927 million over the President's 
proposed budget, was used to accelerate procurement of up-armored 
humvees, as well as add-on ballistic armor for medium and heavy trucks, 
to protect our troops on patrol in hostile environments. As a result of 
these provisions, critical resources will be sent to our troops to 
enhance their safety while in harm's way.
  I applaud these efforts. I know some of my colleagues will suggest 
that because the committee has now funded these programs, my amendment 
is unnecessary. Or, as I have already been hearing, perhaps they will 
say that we are encouraging our troops to go out and buy new equipment 
since we'll just reimburse them in the end. I have the official DOD 
position paper with talking points opposing my amendment. I would like 
to address each of the issues raised, point by point.
  First, DOD says, ``the amendment may not support the purchase of the 
proper equipment. The DOD spends millions to test and procure the 
needed protective, safety, and health equipment for our service 
members. The DOD will have no way of knowing what testing personally 
procured items went through or whether the equipment is effective.'' 
This seems to be an unreasonable argument. In spite of the millions DOD 
spent on testing equipment, the fact remains that they failed to outfit 
our soldiers with the gear they needed. The Department acknowledged as 
much, saying that our soldiers did not receive enough personal body 
armor until January of this year and will still not have adequately 
armored vehicles until July. In my modified amendment, we say that a 
soldier's company commander has the discretion to decide which 
protective gear would be appropriate for reimbursement. These 
commanders on the ground know our soldiers' needs the most. And it 
makes sense for them to be the ones determining what equipment the 
soldiers lacked when they headed over to Iraq and Afghanistan. This 
addresses another concern DOD seems to have that my amendment is 
somehow too broad--this amendment says that if and only if a soldier 
purchased an item that he absolutely needed, according to the most 
knowledgeable soldiers in the field, he will be reimbursed for that 
item.
  DOD's talking points also suggest that my amendment will encourage 
service members and their loved ones to purchase equipment on their own 
outside this accountability with the exception of receiving future 
reimbursement.'' That is absolutely misleading.
  This amendment only applies to purchases made during finite periods, 
and by the Army's own admission they had not provided adequate supplies 
to our troops. This amendment only applies to purchases for personal 
body armor and other safety equipment that can be made only for the 
period between September 11, 2001, and December 31, 2003. For purchases 
to provide Humvee protection, claims can be made only for the period of 
September 11, 2001, and July 31, 2004.
  We allow an exception to that if the Army decides they will have all 
the necessary equipment by these dates. If for some reason they are 
unable to do it, we do not need to come back with another amendment. It 
seems to me we ought to leave it up to the military people to decide. 
If they are not able to meet the dates, then they have authority to 
reimburse later. I leave that up to them to avoid any future need of 
talking about this issue on the floor of the Senate. We are dealing 
with finite periods. It is the field commanders who make the decisions.
  Finally, to address the charge my amendment sets an unmanageable 
precedent that the DOD claims will saddle the Department of Defense 
with an open-ended financial burden, we also modified the amendment to 
set a $1,100 cap on money that can be reimbursed for purchases made on 
behalf of any one individual. I was going to make it $1,000. I changed 
it to $1,100. Candidly, a family in Connecticut paid $1,100 for the 
vest their child needed while in combat. So we made the cap at that 
level. I believe, therefore, my colleagues will find this proposal more 
reasonable and, most importantly, necessary. It is a finite period of 
time, there are individual caps on the amount that can be reimbursed, 
field commanders would make the decision, and any extension of time 
would have to come from a unilateral decision by the Department of 
Defense.
  I think it is reasonable. If people went out, such as my constituents 
or in communities in New Jersey or towns in Alabama and provided 
additional protection for our service men and women, the very least, it 
seems to me, we can do is reimburse their individual soldiers, their 
families, or the organizations that provided that protection.
  I, again, think we all understand how these things can happen. 
Certainly, there should have been better preparation to see to it these 
young men and women would have all the protection necessary, but for a 
variety of reasons, which we do not need to pore over, they were not. 
And by the Department of the Army's own admission, we were not able to 
provide that body armor until December 31 of last year. So there is a 
gap of almost 2 years where people were acquiring that equipment, and 
up until July of this year, the Humvee protections will not be in 
place.
  I do not think it is asking too much during a finite period of time 
for a limited amount of money, where field commanders make the 
decisions, that we cannot say to these families: Show us the proof of 
what you paid for this equipment, let the field commanders decide, and 
if you meet those tests, then your Government is going to say you 
should not have to dish out money from your own pockets, particularly 
when we are talking about 21-year-old kids making $20,000 a year, where 
they may have invested $1,000 in decent vests to protect from IEDs and 
other attacks occurring on the dangerous streets of Iraq and 
Afghanistan.
  I believe this is a reasonable proposal we have offered. If we fail 
to adopt this amendment, I believe my colleagues and I will once again 
be forced to answer tough questions, as we all do, when we go back and 
meet our returning soldiers from the Guard and Reserve and their 
families in our respective States.
  At every meeting I have had in the State of Connecticut with families 
of men and women serving in Iraq, this issue has come up: Why are we 
not providing the protection these men deserve?
  I, along with General Cugno, my National Guard commander in 
Connecticut, tried to address these questions of how these things 
happen. I told him we would make an effort to see that any costs they 
incurred of these items would be reimbursed. They believe that is the 
right thing to do. I hope my colleagues do as well.
  I know money is tight this year. We are facing enormous budget 
deficits. Again, I commend my friends and colleagues on the Armed 
Services Committee. Mr. President, they have done a very good job in 
beefing up the numbers that otherwise come from the Department of 
Defense and the White House, and by adding additional resources, they 
have made it possible to do this.
  The amendment provides Secretary of Defense discretion to determine 
from which accounts moneys will be sought to reimburse our soldiers. 
One obvious place from which these moneys could be drawn is the $2.5 
billion contingency fund that was added by the Warner amendment a few 
days ago as part of the $25 billion supplemental for operations in Iraq 
and Afghanistan.
  That is my argument. That is the amendment. My hope is we will be 
able to adopt it without much fanfare. It seems to be a reasonable 
request to make on behalf of our men and women in uniform.

[[Page 11929]]

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank our colleague. Let me say at the 
offset, he has been most cooperative in working on this amendment, and 
he recognizes the concerns the Department of Defense had and the staff 
for the majority had. We have determined that the Senator has met each 
and every one of those concerns with a modification to his original 
amendment. So I am prepared to indicate acceptance of that amendment, 
but I wish to engage the Senator from Connecticut in a short colloquy.
  This is a most unusual type of situation, Mr. President. We had the 
call-up of a number of reservists, units put together rather hurriedly 
in some instances. As the Department of Defense--most specifically the 
Army--stated, some errors were made, but I do not believe, as I 
listened very carefully to the Senator's presentation, that the total 
number of errors is very large.
  I do not find that it was a widespread situation. I say that only to 
indicate to the American public that following that unusual type of 
amendment, which is necessary and we are prepared to accept it, but I 
do not want to leave the impression with the American public that our 
commander, starting with the Commander in Chief, the President, sent 
men and women into harm's way where there was a widespread lacking of 
the necessary equipment to give them the protections needed.
  The concept of the use of body armor has been evolving over the 
years. It is now proven to have been very successful in the operations 
in Afghanistan and Iraq. The orders the Army had placed somewhat fell 
short, as the Senator said, over a period of time last fall. Our 
committee, indeed the other means of financing--I think some of the 
money in the supplemental that the Congress has adopted went to provide 
the necessary funds, but it was not a widespread situation. I think the 
Senator would concur with me on that point; would he not?
  Mr. DODD. Mr. President, if my colleague will yield, I certainly do 
not disagree. I do not know the numbers myself. Others may have more 
detailed information. We know there were some large stories--I do not 
have all of them here. There have been widespread reports of it.
  I accept in part what my colleague has said, that it would be 
unnecessary for massive amounts of this kind of armor. There was an 
anticipation about a different reception after the military victory in 
Iraq. We discovered otherwise. Of course, somebody argued we should 
have anticipated that. Nonetheless, there was concern.
  I am not prepared to make a case here that this is terribly 
widespread. I do not know that. I do know there were enough examples of 
it that I thought it warranted an issue.
  I point out, again--I say this to my friend and Senator Levin as 
well--my colleagues have done a terrific job. There is a difference in 
this budget between what was sent and what the committee is asking us 
to support when it comes to these issues, and the significant increase, 
from $57 million to $262 million for buying additional equipment, is a 
significant amount of money. I commend both Senators for doing that.
  There were other areas where additional resources were provided by 
the committee that were not otherwise requested by the DOD. I applaud 
my colleagues for that. I do not know what the numbers reflect in terms 
of widespread use. The committee did a very good job, and, as I said at 
the outset, I commend you immensely for having recognized this issue 
and jumped into the void so that today it looks as though, based on 
assessments, by July 31 of this year the issue involving the Humvees 
will be addressed, and back in December of last year the issue looks as 
if it was addressed in terms of body armor. So we cover those periods 
where there apparently was a lack of resources.
  I do not think the issue would have come to closure if it had not 
been for the Senator from Virginia, and I also say this to my colleague 
from Michigan. It made a significant difference, and I thank my 
colleagues immensely on behalf of my constituents and literally 
thousands of soldiers serving in dangerous places.
  Mr. WARNER. I thank my colleague for his statement. I would like to 
address the Humvees because our committee had a special session on that 
issue. We should understand the Humvee was designed at the time to meet 
the array of weaponry and other types of threats to it.
  The proliferation, primarily in the campaign in Iraq, of the use of 
buried munitions in the roadway activated by a series of electronic 
ways, or hand operated, this proposed a challenge because the explosion 
came up beneath the vehicle. I think in a timely way we started to 
address that by putting armor on certainly the Humvees and leaving 
others without armor. One might ask: Well, why is that? It is because 
once the armor is added, the maneuverability of the particular vehicle 
that is armored becomes quite limited and that limits its tactical 
role.
  Consequently, the Army thought, and I agree with the Army on this, 
they needed inventories of both armored and unarmored Humvees. It got 
to be a misperception across the land that we were not providing 
adequate armor for our men and women when, in fact, we were, but we had 
to have the two different inventories and, depending on which vehicle 
was being used in an operation, problems could arise.
  So I am prepared on this side to accept the amendment.
  Mr. DODD. Mr. President, I thank my colleague, but I had hoped, if he 
would not object, we could ask for a rollcall vote because we will be 
looking to vote anyway, and this would help the conference as a whole. 
I know we want to move things along.
  Mr. WARNER. Certainly the Senator has a right to request it.
  Mr. DODD. I would like to respect my friend from Virginia.
  Mr. WARNER. I was wondering if, as we go further into the afternoon, 
depending on the number of votes, we could vitiate the vote, although I 
recognize the Senator has a perfect right to ask for the vote.
  Mr. DODD. That is a reasonable request. I will ask for one and we can 
vitiate it later.
  Mr. WARNER. That is a prudent way to proceed.
  Mr. DODD. I ask for the yeas and nays on the Dodd amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be.
  The yeas and nays were ordered.
  Mr. WARNER. Now we will turn to this side of the aisle for an 
amendment and then come back to the other side.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I rise today with the intention of 
calling up amendment No. 3223 to S. 2400, but rather than calling up 
that amendment, since my intention was to withdraw it, I will make a 
few comments on it.
  I preface my comments by stating something to which no Member of the 
Senate will disagree, and that is that the way our Nation uses the 
Reserve components of the U.S. military has fundamentally changed over 
the last 15 years. Reserve components have changed from a ``force in 
reserve'' to an absolutely essential component of the warfight. Almost 
every operation the military engages in today, and career field in the 
Army, Navy, Air Force, and Marine Corps are represented by our Guard 
and our Reserve.
  The Reserve components are now and continue to become a true 
operational reserve without which our military cannot operate. This is 
reflected primarily in the rate of deployments and mobilizations of the 
Reserve components. This rate of utilization, which has increased three 
or fourfold over the last decade, necessitates that we reexamine the 
way we manage the Reserve.
  The Department of Defense has made changes in this area by improving 
the process of training and equipping the Reserve and supporting 
changes in personnel policies that improve quality of life for members 
of our Reserve.
  I would say with respect to that, last year in the Defense 
authorization bill we made some changes. Some of them

[[Page 11930]]

seemed fairly minimal, such as allowing our Guard and Reserve members, 
while they were not on active duty, to have access to commissaries. 
This seemingly innocent act on our part was a huge benefit to our Guard 
and Reserve members who had the availability of commissaries when they 
were on active duty, but now they have it full time. Particularly, 
those who are close to military installations have the availability of 
services they simply did not have before, and it has been a huge morale 
booster for our Guard and Reserve members.
  With the possible exception of the TRICARE issue, though, the changes 
that we have made have been at the margins. I believe we need to 
reexamine the personnel policies for the Reserve components based on 
the fact that the way we use them has fundamentally changed.
  As the chairman of the Armed Services Committee Subcommittee on 
Personnel and co-chairman of the Senate Reserve Caucus, this is an 
issue I have wrestled with considerably and want to be sure that we 
account for as we provide oversight of the personnel policies of the 
Department of Defense.
  My amendment follows closely a bill that my colleague from Georgia, 
Senator Zell Miller, introduced several months ago. I, along with 
Senators Cochran, DeWine, Murkowski, Collins, and Ben Nelson, joined 
Senator Miller in cosponsoring this bill. My amendment would lower the 
age at which members of the Reserve component could collect retirement 
pay based on the philosophy of a reduced annuity. The amount of 
retirement pay would be reduced by a small percentage for each year 
below the age of 60 that a member chose to collect their retirement--
very similar to the way Social Security benefits are reduced if a 
beneficiary determines they want to retire following the achievement of 
age 62.
  According to CBO, this provision would cost approximately $5 billion 
over 5 years.
  There are several other bills pending before the Senate that would 
change the retirement plan for reservists. In fact, I understand the 
Senator from New Jersey, Mr. Corzine, may introduce an amendment this 
week that would reduce the age at which members of the Reserve could 
collect retirement from age 60 to age 55 with no corresponding 
reduction in the annuity. According to CBO, this amendment would cost 
more than $8 billion over 5 years.
  The Senator from Louisiana, Ms. Landrieu, has also introduced a bill 
that would reduce the age to 55 but require a reservist to stay in the 
Reserve longer in order to receive pay earlier.
  All of these bills have merit. All of them deserve to be debated. 
However, all of them, including my own, carry a significant financial 
cost. What we have to do is try to balance, particularly in the middle 
of a war that we are now engaged in, whether we want to utilize our 
funds to provide weapons systems to our men and women who are now in 
harm's way or whether we want to provide this kind of benefit which was 
not anticipated in the budget.
  As I stand here today, there are three studies currently underway to 
address the issue of Reserve retirement. As I have already stated, 
there are many good ideas regarding how the retirement benefit for the 
Reserve and the Guard should be changed, and they all have merit.
  However, there are two important things about these various options 
that we do not know. The first is we do not have a firm idea of how 
much any of these options will cost. We have estimates from CBO to 
which I have already alluded. They are significant. Costing these 
various proposals requires predicting the way people are going to 
behave, and this is an inexact, difficult science.
  Secondly, anytime one makes even a small change to something as large 
and complex as the military personnel process, it changes the entire 
system. A change in the Reserve retirement system will have effects 
both on the Reserve and Active-Duty retention, recruiting, and 
promotion opportunities within the ranks which we cannot foresee 
without examining the associated impacts very closely.
  That is why, even though I have introduced an amendment on this 
issue, I do not believe that now is the best time to act on the issue. 
I think we should wait until the three reports currently underway are 
completed and we have additional data upon which to look at this issue 
and make a better evaluation.
  With this in mind, as I said earlier, I am simply not going to offer 
my amendment today. Once we have the necessary data to show how the 
various proposals will impact the force and the cost implications, I 
look forward to revisiting this issue and dialoguing with the other 
Senators who have introduced bills or amendments on this issue and 
those who are concerned, as I am, about how we manage our Reserve 
components.
  There is no more important issue facing the Personnel Subcommittee of 
the Senate Armed Services Committee than how we treat our men and women 
in uniform, and their families, because every day this is more a family 
issue and a family-oriented military. It is my hope that as we proceed 
with this bill over this week and as the committee entertains the 
legislation and policy changes in the coming months, that we keep the 
people at the receiving end of our decisions and deliberations foremost 
in our minds.
  We will continue to include the members of the Reserve components in 
those deliberations and ensure the Senate adopts policies that work to 
their advantage, that are fiscally responsible, and that recognize the 
significant changes that have taken place in the Reserve over the past 
decade and a half.
  I thank my colleague, the Senator from Nebraska, Mr. Ben Nelson, for 
his cooperation and his work as we have moved through the Personnel 
Subcommittee process over the last year in preparation for this bill. 
Senator Nelson feels the same way I do about our Guard and Reserve and 
was a cosponsor of a number of the amendments to which I have alluded.
  I also thank the chairman and the ranking member. We have had 
dialogues about this issue within our committee, and without their 
support, guidance, and counsel, we would not be at the point we are 
with respect to quality-of-life issues that our men and women in both 
the Guard and the Reserve deserve and ultimately will receive once we 
enter into the budget process at the appropriate time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.


                           Amendment No. 3305

  Mr. WYDEN. Mr. President, I ask unanimous consent to call up 
amendment No. 3305, and ask for its immediate consideration.
  The PRESIDING OFFICER. Without objection, the clerk will report the 
amendment.
  The legislative clerk read as follows:

       The Senator from Oregon [Mr. Wyden], for himself and Mr. 
     Dorgan, proposes an amendment numbered 3305.

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

 (Purpose: To impose a limitation on Department of Defense contracting 
   for performance of acquisition functions closely associated with 
                   inherently governmental functions)

       On page 194, after line 22, insert the following:

     SEC. 867. CONTRACTOR PERFORMANCE OF ACQUISITION FUNCTIONS 
                   CLOSELY ASSOCIATED WITH INHERENTLY GOVERNMENTAL 
                   FUNCTIONS.

       (a) Limitation.--(1) Chapter 141 of title 10, United States 
     Code, is amended by inserting after section 2382 the 
     following new section:

     ``Sec. 2383. Contractor performance of acquisition functions 
       closely associated with inherently governmental functions

       ``(a) Limitation.--The head of an agency may enter a 
     contract for the performance of acquisition functions closely 
     associated with inherently governmental functions only if the 
     Secretary determines that--
       ``(1) appropriate military or civilian personnel of the 
     Department of Defense cannot reasonably be made available to 
     perform the functions;
       ``(2) appropriate military or civilian personnel of the 
     Department of Defense are--

[[Page 11931]]

       ``(A) to supervise contractor performance of the contract; 
     and
       ``(B) to perform all inherently governmental functions 
     associated with the functions to be performed under the 
     contract; and
       ``(3) the contractor does not have an organizational 
     conflict of interest or the appearance of an organizational 
     conflict of interest in the performance of the functions 
     under the contract.
       ``(b) Definitions.--In this section:
       ``(1) The term `head of an agency' has the meaning given 
     such term in section 2302(1) of this title, except that such 
     term does not include the Secretary of Homeland Security or 
     the Administrator of the National Oceanic and Atmospheric 
     Administration.
       ``(2) The term `inherently governmental functions' has the 
     meaning given such term in subpart 7.5 of part 7 of the 
     Federal Acquisition Regulation.
       ``(3) The term `functions closely associated with 
     inherently governmental functions' means the functions 
     described in section 7.503(d) of the Federal Acquisition 
     Regulation.
       ``(4) The term `organizational conflict of interest' has 
     the meaning given such term in subpart 9.5 of part 9 of the 
     Federal Acquisition Regulation.''.
       (2) The table of sections at the beginning of such chapter 
     is amended by inserting after the item relating to section 
     2382 the following new item:

``2383. Contractor performance of acquisition functions closely 
              associated with inherently governmental functions.''.

       (b) Effective Date and Applicability.--Section 2383 of 
     title 10, United States Code (as added by subsection (a)), 
     shall take effect on the date of enactment of this Act and 
     shall apply to--
       (1) contracts entered into on or after such date;
       (2) any task or delivery order issued on or after such date 
     under a contract entered into before, on, or after such date; 
     and
       (3) any decision on or after such date to exercise an 
     option or otherwise extend a contract for program management 
     or oversight of contracts for the reconstruction of Iraq, 
     regardless of whether such program management or oversight 
     contract was entered into before, on, or after the date of 
     enactment of this Act.

  Mr. WYDEN. Mr. President, for a number of months I have been working 
with colleagues on both sides of the aisle--Senator Collins from Maine, 
Senator Stevens, Senator Warner--to try to get more oversight over the 
billions of dollars worth of contracts that have been and are being let 
to rebuild Iraq. I come to the floor today to offer an amendment with 
my colleague and friend, Senator Dorgan of North Dakota. We have 
discussed this amendment with Senator Levin and Senator Warner.
  What Senator Dorgan and I have found is a shocking system of so-
called oversight with respect to the use of taxpayers' dollars. With 
the nation facing rising deficits and scarce federal dollars for our 
many problems here at home, it is imperative that there be strong 
oversight over the use of taxpayers' money. What our amendment deals 
with is literally the outsourcing of the oversight of the billions of 
dollars worth of contracts to rebuild Iraq. It sounds incredible, but 
the heart of the problem is, instead of having Federal employees 
oversee these billions of dollars worth of contracts to rebuild Iraq, 
the Department of Defense has outsourced the oversight of these huge 
contracts to private companies. These companies are ``overseeing'' the 
work of other private companies. If many of these companies didn't 
already have joint ventures elsewhere or interlocking financial 
interests or boards of directors, I guess one could plausibly say this 
would be acceptable. But that has not been the case. Putting these 
companies in charge of oversight of one another strikes Senator Dorgan 
and me as simply an invitation to flagrant fraud, waste and abuse of 
taxpayer money.
  Senator Dorgan is here as well, and I want to give him ample time to 
discuss this, but I would like to give a brief example of the kind of 
problem we seek to address in our legislation. The Parsons Company won 
two separate Defense Department oversight contracts that totaled nearly 
$72 million. Under each of those contracts, it overseas the Fluor 
Company in Iraq. At the same time, Fluor and Parsons have a $2.6 
billion joint venture ongoing in Kazakhstan.
  The question is, with such a significant shared financial interest, 
how in the world is anybody in a situation like that going to have a 
real incentive to take out a sharp pencil and protect the taxpayers.
  We are talking about vast sums of money. $18 billion has been 
allocated by the Congress for reconstruction, and thus far 17 contracts 
have been let: 10 for reconstruction and 7 for overseeing the 
reconstruction. I thank the distinguished Senator from Virginia for his 
cooperation on this amendment. As I discussed with him, this amendment 
builds on the work that I was able to do in cooperation with Senator 
Dorgan and Senator Collins on the issue of no-bid contracts in Iraq. 
This amendment establishes that oversight and the protection of the 
taxpayers' interests in these billions of dollars of contracts, is a 
Government function. It is not something that can be outsourced. This 
amendment will prohibit companies with interlocking financial interests 
from ``overseeing'' one another.
  We talk often about giving the fox the opportunity to oversee the 
henhouse. This is a textbook case of just such a situation.
  I mentioned to the distinguished chairman of the committee, the 
Senator from Virginia, and the ranking member of the committee, the 
Senator from Michigan, that this boils down to a simple issue of 
commonsense. This is not a Democrat or Republican issue. Senator Dorgan 
and I are pursuing this as a commonsense issue--oversight should not be 
outsourced, particularly when the projects to be reviewed involve 
billions of taxpayer dollars. What's worse--these are cost-plus-plus 
contracts. The contractors here get any unforeseen costs, plus they are 
eligible for a bonus. Essentially, these contractors are rewarded if 
the folks they oversee perform well. But who evaluates how well those 
folks perform? The oversight contractors. Clearly, there are some 
perverse incentives at work in these oversight contracts.
  We are talking about cost-plus-plus contracts that involve billions 
of taxpayers' dollars. It seems to me we have to get the oversight back 
where it belongs, and that is in the hands of the Department of Defense 
and not in the hands of the private contractors. Oversight is 
inherently a governmental function because accountability must be first 
and foremost to taxpayers.
  I see my friend and colleague from North Dakota here. I want to yield 
time to him. But in wrapping up this portion of my remarks, I would 
like to express my appreciation to the Senator from Michigan, Mr. 
Levin, and to the chairman of the committee, Senator Warner. This 
amendment, in fact, builds on some of the earlier work we have tried to 
do in a bipartisan fashion. It essentially comes about because, as 
Senator Dorgan and I have gone forward to try to make sure taxpayers' 
interests are protected, we found a massive loophole, a loophole that 
we think nobody in the Senate confronted in the past, that allows for 
private companies to oversee other private companies, even when they 
have what strikes us as very serious potential conflicts of interest.
  So we are looking forward, with Chairman Warner and Ranking Member 
Levin's cooperation, to have this amendment accepted. I believe it 
warrants bipartisan support.
  I yield the floor.
  Mr. WARNER. Mr. President, I have looked this over and I am of the 
opinion that it can be eventually accepted. I am wondering if the 
colleagues would just allow the Chair to put in a quorum call for no 
more than 5 minutes, and then I will be right back to the floor to 
address this amendment.
  Mr. DORGAN. Mr. President, it was my intention to speak in favor of 
the amendment prior to that.
  Mr. WARNER. I am very anxious to hear that. My requirement is to 
depart the floor to check on something and I will be right back.
  Mr. DORGAN. At which point I would be recognized?
  Mr. WARNER. Absolutely. I have no objection to that.
  Mr. DORGAN. I am agreeable to that.
  Mr. WARNER. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.

[[Page 11932]]


  Mr. WARNER. 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. WARNER. Mr. President, I now understand that the amendment will 
be accepted in due course, but I am anxious to hear the perspectives of 
the other cosponsor. I thank my colleagues for their courtesy.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I join my colleague, Senator Wyden, in 
working on this amendment.
  Let me say first that, as many know, I did not support the funding 
for reconstruction projects in Iraq with American taxpayers' money. My 
feeling was, if we were going to use American taxpayers' money to build 
children's hospitals and restore marshland and swampland, or to 
purchase garbage trucks, or to have a roads or jobs program, it ought 
to be done in this country--not Iraq. I felt strongly that the ability 
to fund the reconstruction in Iraq could easily come from Iraq oil.
  It is true they are not pumping quite as much as they had anticipated 
by July 1 or June 1 of this year, but it is also true that the price is 
near double what they expected--359 million barrels a day, which is 
what they intend to get. They will have a substantial amount of excess 
income over that which they need for Iraq and could easily pay for the 
reconstruction of Iraq. It is estimated that $160 billion in a 10-year 
period is the export value of Iraqi oil generated for the country of 
Iraq. But, nonetheless, the administration and a majority in the Senate 
and the Congress decided that U.S. taxpayers should fund the 
reconstruction in Iraq.
  The only cut in the reconstruction proposal of some $20-plus 
billion--the only cut in expenditures of that proposal--was offered by 
Senator Wyden and myself. We cut $1.8 billion from it with an amendment 
on the floor of the Senate which included cutting $100 million for 
gasoline that was being transported.
  Incidentally, I held a hearing on that in the policy committee. We 
had the person who was in charge of delivering gasoline from the 
Department of Defense to projects such as this, and he said that the 
contract for the delivery of gasoline into Iraq was costing $1 more a 
gallon than would have been delivered into Iraq by the agency in the 
Department of Defense which normally does that.
  Having said all that--pointing out we were the only ones cutting 
funding for the reconstruction projects--the Congress still passed that 
reconstruction project of nearly $18 billion in U.S. taxpayer funds for 
the reconstruction in Iraq.
  My concern--and I think the concern expressed by my colleague from 
Oregon--is that money be spent effectively and wisely and not wasted. 
If it is going to be spent--and I did not think this was the way to do 
it--but if it is going to be done, let us make sure it is not wasted.
  The Pentagon announced that it wants to fund it and has already 
signed and implemented contracts to fund $121 million for outsourcing 
the oversight of these reconstruction contracts.
  There is plenty going on in Iraq that ought to give us pause with 
respect to contractors. This is not a reconstruction contract. But you 
know what we know now about the Halliburton corporation charging the 
Federal Government for 42,000 meals a day and serving 14,000 meals a 
day to our soldiers. Let me say that again: charging for 42,000 meals a 
day which they say they delivered to U.S. soldiers when in fact they 
were delivering 14,000 meals a day and missing 28,000 meals somewhere.
  There is plenty of reason to be concerned about contractors that are 
engaged in that kind of behavior.
  With respect to these series of contracts for $129 million, they have 
selected corporations, they have already signed the contracts. The 
taxpayers, much to our chagrin, are obligated to pay these contracts. 
They have signed the contracts with companies that have inherent 
conflicts, in my judgment. How do you oversee a contract of another 
company with whom you already have an established business relationship 
in another contract? I don't know how you do that. Yet these contracts 
were signed and sealed and delivered and the taxpayer is on the hook 
for $129 million.
  I happen to think ``oversight'' is a responsibility of the 
Government, of the Federal agency that is going to spend the money. It 
is their responsibility to provide oversight, not someone else's 
responsibility. The saying is, ``The buck stops here.'' Where does it 
stop? It stops, it seems to me, with the Federal agency that is given 
the funding by this Congress. It is their requirement to provide 
oversight to make sure that funding is used in a manner that is 
appropriate.
  In this case, the Defense Department has said, no, we are not going 
to do that. We are going to contract out oversight responsibilities. 
Now I understand they are saying, well, it is not oversight. Really? 
That is what the provisional authority calls it. In writing, these are 
oversight contracts for $129 million. There ought not be oversight that 
is contracted out. It is a responsibility of the Federal agency.
  This chart shows some of the relationships of the companies, 
companies that are overseeing other companies. I don't intend to say 
with this chart these are bad companies. I intend to say a company that 
has a relationship with another company, a business, a contractual 
relationship, a financial relationship that is now told to oversee the 
work of this company, even though you have other interests and other 
financial arrangements with this company, I am saying there is an 
inherent conflict there. That is not the way to do oversight. Even if 
these potential conflicts did not exist, I would not support these 
contracts. Oversight is not the responsibility of a hired gun 
someplace. It is the responsibility of the Federal agency.
  Senator Wyden and I have offered a relatively simple amendment. We 
would have offered an amendment that strikes or nullifies those 
contracts, but we have been told to do so still leaves the Federal 
Government on the hook. That does not make much sense. It seems to me 
what we ought to do is make sure this does not happen again.
  The amendment we are offering says oversight is a government 
responsibility, first and foremost. We establish that principle. 
Second, we say these oversight contracts shall not be renewed. And 
third, it says the Pentagon cannot award such contracts in the future.
  We have provided a couple of exceptions where we think it is 
impossible for them to do anything other than have some narrow 
contracts where it is required, but generally speaking, the approach 
the Pentagon has used would be prevented prospectively by the amendment 
we now offer.
  Again, our original proposal would have terminated all these 
contracts outright. I prefer that be the case. These contracts, as I 
understand it, would still obligate the American taxpayers, and are 
enforceable. I think that is an approach we cannot get through.
  Mr. WARNER. If the Senator will yield, yes, the Senator has very 
carefully recrafted the amendment. That is the reason we will be able 
to accept it on this side.
  Mr. WYDEN. Will the Senator yield?
  Mr. DORGAN. I am happy to yield.
  Mr. WYDEN. I appreciate the Senator's point and the cooperation of 
the Chairman and Senator Levin.
  It is also clear if anyone tries to renew any of the old contracts 
which we sought to set aside, they would have to meet the new conflict-
of-interest standards established in our amendment, is that correct?
  Mr. DORGAN. I say to my colleague from Oregon, that is correct. Our 
approach is simple. We think there are so many billions of dollars 
ricocheting around on reconstruction with respect to Iraq that there is 
a profound opportunity for waste. I don't think anyone in this Chamber 
wants money wasted. We all want good oversight. We want good 
stewardship of the taxpayers' funds. We do not believe that is the case 
when inherent conflicts of interest result. That is the purpose of our 
offering this amendment.

[[Page 11933]]

  Let me again say the Senator from Oregon, Senator Wyden, not just on 
this issue but on the other issues relating to the $1.8 billion in 
spending cuts we got done with our joint amendment, does extraordinary 
work in this area. I appreciate the opportunity to work with him.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I commend our colleagues from Oregon and 
North Dakota for this amendment. They have put their finger on a very 
significant problem in Iraq which is symptomatic. They would be the 
first to acknowledge this is a deeper problem. That is, we have reduced 
the number of our acquisition workforce.
  The chairman of the committee and other members of the Armed Services 
Committee, including myself, every year for the past I don't know how 
many years have been to conference with the House of Representatives. 
They have tried and successfully achieved reduction to the acquisition 
workforce despite our opposition to those efforts. They have made major 
cuts in the acquisition workforce. They call it bureaucracy. We have 
fought against some of the cuts. We have been able to reduce the size 
of the cuts. Nonetheless, over time, there have been significant 
reductions in the acquisition workforce, including people to oversee 
contracts, which is what we are talking about here.
  Our good friends from Oregon and North Dakota have identified a real 
problem. I congratulate the Senators for doing it. It is a problem 
reflective of a deeper problem we have now in the Defense Department.
  There has been an amendment offered by Senator Byrd which we have 
accepted which gradually increases the size of the acquisition 
workforce. That would help get to the underlying systemic cause of this 
problem. We are going to go to conference, hoping we will be able to 
add some people to our acquisition workforce who can do the very 
oversight which is so essential to avoid the very conflicts of interest 
which the two Senators have identified.
  The fact that the Byrd amendment has been adopted and we have added 
people on this side will put us in a better position, as well as this 
amendment, of course, of the Senators from Oregon and North Dakota.
  I commend them. It will help us not simply to hopefully avoid this 
kind of absurd situation where nongovernmental employees are overseeing 
the operations of Government contracts, frequently with inherent 
conflicts of interest involved, but where we are going to be able to 
cure the cause of this situation as well on a long-term basis.
  I commend them and thank them for the modifications they have made 
which I think will put us in a stronger position to defend this action 
in conference.
  Mr. WARNER. Mr. President, this side is prepared to accept this 
amendment.
  Mr. WYDEN. I yield the floor and thank the distinguished chairman and 
Senator Levin.
  Mr. DORGAN. I ask the amendment be accepted.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 3305) was agreed to.
  Mr. LEVIN. I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. WARNER. I see my distinguished colleague from Connecticut and I 
yield the floor.
  Mr. DODD. I ask unanimous consent to lay aside the pending amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Amendment No. 3313, as Modified

  Mr. DODD. I call up amendment 3313 and I send a modification to the 
desk.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Connecticut [Mr. Dodd], for himself, Mr. 
     Lautenberg, and Mrs. Feinstein proposes an amendment numbered 
     3313, as modified.

  The amendment (No. 3313), as modified, is as follows:

(Purpose: To prohibit the use of contractors for certain Department of 
  Defense activities and to establish limitations on the transfer of 
           custody of prisoners of the Department of Defense)

       On page 195, between lines 10 and 11, insert the following:

     SEC. 868. PROHIBITIONS ON USE OF CONTRACTORS FOR CERTAIN 
                   DEPARTMENT OF DEFENSE ACTIVITIES.

       (a) Prohibition on Use of Contractors in Interrogation of 
     Prisoners and Combat Missions.--(1) Notwithstanding any other 
     provision of law and except as provided in paragraph (2), the 
     use of contractors by the Department of Defense is prohibited 
     for activities as follows:
       (A) Interrogation of prisoners, detainees, or combatants at 
     any United States military installation or other installation 
     under the authority of United States military or civilian 
     personnel.
       (B) United States-led combat missions that require routine 
     engagement in direct combat on the ground, except in cases of 
     self-defense.
       (2)(A) During fiscal year 2005, the President may waive the 
     prohibition in paragraph (1) with respect to the use of 
     contractors to provide translator services under subparagraph 
     (A) of that paragraph if the President determines that no 
     United States military personnel with appropriate language 
     skills are available to provide translator services for the 
     interrogation to which the waiver applies.
       (B) The President may also waive the prohibition in 
     paragraph (1)(A) with respect to any other use of contractors 
     otherwise prohibited by that paragraph during the 90-day 
     period beginning on the date of the enactment of this Act, 
     but any such waiver shall cease to be effective on the last 
     day of such period.
       (3) The President shall, on a quarterly basis, submit to 
     the appropriate committees of Congress a report on the use, 
     if any, of contractors for the provision of translator 
     services pursuant to the waiver authority in paragraph (2).
       (b) Prohibition on Use of Funds.--No funds authorized to be 
     appropriated by this Act or any other Act may be obligated or 
     expended for the utilization of contractor personnel in 
     contravention of the prohibition in subsection (a), whether 
     such funds are provided directly to a contractor by a 
     department, agency, or other entity of the United States 
     Government or indirectly through a permanent, interim, or 
     transitional foreign government or other third party.
       (c) Prohibition on Transfer of Custody of Prisoners to 
     Contractors.--No prisoner, detainee, or combatant under the 
     custody or control of the Department of Defense may be 
     transferred to the custody or control of a contractor or 
     contractor personnel.
       (d) Records of Transfers of Custody of Prisoners to Other 
     Countries.--(1) No prisoner, detainee, or combatant under the 
     custody or control of the Department of Defense may be 
     transferred to the custody or control of another department 
     or agency of the United States Government, a foreign, 
     multinational, or other non-United States entity, or another 
     country unless the Secretary makes an appropriate record of 
     such transfer that includes, for the prisoner, detainee, or 
     combatant concerned--
       (A) the name and nationality; and
       (B) the reason or reasons for such transfer.
       (2) The Secretary shall ensure that--
       (A) the records made of transfers by a transferring 
     authority as described in paragraph (1) are maintained by 
     that transferring authority in a central location; and
       (B) the location and format of the records are such that 
     the records are readily accessible to, and readily viewable 
     by, the appropriate committees of Congress.
       (3) A record under paragraph (1) shall be maintained in 
     unclassified form, but may include a classified annex.
       (e) Appropriate Committees of Congress Defined.--In this 
     section, the term ``appropriate committees of Congress'' 
     means--
       (1) the Committees on Armed Services, Foreign Relations, 
     and the Judiciary of the Senate and the Select Committee on 
     Intelligence of the Senate; and
       (2) the Committees on Armed Services, International 
     Relations, and the Judiciary of the House of Representatives 
     and the Permanent Select Committee on Intelligence of the 
     House of Representatives.

  Mr. WARNER. Mr. President, I wonder if we could ask the Senator from 
Connecticut if we could temporarily lay this matter to one side while 
we finish processing the amendment by the Senator from Colorado? It 
would take but a few minutes.
  Mr. DODD. I am happy to do that.
  Mr. WARNER. Mr. President, at this point in time--
  Mr. DODD. Mr. President, I have sent the modification to the desk. I 
inquire, has the Chair ruled on it?
  The PRESIDING OFFICER. Without objection, the amendment is modified.
  Mr. DODD. Fine.

[[Page 11934]]


  Mr. WARNER. I thank the Senator from Connecticut.
  Mr. President, I ask that the pending amendment be laid aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. I see the Senator from Colorado. I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.


                           Amendment No. 3449

  Mr. ALLARD. Mr. President, I have an amendment that we have laid 
aside. I guess the proper thing is we need to call it up for 
consideration. The reason I am calling it up is because our staffs have 
worked this out. There is a second-degree amendment that was offered by 
Senator Reid on behalf of Senator Levin. We have worked out an 
agreement, I understand, between the staffs, and I know the chairman 
would like to expedite and move forward and not leave these amendments 
hanging out there.
  So I call up that amendment.
  The PRESIDING OFFICER. Does the Senator request the regular order 
with respect to the amendment?
  Mr. ALLARD. Yes, I request the regular order on that amendment, 
please.
  The PRESIDING OFFICER. The amendment is pending.
  Mr. ALLARD. Now, I think Senator Levin has to be recognized to move 
the modification forward.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Michigan.


                    Amendment No. 3449, As Modified

  Mr. LEVIN. Madam President, has our modification to the second-degree 
amendment been sent to the desk yet? We will send up a modification to 
the second-degree amendment, and then I understand, as modified, 
Senator Allard will be accepting the second-degree.
  Mr. ALLARD. That is correct.
  The PRESIDING OFFICER. The amendment, No. 3449, as modified, is 
pending.
  The amendment, as modified, is as follows:

       At the end of the matter proposed to be inserted, insert 
     the following:

     SEC. 1069. POLICY ON NONPROLIFERATION OF BALLISTIC MISSILES.

       (a) Policy.--It is the policy of the United States to 
     develop, support, and strengthen international accords and 
     other cooperative efforts to curtail the proliferation of 
     ballistic missiles and related technologies which could 
     threaten the territory of the United States, allies and 
     friends of the United States, and deployed members of the 
     Armed Forces of the United States with weapons of mass 
     destruction.
       (b) Sense of Congress.--(1) Congress makes the following 
     findings:
       (A) Certain countries are seeking to acquire ballistic 
     missiles and related technologies that could be used to 
     attack the United States or place at risk United States 
     interests, forward-deployed members of the Armed Forces, and 
     allies and friends of the United States.
       (B) Certain countries continue to actively transfer or sell 
     ballistic missile technologies in contravention of standards 
     of behavior established by the United States and allies and 
     friends of the United States.
       (C) The spread of ballistic missiles and related 
     technologies worldwide has been slowed by a combination of 
     national and international export controls, forward-looking 
     diplomacy, and multilateral interdiction activities to 
     restrict the development and transfer of such weapons and 
     technologies.
       (2) It is the sense of Congress that--
       (A) the United States should vigorously pursue foreign 
     policy initiatives aimed at eliminating, reducing, or 
     retarding the proliferation of ballistic missiles and related 
     technologies; and
       (B) the United States and the international community 
     should continue to support and strengthen established 
     international accords and other cooperative efforts, 
     including United Nations Security Council Resolution 1540 and 
     the Missile Technology Control Regime, that are designed to 
     eliminate, reduce, or retard the proliferation of ballistic 
     missiles and related technologies.

  Mr. LEVIN. Madam President, very briefly--and I thank Senator Allard 
and our staffs for working this out--we have expressed some real 
concerns in terms of the proliferation challenges in terms of the 
ballistic missile technology which is at issue.
  Technology can be called defensive technology, but it also can be 
used offensively. The line between offensive and defensive missile 
technology is not a perfect line and, indeed, some of the technologies 
are both offensive and defensive. So it is important that the concerns 
we had expressed, and do express, in our second-degree amendment 
relative to the technology and the proliferation of these technologies 
be expressed in the underlying amendment, and that would remain.
  What we have removed from our second-degree amendment is the 
elimination of what amounts to, I guess, that 30-day either goal or 
deadline, which is waiveable by the Secretary of State. So what we have 
in our second-degree amendment now, as modified, is that we have left 
that 30-day goal in place--and Senator Allard had it in his amendment--
but the efforts to try to address some of the proliferation concerns 
will remain in the second-degree amendment.
  I understand, as modified, that Senator Allard is willing to accept 
the second-degree amendment.
  Mr. ALLARD. Yes.
  Madam President, if I could be recognized briefly, we did have some 
exceptions in that to be sensitive to your concerns about the 30-day 
portion. In the judgment of the Secretary of State, they could extend 
that if they believe that is necessary. There is also a paragraph in 
here that was adopted on policy to address some of your concerns about 
proliferation and whatnot. Hopefully, we met those concerns.
  I think this is a good compromise. I thank the Senator from Michigan 
for working with me and our staff over here and for your staff working 
together with us. I think now that we have resolved this matter we can 
move forward on the amendment.
  Now, Madam President, have we adopted the modification?
  The PRESIDING OFFICER. The modification has been made.
  The amendment is pending.
  The question is on agreeing to the second-degree amendment, as 
modified.
  The amendment (No. 3449), as modified, was agreed to.


                     Amendment No. 3322, As Amended

  The PRESIDING OFFICER. The question is now on agreeing to the Allard 
amendment, as amended.
  The amendment, as amended, is adopted.
  The amendment (No. 3322), as amended, was agreed to.
  Mr. ALLARD. 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 Connecticut.


                    Amendment No. 3313, As Modified

  Mr. DODD. Madam President, I ask unanimous consent that we now be 
allowed to debate amendment No. 3313, as modified.
  The PRESIDING OFFICER. The Senator has that right.
  Mr. DODD. Thank you, Madam President. And, again, I commend my two 
friends and colleagues, the chairman and ranking member of the Armed 
Services Committee.
  Let me briefly describe what this amendment is and what we try to do.
  This amendment attempts to address what I believe is a very 
legitimate and serious concern that has come to light in recent days 
with respect to the use or misuse of contractors in the treatment of 
detainees in Iraq.
  Quite simply, this amendment would prohibit the use of contractors in 
the interrogation of prisoners and offensive military operations and 
establish certain restrictions with respect to the transfer of 
prisoners to contractors and foreign nations.
  Let me try to explain why this is so and what the background of all 
this is. According to some estimates, there are as many as 20,000 
contractors operating in Iraq today, many carrying out mission-critical 
military roles, such as security, protection, interrogation, logistics 
support, and paramilitary and military training.
  Increasingly, U.S. contractor activities have become deeply 
intertwined with those of U.S. troops and Coalition Provisional 
Authority personnel. These activities have put them in harm's way. As 
we have all painfully learned, contractors are among those who have 
been taken hostage by insurgents in Iraq. They have also suffered 
terrible injuries and loss of life, the most horrific of which occurred 
on April 13 of this year when the bodies of four contractors were 
burned, mutilated, and hung from a bridge in Iraq.

[[Page 11935]]

  Equally troubling, it looks more and more likely that contractors may 
have taken part in the interrogation of Iraqi prisoners and may be 
linked directly or indirectly to the reported abuses of those 
prisoners. Even today there may be still some taking part in the 
interrogation of prisoners.
  Let me say as an aside, by the way, that I commend, again, the Armed 
Services Committee under the leadership of Senator Warner and Senator 
Levin for the very thoughtful hearings the Armed Services Committee had 
about this matter and the professional manner in which they went about 
examining these issues and doing the kind of thorough look that a 
standing committee of the Senate ought to make, regardless of the party 
in power in the White House. They have done a very good job and have 
been tremendously helpful to the American public.
  We have all read reports and seen graphic pictures of the heinous 
abuses associated with the incarceration of Iraqi prisoners. 
Unfortunately, so has almost the entire world been witness to these 
photographs and the stories about what has occurred.
  It does not take much of an imagination to figure out that the 
consequence of those abuses has been a disaster not only with respect 
to the U.S. policy in Iraq but also with respect to our policies 
throughout the greater Middle East. That is why I have included a 
provision in the pending amendment to prohibit the use of contractors 
in the interrogation of prisoners, detainees, and combatants. However, 
mindful that in the short term we may not have sufficient military 
personnel with requisite language and interrogation skills at certain 
critical moments, I have also included in this pending amendment 
Presidential authority to waive these restrictions under certain narrow 
constrictions: During fiscal year 2005 with respect to their use as 
translators, and for the first 90 days of the next fiscal year with 
respect to interrogations.
  It should go without saying that any contractor who is employed by 
the United States as a translator or interrogator must be certified as 
highly proficient in the areas for which he or she is being employed, 
and such contractors must be properly supervised at all times by 
official U.S. military personnel. To help ensure that is the case, the 
amendment I am offering this afternoon would also require the President 
to submit a quarterly report to Congress on the use of contractors as 
translators and in interrogations.
  I remind my colleagues that at this very moment contractors in Iraq 
go about their business virtually unregulated. They have been exempted 
from local law by CPA regulation. They are also outside the Uniform 
Military Code of Justice and could, therefore, avoid prosecution in a 
military court of law. Contractors' accountability under U.S. 
international law remains untested. And now the Bush administration is 
putting pressure on the transitional Iraqi government to grant immunity 
to contractors after the June 30 transfer of power. If the transitional 
Iraqi government succumbs to this pressure, contractors won't only have 
immunity from prosecution, they will likely be able to act with 
impunity while they participate in some of our most sensitive military 
intelligence operations. I think this is unacceptable and puts our 
troops and our mission at great risk.
  The more we learn, the more it seems this whole business of hiring 
contractors has gotten out of control. We need to be more scrupulous--
not less--about the tasks we assign to contractors. Quite frankly, I 
don't think it makes much sense to have contractors performing 
interrogations. Apparently neither does the Army, whose policy 
reportedly bars contractors from military intelligence jobs such as 
interrogating prisoners unless there are not enough qualified people in 
the Army to perform those duties.
  According to recent reports, the source of this policy is an Army 
policy memo, written in December 2000, by Patrick T. Henry, then the 
Army's top personnel official. In this memo he asserted that allowing 
private workers to gather military intelligence presented ``a risk to 
national security.'' That statement is anything but ambiguous. Let me 
quote it again. From the Army's top personnel official, it is ``a risk 
to national security,'' in a 2000 memo prepared by the U.S. Army.
  Thomas White, the former Secretary of the Army, has also expressed 
his opposition to hiring contractors to question prisoners, stating in 
an interview ``the basic process of interrogation should be kept in-
house on the Army side.''
  Moreover, last week it was reported that CACI International, a 
contractor caught up in this controversy, was not even under contract 
with the Department of Defense. Rather its activities were being 
managed by the U.S. Department of Interior which approved the company's 
hiring of interrogators utilizing a preexisting contract for computer 
services with that company. The particular circumstances of the CACI 
contract blur even further the accountability of its employees because 
Department of Interior contractors may not be covered by certain U.S. 
laws specifically enacted to cover Department of Defense contractors, 
such as the Military Extraterritorial Jurisdiction Act, which attempts 
to make U.S. Department of Defense contractors working overseas legally 
accountable.
  How many other contractors have been employed by non-Department of 
Defense agencies to carry out activities in Iraq? To say we have seen 
some extraordinary contracting practices in the case of Iraq is an 
understatement. I would hope these practices are not being employed to 
circumvent the requirements of the Geneva Conventions or other 
international U.S. laws, because if you are doing this as a matter of 
policy, I am deeply concerned that we will be inviting other nations to 
do the same to the detriment of the safety of American military and 
civilian personnel around the globe.
  Indeed, according to the comprehensive report of MG Antonio Taguba, 
contractors employed in Iraq participated in prisoner interrogations 
with minimal supervision. And I quote him:

       They allegedly on occasion even provided direction to U.S. 
     military police.

  The words ``minimal supervision'' are not mine. They were part of a 
job posting for the interrogator international analyst team lead 
assistant which is listed on the contract at CACI International's Web 
site.
  I have reproduced an excerpt from the job posting as it was reprinted 
in the Washington Post on May 10 on the poster behind me. It reads:

       Description: Assists the interrogation support program team 
     . . . to increase the effectiveness of dealing with 
     detainees, persons of interest and prisoners of war (POWs) 
     that are in the custody of the U.S./Coalition forces . . . in 
     terms of screening, interrogation, and debriefing of persons 
     of intelligence value. Under minimal supervision, will 
     assist. . . .

  The key words are ``under minimal supervision.'' The new posting now 
reads ``under minimal CACI supervision,'' the name of the international 
company.
  This isn't all. A former CACI interrogator was quoted on May 13 in 
the Washington Post as saying:

       Civilian interrogators were often free to conduct 
     interrogations as they best saw fit.

  And General Taguba reportedly recommended to one employee of CACI 
that he be ``fired, reprimanded, and denied his security clearances for 
giving instructions to Army policemen that he clearly knew equated to 
physical abuse.''
  Indeed, this lack of supervision may have been the rule rather than 
the exception in the Abu Ghraib prison. More importantly, with the fate 
of our mission in Iraq and our international reputation at stake, the 
American people deserve to know why civilian contractors were 
participating in these interrogations in the first place.
  This Senator--and I am sure many of my colleagues would agree--does 
not think private contractors have any place in such highly sensitive 
military operations. That is not only because of these human rights 
abuses or potential violations of U.S. international law, it is because 
they have exponentially increased the danger level for more than 
135,000 honorable and dedicated U.S.

[[Page 11936]]

troops currently risking their lives in Iraq. We owe it to all those 
brave men and women who now face a far more difficult task in winning 
the hearts and minds of Iraqis or setting the stage for the successful 
handover of sovereignty to Iraqi officials less than 15 days from now.
  My amendment also addresses the related issue of the transfer of 
prisoners in U.S. custody. It would not only prohibit the U.S. 
Department of Defense from transferring prisoners into a contractor's 
custody, but it would also require the Secretary of Defense to keep a 
written record of prisoner transfers from DOD custody to foreign 
nations.
  Why is this provision necessary? Because according to published 
reports, interrogation strategies reportedly included sending detainees 
to third countries where in some cases, according to the New York 
Times, they are convinced they might be executed.
  A set of post-9/11 legal memoranda prepared by the U.S. Government 
even suggested ``if U.S. Government officials are contemplating 
procedures that may put them in violation of American statutes that 
prohibit torture, degrading treatment, or the Geneva Conventions, they 
will not be held responsible if it can be argued that the detainees are 
formally in the custody of another nation.''
  There may be instances when the transfer of prisoners to third 
countries would serve our interests. My amendment does not prohibit 
that from happening. But at the very least, records of transfers should 
be kept to ensure that the transfer of prisoners to countries with poor 
human rights records is not used to circumvent U.S. and international 
law. My amendment would mandate that such records be kept.
  Finally, this amendment would also prohibit contractors from 
participating in most combat operations except in cases of self-
defense, and it would prevent U.S. moneys from being used to pay 
contractors for those purposes. I understand our stated U.S. policy 
does not permit U.S. contractors in combat. The chaos on the ground has 
created a climate where, for the most part, these individuals operate 
with little or no oversight. Without specific language in statute which 
clearly spells out what are and are not permissible contractor 
activities, there will always exist the danger that circumstances will 
draw private citizens into armed conflict.
  I would hope my colleagues would support codifying into law what the 
administration has said is its policy with respect to the use of 
private contractors in combat situations.
  Madam President, I will briefly sum up what I am trying to accomplish 
with the pending amendment. First, I propose to restrict the use of 
contractors in prisoner interrogations. I point out that we provide for 
a little leeway here that would allow, during fiscal 2005, for a little 
time to be used, because we may not have the people at hand who can do 
translations, or perform interrogations, so we provide leeway to build 
this up. We would prohibit such individuals from being employed in 
prisoner interrogations.
  Second, we would prohibit such individuals from being employed in 
offensive combat missions.
  Finally, I would keep private contractors out of the prisoner 
contracting business.
  I commend Senators Warner and Levin for their willingness to address 
some of the issues I have touched on in this amendment in the last few 
weeks. This is so we in the Congress ``get it,'' so to speak, and we 
are ready to begin repairing the damage caused by these problems which, 
in some cases, continue to endanger our efforts in Iraq and throughout 
the globe.
  I believe the amendment is a reasonable and measured response to the 
challenges we face. I urge my colleagues to support the efforts 
embodied in this proposal.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Madam President, I have looked over this amendment very 
carefully. We will have to oppose it for a number of reasons. There may 
be some parts of it on which we could have a meeting of the minds. I 
would like to walk through the amendment with my good friend and ask 
him a few questions about this amendment.
  Let's go to the title:

       Prohibitions on the Use of Contractors for Certain 
     Department of Defense Activities.
       (A) Prohibition on Use of Contractors in Interrogation of 
     Prisoners and Combat Operations.

  That and combat operations poses a dilemma. For example, as the 
distinguished Senator knows, in his State are a number of our 
submarines. At any one time, those submarines have a board of 
contractors who are working on the equipment, training of sailors, 
taking an aircraft carrier. At any one time, you have maybe several 
hundred contractors aboard an aircraft carrier. On a moment's notice, 
either of those vessels could be given a tactical order to go into 
harm's way.
  The way this amendment is drawn--so broadly--I think the Senator had 
better look at it again. I could not in any way support an amendment 
that says contractors are prohibited from going into harm's way, 
because they are forward-deployed with our units; they are aboard our 
vessels. At any time, on a moment's notice, they could be put into a 
position of being in harm's way.
  Mr. DODD. Let me respond, if I may. It is an anticipated argument. We 
have similar provisions applying in certain categories under the United 
States Code here, 10 U.S.C. Section 113, Notice to Congress of Proposed 
Changes in Combat Assignments to Which Female Members May be Assigned; 
and also in Public Law 103-160.
  I ask unanimous consent to have both of these provisions of the 
United States Code printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  [From 10 U.S.C., Public Law 103-160]

Sec. 542. Notice to Congress of Proposed Changes in Combat Assignments 
                to Which Female Members May Be Assigned

       (a) In General.--(1) Except in a case covered by subsection 
     (b), whenever the Secretary of Defense proposes to change 
     military personnel policies in order to make available to 
     female members of the Armed Forces assignment to any type of 
     combat unit, class of combat vessel, or type of combat 
     platform that is not open to such assignments, the Secretary 
     shall, not less than 30 days before such change is 
     implemented, transmit to the Committees on Armed Services of 
     the Senate and House of Representatives notice of the 
     proposed change in personnel policy.
       (2) If before the date of the enactment of this Act the 
     Secretary made any change to military personnel policies in 
     order to make available to female members of the Armed Forces 
     assignment to any type of combat unit, class of combat 
     vessel, or type of combat platform that was not previously 
     open to such assignments, the Secretary shall, not later than 
     30 days after the date of the enactment of this Act, transmit 
     to the Committees on Armed Services of the Senate and House 
     of Representatives notice of that change in personnel policy.
       (b) Special Rule for Ground Combat Exclusion Policy.--(1) 
     If the Secretary of Defense proposes to make any change 
     described in paragraph (2) to the ground combat exclusion 
     policy, the Secretary shall, not less than 90 days before any 
     such change is implemented, submit to Congress a report 
     providing notice of the proposed change.
       (2) A change referred to in paragraph (1) is a change that 
     either--
       (A) closes to female members of the Armed Forces any 
     category of unit or position that at that time is open to 
     service by such members; or
       (B) opens to service by such members any category of unit 
     or position that at that time is closed to service by such 
     members.
       (3) The Secretary shall include in any report under 
     paragraph (1)--
       (A) a detailed description of, and justification for, the 
     proposed change to the ground combat exclusion policy; and
       (B) a detailed analysis of legal implication of the 
     proposed change with respect to the constitutionality of the 
     application of the Military Selective Service Act to males 
     only.
       (4) For purposes of this subsection, the term ``ground 
     combat exclusion policy'' means the military personnel 
     policies of the Department of Defense and the military 
     departments, as in effect on January 1, 1993, by which female 
     members of the Armed Forces are restricted from assignment to 
     units and positions whose mission requires routine engagement 
     in direct combat on the ground.
                                  ____

       Pub. L. 103-160, div. A, Title V, Sec. 542, Nov. 30, 1993, 
     107 Stat. 1659, as amended by Pub. L. 106-398, Sec. 1 ((div. 
     A), title V, Sec. 573(b)), Oct. 30, 2000, 114 Stat. 1654, 
     1654A-136;

[[Page 11937]]

     Pub. L. 107-107, div. A, title V, Sec. 591, Dec. 28, 2001, 
     115 Stat. 1125, provided that:
       ``(a) In General.--(1) Except in a case covered by 
     subsection (b) or by section 6035 of title 10, United states 
     Code, whenever the Secretary of Defense proposes to change 
     military personnel policies in order to make available to 
     female members of the Armed Forces assignment to any type of 
     combat unit, class of combat vessel, or type of combat 
     platform that is not open to such assignments, the Secretary 
     shall, not less than 30 days before such change is 
     implemented, transmit to the Committees on Armed Services of 
     the Senate and House of Representatives notice of the 
     proposed change in personnel policy.
       ``(2) If before the date of the enactment of this Act (Nov. 
     30, 1993) the Secretary made any change to military personnel 
     policies in order to make available to female members of the 
     Armed Forces assignment to any type of combat unit, class of 
     combat vessel, or type of combat platform that was not 
     previously open to such assignments, the Secretary shall, not 
     later than 30 days after the date of the enactment of this 
     Act, transmit to the Committees on Armed Services of the 
     Senate and House of Representatives notice of that change in 
     personnel policy.
       ``(b) Special Rule for Ground Combat Exclusion Policy.--(1) 
     If the Secretary of Defense proposes to make any change 
     described in paragraph (2) to the ground combat exclusion 
     policy, the Secretary shall, before any such change is 
     implemented, submit to Congress a report providing notice of 
     the proposed change. Such a change may then be implemented 
     only after the end of a period of 30 days of continuous 
     session of Congress (excluding any day on which either House 
     of Congress is not in session) following the date on which 
     the report is received.
       ``(2) A change referred to in paragraph (1) is a change 
     that either--
       ``(A) closes to female members of the Armed Forces any 
     category or unit or position that at that time is open to 
     service by such members; or
       ``(B) opens to service by such members any category of unit 
     or position that at that time is closed to service by such 
     members.
       ``(3) The Secretary shall include in any report under 
     paragraph (1)--
       ``(A) a detailed description of, and justification for, the 
     proposed change to the ground combat exclusion policy; and
       ``(B) a detailed analysis of legal implication of the 
     proposed change with respect to the constitutionality of the 
     application of the Military Selective Service Act (50 App. 
     U.S.C. 451 et seq.) to males only.
       ``(4) For purposes of this subsection, the term `ground 
     combat exclusion policy' means the military personnel 
     policies of the Department of Defense and the military 
     departments, as in effect on January 1, 1993, by which female 
     members of the Armed Forces are restricted from assignment to 
     units and positions whose mission requires routine engagement 
     indirect combat on the ground.
       ``(5) For purposes of this subsection, the continuity of a 
     session of Congress is broken only by an adjournment of the 
     Congress sine die.''

  Mr. DODD. In Public Law 103-160, it says:

       (4) For purpose of this subsection, the term ``ground 
     combat exclusion policy'' means the military personnel 
     policies of the Department of Defense and the military 
     departments, is in effect on January 1, 1993, by which female 
     members of the Armed Forces are restricted from assignment to 
     units and positions whose mission requires routine engagement 
     and direct combat on the ground.

  So there is a precedent here, and I am using this as an example of 
that same language. First, it would come under defending themselves to 
a certain point. The idea we are trying to get at is to have these 
personnel not become directly involved in combat.
  Mr. WARNER. That is not the way it is crafted, as I read it. If the 
Senator wishes to proceed on this part of the amendment, the Senator 
would be well advised to try to make reference to the existing law in 
such a way as to make it clear.
  Mr. DODD. I am happy to do that. My intention is, obviously, not to 
try to chart new areas of law.
  Mr. WARNER. The way it is drawn, it could be interpreted that way.
  Mr. DODD. We will talk with staff to see if we might make the 
language tighter.
  Mr. WARNER. My second concern goes to the question of the 
interrogation of prisoners. Clearly, the Armed Services Committee has 
had hearings on the very difficult problems that we encountered in the 
prisons in Iraq, and perhaps in certain areas in Afghanistan; and we, 
by no means, have concluded--either the Congress or the Department of 
Defense--our examination of these problems. As the Senator well knows, 
the Army, in particular, and the Department of Defense have a number of 
ongoing investigations with regard to these prisoner problems. It 
relates, as my good friend from Connecticut stated, to the use of, in 
some instances, interrogators who were contractors.
  This is the problem, as I see it. As we do our defense planning, we 
do our very best to have trained and ready cadres of individuals in 
combat areas and cadres of individuals for medical purposes and other 
purposes. If we were to put this type of prohibition into law, the 
Department of Defense--primarily the Department of the Army--would have 
to put into place a very significant number of individuals who would at 
all times be trained and ready to go in following combat operations to 
do the interrogations of prisoners.
  That, it seems to me, puts a burden on the Department which is not a 
wise expenditure of funds and use of military personnel. I don't know 
what the estimate would be. Let's assume that in due course our 
situations in Afghanistan and Iraq are secured in such a way that our 
forces withdraw and we hopefully return to a period where there would 
be more equilibrium in the use of our Armed Forces in conducting 
missions around the world. As this is drawn, the Department of the Army 
would have to have a very significant cadre of individuals who are just 
waiting assignment at a future time, as a consequence of some future 
military operation, to perform the interrogations. That has been an 
area that I think in the past has successfully been performed by 
contractors, providing there are rules and regulations laying down the 
specific requirements of the training of those contractors, the 
expertise. They just cannot pick up individuals off the street and put 
them into positions of responsibility. It is that general reason--and I 
will go on in a moment, but I will allow my colleague to reply--that I 
have great concern about the intention of this amendment. Those are two 
points I wish to make in terms of opposition to the amendment.
  Mr. DODD. If I may respond, it is not an illegitimate concern in 
talking about personnel. We have all seen what could happen when you 
have people operating who are unregulated. In some cases, contractors 
have worked out of the Department of the Interior, so there is no 
supervision by the DOD. We are asking these people, unregulated, with 
no clear lines of authority, to do these things, and we have seen what 
happens when that occurs. It appears this is getting out of hand by 
private contractors.
  In the area of intelligence gathering, dealing with sensitive 
matters--sensitive to the issue of having enough personnel on the 
ground to do these things--I am far more worried about the fact of 
rogue elements being able to cause us tremendous harm.
  I think all would admit certainly that the result of what happened in 
Abu Ghraib prison and what the world knows today has been tremendously 
harmful to the United States and potentially to our men and women in 
uniform who may be subjected to interrogations. We know we are going to 
see the answers raised by others.
  I provided in the amendment some leeway to allow for a period of time 
so it would not be required to have an immediate requirement that all 
of these individuals be replaced on the adoption of this particular law 
but allow for some leeway.
  Mr. WARNER. Madam President, will the Senator direct the Senate to 
that portion where he thinks there is flexibility.
  Mr. DODD. Madam President, if the Senator will go to page 2 of the 
amendment, the very bottom line, 25, section (b), the President may 
also waive the prohibition in paragraph 1 with respect to the use of 
contractors. Otherwise provided by that paragraph during the 90-day 
period--going on page 3--beginning on the date of enactment of this 
act, but any such waiver shall cease to be effective on the last day of 
such period.
  There is also an earlier provision in regard to translator services 
regarding additional time.
  Mr. WARNER. Madam President, I could not find that language. I 
listened carefully to the Senator's presentation. I can understand the 
translator.

[[Page 11938]]


  Mr. DODD. I am quoting from the bill. With regard to 1(a) on page 2--
and you go to page 2 of the amendment--
  Mr. WARNER. I am on page 2.
  Mr. DODD. Then go to line 10. It talks about interrogation of 
prisoners, detainees, and the like. Paragraph (b), and then it goes, on 
line 17, during fiscal year 2005 the President may waive prohibition in 
paragraph 1 with respect to contractors and provide translator services 
under paragraph (a), if the President determines no United States 
military personnel or appropriate language skills are available.
  Go on down to line 25, page 2, section (b): The President may also 
waive the prohibition in paragraph 1(a) with respect to the use of any 
contractors. I am reading on page 3.
  Mr. WARNER. Madam President, if the Senator will withhold, I have two 
amendments here, and I suspect what I was working off of was the--I 
thought it was the one that had been modified. I am now told this is 
the original amendment and that you have modified it.
  Mr. DODD. I have modified it, yes.
  Mr. WARNER. Once again, if the Senator will direct me.
  Mr. DODD. On page 2 of the amendment, go down and begin on line 10, 
and I believe that is section (a). It talks about the interrogation of 
prisoners, what would not be allowed. Then paragraph (a) and paragraph 
(b). Then on line 17, 2(a), it says: During fiscal year 2005, the 
President may waive the prohibition in paragraph 1 with respect to the 
use of contractors to provide translator services under paragraph (a) 
of that paragraph.
  Without reading the rest of that language, going to line 25, 
subparagraph (b) on page 2: The President may also waive the 
prohibition in paragraph 1(a) with respect to use of contractors--page 
3 now--otherwise prohibited by that paragraph during the 90-day period 
beginning on the date of the enactment of this act.
  Senator Levin raised this question, and we discussed it. It is a 
legitimate point. We do not expect for this to happen overnight. It 
would be unreasonable.
  The point I want to make generically, because I think my colleague 
raises a very legitimate issue, is that the war on terror is not going 
to be over tomorrow, and it seems to me we better get the expertise in 
these areas. They are going to be an integral part of our Government 
service to have this talent, this ability. It is a new age we have 
entered, and we have to be prepared to address it.
  I am deeply worried about having these unregulated, uncontrolled 
contractors, many of which are operating with agencies that are not 
even under the Department of Defense in a theater of conflict where the 
ability to control, regulate, and supervise may be going out the 
window.
  As I say, I was stunned to read about the Department of the Interior. 
What is the Department of the Interior doing and what authority does 
the Department of Defense have over contractors hired by the Department 
of the Interior operating in a prison environment in Baghdad? That 
worries me. If they are not trained, who are these people gathering 
intelligence? How much reliance can we have?
  I realize we are in tough shape with personnel, but my point is the 
sooner we start developing the in-house capabilities--I recall reading 
after 9/11 that we actually ran advertisements in local papers for 
people who could speak Arabic for jobs in the State Department. This is 
a terrible revelation that we do not have people capable of doing this 
skill.
  I am worried that if we continue to rely on a very loose operation--
we found out what happens, and we have suffered terribly as a result of 
these abuses that occurred.
  I do not know to the extent and, obviously, others are looking into 
the details of it now, but certainly we know now there were a number of 
private contractors basically unsupervised operating in their own world 
and may have been directed by our military personnel under certain 
circumstances.
  I am sensitive to the concerns raised by the chairman who, by the 
way--and I will state it again. The hearings that the chairman and the 
ranking member have held on this issue have been tremendously 
worthwhile, and I commend them immensely for what they are doing. If 
there are ways in which this amendment can be modified to address the 
not illegitimate concerns about how do you transition from a present 
situation into one we can build, then I am interested in how we do 
that.
  I am not interested in having an amendment and having a vote, 
allowing it to come out one way or the other. I think it is a 
critically important issue. We have at least 20,000 people operating as 
independent contractors in a very important theater, and we are going 
to face more situations not unlike this in the coming years.
  It seems to me we better start addressing this pretty quickly, and 
this amendment is an effort to do that.
  Mr. WARNER. On the question of the interrogation, I would like to 
have an opportunity to revisit that. My immediate concern is maybe 90 
days is short and perhaps there is some flexibility there.
  If I can return to the part B, that gives me very serious concern, 
and that is the combat missions that require routine engagement. For 
example, so much of the security for Ambassador Bremer today is all 
contracted. Much of the security, as I understand, which is given to 
other members of the Iraqi government, to the extent they avail 
themselves of what the coalition forces--that is nonmilitary, 
Ambassador Bremer's operation--make available to them, I do not know 
how we are going to meet those needs. If you follow this to the letter, 
you would have to have all soldiers doing that.
  Mr. DODD. As I said, the idea is it is one thing for them to be in a 
capacity to provide protection and certainly take steps for self-
defense. I am trying to draw a distinction of engaging in offensive 
combat missions because there is some concern they have been involved 
in that level of activity.
  Again, I hope the language used in existing law that draws a 
distinction between ground activity, combat activity, and noncombat 
activity, defensive activity, would be clear enough. Again, I am happy 
to spell out that language more clearly. I am just trying to avoid a 
situation where, again, people who are untrained, unregulated, and 
unsupervised can get us into a lot of difficulty in a very sensitive 
area.
  Mr. WARNER. Madam President, the Senator's point is well taken. He 
has served in this body many years and during that period of time, we 
have engaged in a number of military operations. This one is unique.
  I made a quick reference to the existing statutes, 113 U.S.C. and 
others. I am fearful the Senator has thrown out a fishnet here that 
catches too many when he says prohibit the use of contractors as 
relates to combat missions. I just do not know how we would operate 
aboard our ships. I do not know how we would operate in a number of 
theaters without the benefit of contractors, and, at certain times, 
they are in harm's way.
  So at the moment we will have to have very vigorous opposition to 
this amendment as it is presently drawn. If the Senator from 
Connecticut wants to lay it aside and take a look at it, I will be 
happy to do so.
  Mr. DODD. Madam President, let me put this in the Record, if I may, 
for my colleagues. Under Public Law 107-306, November 27, 2002, 
subsection (e), ``Limitation on Participation of United States 
Personnel'':

       No United States Armed Forces personnel or United States 
     civilian contractor employed by the United States will 
     participate in any combat operation in connection with 
     assistance made available under this section, except for the 
     purpose of acting in self defense or rescuing any United 
     States citizen to include United States Armed Forces 
     personnel, United States civilian employees, and civilian 
     contractors employed by the United States.

  I am not creating new law. That is a public law that is on the books. 
So I say to my colleagues, I do not believe we are going off in an area 
that would be unwarranted.
  I ask unanimous consent that a copy of this Public Law 107-306 dated 
November 27, 2002 be printed in the Record.

[[Page 11939]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From Public Law 107-306--Nov. 27, 2002]

         TITLE V--DEPARTMENT OF DEFENSE INTELLIGENCE ACTIVITIES

     SEC. 501. USE OF FUNDS FOR COUNTERDRUG AND COUNTERTERRORISM 
                   ACTIVITIES FOR COLOMBIA.

       (e) Limitation on Participation of United States 
     Personnel.--No United States Armed Forces personnel or United 
     States civilian contractor employed by the United States will 
     participate in any combat operation in connection with 
     assistance made available under this section, except for the 
     purpose of acting in self defense or rescuing any United 
     States citizen to include United States Armed Forces 
     personnel, United States civilian employees, and civilian 
     contractors employed by the United States.

  Mr. DODD. It is Title V, the Department of Defense Intelligence 
Activities. That is the section, subsection e, of that title V.
  Mr. WARNER. Madam President, I again draw my colleague to paragraph 
B, United States-led combat missions that require routine engagement in 
direct combat, that implies that the uniformed people are in direct 
combat and the presence in a supporting role of contractors can often 
be the case unexpectedly in connection with naval vessels which are a 
matter of a moment's notice.
  Mr. DODD. I have no difficulty with----
  Mr. WARNER. I am not sure this is drawn in such a way as to continue 
what I deem essential practice with regard to naval ships. I would have 
to study it considerably to determine how it might impede ground 
operations.
  Mr. DODD. I always appreciate the advice and counsel of the chairman 
of the committee so I will take a look and see if there is some common 
language that might meet those concerns.
  Mr. WARNER. Is it the intention of my colleague in due course to lay 
this aside?
  Mr. DODD. I presume others would want to lay it aside when other 
amendments are being considered. I do not object to that.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, first let me comment on what I think is 
the heart of the amendment the Senator from Connecticut has offered, 
and that has to do with the interrogation function and whether that 
ought to be performed by private contractors.
  It seems to me abundantly clear that we cannot hire private 
contractors to perform a function that is inherently governmental, 
inherently sensitive, indeed inherently explosive, and on which there 
must be accountability, such as the interrogation of prisoners. We have 
treaty obligations. We have to live up to those treaty obligations, not 
because they are treaty obligations, although that should be enough, 
but also because the safety of our own troops is directly involved if 
we fail to abide by treaty obligations.
  The stakes are absolutely huge and we must have people performing 
these functions who are accountable to us, where there is 
accountability.
  Now the chairman has pointed out a problem with so-called 
subparagraph 1(b). I do think that is going to require additional 
exploration, and the Senator from Connecticut is perfectly happy to 
take a look at that additional exploration.
  As the Senator from Connecticut points out, there may indeed already 
be law on the books that this simply would reinforce. If that is true, 
it is possible we may not even need this provision, but that is 
something which the exploration of law can tell us. We may not need, or 
the Senator from Connecticut more properly may not need, the provision 
1(b) if the current law already addresses that issue. But that is 
something we ought to explore when we lay this amendment aside.
  I will tell my friend from Virginia, the chairman of the committee, 
that the heart of this amendment, as I read it, is not section 1(b) but 
section 1(a). I think the Senator from Connecticut can speak most 
directly to that issue, but it is a question of whether we are going to 
contract out the interrogation function, where there is no 
accountability in something as grave as this procedure. Interrogating 
people who are captured in war has ramifications that are so 
significant to the security of our own troops, I think we must have the 
full accountability, which is only achievable when we have this 
performed by our own governmental operations, our own forces, our own 
governmental employees. So I think 1(a) is right on target.
  It is possible, and I think there is another reason to lay this 
aside, that according to at least an article which I read over the 
weekend there already is an Army policy directive on this subject, when 
I read this article----
  Mr. WARNER. Excuse me, Madam President, but on which subject?
  Mr. LEVIN. On the subject of (a).
  Mr. WARNER. Let us make it clear because the Senator is mixing (a) 
and (b).
  Mr. LEVIN. I thank my chairman. This is what the article reads, and 
because I have a reprint of it I am not sure what paper I read it in, 
but this is the computer reprint of an article by Joe Brinkley, which 
says the following: That the use of private contractors as 
interrogators at Abu Ghraib and other prisons violates an Army policy 
that requires such jobs to be filled by Government employees because of 
the risk to ``national security,'' among other concerns, the Army 
acknowledged on Friday. An Army policy directive published in 2000 and 
still in effect today, the military said, classifies any job that 
involves the gathering and analysis of tactical intelligence as 
inherently governmental functions borrowed from private sector 
performance.
  Now if we are going to set this amendment aside, there is an 
additional reason to do so. In addition to taking a look at whether 
1(b) is necessary, the issue raised by the chairman, we should also 
take a look at what current Army policy is relative to the hiring of 
contractors to perform the interrogation function. I have tried in the 
last few minutes to get a copy of that Army policy, and I have been 
unable to do so in the last few minutes, so I could actually check it 
out myself. So if this amendment is laid aside, I would seek to do 
exactly that.
  One other comment, and that is this so-called Department of Interior. 
What is the Department of Interior doing here? Talk about lack of 
accountability. This is a contract which the Department of Interior 
entered into with private contractors to do interrogation. We talk 
about lack of responsibility, lack of accountability. The Army has lost 
control of its own contractors. These are not Army contractors, they 
are Department of Interior contractors. And why? Because they have 
engaged in a so-called offloading mechanism, where they use a contract 
of another agency to pay for the performance of functions which they, 
the Army, want.
  That is an area which I would hope our committee would look into 
because, to me, we have laws against this kind of offloading. The 
subcommittee of which I am ranking member, the Permanent Subcommittee 
of Investigations, has had hearings on these offloading abuses. We have 
passed law to try to prohibit these offloading abuses. We have 
language, as a matter of fact, in this bill that would prevent some of 
the abuses the GSA was involved in in terms of offloading. If we had 
known about this particular problem, we would have included that in our 
committee consideration of this issue.
  The Senator from Connecticut is pointing out something which is 
vitally important to us, and that is people who do interrogations on 
behalf of our Nation, relative to prisoners of war, must be 
accountable. We must be able to deter abuses of the rights of prisoners 
under treaties, or else when our people are captured, we are going to 
find we are in the same position as these prisoners. We need 
accountable people. That requires the people who are doing the 
interrogation be Government employees, at a minimum, hopefully 
uniformed employees, secondly.
  We have two problems that are sort of parallel. We have this 
offloading problem where the Department of Interior contract is used to 
hire contractors. By the way, this also goes back in part to the 
reduction of the acquisition workforce. It goes back to the same

[[Page 11940]]

issue we addressed on the prior subject. The chairman of our committee, 
of which the Presiding Officer is an extremely valued member, will 
remember the last conference, and the conference before that, and the 
conference before that with the House of Representatives. Every year we 
face this effort to reduce the amount of people who are working in our 
acquisition workforce. We are paying the price for those cuts.
  We tried to stop those cuts, and we succeeded in at least reducing 
the scope of the cuts year after year, but as conferences work out, 
there are compromises on this. So there have been cuts, against our 
wishes, in the acquisition workforce. This again is a price we are 
paying for the reductions in the acquisition workforce which have 
occurred in prior years.
  I commend the Senator from Connecticut for identifying an issue. We 
must make sure the interrogation of prisoners, detainees, or 
combatants, as he puts it in his amendment, at any U.S. military 
installation or any installation under the authority of the U.S. 
military or civilian personnel must be carried out by people who are 
responsible to us, who are part of the U.S. Government. If they are not 
in the military, or at least governmental employees, and not simply 
contractors, where the accountability is much less, where is the 
accountability for contractors? Where is the accountability? We passed 
a law recently which provides the criminal accountability if you can 
make out a crime, but it is very difficult at times to prove crimes.
  Mr. WARNER. Will the Senator yield?
  Mr. LEVIN. I am happy to yield, but I encourage us to lay aside this 
amendment.
  Mr. WARNER. So we can accommodate Senators, I would like to propose a 
unanimous consent request that the vote in relation to Dodd amendment 
No. 3312, which is the one covering equipment for the military forces, 
occur today at 5:30 p.m., provided that no amendments be in order to 
the amendment prior to the vote.
  Mr. LEVIN. Would the Chairman add 10 minutes of discussion on the 
amendment prior to the vote?
  Mr. WARNER. I suggest we go to the vote. I have indicated a 
willingness to support it, so I don't think----
  Mr. DODD. Let's take 1 minute prior to the vote.
  Mr. WARNER. Fine, 1 minute each side? Let's make it 2. I can't clear 
my throat in 1.
  I repropound the unanimous consent request to the Presiding Officer.
  The PRESIDING OFFICER. Is there objection?
  Mr. DODD. It was modified to 2 minutes, equally divided.
  Mr. WARNER. Two minutes to each side, not equally divided.
  Mr. DODD. OK. Two minutes to each side.
  The PRESIDING OFFICER. If there is no objection, it is so ordered.
  Mr. LEVIN. Madam President, if that is out of the way, I will yield 
the floor----
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I support the suggestion that the pending amendment of the 
Senator from Connecticut be laid aside to hear two issues.
  Mr. WARNER. I failed to hear what you said. Would you repeat that?
  Mr. LEVIN. I am sorry. I want to support the suggestion that the 
pending amendment of the Senator from Connecticut be laid aside so that 
two things can be carried out: One is that we look at section 1(b) 
relative to the combat language, both in terms of the points that the 
chairman has made and also in terms of the current law relative to 
combat. Also, that would give us an opportunity to check out this 
reported Army policy directive which has been referred to in this 
newspaper article to see what the current law is, at least what the 
current policy----
  Mr. WARNER. Regulations.
  Mr. LEVIN.----regulations of the Army are relative to this particular 
issue. I think it is important we at least know that before we act on 
the amendment. I leave this up to our friend from Connecticut, but I 
think the heart of this amendment relates to the interrogation of the 
prisoners, rather than 1(b).
  Mr. DODD. If my colleague will yield, just going over this--and I 
certainly have no difficulty at all trying to clear up, if we can, the 
section 1(b) issue that my colleague from Virginia has raised. To the 
best of my knowledge at this point, we will explore it further, but my 
examination shows dealing with interrogation is a directive. It's not a 
law. It has been a policy, and the policy allowed for exceptions to be 
made when there were not enough personnel or whatever else to deal with 
it.
  That is what has happened here. This is a policy that has been around 
for about 4 years--maybe a little earlier, maybe 1998, certainly no 
later than 2000. As such, it lacks codification in any sense at all, 
and it has been adhered to in the breach more than in the letter of it. 
That is how I understand this. I know of no Army regulations dealing 
with this issue, other than a general policy direction.
  It seemed to me on this particular point, the codification of our 
feelings about this, if a majority of my colleagues in the other body 
agree, should be put in place. We are going to be faced with more of 
this in the years ahead. I think some very clear direction for the U.S. 
Congress on how interrogations ought to be conducted and who conducts 
them, under what authority, what supervision, what regulation, is 
absolutely essential.
  That is the heart of the amendment. The combat function was really 
just a throwaway because it was existing law, as I understood it. But I 
am prepared to be corrected if that is not the case. I was reading from 
existing statutes regarding contractors and use in combat situations, 
under what parameters they are allowed to operate, sort of tracking 
that as to be included here. But I am prepared to stand corrected if 
that is not the case.
  Mr. LEVIN. Will the Senator yield on this issue?
  Mr. DODD. Certainly.
  Mr. LEVIN. I very much support his effort to codify what should be 
the rule relative to the use of outside people when it comes to 
carrying out such a critical function as interrogating prisoners of 
war.
  The same article says--this is the exceptions reference the Senator 
made--according to the public affairs officer, military commanders in 
Iraq, and I presume otherwise, ``retain the right to make exceptions.'' 
That is the reference the Senator from Connecticut made.
  The paragraph after that said the rule does not authorize exceptions 
involving collection or analysis of tactical intelligence. That is not 
in quotes. I think it really is important that we see exactly what that 
policy currently provides, not because it will take the place of a 
law--it will not, for the reasons given by the Senator from 
Connecticut. I think we must codify what is right in this area. Whether 
the policy that exists now is correct or not, we should put this into 
law because we have to make this point about how significant this is. 
That means the highest possible level of requirement, which is law--not 
policy, which can easily be changed or ignored, but law which cannot be 
ignored--is appropriate here.
  I think for a lot of reasons we should try to take a look at what the 
exact wording of the policy is, not because it will substitute for what 
the Senator is doing, which is essential, but because we ought to know 
precisely what the current provisions are.
  Mr. DODD. I thank my colleague from Michigan for his comments. I 
totally agree with him. I thank my colleague from Virginia as well for 
his counsel.
  I ask unanimous consent this amendment be laid aside unless my 
colleague wants to address it any further, and then we will do some 
work to see if we can't resolve some of these issues before we move on.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The Senator from Wyoming.


                           Amendment No. 3295

  Mr. ENZI. I ask the pending amendment be set aside, and I call up an 
amendment numbered 3295.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:


[[Page 11941]]

       The Senator from Wyoming [Mr. Enzi] proposes an amendment 
     numbered 3295.

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

   (Purpose: To authorize the purchase of aircraft for use in aerial 
                             firefighting)

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

     SEC. 1068. AERIAL FIREFIGHTING EQUIPMENT.

       (a) Findings.--Congress makes the following findings:
       (1) The National Interagency Fire Center does not possess 
     an adequate number of aircraft for use in aerial firefighting 
     and personnel at the Center rely on military aircraft to 
     provide such firefighting services.
       (2) It is in the national security interest of the United 
     States for the National Interagency Fire Center to purchase 
     aircraft for use in aerial firefighting so that military 
     aircraft used for aerial firefighting may be available for 
     use by the Armed Forces.
       (b) Authority To Purchase Aerial Firefighting Equipment.--
     (1) The Secretary of Agriculture is authorized to purchase 10 
     aircraft, as described in paragraph (2), for the National 
     Interagency Fire Center for use in aerial firefighting.
       (2) The aircraft referred to in paragraph (1) shall be--
       (A) aircraft that are specifically designed and built for 
     aerial firefighting;
       (B) certified by the Administrator of the Federal Aviation 
     Administration for use in aerial firefighting; and
       (C) manufactured in a manner that is consistent with the 
     recommendations for aircraft used in aerial firefighting 
     contained in--
       (i) the Blue Ribbon Panel Report to the Chief of the Forest 
     Service and the Director of the Bureau of Land Management 
     dated December 2002; and
       (ii) the Safety Recommendation of the Chairman of the 
     National Transportation Safety Board related to aircraft used 
     in aerial firefighting dated April 23, 2004.
       (c) Authorization of Appropriations.--There is authorized 
     to be appropriated to the Secretary of Agriculture for fiscal 
     year 2005 such funds as may be necessary to purchase the 10 
     aircraft described in subsection (b).

  Mr. ENZI. Madam President, I thank the chairman and ranking member 
for their cooperation on this amendment.
  The purpose of this amendment is to authorize the Secretary of 
Agriculture to purchase 10 aircraft that were designed and built to 
fight fires.
  The U.S. Forest Service and Bureau of Land Management need to develop 
a new fleet of aircraft for aerial firefighting in order to free up 
current military aircraft to fly military missions.
  My amendment takes the first step to create a new fleet of aircraft 
specifically designed for aerial firefighting. Once the new fleet is in 
place all dedicated military aircraft will be freed up and allowed to 
be dedicated, once again, for military missions.
  On May 10, 2004, the USDA Forest Service and the Department of the 
Interior terminated the contract for 33 large airtankers used for 
aerial fire fighting because of ``concerns over the airworthiness of 
the aircraft and public safety.'' The large, fixed-wing airtankers were 
used in wildland firefighting primarily for initial attack and 
structure protection support.
  The old fleet was made up of aging, former military aircraft that 
were purchased at bargain basement prices from the surplus military 
market. They were the worst of the worst and required extensive repairs 
and refurbishing before they were ready for aerial firefighting.
  The USFS has planned to replace the 33 air tankers with 8 military 
C130s that will be dedicated during the fire session to fly support for 
domestic fire fighting missions. These planes, therefore, will not be 
available to support necessary military missions.
  The first step in relieving these planes from domestic duty, and 
making them available for military utilization, is to find a reasonable 
replacement that is safe and specifically designed for aerial fire 
fighting.
  One example of the kind of aircraft that could be purchased is the 
Be-200 that would be serviced by a company in my home State of Wyoming.
  It was specifically designed to operate as an air tanker and can 
deliver up to 6,000 gallons of water or other fire suppressants.
  It is an amphibious plane that can scoop up the water on the fly.
  It can mix the water with slurry in regulated amounts while in the 
air so it will not be required to fill up at a slurry base after every 
run.
  And, because the water tanks were designed to fit under the cabin 
floor, it can also carry up to 60 firefighters and their gear as a 
transport plane while it is functioning as a firefighting tanker.
  Our pilots put their lives on the lines to save our property and to 
save other lives. We owe it to them to have a modern fleet where the 
risks they face are significantly diminished.
  We also owe it to our military to free up our military aircraft for 
military missions. Right now there are 8 C-130 transport aircraft that 
cannot be used to fly support missions in the Middle East because they 
have to be on hand to fight fires in the West.
  We have options available to free those aircraft up and we should be 
developing those options as quickly as possible.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. SMITH. Madam President, I ask unanimous consent to set aside the 
pending amendment so that I might bring up amendment 3183.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEVIN. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEVIN. Madam President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Without objection, the pending amendment is set aside.


                           Amendment No. 3183

      (Purpose: To provide Federal assistance to States and local 
                jurisdictions to prosecute hate crimes)

  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Oregon [Mr. Smith] proposes an amendment 
     numbered 3183.

  (The amendment is printed in today's Record under ``Amendments 
Submitted.'')
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Oregon.
  Mr. SMITH. Mr. President, if there were a Senator here objecting to 
laying aside an amendment, I apologize to him or her, but I make no 
apology for the amendment I am submitting.
  The Senate knows well the substance of this amendment because we have 
debated it in every Congress because it needs to be debated. But, more 
importantly, it needs to be passed; that is, the whole issue of hate 
crimes. People will wonder why it is on a defense authorization. The 
answer is simply: Because the military, as I will demonstrate, is not 
immune to the scourge of hate crimes in our country. Second, this is a 
piece of legislation that needs to pass, and this issue needs to get as 
far in the process as possible, and I hope to the desk of the President 
so it can be signed into law.
  It needs to be taken up as well because it has overwhelming support 
in the Senate. On this Defense authorization and in a previous 
Congress, 57 Senators voted in favor of this amendment. I believe it 
will have well over 60 this time.
  Unfortunately, despite the fact that a majority of Senators support 
the legislation, Senator Kennedy and I have felt we need to look for 
opportunities where there is an obvious nexus between this needed law 
and a piece of legislation that is likely to move.
  The last time, 13 Republicans voted in favor of this legislation. I 
urge more to do so at this time.
  It is no secret that with all the turmoil on the issue of gays and 
lesbians and their rights in this country, there are very strong 
feelings on both sides of this issue. I, for one, seek happiness for 
gays and lesbians in America. I believe in gay rights. But I also 
believe it is not right in the case of marriage for a few liberals to 
dictate to the rest of the country a new standard.
  Notwithstanding that, I have always felt before you get to marriage, 
you ought to get rid of hate. I say that as

[[Page 11942]]

a man who has been married nearly 30 years now. And I think before we 
take up the issue of marriage we ought to deal with the issue of hate 
crimes.
  Back to the nexus between hate crimes and the defense of our Nation. 
Two obvious examples come to mind.
  In 1992, Navy Seaman Allen R. Schindler was brutally murdered by his 
shipmate Terry Helvey in Okinawa, Japan. Helvey beat and stomped 
Schindler to death simply because he was gay. He was attacked so 
viciously that he destroyed every organ in Schindler's body. He was so 
badly beaten that Schindler's own mother could not identify him except 
by the remains of the tattoo on his arm. The medical examiner compared 
Schindler's injuries to those sustained by victims of fatal airplane 
crashes.
  In another tragic case, PFC Barry Winchell was forced outside his 
barracks at Fort Campbell Army Base where he was stationed. In the 
early morning hours of July 5, 1999, Winchell was repeatedly beaten 
with a baseball bat by another Army private. He was beaten with such 
force and his injuries so severe that he died shortly thereafter. Barry 
was only 21, and he was murdered simply because he was gay.
  As a nation--a nation that serves as the beacon of freedom and 
liberty everywhere--we simply cannot tolerate violence against people 
based on their race, color, religion, or national origin.
  No matter how far our Nation has come and the progress we have made 
in protecting civil rights for all Americans, there is much work that 
remains. You cannot fight terror abroad and accept terror at home. We 
have had in this country hate crimes laws on our books for well over 30 
years. They were contested as to their legitimacy all the way to the 
U.S. Supreme Court. For conservatives who would argue we should not 
have this as a category of crime, I simply respond it is a category of 
crime. Motive has always been a category of crime and establishing 
whether a crime has occurred. William Rehnquist, Justice of the U.S. 
Supreme Court, now its Chief Justice, wrote the opinion. It is hard to 
think of a more conservative Justice than Justice Rehnquist. But he is 
the one who said hate crimes are not just legitimate, they are 
constitutional.
  So the question then becomes, if we have constitutional hate crimes 
laws on the Federal books that cover race and religion, why not sexual 
orientation? Is it because some hate them? Do some think it is not 
legitimate to include them? I simply say that America, if it is to live 
up to its motto, e pluribus unum, must include them.
  I think we all know too well the tragic story of James Byrd who was 
dragged to death in Texas because of his race. We all know the 
tragically heartrending story of Matthew Shepard who was beaten to 
death along a lonely stretch of Wyoming fence because he was hated--not 
because they wanted his watch or his wallet; they didn't like him 
because he was gay. So they beat him to death.
  Why Federal hate crimes laws? Wyoming does not have them, but many 
States do have hate crimes laws. Why isn't that enough?
  Look at what happened in Wyoming. When this little town of Laramie 
began to pursue the issue, it took on national ramifications. They 
could have used the help of the Federal Government and its resources. 
But because of the nature of this hate crime--because it would involve 
sexual orientation and not race--the Federal authorities were not able 
to be of any assistance to this case in Wyoming. A Republican sheriff 
from Wyoming told me they could have used the help, and that he 
supported this legislation based on his experience.
  These last two Congresses, I have entered into the Record everyday 
statements on hate crimes, actual hate crimes committed in our country. 
I have entered countless hate crime statements into the Record--over 
300 in the last 300 days we have been in session. I do it to raise 
awareness, not only about the severity of these crimes but to show the 
frequency of these crimes.
  As the Nobel laureate Eli Wiesel once said: ``To hate is to deny 
another person's humanity.'' So I do it to remember the victims of 
these hate crimes and to give a human face to this violence--to the 
murderers of these men, the Navy man, the Army private, to Matthew 
Shepard, to James Byrd.
  These murders have shocked the Nation. To think that such virulent 
hatred of another person's skin or sexual orientation drove another to 
commit such a heinous act is truly unthinkable, yet it has happened.
  Hate crimes tear at the very fabric of our Nation. They seek to 
intimidate entire groups of Americans and as such divide our Nation. 
These kinds of crimes do more than harm the victims. They terrorize our 
entire society and send a message of hate and intolerance to millions 
of Americans.
  What can we do? We can pass this legislation. This legislation, known 
as the Local Law Enforcement Enhancement Act, is a symbol that can 
become substance.
  The law is a teacher, and we should teach our fellow Americans that 
bigotry will not be tolerated. The Federal Government must have the 
power to persuade, to pursue, and to prosecute when hate is the motive 
of violence against an American, no matter their race, sexual 
orientation, religion, disability, or gender. By changing the law, we 
can change hearts and minds as well.
  I urge my colleagues to do so, to change hearts and minds, and in 
some cases to change their vote, and to vote in favor of this 
amendment. Don't go to marriage until we have gotten rid of hate.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. SMITH. I yield the floor.
  Mr. WARNER. Mr. President, the amendment from our distinguished 
colleague from Oregon will require the attention of a number of 
colleagues. While there was no specific agenda for the amendments 
today, as a matter of comity we need some time.
  For the moment, I am wondering if we could put in a quorum so we can 
assert the availability of one or more Members who might wish to 
address this. If not, there are other amendments which the Senator from 
Michigan and I are prepared to clear. Without any procedure by which it 
impedes the Senate addressing the Senator's amendment, I am sure the 
Senator would be willing to lay the amendment aside for the purpose of 
clearing amendments.
  Mr. SMITH. I would accommodate any colleagues in any sense of comity 
that is appropriate to the Senate. I do want to vote. I do want to 
debate. We do not need to take a lot of time. This has overwhelming 
bipartisan support. We do not mean to gum up this bill. As I believe 
the chairman knows, this is offered in good faith. I know there are 
some objections to it. It is fine to air those. But let's discuss it 
quickly and vote on it so we can get on with the other defense issues.
  Mr. WARNER. In no way do I indicate it would gum up the bill. I am 
just trying to address the procedure so colleagues on the other side 
are given the opportunity to come to the Senate. I am exploring that 
now. It is a very serious amendment, and it deserves careful 
consideration by the proponents as well as the opponents.
  Mr. LEVIN. Mr. President, I know Senator Kennedy cosponsored this 
bill and has a major interest in this bill. We are trying to determine 
whether he wishes to speak at this point.
  For the reasons given by our chairman, I gather this amendment will 
be laid aside until other colleagues who wish to have something to say 
on it have that opportunity. We are checking also with Senator Kennedy.
  Mr. SMITH. I note that Senator Kennedy did not know I was coming here 
today, but I was told by good authority that if we wanted this included 
at all, we should include it today. I would very much like to make 
available a time--a time agreement can be short--that includes remarks 
by Senator Kennedy.
  Mr. LEVIN. I don't know whether it is possible to enter into a time 
agreement. The chairman would have a better feel for that.

[[Page 11943]]

  I am a strong supporter of this amendment and this effort of Senator 
Smith and Senator Kennedy. From my perspective, the sooner we vote on 
this, the better. It is long overdue that it become law. I commend the 
Senator on this amendment and Senator Kennedy for his tenacity as well. 
I hope the chairman can work out with other colleagues who want to 
speak on it in relation to some time agreement.
  Mr. WARNER. 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. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Amendment No. 3312, As Modified

  Mr. LEVIN. Mr. President, I think now the order of business is that 
we have 2 minutes, as I remember, equally divided on the Dodd 
amendment. Then we will proceed to a vote at 5:30.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, first of all, I thank my colleagues on the 
Armed Services Committee, the chairman, Senator Warner, and Senator 
Levin. I do not want to speak for the majority, but based on what 
Senator Warner said earlier, I believe he may be supportive of the 
amendment. If that is the case, I welcome that.
  Very briefly, the amendment is designed to provide reimbursement 
dollars for expenditures incurred by people in the military, their 
family members, or nonprofit organizations that have purchased body 
armor, additional protection for our men and women serving in 
Afghanistan and Iraq.
  There are limitations. There is a time-definite period during which 
those acquisitions had to occur. The acquisitions must be approved by 
field commanders rather than just the individuals. There is a dollar-
amount limitation of $1,100 on any purchase.
  I do not know how widespread this is. I have commended the Armed 
Services Committee for substantially increasing the President's request 
of some $57 million to $262 million in this area, which I believe is 
going to tremendously assist in seeing to it that our men and women in 
uniform have whatever they need to allow them to perform their very 
difficult functions in two very different and difficult theaters.
  Certainly, having loved ones acquire this equipment is unacceptable 
to all of us. This amendment is designed to make whole those who have 
incurred the costs. Again, I am grateful to the Armed Services 
Committee for what I assume is an indication of some support of the 
amendment.
  Mr. LAUTENBERG. Mr. President, I rise today to discuss a very 
important amendment to the Defense authorization bill. I have worked 
with my colleague from Connecticut to draft an amendment that will 
reimburse U.S. troops serving in Iraq and Central Asia and their family 
members for flak jackets, weapons and other equipment they have bought 
out of their own pocket.
  At the beginning of this war, the President claimed, ``We must always 
make sure that America's soldiers are well-equipped and well trained to 
fight this war on terror.'' However, the administration has not 
provided the adequate equipment the troops need to do their work, such 
as enough body armor or the most up to date Global Positioning Systems, 
GPS.
  In March 2004, I traveled to Iraq with a group of Senators. I spoke 
to soldiers from all different types of units, both active duty and 
reservists. When I spoke to the brave members of our Armed Services, I 
was appalled to hear that many of them needed higher quality flak 
jackets, more modern, lighter rifles, and armor for their HUMVEE 
vehicles.
  I have since learned that worried mothers and fathers throughout the 
country have gone to great lengths to purchase expensive equipment for 
sons or daughters, because they are dissatisfied with the inferior, 
inadequate equipment the Pentagon is providing.
  In a few instances, parents in New Jersey and elsewhere have gone out 
and bought the equipment for their sons and daughters and shipped it 
through Federal Express to Iraq. I find this fact incredible. It is 
unconscionable that the parents of our service members and their loved 
ones fighting on behalf of our country have been abandoned by the 
civilian war planners at the Pentagon.
  The administration, because of its inept planning and military 
miscalculations has forced hardworking Americans to pay for equipment 
that should be provided by the Armed Services.
  Our amendment instructs the Secretary of Defense to immediately 
reimburse our courageous troops and their families for protective, 
safety or health equipment they have purchased with their own funds. 
This includes both the cost of the equipment itself and the shipping 
costs.
  The civilian Pentagon war planners have been planning the Iraq war 
since 2002. That is two years to figure out how to get the correct body 
armor and lighter weapons to our troops. The Pentagon's inability to 
equip our young men and women who are sacrificing their lives on behalf 
of this country is just among many egregious, unforgivable mistakes 
they have made.
  I am deeply disappointed with the civilian war planners at the 
administration and I hope through this amendment, the Senate will speak 
on behalf of the over 170,000 U.S. personnel currently serving in Iraq 
and Afghanistan and their safety and protection.
  I yield the floor.
  Mr. WARNER. Mr. President, I have indicated my support. I ask 
unanimous consent that I may proceed for 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. I had asked my colleague, in the course of our colloquy, 
and I think he agreed with me, that so much of this purchase of odd 
pieces of equipment is anecdotal. You actually had a case in which you 
had documentation. But a lot of the other instances are anecdotal. 
Given the callup of so many people in the Reserves and Guard and so 
forth, coming loyally to do their duty, I think there had been some 
misunderstanding. We agreed in the area of Humvees, the Army got a bit 
behind on some of the modifications necessary. The Army got somewhat 
behind on the body armor. But generally speaking, the U.S. military has 
been well supplied and well equipped, and no large numbers of them were 
sent into harm's way--in this particular situation, two of them in 
Afghanistan and Iraq--without the benefit of that equipment. We concur 
on that.
  But I am glad to assist the Senator and indicate a willingness to 
support the amendment in those isolated areas where in good faith 
citizens of our community and the soldiers themselves bought bits and 
pieces of equipment.
  Mr. DODD. Mr. President, I have no information to argue with the 
conclusions of the chairman of the committee. My hope would be that is 
exactly the case. There are only a few isolated cases. If there are 
more, we will discover that. But on the basis of what we know thus far, 
there was a case in Connecticut, a serious one in Alabama, one in New 
Jersey. There have been others. Even if there are a few, they are a few 
too many. In this case, we will provide some compensation for them as a 
result of those acquisitions.
  Mr. WARNER. Mr. President, it is my understanding the yeas and nays 
have been ordered. We are prepared to move forward with the vote.
  The PRESIDING OFFICER. That is correct. The yeas and nays have been 
ordered.
  The question is on agreeing to amendment No. 3312, as modified. The 
clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Utah (Mr. Hatch) is 
necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Delaware (Mr. Carper), the Senator from New Jersey (Mr. 
Corzine), the Senator from North Carolina (Mr. Edwards), the Senator

[[Page 11944]]

from Vermont (Mr. Jeffords), the Senator from Massachusetts (Mr. 
Kerry), the Senator from Wisconsin (Mr. Kohl), and the Senator from 
Vermont (Mr. Leahy) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Vermont (Mr. Leahy) would vote ``yea.''
  The result was announced--yeas 91, nays 0, as follows:

                      [Rollcall Vote No. 112 Leg.]

                                YEAS--91

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hollings
     Hutchison
     Inhofe
     Inouye
     Johnson
     Kennedy
     Kyl
     Landrieu
     Lautenberg
     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
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--9

     Biden
     Carper
     Corzine
     Edwards
     Hatch
     Jeffords
     Kerry
     Kohl
     Leahy
  The amendment (No. 3312), as modified, was agreed to.
  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 the managers 
of the bill may proceed to do cleared amendments, and for that purpose 
I ask unanimous consent that all amendments be laid aside.
  The PRESIDING OFFICER (Mr. Fitzgerald). Without objection, it is so 
ordered.
  Mr. WARNER. I thank the Presiding Officer. We will be on the way here 
momentarily.


                           Amendment No. 3344

  Mr. LEVIN. Mr. President, on behalf of Senator Byrd, I call up 
amendment No. 3344 which would modify the Report on the National 
Technology and Industrial Base required by section 841 of the bill.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Byrd, for 
     himself, Ms. Snowe, Mr. Kerry, Mr. Allen, and Mr. Coleman 
     proposes an amendment numbered 3344.

  The amendment is as follows:

   (Purpose: To require the Commission on the Future of the National 
   Technology and Industrial Base to consider shortages of critical 
 technologies and to make recommendations regarding shortages; and to 
   ensure adequate consideration of small business interests by the 
                              Commission)

       Beginning on page 167, strike line 6 and all that follows 
     through ``(4)'' on page 170, line 10, and insert the 
     following:
       (B) persons who are representative of labor organizations 
     associated with the defense industry, and persons who are 
     representative of small business concerns or organizations of 
     small business concerns that are involved in Department of 
     Defense contracting and other Federal Government contracting.
       (3) The appointment of the members of the Commission under 
     this subsection shall be made not later than March 1, 2005.
       (4) Members shall be appointed for the life of the 
     Commission. A vacancy in the Commission shall not affect its 
     powers, but shall be filled in the same manner in which the 
     original appointment was made.
       (5) The President shall designate one member of the 
     Commission to serve as the Chairman of the Commission.
       (c) Meetings.--(1) The Commission shall meet at the call of 
     the Chairman.
       (2) A majority of the members of the Commission shall 
     constitute a quorum, but a lesser number may hold hearings.
       (d) Duties.--(1) The Commission shall--
       (A) study the issues associated with the future of the 
     national technology and industrial base in the global 
     economy, particularly with respect to its effect on United 
     States national security; and
       (B) assess the future ability of the national technology 
     and industrial base to attain the national security 
     objectives set forth in section 2501 of title 10, United 
     States Code.
       (2) In carrying out the study and assessment under 
     paragraph (1), the Commission shall consider the following 
     matters:
       (A) Existing and projected future capabilities of the 
     national technology and industrial base.
       (B) The impact on the national technology and industrial 
     base of civil-military integration and the growing dependence 
     of the Department of Defense on the commercial market for 
     defense products and services.
       (C) Any current or projected shortages of a critical 
     technology (as defined in section 2500(6) of title 10, United 
     States Code), or the raw materials necessary for the 
     production of such technology, that could adversely affect 
     the national security of the United States.
       (D) The effects of domestic source restrictions on the 
     strength of the national technology and industrial base.
       (E) The effects of the policies and practices of United 
     States allies and trading partners on the national technology 
     and industrial base.
       (F) The effects on the national technology and industrial 
     base of laws and regulations related to international trade 
     and the export of defense technologies and dual-use 
     technologies.
       (G) The adequacy of programs that support science and 
     engineering education, including programs that support 
     defense science and engineering efforts at institutions of 
     higher learning, with respect to meeting the needs of the 
     national technology and industrial base.
       (H) The implementation of policies and planning required 
     under subchapter II of chapter 148 of title 10, United States 
     Code, and other provisions of law designed to support the 
     national technology and industrial base.
       (I) The role of the Manufacturing Technology program, other 
     Department of Defense research and development programs, and 
     the utilization of the authorities of the Defense Production 
     Act of 1950 to provide transformational breakthroughs in 
     advanced manufacturing technologies and processes that ensure 
     the strength and productivity of the national technology and 
     industrial base.
       (J) The role of small business concerns in strengthening 
     the national technology and industrial base.
       (e) Report.--Not later than March 1, 2007, the Commission 
     shall submit a report on its activities to the President and 
     Congress. The report shall include the following matters:
       (1) The findings and conclusions of the Commission.
       (2) The recommendations of the Commission for actions by 
     Federal Government officials to support the maintenance of a 
     robust national technology and industrial base in the 21st 
     century.
       (3) The recommendations of the Commission for addressing 
     shortages in critical technologies, and shortages of raw 
     materials necessary for the production of critical 
     technologies, that could adversely affect the national 
     security of the United States.
       (4) Any recommendations for legislation or changes in 
     regulations to support the implementation of the findings of 
     the Commission.
       (5) * * *

  Mr. WARNER. Mr. President, it has been cleared on this side.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3344) was agreed to.
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3435

  Mr. WARNER. Mr. President, on behalf of Senator McConnell and Senator 
Graham of South Carolina, I call up amendment No. 3435 which would 
authorize the Secretary of the Navy to convey land at the Naval Weapons 
Station in Charleston, S.C.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. McConnell, 
     for himself and Mr. Graham of South Carolina, proposes an 
     amendment numbered 3435.

  The amendment is as follows:

  (Purpose: To provide for a conveyance of land at the Naval Weapons 
                  Station, Charleston, South Carolina)

       On page 365, between lines 18 and 19, insert the following:

     SEC. 2830. LAND CONVEYANCE, NAVAL WEAPONS STATION, 
                   CHARLESTON, SOUTH CAROLINA.

       (a) Conveyance Authorized.--The Secretary of the Navy may 
     convey to the Berkeley County Sanitation Authority, South 
     Carolina (in this section referred to as the ``Authority''), 
     all right, title, and interest of the United States in and to 
     a parcel of real property, including any improvements 
     thereon, consisting of not more than 38 acres and

[[Page 11945]]

     comprising a portion of the Naval Weapons Station, 
     Charleston, South Carolina, for the purpose of allowing the 
     Authority to expand an existing sewage treatment plant.
       (b) Consideration.--As consideration for the conveyance of 
     property under subsection (a), the Authority shall provide 
     the United States, whether by cash payment, in-kind services, 
     or a combination thereof, an amount that is not less than the 
     fair market value, as determined by an appraisal acceptable 
     to the Secretary, of the property conveyed under such 
     subsection.
       (c) Payment of Costs of Conveyance.--(1) The Secretary may 
     require the Authority to cover costs incurred by the 
     Secretary, or to reimburse the Secretary for costs incurred 
     by the Secretary, to carry out the conveyance under 
     subsection (a), including appraisal costs, survey costs, 
     costs related to compliance with the National Environmental 
     Policy Act of 1969 (42 U.S.C. 4321 et seq.) and environmental 
     remediation, and other administrative costs related to the 
     conveyance. If the amounts are collected from the Authority 
     in advance of the Secretary incurring the actual costs, and 
     the amount collected exceeds the costs actually incurred by 
     the Secretary to carry out the conveyance, the Secretary 
     shall refund the excess amount to the Authority.
       (2) Amounts received as reimbursement under paragraph (1) 
     shall be credited to the fund or account that was used to 
     cover the costs incurred by the Secretary in carrying out the 
     conveyance. Amounts so credited shall be merged with amounts 
     in such fund or account, and shall be made available for the 
     same purposes, and subject to the same conditions and 
     limitations, as amounts in such fund or account.
       (d) Description of Property.--The exact acreage and legal 
     description of the property to be conveyed under subsection 
     (a) shall be determined by a survey satisfactory to the 
     Secretary. The cost of the survey shall be borne by the 
     Authority.
       (e) Additional Terms and Conditions.--The Secretary may 
     require such additional terms and conditions in connection 
     with the conveyance under subsection (a) as the Secretary 
     considers appropriate to protect the interests of the United 
     States.

  Mr. LEVIN. Mr. President, that amendment has been cleared on this 
side.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3435) was agreed to.
  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.


                           Amendment No. 3314

  Mr. LEVIN. Mr. President, on behalf of Senator Landrieu, I call up 
amendment No. 3314 which would authorize the Army to convey the 
inactive Louisiana army ammunition plant to the State of Louisiana in 
return for an agreement that the State would guarantee that the Army 
and the Army Guard can continue to use it as a training site and the 
State would also assume cleanup responsibilities after 5 years.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mrs. Landrieu, 
     proposes an amendment numbered 3314.

  The amendment is as follows:

    (Purpose: To authorize the conveyance of land at Louisiana Army 
                 Ammunition Plant, Doyline, Louisiana)

       On page 365, between lines 18 and 19, insert the following:

     SEC. 2830. LAND CONVEYANCE, LOUISIANA ARMY AMMUNITION PLANT, 
                   DOYLINE, LOUISIANA.

       (a) Conveyance Authorized.--The Secretary of the Army may 
     convey to the State of Louisiana (in this section referred to 
     as the ``State'') all right, title, and interest of the 
     United States in and to a parcel of real property, including 
     any improvements thereon, consisting of approximately 14,949 
     acres located at the Louisiana Army Ammunition Plant, 
     Doyline, Louisiana.
       (b) Consideration.--As consideration for the conveyance of 
     property under subsection (a), the State shall--
       (1) maintain at least 13,500 acres of such property for the 
     purpose of military training, unless the Secretary determines 
     that fewer acres are required for such purpose;
       (2) ensure that any other uses that are made of the 
     property conveyed under subsection (a) do not adversely 
     impact military training;
       (3) accommodate the use of such property, at no cost or 
     fee, for meeting the present and future training needs of 
     Armed Forces units, including units of the Louisiana National 
     Guard and the other active and reserve components of the 
     Armed Forces;
       (4) assume, starting on the date that is five years after 
     the date of the conveyance of such property, responsibility 
     for any monitoring, sampling, or reporting requirements that 
     are associated with the environmental restoration activities 
     of the Army on the Louisiana Army Ammunition Plant, and shall 
     bear such responsibility until such time as such monitoring, 
     sampling, or reporting is no longer required; and
       (5) assume the rights and responsibilities of the Army 
     under the armaments retooling manufacturing support agreement 
     between the Army and the facility use contractor with respect 
     to the Louisiana Army Ammunition Plant in accordance with the 
     terms of such agreement in effect at the time of the 
     conveyance.
       (c) Payment of Costs of Conveyance.--(1) The Secretary may 
     require the State to cover costs to be incurred by the 
     Secretary, or to reimburse the Secretary for costs incurred 
     by the Secretary, to carry out the conveyance under 
     subsection (a), including survey costs, costs related to 
     environmental documentation, and other administrative costs 
     related to the conveyance. If amounts are collected from the 
     State in advance of the Secretary incurring the actual costs, 
     and the amount collected exceeds the costs actually incurred 
     by the Secretary to carry out the conveyance, the Secretary 
     shall refund the excess amount to State.
       (2) Amounts received as reimbursement under paragraph (1) 
     shall be credited to the fund or account that was used to 
     cover the costs incurred by the Secretary in carrying out the 
     conveyance. Amounts so credited shall be merged with amounts 
     in such fund or account, and shall be available for the same 
     purposes, and subject to the same conditions and limitations, 
     as amounts in such fund or account.
       (d) Description of Property.--The exact acreage and legal 
     description of the real property to be conveyed under 
     subsection (a) shall be determined by surveys satisfactory to 
     the Secretary. The cost of each survey shall be borne by the 
     State.
       (e) Additional Terms and Conditions.--The Secretary may 
     require such additional terms and conditions in connection 
     with the conveyance under subsection (a) as the Secretary 
     considers appropriate to protect the interests of the United 
     States.

  Mr. WARNER. Mr. President, I wonder if the Senator from Michigan 
would look at the preamble. It states ``and the Army Guard.'' That 
would be the Army National Guard.
  Mr. LEVIN. The Senator is correct.
  Mr. WARNER. There is no objection, Mr. President.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3314) was agreed to.
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3229

  Mr. WARNER. Mr. President, on behalf of Senator McCain, I call up 
amendment No. 3229 that would authorize up to 50 permanent or career 
professors at each of three service academies to be excluded from 
consideration under existing statutory grade limitation for officers.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. McCain, 
     proposes an amendment numbered 3229.

  The amendment is as follows:

 (Purpose: To exclude service academy permanent and career professors 
 from a limitation on strengths applicable to active duty officers in 
  grades of major, lieutenant colonel, and colonel and Navy grades of 
             lieutenant commander, commander, and captain)

       On page 60, after line 23, insert the following:

     SEC. 403. EXCLUSION OF SERVICE ACADEMY PERMANENT AND CAREER 
                   PROFESSORS FROM A LIMITATION ON CERTAIN OFFICER 
                   GRADE STRENGTHS.

       Section 523(b) of title 10, United States Code, is amended 
     by adding at the end the following new paragraph:
       ``(8) Up to 50 permanent professors of each of the United 
     States Military Academy and the United States Air Force 
     Academy, and up to 50 professors of the United States Naval 
     Academy who are career military professors (as defined in 
     regulations prescribed by the Secretary of the Navy).''.

  Mr. LEVIN. Mr. President, the amendment has been cleared on this 
side.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3229) was agreed to.
  Mr. WARNER. Mr. President, I move to reconsider the vote.

[[Page 11946]]


  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 would like to commend the distinguished 
Senator from Arizona. He serves on the Naval Academy Board. He is very 
familiar with the academy structure, being a graduate himself of the 
Naval Academy. I strongly support him in the objective he has in his 
amendment.


                    Amendment No. 3257, As Modified

  Mr. LEVIN. Mr. President, on behalf of Senator Kennedy, I call up 
amendment No. 3257 which would codify certain requirements for public-
private competition for the performance of the Department of Defense 
functions, and also on behalf of Senator Kennedy I send a modification 
to the desk.
  The PRESIDING OFFICER. The amendment is so modified.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Kennedy, for 
     himself and Mr. Chambliss, proposes an amendment numbered 
     3257, as modified.

  The amendment is as follows:

    (Purpose: To provide for improved assessment of public-private 
competition for work performed by civilian employees of the Department 
                              of Defense)

       On page 184, between lines 16 and 17, insert the following:

                Subtitle F--Public-Private Competitions

     SEC. 856. PUBLIC-PRIVATE COMPETITION FOR WORK PERFORMED BY 
                   CIVILIAN EMPLOYEES OF THE DEPARTMENT OF 
                   DEFENSE.

       (a) Limitation.--Section 2461(b) of title 10, United States 
     Code, is amended by adding at the end the following new 
     paragraph:
       ``(5)(A) Notwithstanding subsection (d), a function of the 
     Department of Defense performed by 10 or more civilian 
     employees may not be converted, in whole or in part, to 
     performance by a contractor unless the conversion is based on 
     the results of a public-private competition process that--
       ``(i) formally compares the cost of civilian employee 
     performance of that function with the costs of performance by 
     a contractor;
       ``(ii) creates an agency tender, including a most efficient 
     organization plan, in accordance with Office of Management 
     and Budget Circular A-76, as implemented on May 29, 2003;
       ``(iii) requires continued performance of the function by 
     civilian employees unless the competitive sourcing official 
     concerned determines that, over all performance periods 
     stated in the solicitation of offers for performance of the 
     activity or function, the cost of performance of the activity 
     or function by a contractor would be less costly to the 
     Department of Defense by an amount that equals or exceeds the 
     lesser of $10,000,000 or 10 percent of the most efficient 
     organization's personnel-related costs for performance of 
     that activity or function by Federal employees; and
       ``(iv) ensures that the public sector bid would not be 
     disadvantaged in the cost comparison process by a proposal of 
     an offeror to reduce costs for the Department of Defense by 
     not making an employer-sponsored health insurance plan 
     available to the workers who are to be employed in the 
     performance of such function under a contract or by offering 
     to such workers an employer-sponsored health benefits plan 
     that requires the employer to contribute less towards the 
     premium or subscription share than that which is paid by the 
     Department of Defense for health benefits for civilian 
     employees under chapter 89 of title 5.
       ``(B) Any function that is performed by civilian employees 
     of the Department of Defense and is proposed to be 
     reengineered, reorganized, modernized, upgraded, expanded, or 
     changed in order to become more efficient shall not be 
     considered a new requirement for the purpose of the 
     competition requirements in subparagraph (A) or the 
     requirements for public-private competition in Office of 
     Management and Budget Circular A-76.
       ``(C) A function performed by more than 10 Federal 
     Government employees may not be separated into separate 
     functions for the purposes of avoiding the competition 
     requirement in subparagraph (A) or the requirements for 
     public-private competition in Office of Management and Budget 
     Circular A-76.
       ``(D) The Secretary of Defense may waive the requirement 
     for a public-private competition under subparagraph (A) in 
     specific instances if--
       ``(i) the written waiver is prepared by the Secretary of 
     Defense or the relevant Assistant Secretary of Defense, 
     Secretary of a military department, or head of a Defense 
     Agency;
       ``(ii) the written waiver is accompanied by a detailed 
     determination that national security interests are so 
     compelling as to preclude compliance with the requirement for 
     a public-private competition; and
       ``(iii) a copy of the waiver is published in the Federal 
     Register within 10 working days after the date on which the 
     waiver is granted, although use of the waiver need not be 
     delayed until its publication.''.
       (b) Inapplicability to Best-Value Source Selection Pilot 
     Program.--(1) Paragraph (5) of section 2461(b) of title 10, 
     United States Code, as added by subsection (a), shall not 
     apply with respect to the pilot program for best-value source 
     selection for performance of information technology services 
     authorized by section 336 of the National Defense 
     Authorization Act for Fiscal Year 2004 (Public Law 108-136; 
     117 Stat. 1444; 10 U.S.C. 2461 note).

     SEC. 857. PERFORMANCE OF CERTAIN WORK BY FEDERAL GOVERNMENT 
                   EMPLOYEES.

       (a) Guidelines.--(1) The Secretary of Defense shall 
     prescribe guidelines and procedures for ensuring that 
     consideration is given to using Federal Government employees 
     on a regular basis for work that is performed under 
     Department of Defense contracts and could be performed by 
     Federal Government employees.
       (2) The guidelines and procedures prescribed under 
     paragraph (1) shall provide for special consideration to be 
     given to contracts that--
       (A) have been performed by Federal Government employees at 
     any time on or after October 1, 1980;
       (B) are associated with the performance of inherently 
     governmental functions;
       (C) were not awarded on a competitive basis; or
       (D) have been determined by a contracting officer to be 
     poorly performed due to excessive costs or inferior quality.
       (b) New Requirements.--(1) No public-private competition 
     may be required under Office of Management and Budget 
     Circular A-76 or any other provision of law or regulation 
     before the performance of a new requirement by Federal 
     Government employees commences, the performance by Federal 
     Government employees of work pursuant to subsection (a) 
     commences, or the scope of an existing activity performed by 
     Federal Government employees is expanded. Office of 
     Management and Budget Circular A-76 shall be revised to 
     ensure that the heads of all Federal agencies give fair 
     consideration to the performance of new requirements by 
     Federal Government employees.
       (2) The Secretary of Defense shall, to the maximum extent 
     practicable, ensure that Federal Government employees are 
     fairly considered for the performance of new requirements, 
     with special consideration given to new requirements that 
     include functions that--
       (A) are similar to functions that have been performed by 
     Federal Government employees at any time on or after October 
     1, 1980; or
       (B) are associated with the performance of inherently 
     governmental functions.
       (c) Use of Flexible Hiring Authority.--The Secretary shall 
     include the use of the flexible hiring authority available 
     through the National Security Personnel System in order to 
     facilitate performance by Federal Government employees of new 
     requirements and work that is performed under Department of 
     Defense contracts.
       (d) Inspector General Report.--Not later than 180 days 
     after the enactment of this Act, the Inspector General of the 
     Department of Defense shall submit to the Committees on Armed 
     Services of the Senate and the House of Representatives a 
     report on the compliance of the Secretary of Defense with the 
     requirements of this section.
       (e) Definitions.--In this section:
       (1) The term ``National Security Personnel System'' means 
     the human resources management system established under the 
     authority of section 9902 of title 5, United States Code.
       (2) The term ``inherently governmental function'' has the 
     meaning given that term in section 5 of the Federal 
     Activities Inventory Reform Act of 1998 (Public Law 105-270; 
     112 Stat. 2384; 31 U.S.C. 501 note).

     SEC. 858. COMPETITIVE SOURCING REPORTING REQUIREMENT.

       Not later than February 1, 2005, the Inspector General of 
     the Department of Defense shall submit to Congress a report 
     addressing whether the Department of Defense--
       (1) employs a sufficient number of adequately trained 
     civilian employees--
       (A) to conduct satisfactorily, taking into account equity, 
     efficiency and expeditiousness, all of the public-private 
     competitions that are scheduled to be undertaken by the 
     Department of Defense during the next fiscal year (including 
     a sufficient number of employees to formulate satisfactorily 
     the performance work statements and most efficient 
     organization plans for the purposes of such competitions); 
     and
       (B) to administer any resulting contracts; and
       (2) has implemented a comprehensive and reliable system to 
     track and assess the cost and quality of the performance of 
     functions of the Department of Defense by service 
     contractors.

  Mr. WARNER. Mr. President, I believe the amendment has been cleared 
on this side.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.

[[Page 11947]]

  The amendment (No. 3257) was agreed to.
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3224

  Mr. WARNER. Mr. President, on behalf of Senator Collins and Senator 
Levin, I send an amendment No. 3224 to the desk which would provide 
Federal employees with bid protection rights and actions under the OMB 
Circular 876 process.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Ms. Collins, 
     for herself and Mr. Levin, proposes an amendment numbered 
     3224.

  The amendment is as follows:

  (Purpose: To amend title 31, United States Code, to provide Federal 
Government employees with bid protest rights in actions under Office of 
      Management and Budget Circular A-76, and for other purposes)

       On page 290, after line 22, insert the following:

     SEC. 1107. BID PROTESTS BY FEDERAL EMPLOYEES IN ACTIONS UNDER 
                   OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-76.

       (a) Eligibility To Protest.--(1) Section 3551(2) of title 
     31, United States Code, is amended to read as follows:
       ``(2) The term `interested party'--
       ``(A) with respect to a contract or a solicitation or other 
     request for offers described in paragraph (1), means an 
     actual or prospective bidder or offeror whose direct economic 
     interest would be affected by the award of the contract or by 
     failure to award the contract; and
       ``(B) with respect to a public-private competition 
     conducted under Office of Management and Budget Circular A-76 
     regarding performance of an activity or function of a Federal 
     agency, includes--
       ``(i) any official who submitted the agency tender in such 
     competition; and
       ``(ii) any one person who, for the purpose of representing 
     them in a protest under this subchapter that relates to such 
     competition, has been designated as their agent by a majority 
     of the employees of such Federal agency who are engaged in 
     the performance of such activity or function.''.
       (2)(A) Subchapter V of chapter 35 of such title is amended 
     by adding at the end the following new section:

     ``Sec. 3557. Expedited action in protests for public-private 
       competitions

       ``For protests in cases of public-private competitions 
     conducted under Office of Management and Budget Circular A-76 
     regarding performance of an activity or function of Federal 
     agencies, the Comptroller General shall administer the 
     provisions of this subchapter in a manner best suited for 
     expediting final resolution of such protests and final action 
     in such competitions.''.
       (B) The chapter analysis at the beginning of such chapter 
     is amended by inserting after the item relating to section 
     3556 the following new item:

``3557. Expedited action in protests for public-private 
              competitions.''.
       (b) Right To Intervene in Civil Action.--Section 1491(b) of 
     title 28, United States Code, is amended by adding at the end 
     the following new paragraph:
       ``(5) If a private sector interested party commences an 
     action described in paragraph (1) in the case of a public-
     private competition conducted under Office of Management and 
     Budget Circular A-76 regarding performance of an activity or 
     function of a Federal agency, then an official or person 
     described in section 3551(2)(B) of title 31 shall be entitled 
     to intervene in that action.''.
       (c) Applicability.--Subparagraph (B) of section 3551(2) of 
     title 31, United States Code (as added by subsection (a)), 
     and paragraph (5) of section 1491(b) of title 28, United 
     States Code (as added by subsection (b)), shall apply to--
       (1) protests and civil actions that challenge final 
     selections of sources of performance of an activity or 
     function of a Federal agency that are made pursuant to 
     studies initiated under Office of Management and Budget 
     Circular A-76 on or after January 1, 2004; and
       (2) any other protests and civil actions that relate to 
     public-private competitions initiated under Office of 
     Management and Budget Circular A-76 on or after the date of 
     the enactment of this Act.

  Mr. LEVIN. Mr. President, the amendment has been cleared on this 
side. I am a proud cosponsor of this amendment.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3224) was agreed to.
  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.


                           Amendment No. 3340

  Mr. LEVIN. Mr. President, on behalf of myself and Senator Feinstein, 
I call up amendment No. 3340 which would give authority to the Navy to 
settle a claim related to property associated with a former naval 
hospital in Oakland. This settlement has been agreed to by, I guess, 
all of the parties.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for himself and Mrs. 
     Feinstein, proposes an amendment numbered 3340.

  The amendment is as follows:

(Purpose: To authorize the settlement of the claim of the Oakland Base 
   Reuse Authority and Redevelopment Agency of the City of Oakland, 
                              California)

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

     SEC. 2844. AUTHORITY TO SETTLE CLAIM OF OAKLAND BASE REUSE 
                   AUTHORITY AND REDEVELOPMENT AGENCY OF THE CITY 
                   OF OAKLAND, CALIFORNIA.

       (a) Authority.--The Secretary of the Navy may pay funds as 
     agreed to by both parties, in the amount of $2,100,000, to 
     the Oakland Base Reuse Authority and Redevelopment Agency of 
     the City of Oakland, California, in settlement of Oakland 
     Base Reuse Authority and Redevelopment Agency of the City of 
     Oakland v. the United States, Case No. C02-4652 MHP, United 
     States District Court, Northern District of California, 
     including any appeal.
       (b) Consideration.--As consideration, the Oakland Base 
     Reuse Authority and Redevelopment Agency shall agree that the 
     payment constitutes a final settlement of all claims against 
     the United States related to said case and give to the 
     Secretary a release of all claims to the eighteen officer 
     housing units located at the former Naval Medical Center 
     Oakland, California. The release shall be in a form that is 
     satisfactory to the Secretary.
       (c) Source of Funds.--The Secretary may use funds in the 
     Department of Defense Base Closure Account 1990 established 
     pursuant to section 2906 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) for the payment authorized by 
     subsection (a) or the proceeds of sale from the eighteen 
     housing units and property described in subsection (b).

  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3340) was agreed to.
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3432

  Mr. WARNER. Mr. President, on behalf of myself, Senator Levin and 
others, I call up amendment No. 3432 which would amend the short title 
of the Defense authorization bill in honor of the late President Ronald 
W. Reagan.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for himself, Mr. 
     Frist, Mr. Stevens, Mr. McConnell, Mr. Levin, Mr. McCain, 
     Mrs. Hutchison, Mr. Inhofe, Mr. Kyl, Mr. Santorum, Mr. 
     Roberts, Mr. Allard, Mr. Sessions, Ms. Collins, Mr. Ensign, 
     Mr. Talent, Mr. Chambliss, Mr. Graham of South Carolina, Mrs. 
     Dole, Mr. Cornyn, Mr. Inouye, Mr. Cochran, Mr. Grassley, Mr. 
     Lugar, Mr. Nickles, Mr. Burns, Mr. Lott, and Mr. Lieberman, 
     proposes an amendment numbered 3432.

  The amendment is as follows:

  (Purpose: To amend the short title to name the bill in honor of the 
    late Ronald W. Reagan, the 40th President of the United States)

       On page 2, beginning on line 2, strike ``National Defense 
     Authorization Act for Fiscal Year 2005'' and insert ``Ronald 
     W. Reagan National Defense Authorization Act for Fiscal Year 
     2005''.

  Mr. LEVIN. The amendment has been cleared and very strongly 
cosponsored by many Members on this side of the aisle, as well as I 
think probably everyone if they had the opportunity which they can, of 
course, do at a later time.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3432) was agreed to.
  Mr. WARNER. I appreciate the Presiding Officer's action on that. I am

[[Page 11948]]

very proud to have initiated this. I am very proud of the number of 
cosponsors on both sides, and Senator Levin's strong bipartisanship.
  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. 3221

  Mr. WARNER. Mr. President, on behalf of Senators Lott, Cochran, 
Snowe, and Collins I call up amendment No. 3221, which ensures the 
continuity of search and rescue capabilities of the Federal Government.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. Lott, for 
     himself, Ms. Snowe, Mr. Cochran, and Ms. Collins, proposes an 
     amendment numbered 3221.

  The amendment is as follows:

(Purpose: To ensure continuity of the search and rescue capabilities of 
                        the Federal Government)

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

     SEC. 1068. PRESERVATION OF SEARCH AND RESCUE CAPABILITIES OF 
                   THE FEDERAL GOVERNMENT.

       The Secretary of Defense may not reduce or eliminate search 
     and rescue capabilities at any military installation in the 
     United States unless the Secretary first certifies to the 
     Committees on Armed Services of the Senate and the House of 
     Representatives that equivalent search and rescue 
     capabilities will be provided, without interruption and 
     consistent with the policies and objectives set forth in the 
     United States National Search and Rescue Plan entered into 
     force on January 1, 1999, by--
       (1) the Department of Interior, the Department of Commerce, 
     the Department of Homeland Security, the Department of 
     Transportation, the Federal Communications Commission, or the 
     National Aeronautics and Space Administration; or
       (2) the Department of Defense, either directly or through a 
     Department of Defense contract with an emergency medical 
     service provider or other private entity to provide such 
     capabilities.

  Mr. WARNER. The amendment has been cleared and is agreeable.
  Mr. LEVIN. The amendment has been cleared on this side.
  Mr. WARNER. I urge its adoption.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 3221) was agreed to.
  Mr. WARNER. I move to reconsider the vote and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.


                    Amendment No. 3376, As Modified

  Mr. LEVIN. On behalf of Senator Bill Nelson, I call up amendment No. 
3376, which will set forth the sense of the Congress that the Secretary 
of Defense should provide support for reduced launch costs and enhanced 
technical capabilities at space launch ranges through additional safety 
systems, and on behalf of Senator Nelson I send a modification to the 
desk and ask that the modification be considered.
  The PRESIDING OFFICER. Without objection, it is so modified.
  The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Nelson of 
     Florida, proposes an amendment numbered 3376, as modified.

  The amendment is as follows:

   (Purpose: To express the sense of Congress on space launch ranges)

       On page 256, between lines 10 and 11, insert the following:

     SEC. 1035. SENSE OF CONGRESS ON SPACE LAUNCH RANGES.

       It is the sense of Congress that the Secretary of Defense 
     should provide support for, and continue the development, 
     certification, and deployment of portable range safety 
     systems that are capable of--
       (1) reducing costs related to national security space 
     launches and launch infrastructure; and
       (2) enhancing technical capabilities and operational safety 
     at the Eastern, Western, and other United States space launch 
     ranges.

  Mr. WARNER. The amendment has been cleared. I urge its adoption.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 3376) was agreed to.
  Mr. LEVIN. I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3167

  Mr. WARNER. Mr. President, on behalf of Senator Domenici, I call up 
amendment No. 3167, which requires the Secretary of Defense to submit a 
report on potential missile defense test ranges.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. Domenici, 
     proposes an amendment numbered 3167.

  The amendment is as follows:

(Purpose: To require a report on the availability of launch sites that 
permit realistic overland test flights for defenses against short-range 
                       ballistic missile systems)

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

     SEC. 1022. REPORT ON AVAILABILITY OF LAUNCH SITES PERMITTING 
                   REALISTIC OVERLAND TEST FLIGHTS FOR DEFENSES 
                   AGAINST SHORT-RANGE BALLISTIC MISSILE SYSTEMS.

       (a) Finding.--Congress finds that the testing of defenses 
     against short-range ballistic missile systems require 
     overland flights of such systems of at least 1,000 kilometers 
     in order to accurately simulate realistic environmental 
     conditions that affect such defenses.
       (b) Report on Availability of Launch Sites.--The Secretary 
     of Defense shall submit to Congress a report assessing the 
     availability to the Department of Defense of launch sites 
     that permit overland flights of short-range ballistic missile 
     systems of at least 1,000 kilometers in order to accurately 
     simulate realistic environmental conditions that affect such 
     defenses.

  Mr. LEVIN. The amendment has been cleared on this side.
  Mr. WARNER. I urge its adoption.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 3167) was agreed to.
  Mr. WARNER. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3296

  Mr. LEVIN. Mr. President, on behalf of Senator Sarbanes, I call up 
amendment No. 3296, which would grant a Federal charter to the Korean 
War Veterans Association, Incorporated.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Sarbanes and 
     Mr. Warner, proposes an amendment numbered 3296.

  The amendment is as follows:

      (Purpose: To grant a Federal charter to Korean War Veterans 
                       Association, Incorporated)

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

     SEC. 1068. GRANT OF FEDERAL CHARTER TO KOREAN WAR VETERANS 
                   ASSOCIATION, INCORPORATED.

       (a) Grant of Charter.--Part B of subtitle II of title 36, 
     United States Code, is amended--
       (1) by striking the following:

                   ``CHAPTER 1201--[RESERVED]''; and

       (2) by inserting the following:

     ``CHAPTER 1201--KOREAN WAR VETERANS ASSOCIATION, INCORPORATED

``Sec.
``120101. Organization.
``120102. Purposes.
``120103. Membership.
``120104. Governing body.
``120105. Powers.
``120106. Restrictions.
``120107. Duty to maintain corporate and tax-exempt status.
``120108. Records and inspection.
``120109. Service of process.
``120110. Liability for acts of officers and agents.
``120111. Annual report.

     ``Sec. 120101. Organization

       ``(a) Federal Charter.--Korean War Veterans Association, 
     Incorporated (in this chapter, the `corporation'), 
     incorporated in the State of New York, is a federally 
     chartered corporation.
       ``(b) Expiration of Charter.--If the corporation does not 
     comply with the provisions of this chapter, the charter 
     granted by subsection (a) expires.

     ``Sec. 120102. Purposes

       ``The purposes of the corporation are as provided in its 
     articles of incorporation and include--

[[Page 11949]]

       ``(1) organizing, promoting, and maintaining for benevolent 
     and charitable purposes an association of persons who have 
     seen honorable service in the Armed Forces during the Korean 
     War, and of certain other persons;
       ``(2) providing a means of contact and communication among 
     members of the corporation;
       ``(3) promoting the establishment of, and establishing, war 
     and other memorials commemorative of persons who served in 
     the Armed Forces during the Korean War; and
       ``(4) aiding needy members of the corporation, their wives 
     and children, and the widows and children of persons who were 
     members of the corporation at the time of their death.

     ``Sec. 120103. Membership

       ``Eligibility for membership in the corporation, and the 
     rights and privileges of members of the corporation, are as 
     provided in the bylaws of the corporation.

     ``Sec. 120104. Governing body

       ``(a) Board of Directors.--The board of directors of the 
     corporation, and the responsibilities of the board of 
     directors, are as provided in the articles of incorporation 
     of the corporation.
       ``(b) Officers.--The officers of the corporation, and the 
     election of the officers of the corporation, are as provided 
     in the articles of incorporation.

     ``Sec. 120105. Powers

       ``The corporation has only the powers provided in its 
     bylaws and articles of incorporation filed in each State in 
     which it is incorporated.

     ``Sec. 120106. Restrictions

       ``(a) Stock and Dividends.--The corporation may not issue 
     stock or declare or pay a dividend.
       ``(b) Political Activities.--The corporation, or a director 
     or officer of the corporation as such, may not contribute to, 
     support, or participate in any political activity or in any 
     manner attempt to influence legislation.
       ``(c) Loan.--The corporation may not make a loan to a 
     director, officer, or employee of the corporation.
       ``(d) Claim of Governmental Approval or Authority.--The 
     corporation may not claim congressional approval, or the 
     authority of the United States, for any of its activities.

     ``Sec. 120107. Duty to maintain corporate and tax-exempt 
       status

       ``(a) Corporate Status.--The corporation shall maintain its 
     status as a corporation incorporated under the laws of the 
     State of New York.
       ``(b) Tax-Exempt Status.--The corporation shall maintain 
     its status as an organization exempt from taxation under the 
     Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.).

     ``Sec. 120108. Records and inspection

       ``(a) Records.--The corporation shall keep--
       ``(1) correct and complete records of account;
       ``(2) minutes of the proceedings of its members, board of 
     directors, and committees having any of the authority of its 
     board of directors; and
       ``(3) at its principal office, a record of the names and 
     addresses of its members entitled to vote on matters relating 
     to the corporation.
       ``(b) Inspection.--A member entitled to vote on matters 
     relating to the corporation, or an agent or attorney of the 
     member, may inspect the records of the corporation for any 
     proper purpose, at any reasonable time.

     ``Sec. 120109. Service of process

       ``The corporation shall have a designated agent in the 
     District of Columbia to receive service of process for the 
     corporation. Notice to or service on the agent is notice to 
     or service on the Corporation.

     ``Sec. 120110. Liability for acts of officers and agents

       ``The corporation is liable for the acts of its officers 
     and agents acting within the scope of their authority.

     ``Sec. 120111. Annual report

       ``The corporation shall submit an annual report to Congress 
     on the activities of the corporation during the preceding 
     fiscal year. The report shall be submitted at the same time 
     as the report of the audit required by section 10101 of this 
     title. The report may not be printed as a public document.''.
       (b) Clerical Amendment.--The table of chapters at the 
     beginning of subtitle II of title 36, United States Code, is 
     amended by striking the item relating to chapter 1201 and 
     inserting the following new item:

``1201. Korean War Veterans Association, Incorporated.....120101''.....

  Mr. WARNER. The amendment has been cleared.
  I ask to be made a cosponsor as I am proud to have served in the 
Korean war in the Marines.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on agreeing to the amendment.
  The amendment (No. 3296) was agreed to.
  Mr. LEVIN. I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                    Amendment No. 3316, As Modified

  Mr. LEVIN. Mr. President, on behalf of Senator Harkin, I call up 
amendment No. 3316, which expresses a sense of the Senate that the 
Secretary of Defense should develop appropriate methods of oversight of 
the American forces radio and television service system to ensure 
presentation of all sides of important public questions, and on behalf 
of Senator Harkin, I send a modification to the desk and ask unanimous 
consent the modification be agreed to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Harkin, 
     proposes amendment numbered 3316, as modified.

  The amendment is as follows:

(Purpose: Expressing the sense of the Senate on Armed Forces Radio and 
                    Television Service programming)

       At the appropriate place add the following:
       Whereas it is the mission of the American Forces Radio and 
     Television Service to provide U.S. military commanders 
     overseas and at sea with a broadcast media resource to 
     effectively communicate DoD, Service-unique, theater, and 
     local command information to personnel under their commands 
     and to provide U.S. military members, DoD civilians, and 
     their families stationed outside the Continental U.S. and at 
     sea with the same type and quality of American radio and 
     television news, information, sports, and entertainment that 
     would be available to them if they were in the continental 
     U.S.; and
       Whereas key principles of American Forces Radio and 
     Television Service broadcasting policy, as outlined in 
     Department of Defense Regulation 5120.20R, are to ensure 
     political programming characterized by fairness and balance 
     and to provide a free flow of political programming from U.S. 
     commercial and public networks without manipulation or 
     censorship of any news content to the men and women of the 
     Armed Forces and their dependents; and
       Whereas the stated policy of the American Forces Radio and 
     Television Service is to select programming that represents a 
     cross-section of popular American radio and television 
     offerings and to emulate stateside scheduling and programming 
     seen and heard in the United States; and
       Whereas it is the policy of American Forces Radio and 
     Television Service to select news and public affairs programs 
     for airing that provide balance and diversity from available 
     nationally recognized program sources, including broadcast 
     and cable networks, Headquarters, American Forces Radio and 
     Television Service, the military departments, and other 
     government or public service agencies. Therefore, be it
       Resolved, That it is the sense of the Senate--
       that the mission statement and policies of the American 
     Forces Radio and Television Service appropriately state the 
     goal of maintaining equal opportunity balance with respect to 
     political programming and that the Secretary of Defense 
     should therefore ensure that these policies are fully being 
     implemented by developing appropriate methods of oversight to 
     ensure presentation of all sides of important public 
     questions with the fairness and balance envisioned by the 
     Department of Defense throughout the American Forces Radio 
     and Television Service system.

  Mr. WARNER. I urge its adoption.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 3316) was agreed to.
  Mr. LEVIN. I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                    Amendment No. 3164, As Modified

  Mr. WARNER. On behalf of Senator Gregg, I call up amendment No. 3164 
that expresses the sense of the Senate that the Internal Revenue 
Service should provide further guidance to clarify under the tax laws 
the rights and responsibility of employers who generously continue 
payments to employees who are mobilized Reserve or Guard members, and 
on behalf of Senator Gregg, I send a modification to the desk and ask 
it be agreed to.
  The PRESIDING OFFICER. Without objection, the amendment is modified.
  The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. Gregg, 
     proposes an amendment numbered 3164, as modified.


[[Page 11950]]


  The amendment is as follows:

  (Purpose: To express the sense of the Senate on the coordination of 
rights under the Uniformed Services Employment and Reemployment Rights 
          Act of 1994 with the Internal Revenue Code of 1986)

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

     SEC. 1068. COORDINATION OF USERRA WITH THE INTERNAL REVENUE 
                   CODE OF 1986.

       (a) Findings.--Congress makes the following findings:
       (1) Employers of reservists called up for active duty are 
     required to treat them as if they are on a leave of absence 
     or furlough under the Uniformed Services Employment and 
     Reemployment Rights Act of 1994 (in this section referred to 
     as ``USERRA'').
       (2) USERRA does not require employers to pay reservists who 
     are on active duty, but many employers pay the reservists the 
     difference between their military stipends and their regular 
     salaries. Some employers provide this ``differential pay'' 
     for up to 3 years.
       (3) For employee convenience, many of these employers also 
     allow deductions from the differential payments for 
     contributions to employer-provided retirement savings plans.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that the Internal Revenue Service should, to the extent it is 
     able within its authority, provide guidance consistent with 
     the goal of promoting and ensuring the validity of voluntary 
     differential pay arrangements, benefits payments, and 
     contributions to retirement savings plans related thereto.

  Mr. GREGG. Mr. President, military action in Afghanistan and Iraq has 
brought to light yet another example of how outdated and burdensome 
government policies often punish generous employers in America. 
Apparently, when it comes to companies showing respect for employees 
who are called to active duty in the military, there is special meaning 
to the old cliche that ``no good deed goes unpunished.''
  The National Committee for Employer Support for the Guard and 
Reserve, a nationwide association, reports that over 2,500 employers 
have signed a pledge of support and have gone above and beyond the 
requirements of the law in support of their National Guard and Reserve 
employees. This includes many of our Nation's largest and most 
reputable corporations, including 3M, McDonalds, Wal-Mart, Home Depot, 
Liberty Mutual and many others. These remarkable companies provide 
reservist employees who are on active duty with ``differential pay'' 
that makes up the difference between their military stipend and 
civilian salary.
  National companies are not the only patriotic businesses providing 
special pay to our men and women who are called to serve overseas. Some 
of the most remarkable stories of corporate patriotism can be found in 
my state of New Hampshire.
  BAE Systems of Nashua provides differential pay to their 25 called-up 
employees and continuing access to benefits to family members. The 
company even provides a stipend to make up the lost pay of active duty 
spouses of company employees when the spouse's employer is not able to 
provide differential pay. The corporate culture of support for the 
troops at BAE Systems is universal. Employees are encouraged to stay in 
touch with the families of fellow employees on active duty to help out 
where they can, and to avoid the Vietnam Syndrome of isolation. When 
you walk into BAE Systems headquarters, you cannot help but notice the 
flags of the branches of the United States armed services.
  And then there is the story of Mr. Marian Noronha, Chairman and 
Founder of Turbocam, a manufacturer based in Dover, New Hampshire. An 
immigrant from India, Mr. Noronha has not only provided his employees 
with differential pay and continued family health benefits, but he has 
also extended to each of his activated employees a $10,000 line of 
credit. His active duty reservist and Guard employees have used this 
money to, among other things, purchase personal computers so their 
families can communicate with them while they are overseas. Beyond 
this, Mr. Noronha actively encourages other employers to treat their 
reservist employees in a similar manner.
  Several other New Hampshire private-sector companies, including 
Hitchiner Manufacturing Company in Milford, also have exemplary records 
when it comes to dealing with their employees in the Reserves and 
National Guard.
  Finally, New Hampshire's Governor Benson by Executive Order has also 
extended differential pay for up to 18 months to State employees who 
have been called to active duty.
  Unfortunately, an arcane IRS interpretation of tax law actually 
penalizes these kinds of employers that voluntarily pay their National 
Guard and reservist employees the difference between their military 
stipends and their previous civilian salaries--which appropriately is 
called ``differential pay.'' The law also penalizes employers that 
continue making contributions to retirement plans for such employees.
  According to the IRS, members of the Guard and reserves called up for 
active duty are required to be treated as if they are on a leave of 
absence by their employers under the Uniformed Services Employment and 
Reemployment Rights Act of 1994, USERRA. Therefore, the act does not 
require employers to pay workers who are on active duty. However, many 
employers--out of a sense of civic duty--continue to pay active duty 
Guard members and reservists the difference between their military 
stipends and their regular salaries with some employers providing such 
``differential pay'' for up to 3 years. In additions, many of these 
remarkable companies go even further and allow their active duty 
employees to continue making contributions to their 401(k) retirement 
plans via deductions from the ``differential payments.''
  However, rather than applauding and encouraging such selfless 
behavior by companies in continuing to provide retirement benefits for 
Reservists, the IRS's 1969 Revenue Ruling requires that the active duty 
workers be treated as if they were ``terminated.'' As a result, this 
law then puts at risk the retirement plan for an employer's entire 
workforce and could make all amounts in the plan immediately taxable to 
the plan's participants and the employer. Adding to the absurdity of 
the situation, preventing an employer from treating ``differential 
pay'' as wages under the law means employers are prohibited from 
withholding income taxes, which in turn causes their active duty former 
employees to face large and unexpected tax bills at the end of the 
year.
  We should change this Vietnam War-era IRS interpretation of tax law 
that actually penalizes responsible, caring, patriotic employers like 
BAE Systems, Hitchiner Manufacturing, and many other companies who 
voluntarily provide differential pay. I have offered a bill to do just 
that, S. 2448, but the problem could be corrected more appropriately 
and quickly by the Internal Revenue Service by revising the outdated 
revenue ruling that effectively discourages employers from providing 
additional pay to their employees who are reservists or Guard members 
called to active duty. The sense of the Senate amendment I am offering 
today urges the Internal Revenue Service to reconsider the 
ramifications of applying a Vietnam-era revenue ruling to the 
prevailing circumstances of the present day.
  Specifically it expresses the sense of the Senate that the IRS 
should, ``to the extent it is able within its authority, provide 
guidance consistent with the goal of promoting and ensuring the 
validity of voluntary differential pay arrangements, benefits payments, 
and contributions related thereto.''
  Employers should not be penalized for the generosity they provide to 
our nation's reservists and members of the Guard. This sense of the 
Senate urges the Internal Revenue Service to help employers avoid these 
problems.
  Mr. President, I also ask unanimous consent a newsletter be printed 
in the Record from BAE Systems titled ``Connections,'' published last 
month, that outlines the differential pay benefits that BAE provides 
their employees called up to active National Guard or Reserve duty.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 BAE Systems Spouses Get Support While Loved Ones Are Miles Away From 
                                  Home

       Marine Corps Reserve Sgt. Hunter Philbrick returned to his 
     civilian job as a

[[Page 11951]]

     Milford, N.H., police officer in January. His year-long 
     military deployment in support of the War on Terrorism was 
     made a little easier by BAE Systems' support for his family.
       Sgt. Philbrick's wife Tina--a senior program control 
     administrator on the F/A-22 program--says the Company helped 
     to ease the difficulties of her husband's absence. Philbrick 
     is one of four Information & Electronic Warfare Systems (IEWS 
     employees whose non-BAE Systems spouses have been called to 
     active duty over the past few years.
       ``It was really, really appreciated.'' says Philbrick.
       ``IEWS is committed to supporting its Reservists,'' said 
     Jon Murphy, vice president of IEWS' Human Resources. ``IEWS' 
     policy goes well beyond the 1994 Uniformed Serviced 
     Employment and Reemployment Rights Act (USERRA).''
       IEWS' policy is so strong, a New Hampshire state legislator 
     recently attempted to model state policy after IEWS' outreach 
     towards its Reserve and Guard employees.
       ``IEWS' policy is seen as a real beacon of support for our 
     Guard and Reserve employees and their families.'' said Dennis 
     Viola of the State Veterans Council. ``When we asked Ted Kerr 
     of the New Hampshire Guard office about company policies to 
     emulate, he didn't hesitate to mention BAE Systems and Public 
     Service of New Hampshire.''
       IEWS employs 72 U.S. military Reservists or National 
     Guardsmen and women. Nine of these employees, currently on 
     active duty, support operations Nobel Eagle, Enduring 
     Freedom, and Iraqi Freedom. Four other employees have non-BAE 
     Systems spouses also called to active duty.
       ``Anything the Company does for members of the military and 
     their families is really appreciated'' Said Philbrick.
       BAE Systems does all it can to support men and women in 
     uniform and that includes employees who are ``Citizen 
     Soldiers'' by serving in the National Guard and Reserve. Not 
     only do we support those directly serving in the Armed 
     Forces, but we're also here to help the families of troops. 
     Whether it's through a Charity Challenge bike drive where 
     employees raise money and donate time to build bikes for 
     distribution to local military families, or through a 
     business unit stipend, we stand behind men and women who 
     choose to serve our country. Support may vary somewhat 
     between business units and locations, but the desire to do 
     the right thing is always there.''

  Mr. LEVIN. The amendment has been cleared.
  Mr. WARNER. I urge its adoption.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 3164) was agreed to.
  Mr. WARNER. I move to reconsider the vote, and I move to lay the 
motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3295

  Mr. WARNER. Mr. President, I call up an amendment on behalf of the 
Senator from Wyoming, Mr. Enzi, amendment No. 3295. My understanding is 
it has been cleared on both sides.
  Mr. LEVIN. The amendment has been cleared on this side.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 3295) 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.


                           Amendment No. 3307

  Mr. LEVIN. Mr. President, I call up an amendment on behalf of Senator 
Harry Reid. I believe it is No. 3307.
  Mr. WARNER. There is no objection on this side.
  The PRESIDING OFFICER. The amendment is pending.
  Mr. LEVIN. Mr. President, this amendment provides for parallel 
compensation for our POWS from the first gulf war. I think the language 
is at the desk.
  Mr. REID. I appreciate very much the hard work of these two great 
Senators. I especially appreciate their recognizing the importance of 
this amendment. We had 17 American prisoners of war, and they were 
treated very brutally, with jaws broken, electricity applied to various 
parts of their body. A number of the 17 have permanent damages as a 
result of this brutal treatment.
  They had a large judgment at one time. It was opposed by the Justice 
Department. Last week, that was knocked out.
  I simply want, as the ranking member of the committee said, that 
these POWs who were so brutalized have equal treatment with the Iraqis 
who were brutalized in the prison in Iraq. This does not call for a 
specific sum of money. It just says the Defense Department must come up 
with a plan for these 17 people before we agree to anything for the 
Iraqis who the Secretary of Defense has said should be compensated.
  It is the fair thing to do. We have these 17 brave American patriots 
who feel put down by their Government for having had Saddam Hussein's 
money at one time taken away from them.
  Mr. WARNER. Mr. President, I associate myself with the remarks of our 
distinguished Democratic leader. The amendment is carefully thought 
through. It should be given to these men and families.
  I would like to be added as a cosponsor.
  Mr. LEVIN. Mr. President, let me add my thanks to the Senator from 
Nevada for, as always, looking out for the interests of our troops, the 
men and women in the Armed Forces. Where it is necessary to make up for 
failures, he is the first to find ways to do that. It is a very 
important function of this Senate. I commend the Senator.
  I ask to be added, also, as a cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on agreeing to the amendment.
  The amendment (No. 3307) was agreed to.
  The PRESIDING OFFICER. The Senator from Nevada.
  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, while I have the attention of the two 
managers of the bill, just so other Senators have an idea of what we on 
this side are planning on doing, I have consulted with the 
distinguished manager of the bill on our side. Senator Crapo is going 
to try to offer an amendment sometime tomorrow. Once that is resolved 
one way or the other, the next Democratic amendment in order will be by 
the distinguished Senator from Illinois. So that is going to be our 
next amendment in order following the Crapo amendment. We are having a 
few little parliamentary problems with that right now, but we will work 
on that through the evening and tomorrow.
  Mr. WARNER. Mr. President, reserving the right to object, and I do 
not think I will, I just want to clarify the situation. I would have to 
object now to any further amendments being laid down tonight.
  Mr. REID. No. If my distinguished friend will yield, Mr. President, 
what I simply said is that it is my understanding the next Republican 
amendment in order is the Crapo amendment. We have an objection on our 
side at this time that that amendment be laid down.
  Mr. WARNER. Right.
  Mr. REID. We are going to try to resolve that. What I indicated is 
that following that amendment, we would likely go to Senator Durbin, 
unless Senator Cantwell wants to offer hers. But those are our next two 
amendments in order, and the next one will either be Cantwell or 
Durbin, whenever she decides she wants to offer hers. That is just an 
agreement so people know what we are trying to do on our side.
  Mr. WARNER. Fine. I hope we are not asking for any unanimous consent 
to lock anything in. You are simply notifying the Senate. I would like 
to be cooperative to see that sequence of events transpires. So at this 
time there will not be a laying down of an amendment.
  Mr. REID. That is right. Until we get the matter resolved with 
Senator Cantwell and Senator Hollings, we will not be able to go to the 
Crapo amendment. We are going to work on that. But after that, we have 
a number of amendments on our side that we want to offer, and I have 
indicated to the Chair what we plan to do.
  Mr. WARNER. So we have had a colloquy in which we have indicated this

[[Page 11952]]

is the manner in which we hope to proceed. We will have the Kennedy 
amendment first. Once that is concluded--presumably there will be a 
rollcall vote--then we will proceed to the next amendment. It is a 
Republican that is in the queue. It is likely to be Mr. Crapo. At that 
time, I hope this matter will be resolved so there can be this sequence 
of events.
  Mr. REID. One reason I want to do this, I say through the Chair to 
the distinguished managers, is that Senator Durbin is a very patient 
man. He has actually three amendments. He is only going to offer one at 
this time. He always is willing to wait until someone else does 
something else, and in this instance we believe he should be one of 
those first Democratic amendments offered because he has been ready to 
go for some time.
  Mr. WARNER. Mr. President, that choice is entirely on your side. If 
that is your wish, I think, in all likelihood, it will take place.
  Mr. DURBIN. Will the Senator yield?
  Mr. WARNER. Yes.
  Mr. DURBIN. Mr. President, I am not sure who has the floor at this 
moment.
  Mr. WARNER. At this point in time the Chair is perfectly in order to 
recognize the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Thank you, Mr. President. I thank the chairman of the 
committee, Senator Warner, and his ranking member, Senator Levin, for 
their endurance and patience.
  This is an extremely important bill with many important issues. I say 
to the Senators, you have served the Senate well, both of you, in the 
manner you have handled this bill. Many of us with amendments that we 
consider of importance have stepped back, some because of events, such 
as the departure and the demise of President Reagan, and others because 
of other issues.
  It is my understanding that there will not be a unanimous consent 
request tonight in terms of the order of business. I am not going to 
make one. I thank Senator Reid for acknowledging that I do have several 
amendments pending. I am anxious to call up the amendments. I will 
agree to time limits on debate so this will not go on for a lengthy 
period. I would just like to bring the matters to the floor for 
resolution.
  Mr. WARNER. Mr. President, does the Senator from Illinois have the 
number of the amendment he is likely to propose in the event the 
sequence of events as outlined by the three Senators here, momentarily, 
evolves?
  Mr. DURBIN. I thank the Senator from Virginia. I spoke to him earlier 
about an amendment relative to the policy on torture. That is amendment 
No. 3386. But I would like to defer that until the Senator from 
Virginia has had a chance to review it, in the hopes he will be 
supportive.
  Another amendment is No. 3196, reservist pay. This is an amendment 
which passed the Senate with a 96-to-3 vote last year, which I am 
hoping we can make a part of this bill. Finally, I have an amendment 
relative to the sale of dietary supplements on base exchanges, 
amendment No. 3225. Those are the three amendments I have pending.
  Mr. WARNER. I say to the Senator, thank you.
  Now, Mr. President, I think that concludes the matters with regard to 
this bill for tonight. I believe we can now proceed to wrap-up session.

                          ____________________