[Congressional Record (Bound Edition), Volume 151 (2005), Part 13]
[Senate]
[Pages 17248-17265]
[From the U.S. Government Publishing Office, www.gpo.gov]




   NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006--Continued

  Mr. WARNER. Mr. President, my understanding is that the Senate now 
returns to the Defense authorization bill. Is that the pending 
business?
  The PRESIDING OFFICER. The Senator is correct.
  The Senator from Texas.


                           Amendment No. 1477

  Mrs. HUTCHISON. Mr. President, I call up amendment No. 1477 and ask 
for its immediate consideration.
  The PRESIDING OFFICER. Without objection, the pending amendment is 
laid aside. The clerk will report the amendment.
  The legislative clerk read as follows:
       The Senator from Texas [Mrs. Hutchison] proposes an 
     amendment numbered 1477.
  Mrs. HUTCHISON. 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 make oral and maxillofacial surgeons eligible for special 
   pay for Reserve health professionals in critically short wartime 
                              specialties)

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

     SEC. 624. ELIGIBILITY OF ORAL AND MAXILLOFACIAL SURGEONS FOR 
                   SPECIAL PAY FOR RESERVE HEALTH PROFESSIONALS IN 
                   CRITICALLY SHORT WARTIME SPECIALTIES.

       (a) In General.--Section 302g(b) of title 37, United States 
     Code, is amended by inserting ``, including oral and 
     maxillorfacial surgery,'' after ``in a health profession''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on October 1, 2005.

  Mrs. HUTCHISON. Mr. President, this is a very simple amendment, and 
it is going to add one more category to those who will be able to 
receive special incentive pay for signing up to come in to serve our 
military in the medical field. This field is oral surgery. Those who 
are deployed in Iraq and Afghanistan and other military theaters have 
critical needs for oral surgery. Complex facial trauma comes with 
battlefield injuries.
  In addition to being on the ground in mobile surgical hospital units, 
oral surgeons are serving on every aircraft carrier to provide 
essential facial reconstruction and trauma care. These surgeons are 
indispensable military personnel who provide a unique and necessary 
role in caring for our troops. Unfortunately, this valuable role is 
being threatened by an ever-widening compensation gap between military 
and civilian pay and the unlimited practice opportunities that oral 
surgeons have in the civilian market. With a historical retention rate 
of 85 percent, a loss of 15 percent, recent statistics predict the 
current retention rate for oral surgeons is closer to only 75 percent. 
Even more concerning, many of our military's oral surgeons are senior 
officers who could retire at any time. In fact, if all oral surgeons 
eligible for retirement were to retire next year, we could have a 50-
percent reduction in this force.
  As a means to recruit and retain essential specialties vital to 
maintaining the military's readiness, the military offers a variety of 
special pay programs to supplement a specialist's base pay and to help 
close the military-civilian pay gap. One such special pay program is 
known as incentive special pay. Available to medical personnel, 
incentive special pay is a yearly bonus that is designed to bring the 
salaries of military specialists into closer line with civilian 
specialists. Although it doesn't get there, it does help. Applied at 
different levels based on medical specialties, wartime role, and 
retention, incentive special pay ranges from now between $12,000 for 
pediatrics to $36,000 for trauma surgery specialists. Ear, nose, and 
throat specialists, the most comparable medical personnel to oral 
surgeons, are eligible for incentive special pay around $30,000.
  Although oral surgeons stand the same facial trauma watches as ear, 
nose, and throat specialists and provide the same critical head and 
neck trauma care as ENTs, they are not eligible for incentive special 
pay. Often serving as the only head and neck specialist on aircraft 
carriers and smaller hospitals, our oral and maxillofacial surgeons are 
providing essential services for our troops in combat, services we 
cannot afford to lose.
  Today, I ask my colleagues to join me in recognizing the important 
and necessary role that oral surgeons are providing our military by 
making these surgeons eligible for incentive special pay. We can't 
allow the pay disparity between military and civilian oral surgeons to 
become so substantial that these necessary specialists retire from the 
service or resign their commissions to be in private practice. I urge 
my colleagues to join me in allowing oral surgeons in uniform who are 
providing critical trauma services for our troops in the war on terror 
to be eligible for incentive special pay just as many other medical 
specialties are.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. I know the Senator from Wyoming desires to address the 
Senate.
  I yield the floor.


                           Amendment No. 1342

  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I rise in support of amendment No. 1342, the 
Support Our Scouts Act offered by my distinguished colleague from 
Tennessee, Senator Frist. The amendment was intended to be simple and 
straightforward in its purpose to ensure the

[[Page 17249]]

Department of Defense can continue to support youth organizations, 
including the Boy Scouts of America, without fear of frivolous 
lawsuits. The dollars that are being spent on litigation ought to be 
spent on programs for youth. Every time we see a group such as the Boy 
Scouts that will teach character and take care of community, we ought 
to do everything we can to promote it.
  Last Saturday, over 40,000 Boy Scouts from around the Nation and the 
world met at Fort A.P. Hill in Virginia for the National Boy Scout 
Jamboree. This event provides a unique opportunity for the military and 
civilian communities to help our young men gain a greater understanding 
of patriotism, comradeship, and confidence.
  Since the first jamboree was held at the base of the Washington 
Monument in 1937, more than 600,000 Scouts and leaders have 
participated in the national event. I attended the Jamboree at Valley 
Forge in 1957. Boy Scouts has been a part of my education. I am an 
Eagle Scout. I am pleased to say my son was in Scouts. He is an Eagle 
Scout. Boy Scouts is an education. It is an education of possibilities 
for careers. I can think of no substitution for the 6 million boys in 
Scouts and the millions who have preceded them. There are dozens on 
both sides of the aisle who have been Boy Scouts. I say it is part of 
my education because each of the merit badges that is earned is an 
education. I tell school kids, as I go across my State and the country, 
that even though at times I took courses or merit badges or programs 
that I didn't see where I would have any use for them, I later wished I 
had paid more attention at the time I was doing it.
  I always liked the merit badge pamphlet on my desk called 
entrepreneurship. It is the hardest merit badge in Boy Scouts. It is 
also one of the most important ones. I do believe that small business 
is the future of our country. Scouts promote small business through the 
entrepreneurship merit badge. Why would it be the toughest to get? Not 
only do you have to figure out a product or a service, not only do you 
have to do a business plan, not only do you have to find financing, the 
toughest requirement is the final requirement, and that is that you 
actually have to start the business.
  I could go on and on through the list of merit badges required in 
order to get an eagle badge. There are millions of boys in this country 
who are doing that and will be doing that. They do need places to meet. 
They are being discriminated against. They are being told they cannot 
use military facilities even for their national jamboree. That is a 
tradition. These jamborees become a great American tradition for our 
young people, and Fort A.P. Hill has been made the permanent site of 
the gatherings. But now the courts are trying to say that this is 
unconstitutional. It isn't just military facilities, it is Federal 
facilities.
  A couple of years ago, we had an opportunity to debate this on the 
Senate floor. It had to do with the Smithsonian. Some Boy Scouts 
requested that they be able to get their Eagle Scout Court of Honor at 
the National Zoo. They were denied. Why? The determination by the legal 
staff of the Smithsonian that Scouts discriminate because of their 
support for and encouragement for the spiritual life of their members. 
Specifically, they embrace the concept that the universe was created by 
a supreme being, although we surely point out Scouts do not endorse or 
require a single belief or any particular faith's God. The mere fact 
they ask you to believe in and try to foster a relationship with a 
supreme being who created the universe was enough to disqualify them.
  I read that portion of the letter twice. I had just visited the 
National Archives and read the original document signed by our Founding 
Fathers. It is a good thing they weren't asked to sign the Declaration 
of Independence at the National Zoo.
  This happens in schools across the country. Other requests have been 
denied. They were also told they were not relevant to the National Zoo. 
That is a kind of fascinating experiment in words. I did look to see 
what other sorts of things have been done there and found that they had 
a Washington Singers musical concert and the Washington premiers for 
both the Lion King and Batman. Clearly, relevance was not a determining 
factor in those decisions, but it was in the Boy Scouts decision.
  The Boy Scouts of America has done some particular things in 
conservation that are important, in conservation tied in with the zoo. 
In fact, the founder of the National Zoo was Dr. William Hornaday. He 
is one of the people who was involved in some of the special 
conservation movements and has one of the conservation badges of Scouts 
named for him.
  If the situations did not arise, this amendment would not come up. 
But they do. In 2001, I worked with Senator Helms to pass a similar 
amendment requiring that the Boy Scouts be treated fairly, as any other 
organization, in their efforts to hold meetings on public school 
grounds. This amendment clarified the difference between support and 
discrimination. It has been successful in preventing future unnecessary 
lawsuits. The Frist amendment is similar to the Helms amendment and 
will help prevent future confusion.
  Again and again, the Scouts have had to use the courts to assure they 
were not discriminated against. I am pretty sure everyone in America 
recognizes that if you have to use the courts to get your rights to use 
school buildings, military bases, or other facilities, it costs money. 
It costs time. This amendment eliminates that cost and eliminates that 
time to allow all nationally recognized youth organizations to have the 
same rights.
  The legal system is very important, but it has some interesting 
repercussions. Our system of lawsuits, which sometimes is called the 
legal lottery of the country, allows people who think they have been 
harmed to try to point out who harmed them and get money for doing 
that. It has had some difficulties through the Boy Scouts. I remember 
when my son was in Scouts, their annual fundraiser was selling 
Christmas trees. One of the requirements when we were selling Christmas 
trees was that the boys selling the trees at the lot had to be 
accompanied by two adults not from the same family. I didn't understand 
why we needed all of this adult supervision. It seemed as if one adult 
helping out on the lot would be sufficient. The answer was, they have 
been sued because if there is only one adult there and that adult is 
accused of abusing boys, they get sued.
  So two adults provides some assurance that they won't get sued. The 
interesting thing is, it was just me and my son. We still had to have 
another adult in order to keep the Boy Scouts from being sued. They run 
into some other difficulties with car caravans.
  So the legal system of this country has put them in the position 
where they are doing some of the things that they are doing. The legal 
system of this country has caused some of the discrimination that is 
done. It is something we need to correct.
  This discussion of the Frist amendment is timely. U.S. District Judge 
Blanche Manning recently ruled that the Pentagon could no longer spend 
Government money to ready Fort A.P. Hill for the National Boy Scouts 
Jamboree. The Frist amendment would ensure that our free speech 
protections would also apply to the Boy Scouts of America.
  The Boy Scouts of America is one of the oldest and largest youth 
organizations in the United States and the world today. The 
organization teaches its members to do their duty to God, to love their 
country, and to serve their fellow citizens. The Boy Scouts of America 
has formed the minds and hearts of millions of Americans and prepared 
these boys and young men for the challenges they are sure to face the 
rest of their lives. It is an essential part of America.
  I urge my colleagues to join me in defending the Boy Scouts from 
constitutional discrimination by supporting the Frist amendment.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, before my distinguished colleague leaves 
the floor, I regret to say that I just got a

[[Page 17250]]

call from the Department of Defense in which I was advised that at the 
jamboree being held just a short distance down 95 in Virginia, a power 
line collapsed, and at the moment there is one deceased and five 
critically injured and an assortment of other problems associated with 
this.
  So I am delighted that you gave that speech. I am a cosponsor of the 
bill. I support it. I was a Scout myself, and I got a lot out of it. I 
think we ought to close this set of remarks out by offering our prayers 
and hearts and minds to this tragic accident that occurred an hour or 
so ago. I thank my colleague.
  Mr. ENZI. I thank the Senator.
  Mr. WARNER. Mr. President, we are still on the bill and speakers are 
coming to the Senate floor.
  At this time, 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. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. Mr. President, parliamentary inquiry: What is the pending 
business? Are we now on an amendment?
  The PRESIDING OFFICER. We are on amendment No. 1477.
  Mr. LOTT. Further parliamentary inquiry: Are we in a position where 
we can discuss any amendment that has been offered and has been set 
aside? For instance, amendment No. 1389 by Senator Thune?
  The PRESIDING OFFICER. It is in order to discuss any amendment at 
this time.
  Mr. WARNER. Mr. President, the Senator is free to go. He spoke with 
me. It is an important element before the Senate. The general subject 
is BRAC.


                           Amendment No. 1389

  Mr. LOTT. Mr. President, I thank the chairman, Mr. Warner, the 
Senator from Virginia. I wanted to begin by congratulating him and 
Senator Levin for the bill they have produced from the Senate Armed 
Services Committee. I, frankly, had my doubts that we were going to be 
able to get the bill up at this time in a way that would have momentum 
and would get through to passage. I think they have succeeded in doing 
that. The atmosphere is such that I believe we will pass the Defense 
authorization bill.
  As the Senator from Virginia knows, I always made a window for him, 
when I had the opportunity to make that call. Sometimes it took 2 
weeks. Sometimes we put it up against a recess. Sometimes we put it 
together with Defense appropriations. But it is of a high priority, and 
I would be delighted if I could see us pass this bill in an orderly 
fashion this week.
  Mr. WARNER. Mr. President, I thank the distinguished leader. The 
Senator forgot the one time it was 5 weeks, but we got there.
  Mr. LOTT. We did. I think the atmosphere is different now. The 
Senator understands and the American people understand that we are at 
war, and terrorism is a very serious threat. We cannot expect homeland 
security and our law enforcement agencies to do the job alone. This is 
broader than that. We have to have a defense that is prepared to do the 
job at home and overseas. Certainly, we have called on our National 
Guard and Reserve to fill in, and they are doing a wonderful job. We 
have to provide the additional authorization necessary to get the funds 
so our men and women can continue to do the fine job they have done.
  I thank the Senator for his cooperation on amendments that have been 
accepted and the language in the bill. I served on the Armed Services 
Committee for a few years--I believe 6\1/2\ years. I enjoyed it very 
much. I always had a real interest in this area. I am happy to be on 
the Intelligence Committee now. I am obviously interested in 
shipbuilding because of what it means to not only my hometown and my 
State but to our country, the Navy, and a lot of other issues you have 
addressed for our military.
  I am worried about what we are having to expend and how we are having 
to expend things now because we have certain demands in Afghanistan and 
Iraq for the Army and the Marines. I am concerned that in 5 or 10 
years, we will need to have a military that can address new and 
emerging threats. I think that is part of what this bill is about--to 
try to begin to address some of those issues. I look forward to working 
with the Senator.
  I rise in support of Senator Thune's amendment No. 1389, which would 
defer Congress's consideration of closure and realignment 
recommendations that the President will forward to the Congress this 
coming fall. This is not a new position for me. I have always been 
opposed to the Base Realignment and Closure Commission process. I 
generally don't like commissions. I have spoken against them on a 
number of subjects on the Senate floor. I probably will again before 
the week is out. I think that is what we were hired to do. That is our 
job.
  I get nervous sometimes that from Social Security, to tax policy, to 
detainees policy, to intelligence, we basically say: Well, we cannot do 
the job, so let a commission give us advice here. A commission can do 
it for us. Our attitude is see no evil, hear no evil, speak no evil, 
save us. But doing that difficult work is our job.
  Up until recent years, we did our job and it worked. After World War 
II and Korea, certainly as the chairman knows, we closed bases in his 
State and mine. I can take you around Mississippi and show you those 
bases that were closed. How was it done? The Pentagon assessed their 
needs, recognized the fact that we were not on war footing, and we had 
to begin to close some of those airbases in Greenwood, MS, and in 
Mobile, AL, and make difficult recommendations, and Congress considered 
it and dealt with it. We did our job. Now we are in the fifth BRAC 
round, or something like that. I have opposed every one of them.
  One day, I was walking up to the floor of the House of 
Representatives and this young Congressman from Texas named Dick Armey 
came up to me as a member of the Rules Committee and said, ``I got this 
idea and I want you to talk to me about how I get it through the Rules 
Committee.'' He would remember this. I told him, ``I don't agree with 
what you are trying to do, and I am absolutely going to vote against 
it. But if I were you, this is how I would do it.'' He did it, and it 
led to this BRAC process. Congressman Dick Armey from Texas went on to 
be majority leader.
  I voted against BRAC every time. Some people say: Wait a minute, you 
are just protecting your own bases; you are troubled because of bases 
in your own State. Not true. Not a single base has been closed in my 
State in these rounds. Contrary to popular opinion, we don't have a 
whole lot of bases. We have been through every round, and we have been 
fortunate. The commissions have decided not to go forward with closing 
those bases. So it is not that I have a grudge or that I am angry at 
anybody. I don't like the process, No. 1.
  No. 2, this amendment doesn't kill the process. It allows the 
Commission to finish their independent and important work and forward 
the recommendations to the President.
  The amendment permits the President to submit a set of 
recommendations to the Congress. At that point, the Congress would hold 
the President's recommendations in abeyance, pending completion of 
several requirements that are critical to achieving a fully informed 
interagency perspective of our basing requirements.
  Here is my problem with BRAC this time. I don't like the process, No. 
1. No. 2, I think the timing could not be worse. At a time when we are 
in war in Iraq and, of course, have been and are still exposed in 
Afghanistan, a war on terror, with communities all over America having 
to cope with Reserve and Guard units from all of our States there on 
extended tours in Iraq, Afghanistan, or in the region, it has had an 
impact on communities. They are already stressed, and they are asking 
themselves, What next? Now you are going to come in and close my Air 
Guard unit or this hospital or you are going to do this or that. The 
timing could not be worse. That is the second problem.

[[Page 17251]]

  Next is I think this particular process, the way it is set up by the 
Pentagon, is a lot less reassuring and messier and more unreliable than 
the previous BRAC rounds have been. They have made significant 
mistakes. At a time, also, when we are looking at overseas alignment, 
talking about reformation, I have serious questions about some of the 
Pentagon's reformation plans.
  So in instance after instance, I think we are making a mistake here. 
It is going to have huge negative ramifications, and I think we are 
going to wake up later and find out, wait a minute here, we didn't 
evaluate the impact of the reduction of military medical services and 
what it means in the local communities. The local communities may not 
be able to absorb that additional service. Who is going to serve these 
military men and women? Or, wait a minute, you mean we are bringing 
that heavy unit back from Europe? Where are we going to put them? Where 
are the spouses going to live? What are the quality of life facilities? 
In some instances, they won't be there. This BRAC, in my opinion, is 
set up to be worse than all the previous rounds.
  Senator Thune has done a very thoughtful job. He has allowed the 
process to go forward to a point where he will then put it on hold 
until some very important things are done.
  The conditions that have to be met:
  First, complete analysis and implementation of recommendations from 
the Overseas Basing Commission. We have been talking about this, and we 
are planning on doing it. We are going to have realignment of where our 
units are based in Europe. We are going to bring some units home, 
perhaps some heavy units. We are going to have to bring them somewhere. 
We need to know what that is and where we are going to put them.
  Second, submission of the Quadrennial Defense Review by the DOD to 
the Congress, and that will be completed before very long--I think this 
coming winter. Why don't we wait until we see what the needs and the 
plans are for the future? It would not cause an inordinate delay for 
that in itself.
  The next condition is that we complete deployment and implementation 
by the Department of Defense and Department of Homeland Security of the 
national maritime security strategy and the homeland defense and civil 
support directive. It would have to be held until we get a submission 
of a report by the DOD to Congress to assess military installation 
needs in view of the Overseas Basing Commission, returning troops, QDR, 
national maritime strategy, and the homeland defense and civil support 
directive.
  And return of substantially all troops from Iraq. We need to weigh 
the impact of what is going on in Iraq, when they will be coming home, 
and where they are going.
  So those are the factors that would have to be considered before the 
Congress could actually act on the present recommendations.
  When the Department of Defense released its BRAC recommendations last 
May, it was very evident that many of the recommendations were flawed 
and developed in a vacuum. Their recommendations did not consider the 
impact on other agencies, such as the Department of Homeland Security 
or the Veterans' Administration.
  The Department of Defense did not even involve the Governors of 
States that would be affected by recommendations concerning Air 
National Guard units. The Air Guard is under the Governors. I don't 
know how they missed that turf. More than one counsel has advised the 
BRAC Commission that they cannot willy-nilly go in there and say they 
are shutting down this Air Guard unit. The Governor is going to have 
some say in that.
  I, along with many of my Senate colleagues, was also alarmed that DOD 
used transformational options in lieu of military value as the 
framework for many of the recommendations. Even distinguished Chairman 
Warner noted in his testimony before the BRAC Commission, ``A number of 
the Department's recommendations'' deviate substantially from the BRAC 
legislative requirements in three important areas.

       First, certain recommendations were justified by factors 
     and priorities other than the selection criteria in violation 
     of section 2914(f) [of the base closure law];
       Two, certain recommendations were based on data that was 
     not certified as required by section 2903 [of the BRAC law];
       Three, certain recommendations did not contain accurate 
     assessments of the costs and savings to be incurred by the 
     Department of Defense and other Federal agencies as required 
     by section 2913(e) [of the BRAC law].

  The experience in my own State of Mississippi in looking at the 
installations was similar to what the great State of Virginia obviously 
observed and experienced: that DOD recommendations were not based in 
fact and analysis was faulty. For example, for Keesler Hospital at 
Keesler Air Force Base, the cost for admitting patients was 
underestimated by over $2,000 per patient. A math error decreased the 
military value by 20 percent, and the Department of Defense ignored the 
fact that local VA facilities and community hospitals have no--none--no 
excess capability.
  Where are these military men and women going to go? It is a problem, 
it is a big problem for the local community and, more importantly, for 
the military men and women who deserve quality health care.
  Let me get even more simply to the statement of what happened. In one 
military value critical category, for some reason they gave this 
category almost a zero rating. When they actually went back at our 
urging, they said that obviously a mistake was made, and that should 
have been an 11 military value points instead of a zero. It moved that 
installation up 44 places. Little error? Big error.
  There is a lot more embedded in this than we have been able to dig 
out even yet. Regarding the Navy Personnel Center at Stennis Space 
Center, DOD mistakenly assumed that the building was a commercially 
leased property with no security perimeter. It is not. The personnel 
center is on a secure compound owned and operated by NASA and is the 
model of interagency cooperation. Just a little detail there. We have 
this huge buffer zone. It is a totally secure facility, and they missed 
that little point.
  For Pascagoula Naval Station, DOD proposed to abandon a naval 
presence for 35 percent of our Nation's coastline, leaving unprotected 
over 30 percent of this Nation's gas and oil reserves, 60 percent of 
our trade sealanes, and 14 of America's largest 23 ports. But just 3 
weeks ago, the Department of Defense issued a new policy stating that 
defense of the homeland is their new No. 1 priority.
  DOD's proposal to the BRAC Commission would mean we would not have a 
single naval port between the east coast of Florida at Mayport, FL, to 
San Diego. It is all sitting there, a vast gulf with all kinds of 
sealanes and potential threats and future dangerous areas. But DoD says 
no presence at all is ok; that causes me a great deal of concern.
  Even if DOD's work had been perfect, we should not be closing bases 
at home if we are engaged in armed conflict overseas. It is not fair to 
the families of our service men and women who have to endure the 
uncertainty of where they will live and where their children will go to 
school.
  Closing bases right now is also detrimental to our war-fighting 
ability. The Overseas Basing Commission has already noted that `` . . . 
to launch major realignments of bases and unit configurations at a time 
when we are in the midst of two major conflicts takes us to the edge of 
our capabilities.''
  The Overseas Basing Commission also expressed concern that the 
domestic BRAC is disconnected from the proposed closure of overseas 
bases, and DOD's budget is woefully inadequate to implement necessary 
changes. These are some of the Commission's recommendations:

     . . . adequate strategic sealift, airlift, and prepositioned 
     equipment and stocks do not exist . . .

  And--

     budgetary plans for mobility assets are inadequate to meet 
     projected lift demand--

  When forces return from overseas.

       We [intend to] reposition tens of thousands of family 
     members to localities that have not been given adequate time 
     or budget to prepare for their proper reception . . .

[[Page 17252]]


        . . . DOD estimates the implementation of [global basing 
     changes] to be between $9 billion and $12 billion with only 
     about $4 billion currently budgeted in fiscal years 2006 
     through 2011.

  If it was just up to me, I would vote to kill this process right now. 
I have never liked it. I must admit, I have fought it three times in 
the Senate and was almost able to kill it one of those times. It is an 
abrogation of Congress's responsibility to oversee basing and, if 
necessary, to close excess bases.
  DOD insisted on doing its BRAC assessment in a vacuum. We tried to 
follow what was going on. We could not get the answers. But we, the 
Congress, are obligated to the American people to take a larger 
perspective.
  Commissioner Principi and the entire BRAC Commission are doing a good 
job. They are doing honorable work right now to try to fix some of the 
fundamental flaws in DOD's set of recommendations. I want to make it 
clear, it is not that I don't have confidence in the chairman and the 
Commission. I do. I think they are a good quality group. But even the 
Commission can only do so much. The Commission is bound by a set of 
legal constraints that did not anticipate DOD recommendations would 
deviate from the laws so substantially.
  So if we are not willing to stop this flawed process in its tracks, 
let's do the next best thing. Senator Thune's amendment is a workable 
compromise. It gives breathing room to take a larger view to consider 
our basing requirements in a global fashion and across all affected 
agencies. The distinguished Senators from Virginia and Michigan have 
both said that we do need to close unneeded bases. I agree with that. I 
am not unrealistic. I know different times call for different things. I 
know we have some duplication and overlapping, and we can have more 
efficiencies and we can consolidate.
  I do know we are trying to change our forces to deal with where the 
challenges may be, where our forces are more light, more mobile, and 
pre-
positioned. The problem is that many of the recommendations of the BRAC 
undermine the construct of lighter and more mobile and prepositioned. 
They do not mesh with what we are saying we should do here, and what we 
are saying we do should do in reformation does not fit with making our 
troops lighter and more mobile and prepositioned. Let's not ride a 
flawed process into oblivion. I urge my colleagues to support Senator 
Thune's amendment so that we, the Congress, can make an informed 
decision when we are asked to vote on the merits of closing domestic 
bases. I think we will feel better about it.
  I realize perhaps the die is cast. I tried last year with an 
amendment to defer it for a couple of years. We got, I think, 44 votes 
or close to that. A couple votes who were absent, and we got close. In 
retrospect, that was the key vote. The opposition was effective, and 
they won the day. And we have moved forward. I don't think we can turn 
back that clock, but I do think we can take a pause. We can take some 
time to see if certain things are considered before we actually pull 
this trigger and make some changes that we may regret.
  Mr. WARNER. Mr. President, if my distinguished leader would enter 
into a little discussion with me, the Thune amendment, to which he has 
referred in his remarks, apparently has been modified in a way that I 
wish to advise the Senate on this modification, as I read it. It is 
extraordinary.
  The concept of BRAC only works if the President decides on the block 
of closures and sends it to the Congress to vote it up or down en bloc.
  As I read this and I just read it for the first time a few minutes 
ago I draw your attention to the page I handed the Senator from 
Mississippi. It says as follows:
  In the heading by striking ``congressional disapproval'' and 
inserting ``congressional action.'' In subparagraph A, by striking 
``the date on which the President transmits such report'' and inserting 
``the date by which the President is required to transmit such 
report,'' and subparagraph B, by striking ``such report is 
transmitted'' and inserting ``such report as required''--all this gets 
down to the following: that the Secretary may not carry out any closure 
or realignment--that is any of the number on the whole list, any of 
them:

       The Secretary may not carry out any closure or realignment 
     recommended by the Commission report transmitted by the 
     President pursuant to section 2903 if a recommendation for 
     such closure or realignment is specified as discussed by 
     Congress in a joint resolution partially disapproving the 
     recommendations of the Commission that is enacted before the 
     earlier of. . . .

  It seems to me, as I read this, Congress can now go in and cherry-
pick base after base and pass a resolution to take it out.
  Mr. LOTT. Mr. President, if the Senator would allow me to ask, is 
this a modification of the Thune amendment? Is this the Thune 
amendment? This sounds similar to an amendment I heard discussed 
earlier as maybe one that was being suggested or considered by Senator 
Collins. It is not clear to me.
  Mr. WARNER. If I may inquire at the desk, was there not a 
modification put in by Senator Collins this morning, three amendments, 
and among them
  The PRESIDING OFFICER. The Senator from Maine called up three 
amendments on behalf of the Senator from South Dakota, Mr. Thune. None 
of the amendments have been modified.
  Mr. LOTT. That is an important point, I say to the Senator from 
Virginia. That is not my understanding of the Thune amendment. If a 
modification along these lines were added to the Thune amendment, I 
would have some reservations about that. I want to take a look at it.
  Mr. WARNER. Let me point out, I say to my distinguished former 
leader, that the original Thune amendment that was offered, I think, 
Thursday or Friday night and was the subject of a detailed colloquy 
between myself and the distinguished Senator from South Dakota, is 
still at the desk, and then this amendment that I read to you is the 
final paragraph in an amendment which is identical in every way to the 
one we discussed--Senator Thune and myself--on Thursday night.
  With the exception of the last paragraph in that amendment, it has 
been changed to read the same as this one.
  Mr. LOTT. Mr. President, I say to the distinguished chairman of the 
committee, I would want to take a good look at the different amendments 
that might be pending. I want to be sure I understood any modification 
or change to Senator Thune's amendment. The Thune amendment, as I 
understand it and as I described it in my remarks, is an approach which 
I think is good. I think what the chairman is saying about the idea 
that Congress would start cherry-picking at this point from this list, 
I have my sincere reservations about that. That would be a messy thing 
to do without proper consideration. I would have a lot of reservations 
about it. I would want to hear what the sponsors have to say. My 
predisposition is to be very hesitant about that.
  Mr. WARNER. Mr. President, I thank my distinguished leader. I cannot 
remember how many years he was in the House and how many years he has 
been in the Senate, but I have only been here 27.
  Mr. LOTT. So long my memory has faded to the point I can't remember.
  Mr. WARNER. If he had something such as this on the roll, he would 
have a challenge----
  Mr. LOTT. I think, if we should start to cherry-pick from this list 
or any list at this time, it would not be very wise.
  Mr. WARNER. Give them the benefit of the doubt to find out, but this 
is at the desk right now. This is the moving target on this BRAC. I am 
strongly in favor of the current BRAC law being implemented as it is 
written in the law, not deviating in any way. I cannot accept the 
delay, I say to my distinguished leader, because there are too many 
communities burdened by all the expenses of lobbyists, and so forth, 
and the uncertainty that would throw onto the business community not 
knowing, with the Thune amendment, for maybe another 2 years whether 
they are going to stay open.
  Mr. LOTT. I certainly agree with that argument. I have a problem with 
why these communities and States

[[Page 17253]]

have had to spend a lot of money on it. I thought that is what we were 
for.
  Having said that, if you gave a lot of them a choice--have your base 
closed or delay it for 2 years--I think I know what the answer would 
be: Give me 2 more years to deal with the demands of this kind of 
choice.
  There have been instances where these closures have taken place and 
the communities have done pretty well. The old Brookley Air Force Base 
in Mobile, AL--talking about a State other then my own--recently won a 
competition to assemble airbus airplanes there. I think they are making 
pretty good use of it.
  Mr. WARNER. Mr. President, I am familiar with that.
  These communities could not begin to attract new business, could not 
get new capital. They would become almost stagnated not knowing which 
way that decision would go. I thank my distinguished leader for his 
participation in this debate.
  Mr. LOTT. I yield the floor.
  The PRESIDING OFFICER (Mr. Thune). The Senator from Virginia.
  Mr. WARNER. Mr. President, if I might advise the Senate, there was a 
UC in place whereby the Senator from South Carolina was to be 
recognized for the purpose of bringing an amendment to the attention of 
the Senate. He has been patiently waiting some period of time. I would 
like to consult with the distinguished Senator from Michigan. I would 
like to give the Senator from South Carolina the opportunity to 
proceed, but I would like to be aware of what the needs of the Senator 
from Michigan are in regards to his side.
  Mr. LEVIN. I thank my good friend from Virginia. I think Senator 
Graham was actually part of a UC.
  Mr. WARNER. It is a part of the Record.
  Mr. LEVIN. Right. So he has the right to go next.
  I would ask, if it is convenient for the Senator from Florida, that 
after Senator Graham, I will ask unanimous consent that the Senator 
from Florida be recognized to introduce his amendment at that time. I 
wonder if we could find out from Senator Graham about how long he 
expects to be.
  Mr. GRAHAM. Less than 10 minutes.
  Mr. WARNER. Mr. President, might I suggest that we take 15, and I 
would like to have 5 of those minutes.
  Mr. GRAHAM. Fifteen minutes, and the Senator from Virginia can have 
5; yes, sir.
  Mr. LEVIN. Then I would make inquiry also from my friend from 
Virginia. I understand that the Republican TV monitor has already 
indicated no votes tonight. Is that correct?
  Mr. WARNER. I am not aware of that. I have been on the floor. I know 
that we checked with the Senator's side and there was some doubt as to 
whether there could be votes.
  Mr. LEVIN. If we could work out votes, we were willing to do that, 
but I think it is becoming clear that is not going to happen.
  Mr. WARNER. In fairness to our colleagues, let us clear that up in 
the course of the debate on the amendment of the Senator from South 
Carolina.
  Might I ask from the Senator from Florida how much time he would 
like?
  Mr. LEVIN. The Senator from Florida would need about how much time?
  Mr. NELSON of Florida. At the Senator's great pleasure, 10 minutes.
  Mr. LEVIN. Whatever the Senator needs is fine. Then I would be 
offering two amendments, if that is agreeable with the Senator from 
Virginia.
  Mr. WARNER. Absolutely.
  Mr. LEVIN. I will be introducing them immediately following the 
Senator from Florida.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized 
under the previous order.
  Mr. WARNER. Mr. President, I think we had modified the previous order 
with a new UC whereby the Senator from South Carolina gets 15 minutes, 
5 minutes under the control of the Senator from Virginia, and 10 under 
his control, followed by the Senator from Florida for 10 minutes. Am I 
not correct?
  The PRESIDING OFFICER. The Chair would note that is correct.
  Mr. WARNER. I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.


                    Amendment No. 1505, as modified

  Mr. GRAHAM. I ask unanimous consent at this time to set aside the 
pending amendment and call up amendment No. 1505 and send it to the 
desk with a modification.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from South Carolina [Mr. Graham], for himself, 
     and Mr. McCain, proposes an amendment numbered 1505, as 
     modified.

  Mr. GRAHAM. 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:

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

     SEC. 1073. AUTHORITY TO UTILIZE COMBATANT STATUS REVIEW 
                   TRIBUNALS AND ANNUAL REVIEW BOARD TO DETERMINE 
                   STATUS OF DETAINEES AT GUANTANAMO BAY, CUBA.

       (a) Authority.--The President is authorized to utilize the 
     Combatant Status Review Tribunals and a noticed Annual Review 
     Board, and the procedures thereof as specified in subsection 
     (b), currently in operation at Guantanamo Bay, Cuba, in order 
     to determine the status of the detainees held at Guantanamo 
     Bay, including whether any such detainee is a lawful enemy 
     combatant or an unlawful enemy combatant.
       (b) Procedures.--
       (1) In general.--Except as provided in paragraph (2), the 
     procedures specified in this subsection are those that were 
     in effect in the Department of Defense for the conduct of the 
     Combatant Status Review Tribunal and the Annual Review Board 
     on July 1, 2005.
       (2) Exception.--The exceptions provided in this paragraph 
     for the procedures specified in paragraph (1) are as follows:
       (A) To the extent practicable, the Combatant Status Review 
     Tribunal shall determine, by a preponderance of the evidence, 
     whether statements derived from persons held in foreign 
     custody were obtained without undue coercion.
       (B) The Designated Civilian Official shall be an officer of 
     the United States Government whose appointment to office was 
     made by the President, by and with the advise and consent of 
     the Senate.
       (3) Modification of procedures.--The President may modify 
     the procedures and requirements set forth under paragraphs 
     (1) and (2). Any modification of such procedures or 
     requirements may not go into effect until 30 days after the 
     date on which the President notifies the congressional 
     defense committees of the modification.
       (c) Definitions.--In this section:
       (1) The term ``lawful enemy combatant'' means person 
     engaging in war or other armed conflict against the United 
     States or its allies on behalf of a state party to the Geneva 
     Convention Relative to the Treatment of Prisoners of War, 
     dated August 12, 1949, who meets the criteria of a prisoner 
     of war under Article 4 of that Convention.
       (2) The term ``unlawful enemy combatant'', with respect to 
     noncitizens of the United States, means a person (other than 
     a person described in paragraph (1)) engaging in war, other 
     armed conflict, or hostile acts against the United States or 
     its allies, or knowingly supporting others so engaged, 
     regardless of location.

  Mr. GRAHAM. Very quickly, I appreciate the patience of the Senator 
from Florida and Chairman Warner.
  Mr. President, this amendment deals with the concept called unlawful 
enemy combatant, a concept being used to detain about 500 people at 
Guantanamo Bay who have been captured throughout the world, many of 
them on battlefields. It is a concept that goes back to World War II 
where the Supreme Court, during World War II, coined the phrase ``enemy 
combatant'' to deal with some German saboteurs who were caught coming 
into America in civilian clothes, with a plan to disrupt American life 
in the war operations.
  These individuals--I think there were seven of them--were tried by 
military tribunals. A couple of them were put to death. Some were given 
lengthy prison sentences. Then the Court recognized the concept of 
enemy combatant.
  Fast forward 60 years. What do we find? We find ourselves in a war 
with a group of people who are not part of a state or a nation. They do 
not wear uniforms. They are terrorists. They hide among civilians. They 
cheat. They do anything one can imagine to have their way. They do not 
abide by any international regimes.
  When we capture these people, we have made a decision as a nation to

[[Page 17254]]

house them at Guantanamo Bay, a place run by the military. It has three 
functions: To interrogate foreign terrorists to get good information to 
make sure that we are safer as a nation. Senator McCain has an 
amendment to standardize the interrogation techniques. I think the 
country would be well served to have everything dealing with unlawful 
and lawful combatants in separate categories.
  We want the Geneva Conventions to apply to people who are under it. 
We do not want the Geneva Conventions to apply to terrorists. We want 
to do it right. We want our troops to not be confused. Senator McCain 
has an amendment that would basically allow the Army Field Manual to be 
the one source of law to deal with both categories, which would be a 
great benefit to the military and the country at large, in my opinion.
  I have an amendment that gets Congress involved for the first time. 
In a general way, the Congress authorized the President to go to war 
after 9/11. A lot has happened since then, some good, some bad. I think 
it is now time for the Congress to weigh in on the issues that affect 
this Nation in the war on terror. My amendment allows Congress to 
define ``unlawful enemy combatant'' in a very flexible way similar to 
what is being used at Guantanamo Bay now. It incorporates the 
procedures that are used to classify and review enemy combatant status.
  The way it works now, if the military or appropriate authority sends 
someone to Guantanamo Bay, the first thing that happens is there is a 
review process where a determination will be made as to whether that 
person fits the definition of ``unlawful enemy combatant.'' We are 
codifying that procedure. We are accepting most of it. We are tweaking 
the definition in line with Supreme Court cases that have reviewed this 
whole subject matter.
  That is another point I would like to make. There are about five 
cases in Federal court now dealing with issues like enemy combatant 
status, military commissions to try noncitizen foreign terrorists. The 
Government has won on most of these cases. But enemy combatant status 
needs to be defined, in my opinion, by the Congress working in 
conjunction with the administration because courts will defer to a 
statute much quicker than it will defer to anything else.
  In one of these opinions, Justice Scalia has been telling us that 
Congress has been AWOL. Congress needs to get involved. So this 
amendment allows the procedures in place at Guantanamo Bay to make the 
initial determination, if one is an enemy combatant, to be authorized 
to be utilized by the President. Every year, a review is made of each 
person's case. Every year the Government has to come and show that the 
enemy combatant status is still justified, that the person who is being 
detained is not dangerous to us or our allies, or they no longer have 
any intelligence capability or intelligence value. At that point, they 
can be released. Two hundred and something have been released. What we 
are trying to do with this amendment is to get Congress involved in 
that process so that the courts will understand that Congress agrees 
with the concept of unlawful enemy combatant and that the review 
process in place is a good process. I have made two changes.
  One, I have addressed the issue of using statements that are derived 
from foreign interrogations. I do not think anybody in this country 
wants our Nation to be using evidence that may be tainted by torture or 
undue coercion. So I have a provision in there that says if a statement 
or information is used that comes from a foreign detention or a foreign 
interrogation, we have to simply prove, where practical, that it is 
reliable, that it is not as a result of coercion. The courts will 
appreciate that, and I think the American public would appreciate that.
  Second, we have a provision that the releasing authority, the person 
who decides if someone can be released, should be confirmed by the 
Senate. Under Secretary England performs that function right now, but I 
think it would be a good relationship to have the Senate involved in 
picking that person who has the ultimate authority to determine to let 
these people go because 12 of them have gone back to the fight. Some 
people who have been released have gone back to the war. Some people 
who have been picked have probably been misidentified.
  We are trying to get a procedure that the courts will accept, that 
will be good for the country, that will keep terrorists off the 
battlefield, that would withstand legal scrutiny and live up to the 
ideals of who we are.
  If Congress will get involved and legitimize unlawful enemy combatant 
status, it will pay great dividends to the operation at Guantanamo Bay 
because we will have the administration and the Congress on the same 
sheet of music and the courts will soon follow.
  My goal is to strengthen Guantanamo Bay, make sure that abuses in the 
past never occur again, have standardization of interrogation 
techniques so our troops will not get in trouble so that we can get 
good, reliable information. The military commissions are on track to be 
approved by the Supreme Court. We need a place to try these terrorists 
for their crimes. If they are not being tried, they need to be kept off 
the battlefield. Enemy combatant status does that. We need due process 
rights. We are a nation of laws. This amendment incorporates the due 
process that already exists with some improvement.
  If we will do these things, Guantanamo Bay will be more effective in 
the future. It will be a forward-looking, reform-type process. We will 
not be captured by the mistakes of the past, and we will be a safer 
nation.
  I appreciate Senator Warner's support and leadership on this issue. 
We are trying in concert to make sure that we are stronger as a nation, 
not weaker. We learn from our problems. We clean up some of the 
problems we have had in the past and Congress finally gets involved. I 
think the courts will appreciate that. I know the American public will.
  With that, I will yield to Senator Warner.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, this is another very important step 
forward, drawing on the very profound remarks made earlier today by our 
distinguished colleague from Arizona. The three of us have worked 
together.
  I want to clarify one aspect because when I looked at the Senator's 
earlier draft, it appeared to me that a military judge being given to 
an unlawful combatant appearing before an administrative review board 
would give that individual more due process than accorded a lawful 
combatant, a POW. My understanding is the Senator's modification now 
embraces that concern, and I want to make that clear to our colleagues.
  Mr. GRAHAM. That is correct.
  Mr. WARNER. Why does the Senator not state it in his own words?
  Mr. GRAHAM. That is a very good point. Under the procedure in place 
now, a military representative is provided to the enemy combatant 
initially. When the determination is made whether someone is an enemy 
combatant, our own rules provide a military representative. In an 
annual review, a military representative is given to the enemy 
combatant to make their case that they are no longer a danger. What I 
wanted to do at the annual review is make that person a military lawyer 
because the potential of keeping these people there for a long period 
of time is great because unlike other wars dealing with traditional 
POWs, there is nobody to sign surrender documents.
  I can understand the Senator's concerns. We can deal with that issue 
later. So we will go back to the old way of doing business. The lawyer 
requirement will be taken out and we will go back to the procedures 
that are in place now.
  Right now, every unlawful enemy combatant has a military 
representative to help them make their case about their status. We will 
not make that person a military judge advocate. I think it would help 
us in court, but I do not believe it is that important. It will pass 
muster with the courts in its current form, so that has been changed.
  Mr. WARNER. Clearly, the unlawful has no advantages over, as we might

[[Page 17255]]

say, the lawful. They are on equal status, so to speak?
  Mr. GRAHAM. The Geneva Convention would govern how we treat the 
lawful combatant. That is something we all understand and have been 
working with for 60 years. The unlawful enemy combatant can now be 
detained for an indeterminate period of time, once that determination 
has been made, with an annual review required to see if they should be 
kept based on danger to our country that the person presents, and any 
intelligence data that they present.
  So this legitimizes what the courts have been telling us to do. The 
courts have said that an unlawful enemy combatant status determination 
is an appropriate legal concept as long as the person is given notice 
and the right to challenge. So what we are doing in this statute is 
taking the court's directive and we are giving them notice and we are 
giving them a right to challenge. A lawful combatant already has that 
under the Geneva Conventions.
  Mr. WARNER. Mr. President, I thank my colleague. I ask that I now be 
a cosponsor, with that modification.
  Mr. GRAHAM. The Senator has made my day.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, the three of us, together with others who 
have talked with us, I think, have made a very valuable contribution 
because all eyes are on America as to how we conduct these difficult 
situations.
  Tomorrow we will have an opportunity to further go into this question 
about the use of the Army manual. My concern over that is that the 
current manual, in my judgment, does not quite strike the balance 
between detention and interrogation. I am hopeful that we can draw from 
the Department of Defense, as best we can, what the modification of the 
Army manual would be.
  If I can be assured that is going to be balanced and take into 
consideration the need to address this unlawful category of these 
individuals who are not acting on behalf of a State-sponsored 
conflict--am I not correct?
  Mr. GRAHAM. I say to the chairman, he is absolutely correct. It is a 
very simple concept we are trying to achieve. There are two problems, 
there are two groups of people we worry about for two different 
reasons. One group I worry about is the Americans in charge of these 
detainees because we have all kinds of laws that we have adopted, for 
60 years, directing our people in how to treat folks who are captured--
whether they are lawful or unlawful. We have had policy statements and 
directives that are at best inconsistent, that are all over the board, 
floating out there in legal cyberspace. We are trying to put into one 
document, the Army Field Manual, the rules of the road for both groups, 
lawful combatants and unlawful combatants.
  We are not writing the field manual, we are not telling the experts 
what to put in the manual, how to write it, we are saying, for the sake 
of our own troops, you have one document you can go to now. And we are 
saying to the world we are going to standardize our techniques. We are 
not going to have inconsistent messages. The JAG memos we were talking 
about a while ago that were 2 years old now are telling us if you get 
too far afield from what we have been doing for 60 years, you are going 
to get yourself in trouble. So the Army Field Manual will be one-stop 
shopping for all those responsible for detainees in both categories, 
and it will standardize procedures that will allow us to get good 
information, be aggressive, without losing who we are as a people. That 
is why we need this, in my opinion.
  Mr. WARNER. Mr. President, I do need to make certain that this 
modification will treat the subject of how a person is detained with 
equal specificity as to how they are to be interrogated.
  As you know from your experience of 20 years in the JAG--as a matter 
of fact, you and I went to Guantanamo a week or so ago. It is important 
that detention be conducted in a way that it doesn't somehow influence 
how the interrogation might go. I will not draw the picture here as to 
what could be done.
  Mr. GRAHAM. Absolutely.
  Mr. WARNER. I yield the floor.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. GRAHAM. Absolutely.
  Mr. DURBIN. I ask the Senator from South Carolina, the amendments 
which you have offered and were cosponsoring with Senator McCain, 
Senator Warner, and others, do they make it clear that the policy of 
the United States is not to engage in cruel, inhuman, and degrading 
treatment of any prisoner in our control?
  Mr. GRAHAM. It becomes a statute----
  Mr. WARNER. Mr. President, I can answer that. If you look at the 
second McCain amendment, basically that amendment is directed at that 
question. That is my understanding.
  Mr. GRAHAM. That is absolutely right. It uses the terms the Senator 
has just uttered and makes it a statutory prohibition to engage in that 
conduct. It takes what the President said, we are going to treat people 
humanely, gets the Congress involved, and we are putting parameters 
around what we do with foreign terrorists, noncitizens. We can 
interrogate them, but we are not going to change who we are as a 
people, and the interrogators tell us that the Army Field Manual--as we 
were down there a week ago--gives them all the tools they need to 
aggressively pursue the interrogations. You really don't get things out 
of torture. They do not believe it is good practice, to begin with, so 
you are absolutely right. There will be a prohibition in law as well as 
rhetoric.
  Mr. DURBIN. I ask unanimous consent for 2 additional minutes for the 
Senator from South Carolina or Virginia--whoever wants the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I thank the Senator from Florida for his patience, too.
  If I can ask either Senator--both served in the military, and the 
Senator from South Carolina in the Judge Advocate General Corps--it 
strikes me this is an important thing for our troops, to give them 
clarity, in terms of policy. I would ask the Senator from South 
Carolina if, in his visits to Guantanamo or visits with other military 
personnel, he has found that sentiment.
  Mr. GRAHAM. This is absolutely giving clarity. What had been 
confusing will now be clear, and it will be protection for the troops 
who are having to administer the detainees, in terms of interrogation. 
That is what Senator Warner said, in terms of detention.
  The Marine Corps Judge Advocate, who was part of a review process 2 
years ago, said the one thing he thought policymakers were missing, or 
misunderstood, was the effect on our own troops. Under the Uniform Code 
of Military Justice, it is a crime to abuse a detainee. So you are 
creating a new model for interrogation, and you may be getting your own 
people in trouble if you don't understand how the law exists already.
  We are trying to reconcile those concepts; let the military tell us 
what they need and not put our own people at jeopardy. This will help 
GTMO in two regards: Get better, more reliable information that will 
not give us a black eye and help the troops understand what their 
duties are.
  Mr. DURBIN. I say in closing to the Senator from South Carolina, I 
thank him for his leadership, along with Senators Warner and McCain. I 
know better than most in this Chamber this is a very delicate issue, 
and I think they have handed it in a positive way, with clarity along 
the lines we are drawing, so we protect America and protect our troops 
and give them clear guidance in terms of conduct that is acceptable and 
up to American's standard of value. I thank the Senator for his 
leadership.
  Mr. LEVIN. Will the Senator yield for an additional question? And I 
ask unanimous consent that I be allowed to proceed for 3 minutes with 
the Senator from South Carolina, if the Senator from Florida will be so 
gracious.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Michigan.

[[Page 17256]]


  Mr. LEVIN. I also commend the Senators who are involved in these 
proposals. These are extremely important proposals. I hope that they 
would not be nongermane if, indeed, cloture is invoked tomorrow.
  By the way, I wonder if I could ask the Chair whether or not the 
pending amendment would be germane, if cloture is invoked?
  The PRESIDING OFFICER. The Chair would note there is not sufficient 
information at this time to make that determination.
  Mr. LEVIN. I thank the Chair.
  Mr. WARNER. Will the Senator allow me to address the Senate on a 
separate matter for 1 minute? On the subject of cloture, my leader, 
Senator Frist, and I will confer in the morning and then confer with 
the Democratic leader himself. At the moment, it is not a matter of 
absolute certainty, even though it ripens, as to whether the leader 
will wish to pursue it.
  Also, we would like to advise all Senators there will be no more 
votes tonight, if you concur in that?
  Mr. LEVIN. I have no objection.
  Mr. WARNER. The assistant Democratic leader is here.
  Mr. LEVIN. If I can go back and make inquiry of my good friend from 
South Carolina, I think he has focused, along with the cosponsors, on 
something which is critically important, and that is reliance on the 
Army manual so everybody knows the roadmap, as he puts it.
  Is it the Senator's understanding of the Army manual that abusive and 
degrading treatment would be prohibited?
  Mr. GRAHAM. It is not only my understanding, it is also part of the 
Uniform Code of Military Justice. There is a specific section that 
makes it a crime to abuse a detainee or a prisoner.
  Mr. LEVIN. The reason this comes up is those words have now been 
utilized by a witness, by somebody who has made investigation. So I 
want to be as precise as I can, in my question, about whether it would 
be the belief of the Senator from South Carolina that abusive and 
degrading treatment would be a violation of the manual?
  Mr. GRAHAM. It is my understanding that the Army Field Manual, as 
written--and it is being revised--rejects that concept in interrogation 
of abusive and degrading behavior. I am not an expert on the terms of 
it. But the whole point of these amendments also is to make sure that 
we have standardized interrogation techniques that get good information 
without having to be abusive and degrading. But you can be forceful. 
You can be stressful. You can be psychologically and physically 
stressful under the Army Field Manual without crossing the line that we 
are all concerned about.
  That is exactly what we did. We had confusing messages--if I may 
continue for a second--to our troops. We had a DOJ memo that was a 
basic departure from the way we have lived as a nation for 60 years. 
Understandably, after 9/11 we wanted to be aggressive. But the JAGs in 
question told us: Don't go down this road too far because we have 
trained people for 60 years to do it one way. It works that way. And 
you are going to confuse our own troops.
  Lo and behold, that's exactly what happened. So we are trying to get 
it back to where we have been.
  We fought World War II, Hitler--a pretty bad guy--using these 
concepts. We can fight these terrorists using these concepts.
  My goal, and I am sure it is your goal, is to kill them if we have 
to, capture them, interrogate them, detain them and prosecute them and 
do all that without giving up who we are as a nation.
  We can do that. This is a step in that direction.
  Mr. LEVIN. Again, I commend my friend from South Carolina. I am glad 
we have the reassurance that he would consider at least abusive and 
degrading treatment to be inhumane treatment within the meaning of 
those words. I thank him, and I yield the floor.


                           Amendment No. 762

  The PRESIDING OFFICER. Time has expired. The Senator from Florida is 
recognized.
  Mr. NELSON of Florida. Mr. President, I want to talk about widows and 
orphans. I call up amendment No. 762, which is filed at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Florida [Mr. Nelson], for himself and Mr. 
     Hagel, Mr. Corzine, Mr. Nelson of Nebraska, Mr. Smith, Ms. 
     Cantwell, Mr. Dayton, Mr. Kerry, Ms. Landrieu, Ms. Mikulski, 
     Mrs. Murray, Ms. Stabenow, Mrs. Boxer, Mr. Pryor, Mr. Durbin, 
     Mr. Jeffords, Mr. Johnson and Mr. Salazar proposes an 
     amendment numbered 762.

  Mr. NELSON of Florida. 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 repeal the requirement for the reduction of certain 
    Survivor Benefit Plan annuities by the amount of dependency and 
  indemnity compensation and to modify the effective date for paid-up 
               coverage under the Survivor Benefit Plan)

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

     SEC. 642. REPEAL OF REQUIREMENT OF REDUCTION OF SBP SURVIVOR 
                   ANNUITIES BY DEPENDENCY AND INDEMNITY 
                   COMPENSATION.

       (a) Repeal.--Subchapter II of chapter 73 of title 10, 
     United States Code is amended--
       (1) in section 1450(c)(1), by inserting after ``to whom 
     section 1448 of this title applies'' the following: ``(except 
     in the case of a death as described in subsection (d) or (f) 
     of such section)''; and
       (2) in section 1451(c)--
       (A) by striking paragraph (2); and
       (B) by redesignating paragraphs (3) and (4) as paragraphs 
     (2) and (3), respectively.
       (4) as paragraphs (2) and (3), respectively.
       (b) Prohibition on retroactive benefits.--No benefits may 
     be paid to any person for any period before the effective 
     date provided under subsection (e) by reason of the 
     amendments made by subsection (a).
       (c) Prohibition on recoupment of certain amounts previously 
     refunded to SBP recipients.--A surviving spouse who is or has 
     been in receipt of an annuity under the Survivor Benefit Plan 
     under subchapter II of chapter 73 of title 10, United States 
     Code, that is in effect before the effective date provided 
     under subsection (e) and that is adjusted by reason of the 
     amendments made by subsection (a) and who has received a 
     refund of retired pay under section 1450(e) of title 10, 
     United States Code, shall not be required to repay such 
     refund to the United States.
       (d) Reconsideration of optional annuity.--Section 
     1448(d)(2) of title 10, United States Code, is amended by 
     adding at the end the following new sentences: ``The 
     surviving spouse, however, may elect to terminate an annuity 
     under this subparagraph in accordance with regulations 
     prescribed by the Secretary concerned. Upon such an election, 
     payment of an annuity to dependent children under this 
     subparagraph shall terminate effective on the first day of 
     the first month that begins after the date on which the 
     Secretary concerned receives notice of the election, and, 
     beginning on that day, an annuity shall be paid to the 
     surviving spouse under paragraph (1) instead.''.
       (e) Effective date.--The amendments made by this section 
     shall take effect on the later of--
       (1) the first day of the first month that begins after the 
     date of the enactment of this Act; or
       (2) the first day of the fiscal year that begins in the 
     calendar year in which this Act is enacted.

     SEC. 643. EFFECTIVE DATE FOR PAID-UP COVERAGE UNDER SURVIVOR 
                   BENEFIT PLAN.

       Section 1452(j) of title 10, United States Code, is amended 
     by striking ``October 1, 2008'' and inserting ``October 1, 
     2005''.

  Mr. NELSON of Florida. Mr. President, it is an honor for me, on 
behalf of some folks who have not been treated with fairness and 
equity, to rise on the floor of the Senate to try to obtain it for 
them. There will be attempts to strip this amendment from the bill. But 
I offer it tonight, whether or not cloture is invoked on the overall 
bill, with the hope that we are going to get an up-or-down vote. It is 
important that widows and orphans in this country, whose husbands and 
fathers died as a result of their military service, can know where the 
Senators stand on this important issue. It is an honor for me to offer 
this amendment, and it is going to correct two important inequities 
faced by our military widows and our military retirees.
  There is an unfair and painful offset of the Defense Department's 
Survivors Benefits Plan, offset against the Veterans Affairs Dependency 
and Indemnity Compensation. What is Survivors Benefit Plan? When 
servicemembers

[[Page 17257]]

die on active duty, their survivors receive a benefit to recognize 
their sacrifice. You also have 100-percent disabled military retirees 
who actually go out and purchase this survivors benefit so their loved 
ones will have this when they have passed on. Yet that survivor benefit 
is today being taken away unfairly from our military widows and 
orphans. Fixing that is what my amendment is all about.
  If you go back into the Good Book, you will find that one of the main 
things that we are admonished is to look out for the widows and 
orphans. With our Nation now in a violent struggle with brutal and 
vicious enemies, and Americans being lost every day, we simply must not 
forget that the families left behind by those courageous men and women, 
those families, bear tremendous pain. Their survivors' lives are 
forever altered. Their future is left unclear. They have made the 
ultimate sacrifice and our Nation expects us to honor that sacrifice.
  It reminds me of President Lincoln, who during the midst of the Civil 
War, said:

       As God gives us to see the right, let us strive on to 
     finish the work we are in; to bind up the nation's wounds; to 
     care for him who shall have borne the battle, and for his 
     widow, and his orphan.

  The immortal words of President Lincoln.
  Since the beginning of this session we have considered and adopted 
increased death gratuity benefits for the survivors of our troops lost 
in this present war. But the survivors of those killed in action are 
entitled to automatic enrollment in the survivors benefit plan. That is 
a change we made in the law, but it is not complete.
  We now see the pain caused. At the same time a widow or a widower is 
enrolled in the Survivor Benefit Plan, and in many cases paid for it, 
another set of laws under the Department of Veterans Affairs says they 
are also entitled to dependency and indemnity compensation. However, 
under current law one offsets the other--they can't get both.
  Widows instantly recognize the injustice of this offset. It deeply 
wounds their sense of the value of their sacrifice. It is wrong, the 
way we treat these families. This offset is no less painful for the 
survivors of our 100-percent disabled military retirees because it is a 
purchased plan, yet they cannot get what they have purchased because it 
is offset by Dependency and Indemnity Compensation.
  Survivors of service members killed on active duty are entitled, in 
law, to automatic enrollment in the Survivor Benefit Plan, and 100-
percent disabled military retirees can purchase the survivors benefit 
plan. Survivors stand to lose most or even all of the benefits under 
that plan because they are offset by a second benefit to which they are 
also entitled, Dependency and Indemnity Compensation.
  That is not right. I have 22 cosponsors of this amendment. They are 
from both sides of the Senate. This amendment is going to remedy these 
inequities. It is going to honor our commitments to military retirees 
and servicemembers who are killed in the line of duty, and their 
surviving widows and dependent children.
  We have sergeants and corporals losing their lives. Their base pay 
determines the benefits for their surviving spouse. The base pay of a 
corporal isn't very much, and their survivors are supposed to live off 
even less; yet, in fact, in another part of the law, they are due 
something as the widow of a veteran, and we are saying under the 
current law: You cannot get both benefits you are entitled to.
  Is this what we want to do for these young families who lost a loved 
one in Iraq or elsewhere? Will the Nation not stand tall to support 
them? This is not what the law intended. We ought to change it.
  Mr. DURBIN. Will the Senator yield?
  Mr. NELSON of Florida. I yield.
  Mr. DURBIN. I ask unanimous consent to be added as a cosponsor to 
Senator Nelson's amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I ask the Senator from Florida--to make 
sure I understand exactly what he is saying--here is a person in 
service to our country who was killed in combat. If that soldier had 
basically bought an insurance policy on his life, then the amount of 
money his family would receive from our Government is going to be 
reduced by the amount he would have received from that insurance 
policy? Is that, in shorthand, the way to describe the current law?
  Mr. NELSON of Florida. Let me tweak it a little bit for the Senator, 
and I thank the Senator for the compassion coming out of his heart and 
expressed on his face as he asks this question. This Senator from 
Illinois is right on.
  In the first place, in current law the soldier does not actually have 
to make an affirmative purchase. Under current law we enroll the 
survivors of any service member who is killed in the Survivors Benefit 
Plan. However, for a private, a corporal, a sergeant, that is not a lot 
because of their base pay.
  Mr. DURBIN. I might ask the Senator from Florida, through the Chair, 
so the benefit the soldier receives depends on rank and salary?
  Mr. NELSON of Florida. Under the Survivors Benefit Plan it does. 
However, there is another part of the law that says survivors shall 
receive a second benefit, Dependency and Indemnity Compensation, to 
attempt in one small way to make those survivors whole for all the 
sacrifice their loved one has given.
  But, no, because of a problem with the current law, they cannot get 
both. One offsets the other, the long and short of which is that a 
young widow of a private or corporal or sergeant can't make it with 
what the U.S. Government is going to give her unless we rectify this 
inequity in the law.
  Mr. DURBIN. Does the Senator have remaining time?
  The PRESIDING OFFICER. The Senator's time is expired.
  Mr. DURBIN. I ask unanimous consent the Senator from Florida be 
recognized for an additional 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I ask the Senator from Florida this specific question. We 
are about to consider whether we are going to shut down debate on this 
bill. It is called cloture. It closes down the debate on the bill, 
limits the amendments to the bill. As to the Senator's amendment, which 
protects these widows and surviving children of a soldier killed in 
combat, once we have closed down debate and limited amendments, would 
we still be able to vote on the Nelson amendment?
  Mr. NELSON of Florida. The Senator asked a good question.
  I ask the Presiding Officer, would the Nelson amendment, with its 22 
cosponsors, be considered germane following a successful cloture 
motion?
  The PRESIDING OFFICER. There is insufficient information at this 
point to be able to make that determination.
  Mr. NELSON of Florida. So the answer, I say to the Senator from 
Illinois, it could well be knocked off if cloture is brought on this 
Defense authorization bill.
  Mr. DURBIN. I ask through the Chair one last question. How often do 
we have an opportunity to change the law and to help these soldiers and 
their families? How many times do we get a chance in the Senate during 
the course of the year to consider the Department of Defense 
authorization bill or another bill that might give us a chance to help 
those families and to rectify this injustice which the Senator from 
Florida has pointed out and which I think every Member on both sides of 
the aisle would like to change?
  Mr. NELSON of Florida. The Senator from Florida will ask for the yeas 
and nays.
  If the chairman of the committee, the distinguished Senator from 
Virginia, is persuasive in talking to the Republican majority leader 
not to bring the motion for cloture to cut off debate so that 
amendments like this to help widows and orphans might fall, maybe we 
can get it to a vote. It is the least we can do for Americans who have 
given their lives, or their best years, in defense of our country. We 
simply cannot allow this situation to continue. We need to restore fair 
benefits to these folks. I am going to continue my fight for these 
people who

[[Page 17258]]

have given their all to their Nation and especially to the loved ones 
whom they have left behind.
  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. WARNER. Mr. President, I say to our good friend and colleague, we 
will take under consideration the Senator's amendment with great care.
  Mr. DURBIN. Mr. President, I would like to address to the chairman 
the following. I have two pending amendments which I would like to call 
up. I will do this briefly.
  Mr. WARNER. Please proceed.


                           Amendment No. 1428

  Mr. DURBIN. I ask unanimous consent that the pending amendment be set 
aside for the purpose of calling up amendment No. 1428.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Illinois [Mr. Durbin] proposes an 
     amendment numbered 1428.

  Mr. DURBIN. 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 Secretary of the Air Force to enter into 
    agreements with St. Clair County, Illinois, for the purpose of 
 constructing joint administrative and operations structures at Scott 
                       Air Force Base, Illinois)

       On page 371, between lines 8 and 9, insert the following:

     SEC. 2887. ADMINISTRATIVE AND OPERATIONS STRUCTURES, SCOTT 
                   AIR FORCE BASE, ILLINOIS.

       (a) In General.--Notwithstanding any other provision of 
     law, the Secretary of the Air Force may enter into agreements 
     with St. Clair County, Illinois, for the joint construction 
     and use of administrative and operations facilities at Scott 
     Air Force Base, Illinois.
       (b) Limitations.--
       (1) Total cost.--The total cost of agreements entered into 
     under subsection (a) may not exceed $60,000,000.
       (2) Lease payments.--All payments made by the Air Force 
     under leases entered into under subsection (a) shall be made 
     out of funds available for the Air Force for operation and 
     maintenance.
       (3) Terms of leases.--Any lease agreement entered into 
     under subsection (a)--
       (A) shall provide for the lease of such administrative or 
     operations facilities for a period not to exceed 30 years; 
     and
       (B) shall provide that, upon termination of the lease, all 
     right, title, and interest in the facilities shall, at the 
     option of the Secretary, be conveyed to the United States.

  Mr. DURBIN. Mr. President, and to the chairman and ranking member of 
the committee, I hope this is an amendment which will be accepted 
because it is noncontroversial and important to my State and to the 
protection of our country.
  The amendment authorizes the Secretary of the Air Force to enter into 
agreements with local county officials for the construction and lease 
of joint administration and operation facilities needed at Scott Air 
Force Base, currently operating under a joint use agreement with 
MidAmerica Airport, to accommodate new missions.
  The fiscal year 05 Defense Appropriations conference report included 
$259 million to procure three C-40C aircraft to be based at Scott Air 
Force Base and flown by the 932nd Airlift Wing with the 375th Air Wing 
as an active associate, move three C-9C aircraft from Andrews Air Force 
Base to Scott AFB, and to support these new and expanded missions.
  The expanded C-9 mission and new C-40 mission will strain existing 
TRANSCOM and TACC facilities and require additional administrative and 
operations space/structures.
  Due to the accelerated funding schedule of the C-9 and C-40 missions, 
immediate administrative and operations space is needed.
  St. Clair County, IL, the appropriate local unit of Government, has 
offered to enter into an agreement with the Air Force to construct the 
necessary facilities, saving our Department of Defense some money. 
These structures would be for joint military-civilian use. Currently, 
Scott AFB and MidAmerica Airport operate on a joint use plan. St. Clair 
County is a partner in MidAmerica Airport.
  The Air Force has estimated the cost of a new facility for TRANSCOM 
and HQ TACC is about $60 million.
  This general provision is needed in order for the Air Force and St. 
Clair County to enter into an agreement on joint use facilities. The 
construction would be at no cost to the Air Force. The county would 
invite the Air Force to lease space in the buildings, consistent with 
military lease requirements.
  If the chairman has not had a chance to review this amendment, I 
would like to ask his staff to take a look at it. It is no expense to 
the Government and it provides a necessary facility at a very important 
airbase.
  Mr. WARNER. Mr. President, we will take the amendment under careful 
consideration, I assure the Senator.
  Mr. DURBIN. I ask for the yeas and nays on that pending amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


                           Amendment No. 1571

  Mr. DURBIN. Mr. President, I ask that amendment be set aside and we 
call up amendment No. 1571.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Illinois [Mr. Durbin], for himself, Ms. 
     Mikulski, Mr. Allen, Mr. Graham, Ms. Landrieu, Mr. Leahy, Mr. 
     Sarbanes, Mr. Lautenberg, Mr. Bingaman, Mr. Kerry, Mr. 
     Salazar, Mr. Corzine, Mr. Chafee, Mrs. Lincoln, Mr. Biden, 
     Mr. Kennedy, and Mrs. Murray, proposes an amendment numbered 
     1571.

  Mr. DURBIN. 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 ensure that a Federal employee who takes leave without pay 
 in order to perform service as a member of the uniformed services or 
member of the National Guard shall continue to receive pay in an amount 
which, when taken together with the pay and allowances such individual 
is receiving for such service, will be no less than the basic pay such 
individual would then be receiving if no interruption in employment had 
                               occurred)

       At the end of title XI, add the following:

     SEC. 1106. NONREDUCTION IN PAY WHILE FEDERAL EMPLOYEE IS 
                   PERFORMING ACTIVE SERVICE IN THE UNIFORMED 
                   SERVICES OR NATIONAL GUARD.

       (a) Short Title.--This section may be cited as the 
     ``Reservists Pay Security Act of 2005''.
       (b) In General.--Subchapter IV of chapter 55 of title 5, 
     United States Code, is amended by adding at the end the 
     following:

     ``Sec. 5538. Nonreduction in pay while serving in the 
       uniformed services or National Guard

       ``(a) An employee who is absent from a position of 
     employment with the Federal Government in order to perform 
     active duty in the uniformed services pursuant to a call or 
     order to active duty under a provision of law referred to in 
     section 101(a)(13)(B) of title 10 shall be entitled, while 
     serving on active duty, to receive, for each pay period 
     described in subsection (b), an amount equal to the amount by 
     which--
       ``(1) the amount of basic pay which would otherwise have 
     been payable to such employee for such pay period if such 
     employee's civilian employment with the Government had not 
     been interrupted by that service, exceeds (if at all)
       ``(2) the amount of pay and allowances which (as determined 
     under subsection (d))--
       ``(A) is payable to such employee for that service; and
       ``(B) is allocable to such pay period.
       ``(b)(1) Amounts under this section shall be payable with 
     respect to each pay period (which would otherwise apply if 
     the employee's civilian employment had not been 
     interrupted)--
       ``(A) during which such employee is entitled to 
     reemployment rights under chapter 43 of title 38 with respect 
     to the position from which such employee is absent (as 
     referred to in subsection (a)); and
       ``(B) for which such employee does not otherwise receive 
     basic pay (including by taking any annual, military, or other 
     paid leave) to which such employee is entitled by virtue of 
     such employee's civilian employment with the Government.
       ``(2) For purposes of this section, the period during which 
     an employee is entitled to reemployment rights under chapter 
     43 of title 38--
       ``(A) shall be determined disregarding the provisions of 
     section 4312(d) of title 38; and
       ``(B) shall include any period of time specified in section 
     4312(e) of title 38 within which an employee may report or 
     apply for employment or reemployment following completion

[[Page 17259]]

     of service on active duty to which called or ordered as 
     described in subsection (a).
       ``(c) Any amount payable under this section to an employee 
     shall be paid--
       ``(1) by such employee's employing agency;
       ``(2) from the appropriation or fund which would be used to 
     pay the employee if such employee were in a pay status; and
       ``(3) to the extent practicable, at the same time and in 
     the same manner as would basic pay if such employee's 
     civilian employment had not been interrupted.
       ``(d) The Office of Personnel Management shall, in 
     consultation with Secretary of Defense, prescribe any 
     regulations necessary to carry out the preceding provisions 
     of this section.
       ``(e)(1) The head of each agency referred to in section 
     2302(a)(2)(C)(ii) shall, in consultation with the Office, 
     prescribe procedures to ensure that the rights under this 
     section apply to the employees of such agency.
       ``(2) The Administrator of the Federal Aviation 
     Administration shall, in consultation with the Office, 
     prescribe procedures to ensure that the rights under this 
     section apply to the employees of that agency.
       ``(f) For purposes of this section--
       ``(1) the terms `employee', `Federal Government', and 
     `uniformed services' have the same respective meanings as 
     given them in section 4303 of title 38;
       ``(2) the term `employing agency', as used with respect to 
     an employee entitled to any payments under this section, 
     means the agency or other entity of the Government (including 
     an agency referred to in section 2302(a)(2)(C)(ii)) with 
     respect to which such employee has reemployment rights under 
     chapter 43 of title 38; and
       ``(3) the term `basic pay' includes any amount payable 
     under section 5304.''.
       (c) Clerical Amendment.--The table of sections for chapter 
     55 of title 5, United States Code, is amended by inserting 
     after the item relating to section 5537 the following:

``5538. Nonreduction in pay while serving in the uniformed services or 
              National Guard.''.

       (d) Effective Date.--The amendments made by this section 
     shall apply with respect to pay periods (as described in 
     section 5538(b) of title 5, United States Code, as amended by 
     this section) beginning on or after the date of enactment of 
     this Act.

  Mr. DURBIN. Mr. President, this amendment is not new to this Senate. 
We have considered it several times and passed it. It has not survived 
conference committees, but I hope this time it will be successful, we 
will be successful in our effort in passing it. It is the reservist pay 
amendment.
  Here is what is going on in America: All across America members of 
Guard units and Reserve units are being activated, called into service 
for our country, risking their lives, spending lengthy periods of time 
away from their families. We understand these new assignments create a 
lot of personal hardship and sacrifice on the part of these soldiers 
and marines, sailors, airmen, members of the Coast Guard, and others. 
We also understand it creates much financial hardship on some as well.
  So we, as a nation, encourage the employers of Guard and Reserve 
members to try to stand by the men and women who are serving our 
country, even when they have been activated. It turns out that well 
over 1,000 employers across America have said: We will do just that. 
They continue to make up the difference in pay for these activated 
members of the Guard and Reserve. We salute them. We thank them. They 
are bringing financial peace of mind to men and women who are serving 
our country every day, separated from their homes and their families.
  Now, the concern I have is the fact that one of the largest employers 
in America is not doing the same thing, and that is the Federal 
Government. The Federal Government is not making up the difference in 
pay for those members of the Guard and Reserve who are activated. Some 
of them face quite a setback when they are activated and receive less 
money and a lot of financial hardship.
  Last year, when we debated this amendment, the Government 
Accountability Office told us that about 40 percent of Guardsmen and 
Reservists lose some amount of income when mobilized. Well, I want to 
report to the Senate that figure has now been updated. The new figure 
is 51 percent. More than half of the men and women activated in the 
Guard and Reserve lose income because of that activation, causing 
financial hardship and economic difficulties for some. Over 11 percent 
of those activated lose more than $2,500.
  We also find that income loss is one of the top reasons given by 
Guardsmen and Reservists as to why they stop serving in Reserve 
components. We need to actively recruit and retain the very best to 
serve in America's military. And when you ask those currently serving 
why they are not reupping, why they are not reenlisting, many of them 
give as a major reason--one of the top reasons--the loss of income when 
they are activated to serve from Reserve units.
  We want to make certain that we salute the employers across America 
who are dealing with these troops and helping them. But I think we have 
an obligation, those of us who work here in Washington, to make sure 
our Government does the same.
  Roughly 1 out of every 10 Guardsmen and Reservists in service to our 
country is also a Federal employee. How can we on the one hand say to 
private employers, and even State governments, ``We salute you for your 
foresight and compassion in helping our troops'' and not do the same? I 
think we ought to be standing by those Federal employees who are 
activated in the service to our country as well. We should not be 
lagging behind those who have made real contributions and have shown 
this leadership. We should be setting an example.
  This measure does not bust the budget. It results in some 
expenditures, but the money to make up any lost income by mobilized 
Federal workers is drawn from funds already previously appropriated. 
Secondly, it is not additional pay for military service. Reservists 
continue to receive the same military pay for the same military job. 
Any differential pay they receive is separate and apart, simply 
intended to keep such employees financially whole while serving our 
country.
  I do not believe our service men and women sit down and ask those 
serving with them, ``Do you have a supplement in pay coming in here?'' 
and resent it if some do and some do not. Why, then, would we put 
Federal employees in this unfortunate situation? The wisdom of this 
amendment is it is readily understandable by the entire force, whether 
Active Duty or Reserve. They know that private-sector companies are 
making whole these employees' pay, and they can certainly understand it 
if the Federal Government did the same.
  I think we ought to be sensitive to the fact that if we do not make 
up the difference in regular civilian income, it could create great 
hardship, concern, worry, stress, and anxiety on troops that we want in 
the field with a positive attitude doing their job and coming home 
safely.
  The reason to support this measure is simple: The Federal Government 
cannot continue to do less for its employees than other major 
employers. It is time for the Government to be as generous, as caring, 
as compassionate as Sears, Roebuck, IBM, Home Depot, General Motors, 
and 24 State governments that stand behind their soldiers once they are 
activated to serve our country.
  How can we commend everyone else and not do our part? We can adopt 
this amendment. I invite all of my colleagues to come together once 
more to adopt the Reservist Pay Security Act.
  Mr. President, I ask for the yeas and nays on the pending amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. DURBIN. Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask unanimous consent to set aside the 
pending amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1496

  Mr. LEVIN. Mr. President, I call up amendment No. 1496.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin] proposes an amendment 
     numbered 1496.

  Mr. LEVIN. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.

[[Page 17260]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To prohibit the use of funds for normalizing relations with 
 Libya pending resolution with Libya of certain claims relating to the 
         bombing of the LaBelle Discotheque in Berlin, Germany)

       At the end of title XII, add the following:

     SEC. 1205. LIMITATION ON AVAILABILITY OF FUNDS FOR 
                   NORMALIZATION OF RELATIONS WITH GOVERNMENT OF 
                   LIBYA.

       None of the funds authorized to be appropriated by this Act 
     or any other Act may be obligated or expended for purposes of 
     negotiations towards normalizing relations with the 
     Government of Libya until the Attorney General, in 
     consultation with the Secretary of State and the Secretary of 
     Defense, certifies to Congress that the Government of Libya 
     has made a good faith offer in the negotiations on the claims 
     of members of the Armed Forces of the United States who were 
     injured in the bombing of the LaBelle Discotheque in Berlin, 
     Germany, and the claims of family members of members of the 
     Armed Forces of the United States who were killed in that 
     bombing.

  Mr. LEVIN. Mr. President, on April 5, 1986, Libya directed its agents 
to execute a terrorist attack in West Berlin for the sole purpose of 
killing and maiming as many American military personnel as possible. So 
they selected a discotheque that military personnel frequented in 
Berlin. They placed a bomb in the discotheque when 260 people, 
including U.S. personnel, were present. When that bomb detonated, two 
U.S. soldiers were killed and over 90 soldiers were severely injured. 
They have not been compensated.
  The German civilians who were in that discotheque were compensated, 
but the American military personnel and their families have not been, 
despite promises of the Libyan Government to do so.
  So this amendment simply says that we will not normalize, in any 
further way, relations with Libya until the Attorney General, after 
consulting with the Secretary of State and the Secretary of Defense, 
certifies to Congress that Libya has made a good-faith effort and a 
good-faith offer in negotiating with U.S. service members who were 
injured in that discotheque bombing and with the family members of U.S. 
service members who were killed in that bombing.
  It is a very straightforward amendment that is so essential if we are 
going to do justice for U.S. military personnel who were killed in a 
terrorist attack by Libya the way justice has been done for the German 
civilians who were killed in that attack at that discotheque that was 
perpetrated by Libya and its agents.
  So we provide a very carefully worded assessment by the Secretary of 
State and the Attorney General. They will decide if the good-faith 
offer has been made the way it has been promised. We do not make that 
decision in this amendment. We leave that up to the Attorney General, 
after consulting with the Secretary of State and the Secretary of 
Defense.


                           Amendment No. 1497

  Mr. President, I now ask unanimous consent that the pending amendment 
be laid aside, and I call up amendment No. 1497.
  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] proposes an amendment 
     numbered 1497.

  Mr. LEVIN. 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 establish limitations on excess charges under time-and-
   materials contracts and labor-hour contracts of the Department of 
                                Defense)

       At the end of subtitle A of title VIII, add the following:

     SEC. 807. LIMITATION ON EXCESS CHARGES UNDER TIME-AND-
                   MATERIALS AND LABOR-HOUR CONTRACTS.

       (a) Regulations Required.--Not later than 90 days after the 
     date of the enactment of this Act, the Secretary of Defense 
     shall prescribe regulations governing the terms and 
     conditions of time-and-materials contracts and labor-hour 
     contracts entered into for or on behalf of the Department of 
     Defense.
       (b) Limitation on Excess Charges.--
       (1) In general.--The regulations prescribed pursuant to 
     subsection (a) shall authorize the use of a time-and-
     materials contract or a labor-hour contract for or on behalf 
     of the Department of Defense only if the contract provides 
     for acquiring supplies or services on the basis of--
       (A) direct labor hours provided by the prime contractor at 
     specified fixed hourly rates that include wages, overhead, 
     general and administrative expenses, and profit; and
       (B) the reimbursement of the prime contractor for the 
     reasonable costs (including overhead, general and 
     administrative expenses, and profit, to the extent permitted 
     under the regulations) of subcontracts for supplies and 
     subcontracts for services, except as provided in paragraph 
     (2).
       (2) Subcontractor labor hours.--Direct labor hours provided 
     by a subcontractor may be provided on the basis of specified 
     fixed hourly rates that include wages, overhead, general and 
     administrative expenses, and profit only if such hourly rates 
     are set forth in the contract for that specific 
     subcontractor.
       (c) Department of Defense Purchases Through Contracts 
     Entered by Non-defense Agencies.--The regulations prescribed 
     pursuant to subsection (a) shall include appropriate measures 
     to ensure compliance with the requirements of this section in 
     all Department of Defense purchases through non-defense 
     agencies.
       (d) Effective Date.--The regulations prescribed pursuant to 
     subsection (a) shall take effect on the date that is 90 days 
     after the date of the enactment of this Act, and shall apply 
     to--
       (1) all contracts awarded for or on behalf of the 
     Department of Defense on or after such date; and
       (2) all task or delivery orders issued for or on behalf of 
     the Department of Defense on or after such date, regardless 
     whether the contracts under which such task or delivery 
     orders are issued were awarded before, on, or after such 
     date.

  Mr. LEVIN. Mr. President, we read the other day in the Washington 
Post about a procedure that is used by a number of contractors that 
reimburses those contractors for services rendered by subcontractors 
and where the contractor is charging the Government significantly more 
for that service than the subcontractor is paid. We are talking about 
labor rates.
  Here is what the Post told us and reminded us:

       Security guards in Virgin Islands paid $15 and $20 an hour 
     were billed to the government at [twice that rate]. Office 
     workers provided by [a subcontractor] at $20 an hour were 
     billed to the government [by the prime contractor] at $48.07 
     an hour.

  This is not just to have a profit put in there for the prime 
contractor. That is legitimate. This is a theory that prime contractors 
are using known as ``mapping,'' where instead of basing their charge to 
the Government on the cost of labor, they are basing the charge to the 
Government on a theoretical cost of labor--not on the subcontractor's 
cost but on what the prime would have paid for the same service. So we 
are billed as a Government for labor performed, and the cost of that 
labor, although it is not the true cost of the labor, is a theoretical 
cost.
  That kind of practice should end. This amendment would fix the 
problem by requiring that prime contractors charge the Government their 
actual subcontract costs, unless the subcontract rates are specifically 
set forth in the prime contract. The General Services Administration 
has been balking at this change, although the Department of Defense 
itself says they have recognized the problem and are working to fix it. 
So we are going to come down with the effort to correct this problem 
that the DOD recognizes and override the obstinacy of the GSA to 
correct a very obvious inequity in terms of the American taxpayer.
  So that is the sum and substance of this amendment. We would ask that 
this amendment be considered in the usual course, assuming, again, that 
cloture is not invoked.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, we are a nation at war. I can think of no 
other legislation deserving of this body's complete attention than the 
Defense Authorization bill. What could be more profound than debating 
critically important amendments on the very issues of war and peace? 
What could honor our men and women in uniform fighting in the sands of 
Iraq and Afghanistan than a full and complete discussion of amendments 
that will promote

[[Page 17261]]

the safety and well-being of our troops, their families, our veterans, 
and our national security. Unfortunately, there are those who wish to 
shut down this critically important debate. And so I rise today to urge 
my colleagues to consider the consequences of terminating such 
discourse. When the time comes tomorrow, I ask my colleagues to vote 
against cloture to end debate on this important piece of legislation.
  I am not a member of this committee. And I commend the distinguished 
chairman from Virginia and the ranking member from Michigan and the 
other members of this committee who have worked tirelessly to bring 
this bill to the floor.
  In my more than 20 years as a Member of this body, I can tell you, 
historically, the Defense authorization bill has come up at about this 
time, and has generally been subject to between five and ten days of 
unlimited debate over its amendments. From the time that John Stennis 
was the chairman of the Armed Services Committee to the tenure of its 
current Chairman, Senator Warner, I have observed the great care that 
this body has taken to ensure adequate consideration of amendments that 
would serve the national security interests of our nation. And we in 
this body have done so because of the importance of this legislation--
particularly at times, such as now, when the Nation faced down grave 
threats around the globe.
  As a matter of tradition as well as law, the Armed Services Committee 
has always produced an authorization bill. Unlike any other government 
agencies, the Defense Department has always been subject to both an 
authorization and appropriations bill.
  Other than some expenditures that occur as a result of our demands 
under Medicaid, Medicare, and the like, nothing consumes as much of our 
Treasury as does the Defense appropriations bill. Therefore, Mr. 
President, I rise because of my concern that we are about to vote 
tomorrow after little more than a day and a half of debate on this 
Defense authorization bill. Here we are bringing up one of the most 
critically important pieces of legislation we ever consider here, and 
we are going to potentially truncate this debate down to a few hours.
  Here we are, a nation at war, with literally thousands of our fellow 
citizens in uniform serving in Afghanistan and Iraq. We are facing 
major questions about the conduct of a war and considerable strain is 
being placed on our military personnel--with active duty, reserve, and 
national guard members. Are constituents are asking How well protected 
are our troops? How much do we provide for them when they come back?
  We have listened to my colleague from Florida, my colleague from 
Illinois, and my colleague from Michigan, who raise serious issues 
about whether we are going to provide additional benefits for our 
veterans. I am told by many who have analyzed these amendments that 
there is a very good likelihood that those amendments would not survive 
a post-cloture environment. If we do invoke cloture tomorrow, at 10 or 
10:30 tomorrow morning, I am told that those amendments would require a 
supermajority to consider them, and there is little or no likelihood 
they would ever have any chance of being even considered by this body.
  I do not understand that. I do not quite understand the logic that 
would suggest somehow we ought to so truncate this debate that these 
very important amendments would not be considered or at least 
potentially not be considered. There are a number of amendments being 
offered on the Base Realignment and Closure Commission that has been 
formed.
  I know the Presiding Officer, like this Senator, has more than a 
passing interest in what happens with the Base Closure commission. 
Facilities in both of our States are listed for closure. There are 
those of us who have deep concerns about how this process is working. 
If, in fact, cloture is invoked tomorrow, I suspect, based on what I 
have been told, that any effort by the Presiding Officer or this 
Senator or others to bring up these amendments, to talk about those 
issues, to at least debate them here and ask our colleagues whether 
they are sympathetic to our proposals would fail. We would not be 
allowed to consider those amendments.
  Again, I am not suggesting that every idea we have ought to be 
adopted by this body. But the fact that we wouldn't even be allowed to 
debate these matters strikes me as a breach of our obligations to our 
constituents back home as well as American troops fighting on the 
frontlines in Iraq and Afghanistan.
  I realize you have to close the debate at some point. You can't go on 
endlessly. We are getting near the end of this session before we take 
the August break. So clearly over the next several days, we have to 
conclude these debates. But there ought to be ample enough time, short 
of 10:30 tomorrow morning, for us to conclude our deliberations, going 
through amendments, dropping those which may be redundant. At least 
there ought to be a fair consideration of those matters before we just 
cut off the debate, slam the door shut on matters as important as the 
safety and well-being of our troops, American veterans, the BRAC 
process, the future of new nuclear weapons programs and a whole host of 
issues that would no longer be viable under a postcloture environment.
  For example, Senator Stabenow would like to offer a critically 
important amendment to guarantee adequate funding levels for veterans 
health benefits; Senator Murray would like to offer an amendment on 
childcare for troops based overseas; Senator Kerry has an amendment on 
the GI bill. And Senators McCain and Graham have a number of issues 
related to the treatment of detainees held in U.S. military facilities.
  For those who care about BRAC amendments, those who care about the 
Geneva Convention, those who care about whether we can have a good 
debate regarding our veterans, the base-closing commission, all of that 
discussion would be precluded from having a final consideration if, in 
fact, cloture is to be invoked.
  The Presiding Officer, when queried whether these amendments would 
fall, properly responded that you would have to see the amendment 
before you could make a categorical statement. But for those who have 
been through these amendments and examined whether they would survive 
postclo-
ture, the conclusion has been that this list of amendments, including 
many more that I have in front of me, would not survive a postcloture 
environment.
  I urge my colleagues, regardless of how you may feel about these 
amendments, give this body a chance to do its job. Otherwise, by 
closing off the debate, we deprive our members and the American people 
of critically important discourse at a time when our nation is at war.
  Throughout my tenure here, I do not ever recall a debate that would 
last about a day and a half on a Defense authorization bill, 
particularly when our troops were engaged in combat overseas. Some of 
the best debates I have ever witnessed as a Member of this body have 
occurred on the Defense authorization bill because the chairs of this 
committee, Republicans and Democrats, have insisted that authorization 
bill be considered by this body in its entirety. We made better 
decisions because we had those debates about the direction in which our 
country ought to go.
  Arguing over the wisdom of certain weapons systems, arguing over 
whether we ought to be involved in certain military conflicts, it has 
been educational for the country.
  And in the end, no other issue was more important than those 
impacting our troops deployed in harm's way. We have lost somewhere 
between 1,700 and 2,000 of our men and women in uniform, battling in 
Iraq and Afghanistan. It is for them and their families that we ought 
to continue to take into serious consideration the various amendments 
proposed to support their operations at home and abroad.
  What matter could possibly trump the importance of having a full 
debate about the national security needs of our country? I can't think 
of another subject matter that is more important

[[Page 17262]]

than this one. Allowing this body to be heard on these issues is the 
patriotic thing to do. It would be unpatriotic to cut off debate 
prematurely. There should be a time certain on final passage and not to 
delay going on endlessly in this discussion. But these are important 
amendments my colleagues have drafted.
  I have no amendment on this list. I am a cosponsor of a couple of 
them. But I have no matter that I am insisting be brought up here. But 
there are others here who do have amendments that ought to be heard. 
But I would hope that the leadership would ask to vitiate the cloture 
vote, work out the arrangements we traditionally do here so that 
amendments could be brought up and debated and discussed in a 
reasonable amount of time, and try to limit the number of amendments so 
we don't have duplication.
  I hope this evening as the leadership considers its game plan for 
tomorrow and the coming days, they will decide that the Defense 
authorization bill ought to be the business of the day, of every day 
this week to finish this debate and to do so in the kind of spirit that 
I think is warranted, when Members of both bodies get a chance to fully 
debate and discuss the importance of these issues.
  We ought to have a debate about the Base Closure Commission. There 
are important issues. Is it wise for us to be shutting down major 
military facilities at a time of war? Would it not be wiser maybe to 
delay those decisions a few months to determine whether we truly are 
going to need these facilities in the coming months? That is a 
legitimate debate to occur. When else is it going to occur if not on 
this bill? When can it come up? After September 8, when the decisions 
are made, when we are already just coming back from an August break and 
people look back and say, Why didn't you raise it then, why didn't you 
debate it on the floor of Senate to let the American public know what 
the choices ought to be?
  If we cut off this debate, I am told that those amendments that would 
deal with the Base Closure Commission would not be allowed under a 
postclo-
ture environment.
  I think that is an important debate. Our colleagues may decide to 
vote against those amendments, may decide they are all wrong, but at 
least give us a chance to be heard and to vote up or down on whether 
you think it is the right time to close these facilities.
  Certainly, when it comes to veterans' benefits and some of the other 
issues that my colleagues are offering--Senator Dorgan from North 
Dakota wants to form a special committee dealing with contracting. Lord 
knows, given the amount of waste and abuse that there have been reports 
of that have occurred, that certainly is a good amendment, in my view. 
I think we probably ought to have such a committee to determine whether 
taxpayer money is being wasted. That amendment, I am told, would fall.
  Senator Kennedy and Senator Feinstein want to offer an amendment on 
dealing with the robust nuclear earth penetrator. We have had a good 
debate here. I listened intently to both sides as they argued the 
wisdom of having that system or not. I am told that amendment would 
fall as well. That is an important debate to have, regardless of your 
view. We ought to be debating the wisdom of that weapons system. If 
that debate does not occur here, where does it occur, if not on the 
Defense authorization bill? Is it unpatriotic to have a debate about a 
weapons system that will cost millions and millions of dollars when 
there are strong feelings on both sides? If we cut off that debate, we 
will never have an opportunity to understand the wisdom of having a 
system or not having that system.
  It is not my intention to go down and list every single one of these 
amendments that I am told would fall. My colleague from Connecticut, 
would like to propose an amendment increasing Army end strength, he is 
offering that amendment with several of our colleagues. That is a very 
important amendment. That is a very important debate, for it gets to 
the core of the readiness of the American Armed Forces. What is the 
appropriate personnel level for our forces to both fight wars on two 
fronts while staying prepared to mobilize against threats that have not 
yet emerged? If you don't have that debate on this bill, when do you 
have it? If you don't authorize it, you can't appropriate it. If you 
can't appropriate it, then we never can decide whether that end 
strength ought to be increased. Again, there may be those who will 
offer very strong arguments against the Lieberman amendment about why 
we don't need to increase the end strength, but let's have the debate 
and let's have the vote, if you think it is important. I believe it is.
  I feel strongly about this and many other issues. Some have suggested 
that there will be those who will be accused of being not patriotic if 
they appear to be having an extended debate on the Defense 
authorization bill. I think just the opposite. It is unpatriotic not to 
have the debate. Not unlimited debate, not debate that goes on forever, 
but is it unlimited debated to go on for the next 2 or 3 days to 
discuss this issue which is in the headlines every day we pick up the 
paper? Terrorists attacking the transit system in London, hotels in 
Egypt. We find soldiers dying from suicide bombers every day. What 
could be more important than this subject matter, to be discussing how 
best to prepare our troops and our country for what needs to be done to 
support our veterans when they come back from these conflicts?
  It is unpatriotic to cut off the debate. The patriotic thing to do is 
to have a good discussion, a good civil debate over the important 
issues that confront our country when it comes to the Defense 
authorization. I commend the chairman of the committee for insisting 
that there be a debate on the Defense authorization bill. That is the 
great tradition of this committee. It is one of the few committees that 
is an authorizing committee that insists every year that there be a 
Defense authorization bill. I commend every member of that committee 
for insisting that we take the time to do it. I wish other authorizing 
committees were insistent as well so that we would have these debates 
about policy before deciding on the appropriations levels. That is the 
way it ought to proceed. My commendations to Senators Warner and Levin 
and other members of the committee. I thank them for giving us the 
opportunity to at least discuss these matters tonight.
  Every year we have had a good debate on Defense authorization. Armed 
Services is one of the few committees that insist upon it. I wish 
others did as well. It is the way we are supposed to proceed.
  It is the tradition of this great body to have good discussions, 
educate our constituents about the difficult choices with not unlimited 
resources. Where do we go? What do we invest in? How far do we go in 
helping veterans and in the support structures we need? That debate 
occurs because there has been a tradition in the committee of insisting 
that we have that discussion. I hope, as I said in the absence of the 
chairman, we have a reasonable amount of time this week--call for a 
time certain on Thursday or Friday, whenever it would occur, to end 
debate and come to final passage.
  Why don't we stay in tomorrow night and Wednesday night later than we 
normally retire here, and we can come in a bit earlier. Say you have an 
hour or half an hour for debate on amendment. Let's have that good 
discussion.
  The country would be better for it, and our men and women in uniform 
deserve it. They want to know where we are and where we are going. 
There is no vehicle other than the Defense authorization bill for us to 
have that kind of discussion and to consider these important 
amendments. It has been the history of this great body, and I hope it 
will continue to be after tomorrow. And I would suggest, that at a time 
when this Nation is engaged in a war on terrorism, it is important that 
we take as much care as possible to consider these critically important 
matters.
  I thank the Chair.
  Mr. WARNER. Mr. President, may I assure our colleague and others who

[[Page 17263]]

have expressed an interest, Senator Levin and I are working toward 
those ends. I take full responsibility for the concept of the cloture. 
It has achieved, a significant result thus far. We have up to 240 
amendments. Another 18 amendments are pending at the desk with 
rollcalls requested. So the Senate is actively participating. I assure 
you I am going to meet with my leader--and I respect his judgment--
first thing in the morning. I will explore the options that are 
available with him. I thank my colleague.
  Mr. DODD. Mr. President, I thank the chairman.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. While Senators Dodd and Warner are on the floor, let me 
first thank Senator Dodd for the passion he brought to this issue. This 
sounds like a process issue. It is not a process issue. These are life-
and-death issues we are debating. These are war issues and how do we 
support our troops and their families issues. These are issues of 
whether there will be benefits for families who have lost loved ones in 
war. These are issues of whether bases will be closed, issues of 
nuclear weapons, and issues of whether we are going to go down the road 
of new nuclear weapons use at the same time we are trying to persuade 
the world not to go down that road.
  These are the most vital issues we can possibly face as a people. I 
commend the chairman. He is, in good faith, going to attempt to see if 
we cannot find a way we can have a reasonable few days of debate before 
this debate is closed off, so we can consider the important amendments 
that have been filed.
  The chairman is very much aware of the tradition of this committee 
because he has been part of it and supportive of it for so long. The 
tradition the Senator from Connecticut talks about is tradition which 
is plenty deep, but it is also law. I think we are the only committee 
which, by law, must pass an authorization bill. So that tradition is 
embodied in the law itself.
  There is one little statistic, and this is something the Senator from 
Connecticut feels in his bones is true. But I want to give a statistic 
to support that passion and feeling that has been so beautifully 
expressed by the Senator from Connecticut. Last year, the first cloture 
motion was filed on the 11th day of debate. This year, it was the 
beginning of the second day. The second cloture motion, because the 
first wasn't adopted last year, was filed after 15 days of debate and 
after 148 amendments were considered. That is how important this bill 
is. So look at a longer period of time--a 10-year average. The average 
length of time for the first filing of cloture on a Defense 
authorization bill during that 10-year period is the fifth day of 
debate, and the second filing is on the ninth day of debate. So we have 
always historically, and by law, taken a reasonable period of time--a 
week or 2 weeks--to debate this bill because of its importance to the 
country.
  As I was saying a moment ago, the chairman is very much aware of this 
tradition. He embodies it. He has fought for it. The Defense 
authorization bill should have due consideration, and I know he will do 
what he can in the next 24 hours to see if we cannot work out something 
that would allow some critically important amendments to be considered.
  I thank the chairman for that and I thank the Senator from 
Connecticut.
  Mr. WARNER. Mr. President, we have labored together these 27 years. 
This, too, shall be overcome in one way or another. I thank my friend 
from Connecticut. I am impressed with the enthusiasm he expressed at 
this hour of the night.
  Mr. DODD. I thank my friend. Enthusiasm at any hour of the night is 
appreciated.
  Mr. WARNER. Mr. President, I rise to express concerns about the Levin 
amendment related to Federal time and material contracts.
  The proposed amendment would direct that when prime contractor 
engages a subcontractor to augment the delivery of hours under a time 
and materials contract, the prime should be entitled to be reimbursed 
only at the price the subcontractor is billing the prime.
  I want to bring to the attention of the Senate the rational for the 
pricing of these time and materials contracts. The prime contractor 
must locate, negotiate and obtain the subcontractors with whom he 
performs the contract and assume the risk associated with his and the 
subcontractors performance. If a subcontractor does not perform or is 
substandard in its performance, the prime is responsible. If a 
subcontractor quits or is dismissed, the prime must find a substitute. 
Assuming this management role, and more importantly, the risk, is one 
of the reasons for the time and management contract and the blended 
payment arrangement.
  Of particular concern to me about the Levin amendment is its 
potential impact on small business. The proposed amendment would be 
counter to the President's mandate to promote small business 
participation in government acquisitions by de-incentivizing prime 
contractors from engaging subcontractors--most of whom are small 
businesses--in the fulfillment of their contracts.
  Finally, Mr. President, I am told that the administration is about to 
initiate a rule making to revise how time and materials contracts are 
managed. Federal contracting is a very complex process which is best 
resolved through a thorough review among all the parties and through 
the regulatory process. If there are abuses, I am the first to stand 
and say that they should be stopped. But it is very difficult for the 
Senate today to understand fully the implications of the Levin 
amendment and whether it will even resolve any alleged abuses in 
contracting.
  I would like to work with Senator Levin and others to encourage the 
administration to issue its proposed rule promptly, put it out for 
comment so that all the impacted parties would have the opportunity to 
comment. If the Senate continues to have concerns once the rule making 
is completed, that is the appropriate time for us to act.
  I ask unanimous consent that several letters I received on this 
subject be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                Professional Services Council,

                                                    July 25, 2005.
     Hon. John Warner,
     Chairman, Committee on Armed Services, Senate, Washington, 
         DC.
       Dear Mr. Chairman: As the Senate continues with its debate 
     on S. 1042, the fiscal year 2006 National Defense 
     Authorization Act, we understand that Senator Levin may offer 
     an amendment to dictate the method for pricing time and 
     materials and labor-hour (T&M) contracts and subcontracts on 
     Defense Department contracts and purchases through non-
     defense agencies. On behalf of the Professional Services 
     Council (PSC), I am writing to urge you to oppose the 
     amendment in its current form.
       PSC is the leading national trade association that 
     represents more than 185 companies of all business sizes 
     providing professional and technical services to virtually 
     every agency of the federal government, including information 
     technology, engineering, logistics, operations and 
     maintenance, consulting, international development, 
     scientific environmental and social sciences.
       We strongly disagree with the characterization contained in 
     the amendment's title that it is necessary to limit ``excess 
     charges.'' Nothing in the DCAA work or in the contract 
     negotiation process supports the allegation that there are 
     ``excess charges'' on these T&M contracts. Furthermore, if 
     the Levin amendment was adopted, we believe it would 
     significantly restrict defense agencies' flexibilities to 
     select the best contract type to meet its mission needs. The 
     amendment will also directly affect prime contractor-
     subcontractor relationships, particularly where the agency's 
     procurement needs are addressed through a task order under an 
     existing multiple-award contract or through purchases from 
     the GSA schedules. It could also particularly affect small 
     business subcontractors and the ability of prime contractors 
     to manage those subcontracts, as well as a contractor's 
     ability to meet existing small business subcontracting 
     requirements.
       Finally, because the amendment applies to new task orders 
     under already awarded contracts, all of the government's 
     approved pricing agreements would have to be renegotiated to 
     adopt the regulatory changes that would flow from the 
     legislative prescription. This is a significant 
     administrative task for

[[Page 17264]]

     the department and would significantly slow up new work under 
     these task orders until these actions can be completed.
       Over a year ago, the Defense Contract Audit Agency (DCAA) 
     identified a potential ambiguity between provisions in the 
     Federal Acquisition Regulation and the terms and conditions 
     of T&M type contracts, particularly under the GSA Schedules 
     program. Since then, both DCAA and GSA have been meeting to 
     resolve the matter. This discussion should be allowed to 
     continue to timely resolution. In addition, the Federal 
     Acquisition Regulation (FAR) Council is reviewing proposed 
     clarifications to the FAR and that process would, importantly 
     and appropriately, provide an opportunity for public comment 
     on any changes. We strongly encourage the Senate to not 
     preclude the regulatory process from considering the full 
     implications of this important contracting matter.
       We appreciate the importance of transparency in the 
     contracting process and believe it can be accomplished 
     through appropriate administrative policies and contract 
     negotiations. The Levin amendment would be a step in the 
     wrong direction.
       Thank you for your attention to this matter. If you have 
     any questions or need any additional information, please do 
     not hesitate to call Alan Chvotkin, PSC's senior vice 
     president and counsel, or me. We can be reached at (703) 875-
     8059.
           Sincerely,
                                                     Stan Soloway,
     President.
                                  ____



                                                         ITAA,

                                                    July 25, 2005.
     U.S. Senate,
     Washington, DC.

Attention: Vote Today on Levin Amendment to S. 1042, DOD Authorization 
                                  Bill

       Dear Senator: possible as early as this afternoon, Senator 
     Carl Levin, (D-MI) will offer an amendment to S. 1042, the 
     Defense Authorization Bill, which will be detrimental to 
     federal contractors pursuing Time & Material contracts, 
     especially small and mid-sized businesses working as 
     subcontractors.
       The government uses Time & Material contracts when outcomes 
     are open ended and therefore difficult to price accurately. 
     The Levin amendment requires prime contractors to ``pass 
     through'' subcontractor rates to the government, with no 
     allowance for risk or overhead.
       ITAA believes that this amendment is very harmful in that 
     it undermines the concept of prime contractors offering total 
     solutions to the government. No prime will accept the work of 
     subcontractors if they cannot properly price risk and yet 
     still be held accountable for total performance. The losers 
     will probably be the small- to mid-size businesses that are 
     now flourishing, since the integrators will do the work 
     themselves at possibly higher rates. The government will have 
     to take on the additional role of the systems integrator and 
     then contract separately with these smaller firms.
       While the Levin amendment allows initial subcontractor 
     rates to be included with some overhead and profit 
     considerations, additional future subcontractors could only 
     be added at their labor rates, thus not allowing the prime to 
     price for risk and overhead. The prime contractors, however, 
     would still be held responsible for their performance. Since 
     many of these contracts run 3 to 5 years or more, this would 
     be very disruptive for federal contractors. Also, the 
     amendment seems to go into effect immediately, so that 
     contracts already in place could be affected. The IT industry 
     is very dynamic with new businesses entering the market. The 
     Levin Amendment would freeze the contract to the original 
     participants and take away the flexibility of adding new 
     technology to government contracts.
       To summarize the situation, the prime contractor serves the 
     same role as the general contractor when building a new 
     house. It is the company's role to guarantee that a total 
     solution is provided by managing the subcontractors, 
     overseeing the delivery of supplies, and thus presenting the 
     homeowner with a completed building. This amendment singles 
     out future subcontractors and applies different pricing rules 
     to them while still holding the prime contractor responsible 
     for the total project.
       We urge your opposition to the Levin Amendment.
       Sincerely,
                                                 Harris N. Miller,
     President.
                                  ____


           Comments on Time and Materials Contract Amendment


                    risk and small business impacts

       This is a problem more for the small to medium size service 
     firms that have to use significant subcontract labor to 
     obtain the appropriate expertise. Larger firms will opt to 
     self-perform rather than subcontract for labor, which will 
     serve to reduce subcontract opportunities. In the final 
     analysis, it is the SB/SDB that will be impacted.
       The proposed amendment would not allow prime contractor 
     risk to be added to the subcontractor rate. This likely will 
     militate against using T&M subcontracts in favor of cost type 
     contracts. This may be a problem for subcontractors that do 
     not have CAS compliant systems that would be required under 
     cost reimbursable contracts. This would probably impact 
     commercial sources and small businesses the most.


                         administrative burden

       Most large services contracts over the last few years have 
     included large teams of subcontractors (20 + companies). 
     There will be a large administrative burden to the Government 
     (and the contractor) if each subcontractor labor category 
     must be billed out at a separate rate. This will require 
     extensive invoice reconciliation. Also, as subcontractors are 
     added to the team over time for specific requirements a new 
     set of rates will be required to be negotiated and added to 
     the contract. Since the Government is likely to be reluctant 
     to negotiate and administer multiple sets of rates, primes 
     will retain more work in house and small business 
     participation will be reduced.
       The use of a single rate per category, eases 
     administration, increases contractor risk and opportunity, 
     and provides labor at commercially competitive rates. If the 
     Government truly believes that the use of subcontractor 
     specific rates is necessary, the solution is already 
     available through the use of a cost type contract.
       If enacted, this amendment would slow proposal preparation 
     and submission to a crawl, as no competent prime contractor 
     will conclude a T&M contract containing subcontractor costs 
     until the subcontractor is selected and costs are fully-
     priced.
       The amendment would limit contractor flexibility to cope 
     promptly with changed circumstances without processing a 
     contract modification. Changed circumstances include 
     unanticipated surges in requirements to react to an emergent 
     situation necessitating the hiring of subcontract personnel, 
     the need to substitute for a poor performing subcontractor 
     listed in the contract, and the need to add a subcontractor 
     to meet small business goals.
       The legislation is silent on how a contractor would be 
     reimbursed if it reacted to an emergent situation by using 
     subcontracted effort, to the benefit of the Government, when 
     the subcontractor's rates are not listed in the contract. 
     Some labor hour contracts extend over multiple years and have 
     goals for the utilization of small and small disadvantaged 
     businesses, all of which may not be known at the time of 
     contract award.
       This requirement would inhibit changing from one 
     subcontractor to another subcontractor for underperformance. 
     The contractor would potentially have to propose the new 
     subcontractor to the contracting officer and have the 
     appropriate rate included in the contract before the change 
     could be made. This would be particularly problematic for 
     contractors working in a deployed situation where completion/
     delivery may directly impact mission success and the safety/
     welfare of military personnel.


                     impact on commercial practices

       The proposed legislation fails to exclude ``commercial'' 
     T&M purchases. Commercial pricing is not cost-based but is 
     market driven. The legislation would require that certain 
     elements of cost plus profit be included in the specified 
     rates. Commercial contractors will be reluctant or refuse not 
     propose elements of cost which would seem to be required by 
     the proposed legislation.
       This revision would preclude the use of commercial T&M 
     contracts which was specifically authorized by legislation 
     just last year.


                             other concerns

       Section (d)(2), which applies the requirement retroactively 
     to task or delivery orders under existing contracts, may be 
     unconstitutional under Winstar. (Supreme Court case that 
     ruled that Congress cannot change laws that will affect 
     contracts retroactively.)


                           Amendment No. 1425

  Mr. LEVIN. Mr. President, there is one more matter. I was handed 
this. On behalf of Senator Harkin, I ask unanimous consent that the 
pending amendment be laid aside so an amendment of his relating to the 
Armed Forces network could be introduced at this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Harkin and 
     Mr. Dorgan, proposes an amendment numbered 1425.

  The amendment is as follows:

       At the end of subtitle A of title IX, add the following:

     SEC. 903. AMERICAN FORCES NETWORK.

       (a) Mission.--The American Forces Network (AFN) shall 
     provide members of the Armed Forces, civilian employees of 
     the Department of Defense, and their families stationed 
     outside the continental United States and at sea with the 
     same type and quality of American radio and television news, 
     information, sports, and entertainment as is available in the 
     continental United States.
       (b) Political Programming.--
       (1) Fairness and balance.--All political programming of the 
     American Forces Network shall be characterized by its 
     fairness and balance.

[[Page 17265]]

       (2) Free flow of programming.--The American Forces Network 
     shall provide in its programming a free flow of political 
     programming from United States commercial and public radio 
     and television stations.
       (c) Ombudsman of the American Forces Network.--
       (1) Establishment.--There is hereby established the Office 
     of the Ombudsman of the American Forces Network.
       (2) Head of office.--
       (A) Ombudsman.--The head of the Office of the Ombudsman of 
     the American Forces Network shall be the Ombudsman of the 
     American Forces Network (in this subsection referred to as 
     the ``Ombudsman''), who shall be appointed by the Secretary 
     of Defense.
       (B) Qualifications.--Any individual nominated for 
     appointment to the position of Ombudsman shall have 
     recognized expertise in the field of mass communications, 
     print media, or broadcast media.
       (C) Part-time status.--The position of Ombudsman shall be a 
     part-time position.
       (D) Term.--The term of office of the Ombudsman shall be 
     five years.
       (E) Removal.--The Ombudsman may be removed from office by 
     the Secretary only for malfeasance.
       (3) Duties.--
       (A) In general.--The Ombudsman shall ensure that the 
     American Forces Network adheres to the standards and 
     practices of the Network in its programming.
       (B) Particular duties.--In carrying out the duties of the 
     Ombudsman under this paragraph, the Ombudsman shall--
       (i) initiate and conduct, with such frequency as the 
     Ombudsman considers appropriate, reviews of the integrity, 
     fairness, and balance of the programming of the American 
     Forces Network;
       (ii) initiate and conduct, upon the request of Congress or 
     members of the audience of the American Forces Network, 
     reviews of the programming of the Network;
       (iii) identify, pursuant to reviews under clause (i) or 
     (ii) or otherwise, circumstances in which the American Forces 
     Network has not adhered to the standards and practices of the 
     Network in its programming, including circumstances in which 
     the programming of the Network lacked integrity, fairness, or 
     balance; and
       (iv) make recommendations to the American Forces Network on 
     means of correcting the lack of adherence identified pursuant 
     to clause (iii).
       (C) Limitation.--In carrying out the duties of the 
     Ombudsman under this paragraph, the Ombudsman may not engage 
     in any pre-broadcast censorship or pre-broadcast review of 
     the programming of the American Forces Network.
       (4) Resources.--The Secretary of Defense shall provide the 
     Office of the Ombudsman of the American Forces Network such 
     personnel and other resources as the Secretary and the 
     Ombudsman jointly determine appropriate to permit the 
     Ombudsman to carry out the duties of the Ombudsman under 
     paragraph (3).
       (5) Independence.--The Secretary shall take appropriate 
     actions to ensure the complete independence of the Ombudsman 
     and the Office of the Ombudsman of the American Forces 
     Network within the Department of Defense.
       (6) Annual reports.--
       (A) In general.--The Ombudsman shall submit to the 
     Secretary of Defense and the congressional defense committees 
     each year a report on the activities of the Office of the 
     Ombudsman of the American Forces Network during the preceding 
     year.
       (B) Availability to public.--The Ombudsman shall make 
     available to the public each report submitted under 
     subparagraph (A) through the Internet website of the Office 
     of the Ombudsman of the American Forces Network and by such 
     other means as the Ombudsman considers appropriate.

  Mr. LEVIN. Mr. President, this amendment relates to the Armed Forces 
network. It is provided in this amendment that the Armed Forces network 
would provide members of the Armed Forces, civilian employees of the 
Defense Department, and their families stationed outside of the 
continental U.S. and at sea with the same type and quality of American 
radio and television news, information, sports, and entertainment that 
is available in the continental U.S. There are other provisions about 
fairness, balance, free flow of programming, et cetera. I am not 
familiar with the details.
  I yield the floor.

                          ____________________