[Congressional Record (Bound Edition), Volume 152 (2006), Part 13]
[Senate]
[Pages 17229-17235]
[From the U.S. Government Publishing Office, www.gpo.gov]




             DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2007

  The PRESIDING OFFICER. Under previous order, the Senate will resume 
consideration of H.R. 5631, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 5631) to make appropriations for the 
     Department of Defense for the fiscal year ending September 
     30, 2007, and for other purposes.

  Pending:

       Kennedy-Reid amendment No. 4885, to include information on 
     civil war in Iraq in the quarterly reports on progress toward 
     military and political stability in Iraq.
       Allen modified amendment No. 4883, to make available from 
     Defense Health Program up to $19,000,000 for the Defense and 
     Veterans Brain Injury Center.
       Feinstein-Leahy amendment No. 4882, to protect civilian 
     lives from unexploded cluster munitions.

  Mr. STEVENS. Mr. President, what is the pending business on this 
bill?
  The PRESIDING OFFICER. The pending amendment is the Feinstein 
amendment.
  Mr. STEVENS. Is the Kennedy amendment still set aside following that 
amendment?
  The PRESIDING OFFICER. Yes, it is.
  Mr. STEVENS. 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.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Graham). Without objection, it is so 
ordered.


                           Amendment No. 4882

  Mrs. FEINSTEIN. Mr. President, I understand it is appropriate for me 
now to speak on an amendment I offered yesterday having to do with 
cluster bombs.
  The PRESIDING OFFICER. That is correct.
  Mrs. FEINSTEIN. Mr. President, I rise to discuss again the amendment

[[Page 17230]]

offered by myself and Senator Leahy to this bill on the use of a 
munition called a cluster bomb. Our amendment is very simple. It 
prevents any funds from being spent to purchase, use, or transfer 
cluster munitions until rules of engagement have been adopted by the 
Department of Defense to ensure that such munitions will not be used in 
or near any concentration of civilians.
  That is not a difficult requirement. It seems to me, because of the 
widespread damage caused by these munitions, that there ought to be 
specific rules of engagement which ban their use in areas where 
civilian death or maiming might result.
  Cluster munitions are large bombs, rockets, or artillery shells that 
contain up to hundreds of small submunitions or individual bomblets. 
They are intended for attacking enemy troop formations, and they 
release these small bomblets over the radius of a half mile. In 
practice, they pose a real threat to the safety of civilians when used 
in populated areas because they leave hundreds of unexploded bomblets 
over a large area, and they are often inaccurate. In some cases, up to 
40 percent of cluster bombs fail to explode, posing a particular danger 
to civilians long after the conflict has ended.
  Bomblets are no bigger than a D battery and in some cases resemble a 
tennis ball, so they are attractive to small children who pick them up 
to play with them. Then the bomblet explodes and the individual is 
either killed or maimed.
  I would like to show three photographs.
  On March 25, 2003, a youngster by the name of Abdallah Yaqoob was 
sleeping in his bed in his home in Basra, Iraq when he was hit with 
shrapnel from a cluster munitions strike that hit his neighborhood. He 
lost his arm, and his abdomen was severely damaged. He was hit by a 
British L20A1/M85 munition--a cluster bomb.
  Second, Falah Hassan, 13, was injured by an unexploded ground-
launched submunition in Iraq on March 26, 2003. The explosion severed 
his right hand and spread shrapnel throughout his body. He lost his 
left index finger and soft tissue in his lower limbs.
  This is a photo of an unexploded M42 cluster submunition found on a 
barbed-wire fence in southern Iraq in August 2006. As you will see, 
this is the bomblet and this is a small pinecone. You will see how 
small this bomblet is, hanging on the barbed wire.
  These unexploded cluster bombs become, in essence, de facto 
landmines.
  The issue was first brought to my attention by a 2005 PBS documentary 
entitled ``Bombies'' which chronicled the impact of unexploded cluster 
bombs in Laos. This is startling. In Laos alone, there are between 9 
and 27 million unexploded cluster bombs. They are leftovers from U.S. 
bombing campaigns in the 1960s and 1970s. Approximately 11,000 people, 
30 percent of them children, have been killed or injured since that war 
ended--11,000 killed or injured by cluster bombs. So 40 to 50 years 
after these munitions were used, their deadly force remains active.
  As the documentary showed, these unexploded cluster bombs have ended 
up in bamboo trees, in playgrounds, in houses, on rice paddies, and in 
schools. They have been found in the ground where farmers prepare their 
fields to plant. They have threatened their lives and their livelihood. 
As one farmer from northern Laos put it, ``Working in these fields is a 
problem. There are lots of bombies. But we work very carefully. If we 
work fast, we are afraid we'll hit a bombie.''
  These farmers have to tend the fields and put their lives at risk 
because they have to grow food to feed their families. Decades after 
the last bomb was dropped, they are still threatened by death and 
serious injury. A cluster bomb is lethal for up to 150 yards. It will 
kill or maim the person who picks it up and those nearby.
  I remind my colleagues, these munitions have been used in many 
battles in many wars.
  In the first gulf war, 60,000 cluster bombs were used, containing 20 
million bomblets. Since 1991, unexploded bomblets have killed 1,600 
innocent men, women, and children and injured more than 2,500.
  In Afghanistan in 2001, 1,228 cluster bombs with nearly a quarter of 
a million--248,056--bomblets were used.
  Between October of 2001 and November of 2002--that is just 1 year--
127 civilians were killed, 70 percent of them under the age of 18.
  In Iraq in 2003, 13,000 cluster bombs with nearly 2 million bomblets 
were used. Combining the first and second gulf wars, the total number 
of unexploded bomblets in the region is approximately 1.2 million. An 
estimated 1,220 Kuwaitis and 400 Iraqi civilians have been killed since 
1991 by these discarded munitions.
  Here we have it: In Iraq, 13,000 cluster bombs, two million bomblets; 
in Afghanistan, 1,200 cluster bombs, a quarter of a million bomblets, 
numbers killed in a year, 127 civilians; in the first gulf war, 61,000 
used, 20 million bomblets lying around, 1,600 innocent, men, women, and 
children killed, more than 2,500 wounded since 1991.
  This gives rise to recent developments in Lebanon. Throughout 
southern Lebanon, more than 405 cluster bomb sites containing 
approximately 100,000 unexploded bomblets have been discovered. Each 
site covers a radius of 220 yards. As Lebanese children and families 
return to their homes and begin to rebuild, they will be exposed to the 
danger of these unexploded bomblets lying in the rubble. Thirteen 
people already, including three young children, have been killed, and 
48 injured. One United Nations official estimates that the rate of 
unexploded bomblets is 40 percent in southern Lebanon. So far, more 
than 2,900 exploded bomblets have been destroyed. It will take 12 to 15 
months to complete that effort.
  The State Department is looking into charges that the cluster bombs 
found in southern Lebanon were American-made and that they were used in 
violation of agreements between the United States and Israel that 
govern their use. I do not know whether that is true. We have tried to 
find out. At this time, and despite repeated inquiries, I am unaware 
what those agreements actually say and what conditions they place on 
Israel. It seems to me we ought to know. It seems to me this 
information ought to be transparent and that the Congress of the United 
States, in the process of lawmaking, is entitled to that information.
  By passing this information and codifying this language in statute we 
will help ensure that civilian populations will be protected by 
adequate rules of engagement that accompany the sale or transfer of 
these weapons to another country and the rules of engagement that 
condition their use by our military in foreign countries.
  Each death that results from an unexploded bomblet weakens American 
diplomacy and American values. How do people in Laos feel when they 
live and farm with the daily threat of running into one of these 
bomblets? How do they feel in Afghanistan, Iraq, in southern Lebanon, 
in any other place where civilians can be wounded and killed by these 
bomblets?
  Simply put, unexploded cluster bombs fuel anger and resentment. They 
make security, stabilization, and reconstruction efforts that much 
harder.
  Senator Leahy and I are not the only ones that feel this way. Former 
Secretary of Defense Bill Cohen recognized the threat that cluster 
bombs pose to civilians and U.S. troops alike because they litter a 
battlefield. He issued a memorandum which became known as the Cohen 
policy. It stated that beginning in 2005 all new cluster bombs would 
have a failure rate of less than 1 percent.
  This was an important step forward. But we still have 5\1/2\ million 
cluster bombs containing 728 million bomblets. They are aging in the 
American arsenal. This indicates we are still prepared to use, 
transfer, or sell an enormous number of cluster bombs that have 
significant failure rates.
  I ask this question: Is this the source of legacy we want to leave 
behind in Iraq and Afghanistan?
  Let me be clear, this amendment does not place a ban on cluster 
bombs. It is a simple step that will give the Pentagon time to develop 
specific

[[Page 17231]]

guidelines to ensure that cluster bombs are not used in or near 
populated areas. Does anyone in this Senate believe that a cluster 
munition should be used in a civilian populated area? That person can 
stand up and talk to that point of view. It is unconscionable. It is 
immoral. It is beyond the laws of warfare. If somebody wants to argue 
that point of view, so be it. If that is the kind of country a Member 
wants to represent, so be it. It is not the country I want to 
represent.
  This is a simple amendment which says no funds will be used until 
there are rules of engagement that say that these munitions will not be 
used in civilian areas where death and maiming is apt to result.
  This amendment will go a long way toward ensuring only prudent 
battlefield use. I hope this amendment has an opportunity to pass.
  I yield the floor and I reserve the remainder of my time.
  How much time remains?
  The PRESIDING OFFICER. Four and a half minutes.
  Mrs. FEINSTEIN. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, I cannot support this amendment. It is 
not enforceable. It establishes policies that may in some situations 
dangerously restrict the options available to our commanders on the 
battlefield.
  I do share the Senator's concern about potential use on the 
indiscriminate manner of these antipersonal weapons. Protecting 
innocent civilians from the violence and destruction of war is our 
goal. It is a laudable goal.
  Of course, the consequences of using cluster munitions must be 
carefully considered before such weapons are engaged. This is a complex 
policy area. It deserves comprehensive review by the relevant policy 
committees, not only the Committee on Armed Services but also the 
Foreign Relations Committee. As the Senator has said, it has already 
been reviewed on a secretarial level several times in the Department of 
Defense.
  This amendment is just not acceptable. It legislates the rules of 
engagement for an entire class of weapon. The task of settling the 
rules of engagement properly belongs to the military and to the 
commander and ultimately to the Commander in Chief.
  In an extreme situation the commander must be able to use all options 
to shape the battlefield to protect our forces and those allied with 
us. Restricting the deployment of cluster munitions could severely 
hinder aviation and artillery capabilities and reduce the commander's 
capability to wage war successfully. It could severely degrade our 
allies' capability to defend themselves in threatening situations.
  The Department of Defense already has guidance and target 
methodologies that emphasize minimizing dangers to civilians in or near 
the zone of conflict. This amendment requires that prior to the sale or 
transfer, the Department ensures that munitions will not be used in or 
near populations, including villages, camps, and groups of refugees, 
evacuees, or nomads. This could be obtained at the point of sale.
  Once the weapons are transferred, it would be impossible to enforce. 
They place a burden on the military that is impossible to achieve.
  The Arms Export Control Act already has broad guidelines on the use 
of weapons sold by the United States, and press reports indicate the 
State Department has opened an investigation into use of cluster bombs 
by Israel against Hezbollah to determine if those guidelines were 
violated. If it has, the United States may impose sanctions. This was 
done in 1982. The Department of State already has tools to enforce the 
humanitarian considerations and sanction wanton use of cluster 
munitions.
  The Senate should recall the use of cluster munitions is consistent 
with the convention on certain conventional weapons and international 
humanitarian law, including the Geneva and Hague Conventions. I 
recommend the Senate refuse to accept this amendment.
  I do support the Defense appropriations bill as drafted.
  I yield the floor.
  Mr. BIDEN. Mr. President, I share the concerns that prompted the 
introduction of this amendment, but I am not prepared to approve such a 
far-reaching measure without a clear legislative record regarding the 
need for it and its likely impact on U.S. and allied forces.
  Cluster bombs have always posed problems for responsible military 
forces like those of the United States. The weapons are very useful 
militarily, but they also carry a real risk of causing civilian 
casualties if they are used where civilians are present or if too many 
submunitions fail to explode when they hit the ground. This is a 
legitimate issue to consider and, perhaps, to legislate. But it should 
be done in a careful manner, after holding hearings and with proper 
preparation.
  I urge the Senate Armed Services Committee to hold hearings on the 
issue of cluster munitions so that we can all gain a better 
understanding of how to maintain their usefulness while minimizing 
their risks. The committee should also make sure the Defense Department 
lives up to its claim that it ``is working towards minimizing `dud' 
cluster munitions by phasing cluster munitions systems with more 
reliable or self-destructing fuzes.'' Success in that effort would go 
far to reduce the risks of postwar casualties.
  The PRESIDING OFFICER. Who yields time?
  Mrs. FEINSTEIN. Mr. President, the ranking member of the Judiciary 
Committee is here, Senator Leahy of Vermont, someone whose leadership 
on the landmine issue has been unparalleled in the Senate. He is a 
cosponsor of this amendment.
  I yield the Senator the remainder of my time.
  The PRESIDING OFFICER. The Senator is recognized for 4 minutes.
  Mr. LEAHY. Mr. President, I thank the distinguished Senator from 
California. I have had a chance to work with the Senator on this 
amendment. It is an extremely important amendment. I have spent decades 
on the question of landmines. We use the Leahy War Victims Fund in 
parts of the world to aid landmine victims. I have visited these field 
hospitals. I have seen the damage, usually to children, overwhelmingly 
to civilians. My wife is a registered nurse. She has gone into the 
surgeries and watched the amputations.
  The problem of cluster bombs which maim and kill the innocent has 
been known for many years. Probably one of the most egregious examples 
was in Laos, where millions of the explosives were dropped by U.S. 
planes during the Vietnam war. Unfortunately, what happens with 
landmines, the war ends, the landmines stay. The peace treaties are 
signed and civilians continue to die; 30 years after those were dropped 
there are horrific casualties of civilians.
  I have urged the Pentagon both in Democratic and Republican 
administrations to address this problem for nearly a decade. While they 
have acknowledged the problem, and they do acknowledge it, they have 
not taken effective steps to solve it.
  We have used massive numbers of cluster munitions in the invasion of 
Iraq, including in densely inhabited areas. Civilians paid the price 
and continue to pay the price.
  Israel used these weapons in Lebanon. Again, it has been innocent 
civilians who have suffered disproportionately.
  Now, cluster munitions, like any weapon, of course, have military 
utility. They can be effective against armor or military 
infrastructure, but they are in effect indiscriminate because they 
scatter thousands of lethal bomblets over wide areas. There are many 
weapons that can be effective. Used right, I suppose, poison gas is 
effective, but we have banned it since World War I. We have urged other 
countries to ban it.
  On these cluster munitions, between 1 and 40 percent, depending on 
the type or the condition of the terrain, fail to explode on contact. 
Remember, there are thousands of these coming down. So if anywhere from 
even 1 percent fail, and as high as 40 percent fail, they remain as 
hazardous duds indefinitely,

[[Page 17232]]

no different than scattering landmines, something we do not do.
  And those who come in contact with them activate them. That could 
very well be a child out walking to school. It can be someone playing. 
It can be someone going to tend their animals, their crops, and they 
end up with lifelong disfigurement or disability, often death.
  No one argues it is possible to completely avoid civilian casualties 
in a war.
  Such casualties are inevitable. They have been tragic consequences in 
all wars. But this amendment should not be necessary. Weapons that are 
so disproportionately hazardous to civilians should be subject to 
strict rules of engagement.
  The Feinstein-Leahy amendment is fully consistent with the laws of 
war and international humanitarian law. It uses the same standard as 
for incendiary weapons, which are also notoriously hazardous to 
civilians. Rather than prohibit cluster munitions, the amendment says 
only that they should not be used where there are concentrations of 
civilians.
  This is a moral issue and it is an issue of our own self interest. 
Using or selling weapons that are so indiscriminate, without strict 
rules of engagement, is immoral. It is immoral. Anyone who has seen the 
horrific consequences of children with an arm or a leg blown off, or a 
part of their face, or their lifeless body cut to pieces by the 
shrapnel, knows that.
  But it is also contrary to our own interest to be using or selling 
weapons which, without strict controls on their use, cause such 
appalling casualties of innocent people who are not the enemy. It fuels 
anger and resentment we can ill afford among the very people whose 
support we need.
  So again I commend the Senator from California and strongly support 
the amendment.
  Mr. President, I ask unanimous consent that an article from USA 
Today, dated December 11, 2003, about cluster bombs be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    [From USA Today, Dec. 11, 2003]

          Cluster Bombs Kill in Iraq, Even After Shooting Ends

                           (By Paul Wiseman)

       Baghdad.--The little canisters dropped onto the city, white 
     ribbons trailing behind. They clattered into streets, landed 
     in lemon trees, rattled around on roofs, settled on lawns.
       When Jassim al-Qaisi saw the canisters the size of D 
     batteries falling on his neighborhood just before 7 a.m. 
     April 7, he laughed and asked himself: ``Now what are the 
     Americans throwing on our heads?''
       The strange objects were fired by U.S. artillery outside 
     Baghdad as U.S. forces approached the Iraqi capital. In the 
     span of a few minutes, they would kill four civilians in the 
     ai-Dora neighborhood of southern Baghdad and send al-Qaisi's 
     teenage son to the hospital with metal fragments in his foot.
       The deadly objects were cluster bomblets, small explosives 
     packed by the dozens or hundreds into bombs, rockets or 
     artillery shells known as cluster weapons. When these weapons 
     were fired on Baghdad on April 7, many of the bomblets failed 
     to explode on impact. They were picked up or stumbled on by 
     their victims.
       The four who died in the al-Dora neighborhood that day 
     lived a few blocks from al-Qaisi's house. Rashid Majid, 58, 
     who was nearsighted, stepped on an unexploded bomblet around 
     the corner from his home. The explosion ripped his legs off. 
     As he lay bleeding in the street, another bomblet exploded a 
     few yards away, instantly killing three young men, including 
     two of Majid's sons--Arkan, 33, and Ghasan, 28. ``My sons! My 
     sons!'' Majid called out. He died a few hours later.
       The deaths occurred because the world's most modern 
     military, one determined to minimize civilian casualties, 
     went to war with stockpiles of weapons known to endanger 
     civilians and its own soldiers. The weapons claimed victims 
     in the initial explosions and continued to kill afterward, as 
     Iraqis and U.S. forces accidentally detonated bomblets lying 
     around like small land mines.
       A four-month examination by USA Today of how cluster bombs 
     were used in the Iraq war found dozens of deaths that were 
     unintended but predictable. Although U.S. forces sought to 
     limit what they call ``collateral damage'' in the Iraq 
     campaign, they defied international criticism and used nearly 
     10,800 cluster weapons; their British allies used almost 
     2,200.
       The bomblets packed inside these weapons wiped out Iraq 
     troop formations and silenced Iraqi artillery. They also 
     killed civilians. These unintentional deaths added to the 
     hostility that has complicated the U.S. occupation. One anti-
     war group calculates that cluster weapons killed as many as 
     372 Iraqi civilians. The numbers are impossible to verify: 
     Iraqi records are incomplete, and many Iraqi families buried 
     their dead without reporting their deaths.
       In the most comprehensive report on the use of cluster 
     weapons in Iraq, USA Today visited Iraqi neighborhoods and 
     interviewed dozens of Iraqi families, U.S. troops, teams 
     clearing unexploded ordnance in Iraq, military analysts and 
     humanitarian groups. The findings:
       The Pentagon presented a misleading picture during the war 
     of the extent to which cluster weapons were being used and of 
     the civilian casualties they were causing. Gen. Richard 
     Myers, chairman of the Joint Chiefs of Staff, told reporters 
     on April 25, six days before President Bush declared major 
     combat operations over, that the United States had used 1,500 
     cluster weapons and caused one civilian casualty. It turns 
     out he was referring only to cluster weapons dropped from the 
     air, not those fired by U.S. ground forces.
       In fact, the United States used 10,782 cluster weapons, 
     according to the declassified executive summary of a report 
     compiled by U.S. Central Command, which oversaw military 
     operations in Iraq. Centcom sent the figures to the Joint 
     Chiefs in response to queries from USA Today and others, but 
     details of the report remain secret.
       U.S. forces fired hundreds of cluster weapons into urban 
     areas. These strikes, from late March to early April, killed 
     dozens and possibly hundreds of Iraqi civilians. Forty 
     civilians were killed in one neighborhood in Hillah, 60 miles 
     south of Baghdad, say residents and Saad Khazal al-Faluji, a 
     surgeon at Hillah General Hospital who tracked casualties.
       The attacks also left behind thousands of unexploded 
     bomblets, known as duds, that continued to kill and injure 
     Iraqi civilians weeks after the fighting stopped. U.S. 
     officials say they sought to limit civilian casualties by 
     trying to avoid using cluster munitions. But often 
     alternative weapons were not available or would not have been 
     as effective during the invasion.
       Unexploded U.S. cluster bomblets remain a threat to U.S. 
     forces in Iraq. They have killed or injured at least eight 
     U.S. troops.
       The U.S. Air Force, criticized for using cluster bombs that 
     killed civilians during the wars in Vietnam, Kosovo and 
     Afghanistan, has improved its cluster bombs. But U.S. ground 
     forces relied on cluster munitions known to cause a high 
     number of civilian casualties.
       The Air Force, responding to the criticism, began working 
     on safer cluster bombs in the mid-1990s and started using 
     them in Afghanistan. But the Army started a program to 
     install self-destruct fuses in existing cluster bomblets only 
     after former Defense Secretary William Cohen called in 
     January 2001 for dud rates of no more than 1% after 2005. The 
     safer bomblets won't be available for at least two years. 
     During the war in Iraq, U.S. ground forces dipped into 
     stockpiles of more than 740 million cluster bomblets, all 
     with a history of high dud rates.
       Senior Army officials in Washington would not answer 
     questions about the Army's use of cluster weapons in Iraq. 
     Maj. Gary Tallman, an Army spokesman at the Pentagon, said 
     such weapons are effective ``against enemy troop formations 
     and light-skinned vehicles'' and are used only after ``a 
     deliberate decision-making process.''


                      Why cluster bombs are deadly

       Cluster bombs have been controversial since they killed 
     thousands of Vietnamese, Cambodian and Laotian civilians 
     during and after the Vietnam War. They have since been used 
     by armies around the world, including Russian forces in 
     Chechnya and Sudanese government troops fighting rebels in a 
     long-running civil war. But their use in urban areas of Iraq 
     has given new momentum to a movement to restrict the use of 
     cluster bombs.
       Last month, dozens of activist groups hoping to duplicate 
     the success of the campaign to ban land mines formed a 
     coalition aimed at getting a worldwide moratorium on cluster 
     weapons. After seeing the toll the weapons took on Iraqi 
     civilians and their own forces, even some U.S. soldiers have 
     misgivings about using cluster weapons, at least in urban 
     areas.
       As the war in Iraq approached, humanitarian groups warned 
     the Pentagon against using cluster weapons, especially in 
     urban areas. New York-based Human Rights Watch predicted on 
     March 18, a day before the war began with an airstrike in 
     Baghdad: ``The use of cluster munitions in Iraq will result 
     in grave dangers to civilians and friendly combatants.'' 
     Cluster weapons are especially dangerous to civilians because 
     they spray wide areas with hundreds of bomblets. Most are 
     unguided ``dumb'' weapons, so they can miss their target, and 
     many of the bomblets don't explode immediately.
       The U.S. military was aware of the threat cluster munitions 
     posed and was determined to minimize them. Col. Lyle Cayce, 
     an Army judge advocate general (JAG), led a team of 14 
     lawyers providing advice on the battlefield to the 3rd 
     Infantry Division on the use

[[Page 17233]]

     of cluster munitions, as well as other weapons, during its 
     21-day, 450-mile drive north from Kuwait to Baghdad. The goal 
     was to ensure that U.S. forces complied with international 
     humanitarian law, enshrined in the Geneva Conventions. ``No 
     other army in the world does that,'' Cayce says. ``We value 
     the rule of law.''
       The Geneva Conventions hold that when choosing which 
     targets to hit and which weapons to use, armies must make 
     sure they do not ``cause superfluous injury or unnecessary 
     suffering'' and ensure that the harm to civilians does not 
     outweigh the military advantages.
       U.S. forces relied on sophisticated radar to pinpoint the 
     sources of Iraqi fire, then cross-checked them against a 
     computerized list of about 10,000 sensitive sites, such as 
     mosques and schools. Cayce and the other lawyers looked at 
     potential targets and advised U.S. commanders whether the 
     military benefits of using specific weapons against those 
     targets justified the risks to civilians.
       Cayce gave advice 512 times during the war, usually in 
     cases involving cluster munitions. Most involved sites 
     outside populated areas. Cayce estimates he dealt with only 
     25 to 30 ``controversial missions.'' For example: He approved 
     a strike against an Iraqi artillery battery in a soccer field 
     next to a mosque because it was firing on the 3rd Infantry 
     Division's artillery headquarters.
       The choices could be agonizing. He says he asked himself, 
     ``How many Americans do I have to let get killed before I 
     take out that (Iraqi) weapons system?'' Ten to 15 times, 
     Cayce advised commanders against firing on a target; they 
     never overruled him. Five times, in fact, they decided 
     against using cluster munitions even after he gave them the 
     go-ahead because they believed the risk to civilians was too 
     great. ``We didn't just shoot there willy-nilly,'' he says.
       ``It was the enemy who was putting his civilians at risk. . 
     . . They put their artillery right in town. Now who's at 
     fault there?''
       Rather than call upon their artillery to hit a target with 
     cluster munitions, U.S. ground forces preferred either to use 
     other weapons, such as M-16 rifles or tank rounds, or to 
     summon the Air Force to hit Iraqi targets from the sky with 
     precision bombs. ``Cluster munitions were the last choice, 
     not the first,'' Cayce says.
       But aircraft frequently were unavailable. Sometimes the 
     weather was bad or sandstorms were swirling. Sometimes Air 
     Force pilots insisted on seeing targets instead of relying on 
     radar readouts. The cluster munitions, especially M26 rockets 
     fired by a multiple-launch rocket system (MLRS), had greater 
     range than other weapons and were more reliable in bad 
     weather.
       Commanders also thought an MLRS was better at returning 
     fire and killing the enemy. ``MLRS is ideal for 
     counterfire,'' says Col. Ted Janosko, artillery commander for 
     the Army's V Corps. In fighting on March 31 around Karbala, 
     50 miles south of Baghdad, U.S. forces came under heavy 
     artillery fire from the Iraqis. ``We used (MLRS) rockets to 
     fire back,'' Janosko says. ``As soon as we started using 
     rockets, guess what? We never heard from that unit again. I'm 
     not going to say we killed them all . . . but believe me, 
     they did not fire again from that position.''
       The 3rd Infantry Division also used MLRS frequently. The 
     rockets can go more than 20 miles, and they spray a wider 
     area than other weapons. The 3rd Infantry fired 794 MLRS 
     rockets during the Iraq war, according to an assessment by 
     two high-ranking division artillery officers in the U.S. Army 
     journal Field Artillery, published at Fort Sill, Okla.
       As they raced north from Kuwait toward Baghdad in late 
     March and early April, U.S. forces fired rockets and 
     artillery shells loaded with bomblets into Iraqi troop and 
     artillery positions in Hillah, in Baghdad and in other 
     cities. U.S. aircraft sometimes dropped cluster bombs as 
     well.
       Just before U.S. forces' ``thunder run'' into Baghdad on 
     April 7, the 3rd Infantry Division fired 24 MLRS cluster 
     rockets into Iraqi positions at an important intersection in 
     the capital. The damage assessment, recounted in the Field 
     Artillery article: ``There's nothing left but burning trucks 
     and body parts.''

  The PRESIDING OFFICER. The time of the Senator from California has 
expired.
  The Senator from Alaska.
  Mr. STEVENS. Mr. President, I reiterate my opposition to this 
amendment. The rules of engagement properly belong with the Department 
of Defense and the Commander in Chief. This amends and sets forth 
restrictions on the ability of our military to use these munitions to 
protect our people in the future. It also would put on our military and 
our executive branch the duty of trying to determine how weapons might 
be used in the future, should they sell these weapons to other 
countries.
  We have been informed that this amendment is opposed by the 
Department of Defense. It is their determination that once the weapons 
have been transferred to a country under a sale that is permitted, it 
would not be possible to enforce this restriction. They point out the 
Arms Export Control Act already has broad guidelines on the use of 
weapons sold by the United States. And if that act is violated, the 
United States may impose sanctions and deny sale or transfer of weapons 
in the future, and has, as it did in 1982, sanctioned a country for 
misusing such weapons, not these in particular but the weapons that had 
been sold.
  The Senator from California said if anyone wants to stand up and talk 
about using these munitions, they ought to defend them. Some of the 
instances which the Senator from California mentioned were years ago 
when the areas were not occupied by civilians at all. And later the 
civilians moved into the areas, areas that had not been cleared 
properly by the country involved. I think that is a dangerous 
situation. Obviously, it is a difficult situation.
  But I would urge her to go back to the countries she mentioned and 
reconsider the reason for the use of these weapons in the past--in 
Korea, in Vietnam. I do not think we used them in Spain. But they were 
used in Spain after having been sold to Spain. The concepts here are 
impossible for our commanders to protect our forces with the 
prohibitions that are involved. It is impossible for us to enforce.
  We have a population of approximately 300 million people. We are 
involved in situations throughout the world and have been. Just 
remember the ``Marines' Hymn: From the halls of Montezuma to the shores 
of Tripoli.'' We have been doing this for years, protecting our system 
abroad and protecting freedom abroad. It is not the province of the 
Senate to enact rules of engagement. We authorize people to do it, and 
we review them--if you want to have a hearing on it and review the 
rules of engagement, I will be pleased to participate in such a 
hearing--but we do not write them. And we should not attempt to 
restrict them. I think this would place a dangerous restriction on the 
options available to our commanders, as I have said.
  If the issue is a relatively high rate of existing inventory, as the 
Senator indicates, then the solution is to replace these munitions with 
improved items, many of which are not possible to manufacture now 
because of existing restrictions on such manufacturing.
  I do not believe it can be shown we have used these weapons 
indiscriminately in civilian areas. I believe civilians have moved into 
areas where they have been used in defense of our country and defense 
of our people.
  So under the circumstances, I oppose this amendment.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. STEVENS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Murkowski). Without objection, it is so 
ordered.
  Mr. STEVENS. Madam President, it is my understanding this is the time 
set for the vote on Senator Feinstein's amendment. Have the yeas and 
nays been ordered?
  The PRESIDING OFFICER. The yeas and nays have not been ordered.
  Mr. STEVENS. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 30, nays 70, as follows:

                      [Rollcall Vote No. 232 Leg.]

                                YEAS--30

     Akaka
     Baucus
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Conrad
     Dayton
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Leahy
     Levin
     Menendez
     Mikulski
     Murray
     Obama
     Reed
     Reid
     Sarbanes
     Stabenow
     Wyden

[[Page 17234]]



                                NAYS--70

     Alexander
     Allard
     Allen
     Bayh
     Bennett
     Biden
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Chafee
     Chambliss
     Clinton
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Kyl
     Landrieu
     Lautenberg
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Pryor
     Roberts
     Rockefeller
     Salazar
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
  The amendment (No. 4882) was rejected.
  Mr. DURBIN. Madam President, I move to reconsider the vote.
  Mrs. BOXER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 4895

  Ms. MIKULSKI. Madam President, I am here to join with my colleague, 
Senator Paul Sarbanes, to offer an amendment, which we have at the 
desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Maryland [Ms. Mikulski], for herself, and 
     Mr. Sarbanes, proposes an amendment numbered 4895.

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

 (Purpose: To provide that none of the funds appropriated or otherwise 
  made available by this Act may be used to enter into or carry out a 
  contract for the performance by a contractor of any base operation 
  support service at Walter Reed Army Medical Hospital pursuant to a 
  private-public competition conducted under Office of Management and 
 Budget Circular A-76 that was initiated on June 13, 2000, and has the 
                 solicitation number DADA 10-03-R-0001)

       On page 218, between lines 6 and 7, insert the following:
       Sec. 8109. None of the funds appropriated or otherwise made 
     available by this Act may be used to enter into or carry out 
     a contract for the performance by a contractor of any base 
     operation support service at Walter Reed Army Medical 
     Hospital pursuant to a private-public competition conducted 
     under Office of Management and Budget Circular A-76 that was 
     initiated on June 13, 2000, and has the solicitation number 
     DADA 10-03-R-0001.

  Ms. MIKULSKI. Madam President, I ask unanimous consent that Senator 
Sarbanes be added as a cosponsor to the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. STEVENS. Madam President, I thought we had an agreement to stand 
in recess at 12:30.
  Ms. MIKULSKI. If the distinguished Senator will yield, I thought 
there was an agreement for us to offer this amendment and not ask for a 
vote on this amendment. Had the Senate followed the regular order, we 
would have been done with the other business, the pending business on 
cluster bombs.
  Mr. STEVENS. Was there an order for the recess at 12:30?
  The PRESIDING OFFICER. There is an order to recess. The Senator from 
Maryland will need unanimous consent in order to proceed beyond the 
hour of 12:30.
  Ms. MIKULSKI. I apologize. Madam President, I ask unanimous consent 
that the session be extended for 10 additional minutes so that Senator 
Sarbanes and I may offer an amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. STEVENS. Will the Senator yield? I thought the amendment had been 
offered.
  Ms. MIKULSKI. No, it has not.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SARBANES. Madam President, parliamentary inquiry: Is the 
amendment now pending?
  The PRESIDING OFFICER. The amendment is now pending.
  Mr. SARBANES. And we have this unanimous consent request to take 10 
minutes in order to proceed; we are trying to help the chairman move 
this process along.
  Mr. STEVENS. Madam President, I have no objection to offering the 
amendment and making comments about its introduction. The Senator wants 
10 minutes?
  Ms. MIKULSKI. Yes.
  Mr. STEVENS. I have no objection.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. We will move briskly. This is to fix a terribly botched 
competition for Federal jobs at the Walter Reed Army Medical Center. 
This competition has wasted taxpayer money. It is unfair to Federal 
employees, and we urge that it stop. We are opposed to this because it 
has gone on too long, it is unfair, it has broken the rules, and cost 
taxpayers an incredible amount of money.
  I do wish at this time, though, to pay tribute to the distinguished 
Senators, the chair and the ranking member of the Defense 
Appropriations Subcommittee, Senator Stevens and Senator Inouye. We 
have had no finer, more hard-working champions for Walter Reed and 
military medicine than those two men. So in raising this amendment, we 
understand where they are and why they also don't want to get into 
individual privatization issues, but this was such an egregious, unfair 
process, we felt we had to do this.
  This amendment would privatize 350 jobs at Walter Reed, mostly 
landscapers and maintenance workers.
  Why is this A-76 so flawed? Well, the competition has broken the 
rules. It has gone on and on and on. It is deeply flawed. It is 
disastrous. It started in June of 2000. It has lasted more than 6 
years, beyond a full Senate term and longer than a President's term. 
OMB says that it should not have gone on more than 12 months, but this 
competition has gone on for more than 6 years. Federal employees in 
2004 September were declared the winner of this competition, only to 
have the decision reversed 2 years later--not 2 days, not 2 weeks, but 
2 years. Then DOD kept putting out new plans. They announced a new plan 
where they amended it 16 times. Every time the Federal employees won, 
the Army came up with a new rule. The last amendment included 1,500 
changes. This was the 49th month of this solicitation, and once again 
they said: Let's start over. They keep changing the rules every time 
the Federal employees win, and then finally they lost it in 2006 after 
this chaos.
  Now, does contracting out save money? You bet, sometimes, but not 
this time. It has already cost the military $7 million to conduct this 
privatization. It is going to cost another $5 million to implement. 
When the demands on Walter Reed are so high, when we have a war that 
has no line item, should we be spending tax dollars to implement a 
program that will not save it? This will not save the taxpayers' money.
  Also, I bring to my colleagues' attention that Walter Reed will be 
closing in just a couple of years. Why privatize now? It is a solution 
that is wrong. The competition was flawed. It does not save taxpayers' 
money. Sure, we understand contracting out when it is legal, when it is 
fair, when it saves taxpayers' money and maintains integrity. This 
amendment will eliminate the funding to carry this out, and we urge its 
adoption at the appropriate time.
  Mr. SARBANES. Madam President, how much time remains?
  The PRESIDING OFFICER. There is 5 minutes remaining.
  Mr. SARBANES. Madam President, I wish to very strongly underscore the 
arguments made by my very able colleague, Senator Mikulski, with 
respect to this amendment. I am very pleased to join with her in 
offering it.
  This amendment would put an end to a very costly and flawed A-76 
competitive sourcing study at Walter Reed Army Medical Center, which 
is, of course, one of our foremost military hospitals. There have been 
numerous and serious flaws in the conduct of this A-76 study. The study 
has been going on now for 6 years--contrary to law governing the A-76 
process. As a result, it has been extraordinarily expensive

[[Page 17235]]

and promises to be even more expensive if completed.
  The Federal employees actually were declared the winner of this 
competition in September of 2004, only to have that decision reversed 
earlier this year. The decision was reversed after a whole new set of 
amendments were made with respect to the bidding process. In fact, the 
solicitation has been amended a number of times with hundreds of 
changes, making the process terribly unfair to everyone involved. This 
particular A-76 is so egregious that it ought to be brought to an end, 
and that is what this amendment proposes to do.
  I believe the situation as it currently stands is also having a 
detrimental impact on the work being done at Walter Reed. The A-76 
study covers base operation support services--workers who deal in 
landscaping and maintenance. The requirements now are that these A-76 
processes cannot go on for more than 30 months--in part to avoid such a 
disruption in the workforce. However, this study has been going on for 
more than 6 years. Obviously it is having an impact on the morale of 
the employees and resulting in a loss in productivity. So I urge my 
colleagues to be supportive of this amendment, which will bring this 
costly and flawed A-76 study to an end and help Walter Reed maintain 
the high level of services which characterizes that fine institution.
  I would also add that the BRAC Commission has recommended the 
consolidation of Walter Reed with the Bethesda Naval Medical Center. 
That is supposed to take place over the next few years. That seems to 
me to be an additional argument for adopting this amendment.
  In other words, in a very short period of time, Walter Reed will move 
to a new campus where we will be developing a new, more modern, 
military hospital. At that point, the base operations workforce will 
have to be reshaped to fit the needs of this new facility.
  So I urge my colleagues to respect the reasonable rules of the 
bidding process, rules which have been so departed from in this 
instance. We should adopt this amendment to ensure that this and other 
competitive sourcing studies are conducted pursuant to the laws and 
regulations governing the A-76 process.
  I very strongly support my colleague. I commend her for her important 
leadership on this issue. Let's be fair to the employees. Let's honor a 
reasonable bidding process with its own rules and requirements.
  If Federal jobs are to be subject to the competitive sourcing 
process, Federal agencies should follow the rules and requirements 
governing that process. That has not been done in this instance, which 
is the reason I support the amendment that is pending before us.
  I yield the floor.

                          ____________________