[Congressional Record (Bound Edition), Volume 157 (2011), Part 12]
[Senate]
[Pages 17813-17854]
[From the U.S. Government Publishing Office, www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of S. 1867, which the clerk will report by 
title.
  The bill clerk read as follows:

       A bill (S. 1867) to authorize appropriations for fiscal 
     year 2012 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe military 
     personnel strengths for such fiscal year, and for other 
     purposes.

  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, the Republican leader is on the floor. He is 
going to offer an amendment. The one on this side is not ready. There 
has been an agreement, and I ask unanimous consent that Senator 
McConnell be allowed to lay down his amendment. When the one on the 
Democratic side is laid down, which will be momentarily, it will be 
considered the first amendment in order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Republican leader.


                           Amendment No. 1084

  Mr. McCONNELL. I send an amendment to the desk and ask for its 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Kentucky [Mr. McConnell], for Mr. Kirk, 
     proposes an amendment numbered 1084.

  Mr. McCONNELL. 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 require the President to impose sanctions on foreign 
financial institutions that conduct transactions with the Central Bank 
                                of Iran)

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

     SEC. 1243. IMPOSITION OF SANCTIONS ON FOREIGN FINANCIAL 
                   INSTITUTIONS THAT CONDUCT TRANSACTIONS WITH THE 
                   CENTRAL BANK OF IRAN.

       Section 104 of the Comprehensive Iran Sanctions, 
     Accountability, and Divestment Act of 2010 (22 U.S.C. 8513) 
     is amended--

[[Page 17814]]

       (1) by redesignating subsections (h) and (i) as subsections 
     (i) and (j), respectively; and
       (2) by inserting after subsection (g) the following new 
     subsection:
       ``(h) Imposition of Sanctions on Foreign Financial 
     Institutions That Conduct Transactions With the Central Bank 
     of Iran.--
       ``(1) In general.--Subject to paragraphs (2), (3), and (4), 
     not later than 30 days after the date of the enactment of the 
     National Defense Authorization Act for Fiscal Year 2012, the 
     President shall--
       ``(A) prohibit the opening or maintaining in the United 
     States of a correspondent account or a payable-through 
     account by a foreign financial institution that the President 
     determines has knowingly conducted any financial transaction 
     with the Central Bank of Iran; and
       ``(B) freeze and prohibit all transactions in all property 
     and interests in property of each such foreign financial 
     institution if such property and interests in property are in 
     the United States, come within the United States, or are or 
     come within the possession or control of a United States 
     person.
       ``(2) Exception for sales of food, medicine, and medical 
     devices.--The President may not impose sanctions under 
     paragraph (1) on a foreign financial institution for engaging 
     in a transaction with the Central Bank of Iran for the sale 
     of food, medicine, or medical devices to Iran.
       ``(3) Applicability.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     paragraph (1) applies with respect to financial transactions 
     commenced on or after the date of the enactment of the 
     National Defense Authorization Act for Fiscal Year 2012.
       ``(B) Petroleum transactions.--Paragraph (1) applies with 
     respect to financial transactions for the purchase of 
     petroleum or petroleum products through the Central Bank of 
     Iran commenced on or after the date that is 180 days after 
     the date of the enactment of the National Defense 
     Authorization Act for Fiscal Year 2012.
       ``(4) Waiver.--
       ``(A) In general.--The President may waive the application 
     of paragraph (1) with respect to a foreign financial 
     institution for a period of not more than 60 days, and may 
     renew that waiver for additional periods of not more than 60 
     days, if the President determines and reports to the 
     appropriate congressional committees every 60 days that the 
     waiver is necessary to the national security interest of the 
     United States.
       ``(B) Form.--A report submitted pursuant to subparagraph 
     (A) shall be submitted in unclassified form, but may contain 
     a classified annex.
       ``(5) Foreign financial institution.--For purposes of this 
     subsection, the term `foreign financial institution' includes 
     a financial institution owned or controlled by a foreign 
     government.''.

  Mr. McCONNELL. Mr. President, I am offering this amendment on behalf 
of the Senator from Illinois, Mark Kirk, because the time has come for 
our country to sanction the Central Bank of Iran.
  It has become commonplace for political leaders to state that an 
Iranian regime armed with nuclear weapons is unacceptable. President 
Obama has stated that an Iranian regime armed with a nuclear weapon is 
unacceptable. Unfortunately, the Iranian regime has not been deterred 
from conducting activities relevant to the development of such an 
explosive device.
  The report of the IAEA of November 8, 2011, makes clear that Iran has 
worked on the development of an indigenous design of a nuclear weapon, 
including the testing of components, and that Iran has yet to answer 
all of the IAEA's questions concerning the military dimensions of 
Iran's nuclear program.
  Last month, the world learned of the Quds Force plot to assassinate 
the Ambassador of Saudi Arabia to the United States.
  Iran remains undeterred, and the United States is left with fewer 
options for dealing with the Iranian nuclear program as time elapses.
  This amendment by Senator Kirk from Illinois would add to the current 
sanctions against Iran by targeting the central bank of that country. 
This, in my judgment, is one of the few remaining actions, short of an 
embargo of Iranian shipping and military intervention, to slow or end 
the Iranian nuclear program. It is worth supporting and pursuing.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, on behalf of the Senate Armed Services 
Committee, I am pleased to bring S. 1867, the National Defense 
Authorization Act for fiscal year 2012, to the Senate floor. The Armed 
Services Committee approved the bill by a unanimous vote of 26 to 0. 
This is the 50th consecutive year that our committee has reported a 
defense authorization act. Every previous bill has been enacted into 
law.
  I would like to thank all of the members and the staff of the Senate 
Armed Services Committee for the commitment they have shown to the best 
interests of our men and women in uniform as we have developed this 
legislation. Every year, we take on tough issues, and we work through 
them on a bipartisan basis consistent with the traditions of our 
committee. I particularly thank Senator McCain, our ranking minority 
member, for his strong support throughout the process. The unanimous 
committee vote in favor of this legislation would not have been 
possible without his cooperation and support.
  We were delayed in getting this year's bill to the Senate floor by 
two issues that have arisen since the time the Armed Services Committee 
approved the first version of this bill, S. 1253, in late June.
  First, Congress enacted the Budget Control Act of 2011, which 
mandated deep reductions in discretionary spending, including defense 
spending. The initial bill reported by the Armed Services Committee 
would have cut the President's budget request for national defense 
programs by more than $6 billion. The Budget Control Act, which was 
adopted after our initial bill was reported, requires an additional $21 
billion in reductions.
  Second, the administration and others expressed misgivings about the 
detainee provisions in the initial bill, although the provisions in our 
initial bill represented a bipartisan compromise that was approved by 
the committee on a 25-to-1 vote. Many of these concerns were based on 
misinterpretations of the language in that bill; nonetheless, we have 
worked hard to address these concerns.
  First, relative to the additional $21 billion in budget cuts, we 
consulted closely with the Department of Defense before identifying 
these cuts. We believe the reductions we decided upon can be 
accomplished without an adverse impact on our troops or their vital 
mission, and without significant increase in risks to our national 
security.
  The committee report which accompanied the initial bill, Senate 
Report 112-26, did not address these cuts but is otherwise applicable 
to this bill as well. So the new cuts are not addressed in that Senate 
report because these new reductions came after that Senate report was 
made.
  For this reason, I ask unanimous consent that a summary of the cuts 
be printed in the Record immediately following my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEVIN. Second, the new bill would modify the detainee provisions 
to address concerns and misconceptions about the provisions in our 
initial bill. In particular, the new bill first modifies section 1031 
of the bill, as requested by the administration, to assure that the 
provision that provides a statutory basis for the detention of 
individuals captured in the course of hostilities conducted pursuant to 
the 2001 authorization for use of military force, the AUMF, to make 
sure that those provisions and that statutory basis are consistent with 
the existing authority that has been upheld in the courts and neither 
limits nor expands the scope of the activities authorized by the AUMF.
  It also modifies sections 1033 and 1034 of the bill, as requested by 
the administration, to impose 1-year restrictions rather than permanent 
limitations on the transfer of Gitmo detainees to foreign countries and 
on the use of Department of Defense funds to build facilities in the 
United States to house detainees who are currently at Gitmo.
  We were unable to agree to the administration's proposal to strike 
section 1032, the provision that requires military detention of certain 
al-Qaida terrorists subject to a national security waiver. We did, 
however, adopt a number of changes to the provision. In particular, we 
modified the provision so that it clarifies that the President

[[Page 17815]]

gets to decide who makes the determinations in coverage, how they are 
made and when they are made, ensuring that executive branch officials 
will have flexibility to keep any covered detainee in civilian custody 
or to transfer any covered detainee for civilian trial at any time.
  Second, we clarify that there is no interruption of ongoing 
surveillance and intelligence-gathering activities or of ongoing law 
enforcement interrogation sessions. There have been misstatements, 
misimpressions, and misinterpretations of the provisions of our bill 
relative to those issues. We clarify them to make sure it is clearly 
understood by this body and the American people that--repeating, it is 
the executive branch, it is determined by the President, the people he 
appoints who will make determinations of coverage, how they are made, 
when they are made, so that it ensures the flexibility that the 
executive branch wants to keep any covered detainee in civilian custody 
or to transfer any covered detainee for civilian trial at any time.
  It has been suggested that ongoing surveillance and intelligence-
gathering activities by law enforcement people would be interrupted, or 
that their interrogation might be interrupted. It is very explicitly 
clear in this bill that there is no such interruption, there is no such 
interrogation session interruption or surveillance interruption or 
intelligence-gathering activities interruption. The process to make 
sure that doesn't happen is in the President's hands.
  The administration officials reviewed the draft language for this 
provision the day before our markup and recommended additional changes. 
We were able to accommodate those recommendations, except for the 
administration request that the provision apply only to detainees who 
are captured overseas. There is a good reason for that. But even here, 
the difference is relatively modest, because the provision already 
excludes all U.S. citizens. It also excludes all lawful residents of 
the United States, except to the extent permitted by the Constitution. 
The only covered persons left are those who are illegally in this 
country or who arrive as tourists or on some other short-term basis, 
and that is a small remaining category, but an important one, because 
it includes the terrorists who clandestinely arrive in the United 
States with the objective of attacking military or other targets here.
  Contrary to some statements I have seen in the press, the detainee 
provisions in our bill do not include new authority for the permanent 
detention of suspected terrorists. Rather, the bill uses language 
provided by the administration to codify existing authority that was 
adopted by both the Bush administration and the Obama administration 
and that has been upheld in the Federal courts.
  Moreover, the bill requires for the first time that any detainee who 
will be held in long-term military custody anywhere in the world would 
have access to a process that includes a military judge and a military 
lawyer.
  I want to repeat that. For the first time, this bill provides that, 
in determining a detainee's status, the detainee will have access to a 
lawyer and to a military judge. That is not the case now. Nor would the 
bill preclude the trial of terrorists in civilian courts, as some have 
erroneously asserted. As a matter of fact, it is the contrary. The bill 
expressly authorizes the transfer of any military detainee for trial in 
the civilian courts at any time. An amendment that eliminated that 
authority was defeated in the Armed Services Committee on a bipartisan 
19-to-7 vote during the markup of the initial bill.
  The bill would not require the interruption of ongoing surveillance 
operations or ongoing law enforcement interrogations of suspected 
terrorists, as some have incorrectly asserted. The opposite is the 
case, as I have said, because we have included language in the bill 
that specifically precludes those possibilities.
  The bill also provides that the President, not Congress, will decide 
who makes determinations of whether a detained person is in the narrow 
class covered, and the President will decide how and when these 
determinations are made.
  The bill would not require that al-Qaida terrorists who are captured 
on American soil be transferred to military custody, because it 
includes an easily effectuated national security waiver. With this 
waiver authority, executive branch officials may keep any detainee in 
civilian custody or move any detainee to civilian custody if they 
choose to do so.
  That provision provides the executive branch flexibility to choose 
the most appropriate course of action for al-Qaida terrorists whom we 
capture, including detention in civilian custody. That was the intent 
of the original language, and it has been clarified in the bill before 
us. I recognize that the administration remains unsatisfied with this 
provision, but we have gone a long way to address their concerns.
  What about the dollar provisions in this bill? The bill we bring to 
the floor today would authorize $662 billion for national defense 
programs--$27 billion less than the President's budget request, and $43 
billion less than the amount appropriated for fiscal year 2011. I am 
pleased we were able to find these savings without reducing our strong 
commitment to the men and women of our Armed Forces and their families, 
and without undermining their ability to accomplish their important 
national security missions. In this time of fiscal problems for our 
Nation, every budget must be closely examined to identify savings, and 
the Department of Defense budget is no exception.
  This bill contains many important provisions that will improve the 
quality of life of our men and women in uniform, provide needed support 
and assistance to our troops on the battlefield, and make the 
investments we need to meet the challenges of the 21st century, and 
provide for needed reforms in the management of the Department of 
Defense.
  First and foremost, the bill before us continues the increases in 
compensation and quality of life our service men and women and their 
families deserve as they face the hardships imposed by continuing 
military operations around the world.
  For example, the bill would authorize a 1.6-percent across-the-board 
pay raise for all uniformed military personnel and extend over 30 types 
of bonuses and special pays aimed at encouraging enlistment, 
reenlistment, and continued service by active-duty and Reserve military 
personnel.
  The bill provides that annual increases in TRICARE Prime enrollment 
fees in future years will not exceed the percentage increase in retired 
pay. The bill authorizes $30 million in supplemental impact aid and 
related education programs for the children of servicemembers. The bill 
authorizes service Secretaries to carry out programs to provide 
servicemembers with job training and employment skills training to help 
prepare them for the transition to private sector employment. It 
authorizes the service Secretaries to waive maximum age limitations to 
enable certain highly qualified enlisted members who served in Iraq or 
Afghanistan to enter the military service academies.
  The bill also includes important funding and authorities needed to 
provide our troops the equipment and support they will continue to need 
as long as they remain on the battlefield in Iraq and Afghanistan.
  For example, the bill fully funds the President's request for $3.2 
billion for the development, testing, production, and sustainment of 
the MRAP vehicles and new MRAP all-terrain vehicles, which are needed 
to protect our troops against improvised explosive devices.
  The bill authorizes $11.2 billion to train and equip the Afghan 
National Army and the Afghan police, the funding level recommended by 
the commander of U.S. Central Command after consultation with the 
commander of U.S. and coalition forces in Afghanistan. The purpose here 
is to grow the capability of those Afghan security forces to prepare 
them to take over increased responsibility for Afghanistan's security 
as we begin reductions in U.S. forces.
  The bill provides $400 million for the Commanders' Emergency Response

[[Page 17816]]

Program in Afghanistan and $400 million for the Afghanistan 
Infrastructure Fund to support projects that enhance the 
counterinsurgency campaign.
  The bill extends the authority of the Department of Defense to 
conduct a program for the reintegration of former insurgent fighters 
into Afghan society.
  The bill establishes a new Joint Urgent Operational Needs Fund to 
allow the Department to rapidly field new systems in response to urgent 
operational needs identified on the battlefield, and it provides the 
Central Command--CENTCOM--commander new contracting authorities needed 
to stop the flow of money through U.S. contracts to persons who are 
actively opposing U.S. forces in Afghanistan.
  The bill also contains a number of provisions that will help improve 
the management of the Department of Defense and other Federal agencies. 
For example, the bill would address shortcomings in the Department of 
Defense's management of operating and support costs, which are 
estimated to constitute 70 percent of the lifecycle costs of major 
weapons systems.
  The bill freezes DOD spending on contract services at fiscal year 
2010 levels and requires the Department of Defense to take a number of 
commonsense steps to achieve savings in this area.
  The bill adds $32 million for the Department of Defense's corrosion 
prevention and control and requires implementation of the 
recommendations of a recently congressionally mandated report on 
corrosion control on the F-22 and F-35 programs.
  The bill improves the management of defense business systems by 
strengthening the authority of the Department of Defense's chief 
management officers in the investment review process and ensures that 
this process covers existing systems as well as new ones.
  The bill also adds $43 million to enable the Department of Defense IG 
to provide more effective oversight and to help identify waste, fraud, 
and abuse in defense programs, especially in the area of procurement.
  In light of the budget constraints we face this year, the committee 
worked hard to keep funding increases of any kind to a minimum. We 
added the following items: $66 million for unfunded requirements 
identified by military leaders, $90 million for investments in programs 
such as the DOD IG and corrosion control that have high payback rates, 
$63 million for critical investments in intelligence and cyber security 
improvements, $497 million for increased funding needed to ensure the 
efficient execution of ongoing Department of Defense programs, and $270 
million for a handful of broad-based competitive programs needed to 
help us keep our leadership in military technology.
  I continue to believe it would be wrong for us to give up the power 
of the purse given Congress in the Constitution. I don't believe the 
executive branch has a monopoly on good ideas. In fact, I think we are 
more often receptive to creative new ideas that can lead to advances in 
the national defense than the defense bureaucracy is. Nonetheless, 
there are no earmarks in this bill.
  Finally, I would like to discuss four major issues in the bill that 
were the subject of extended debate in the course of our markup this 
year.
  First, this bill includes provisions that would require sound 
planning and justification before we spend more money for Marine Corps 
realignment from Okinawa to Guam and on tour normalization in Korea. 
These provisions follow detailed oversight that Senators Webb, McCain, 
and I have conducted over the past years. In particular, the bill 
prohibits the expenditure of funds for Marine Corps realignment from 
Okinawa to Guam until we receive an updated force laydown and a master 
plan detailing construction costs and schedule of all projects 
necessary to carry it out.
  The bill requires the Department of Defense to study moving Marine 
Corps aviation assets currently at Marine Corps Air Station Futenma to 
Kadena Air Base, and the feasibility of relocating some or all Air 
Force assets currently at Kadena Air Base, rather than building a 
replacement facility at Camp Schwab that is unrealistic and 
unaffordable.
  The bill prohibits the obligation of funds for tour normalization on 
the Korean Peninsula until the Secretary of the Army provides Congress 
with a master plan, including all costs and schedule projections to 
complete the program, and the Director of Cost Assessment and Program 
Evaluation performs an analysis of alternatives justifying the 
operational need.
  The Department of Defense current plans for Okinawa, Guam, and Korea 
were developed years ago in a different fiscal environment and are 
projected to cost billions of dollars more than anticipated. At a time 
of tight budgets, we owe it to the Department of Defense and to the 
taxpayers to insist on a close examination and strong justification 
before we proceed.
  Second, the committee adopted an amendment to strike all funding for 
the Medium Extended Air Defense System, MEADS. In February, the 
Department of Defense announced that after investing more than $1.5 
billion in the MEADS Program, the program remained a high risk and the 
additional funding needed to field the system was unaffordable. 
However, the Department declined to terminate the program because the 
memorandum of understanding with our allies on which the program is 
based commits us to continued funding even if we withdraw from the 
program. For this reason, the Department requested over $400 million in 
funding for the continued development of a system that it has no 
intention of fielding. The committee amendment eliminates this funding. 
We recognize that under the memorandum of understanding, our decision 
not to fund this program could require the United States to pay for a 
program in which it is no longer a participant. However, the committee 
concluded that the course proposed by the Department is untenable and 
that the Department should explore all options with our allies before 
continuing to fund a program which we no longer need.
  Third, our committee members share both a deep concern about the 
rising cost of the Joint Strike Fighter Program, on which we are now 
projected to spend more than $1 trillion--which includes operation and 
sustainment costs--and a strong belief that the Department of Defense 
must take stronger action to contain these costs.
  The committee unanimously adopted an amendment requiring that the 
next JSF contract be entered on a fixed-price basis and that the 
contractor assume full responsibility for all costs above the target 
cost specified in the contract. This amendment puts the contractor on 
notice that we have lost patience with continued overruns on the 
program and we are determined to protect the taxpayer from further cost 
increases, without unnecessarily jeopardizing the heavy investment we 
have already made in the program by prematurely terminating the 
program. Senator McCain has taken, really, the active lead in this 
effort, and it is a very critically important effort for our taxpayers.
  Finally, the bill includes a bipartisan compromise regarding detainee 
matters--as I have made reference to before--that would address a 
series of important issues that relate to detainees. It is worth 
summarizing the detainee-related provisions in the bill.
  First, the bipartisan compromise would codify the military's existing 
detention authority, as stated by both the administration of President 
Bush and the administration of President Obama and approved in the 
courts.
  Second, the bill would require military detention for a core group of 
detainees who are part of al-Qaida--or an associated force that acts in 
coordination with or pursuant to the direction of al-Qaida--and who 
participate in planning or carrying out attacks or attempted attacks 
against the United States or its coalition partners. That is a defined 
core group of detainees.
  This provision includes a national security waiver and includes 
language expressly authorizing the transfer of detainees for trial in 
civilian courts. It

[[Page 17817]]

continues the conditions on the transfer of Gitmo detainees to foreign 
countries, including certification requirements to be met before a 
transfer may take place. Contrary to what some have said, this 
provision does not prohibit transfers from Gitmo. In fact, it is less 
restrictive of such transfers than legislation passed in the last 
Congress and signed by the President. In particular, this year's 
provision includes a national security waiver that is designed to 
address concerns expressed by the Secretary of Defense about a similar 
restriction which was included in last year's authorization and 
appropriations act.
  The bill contains the same limitation on the use of Department of 
Defense funds to build facilities in the United States to house Gitmo 
detainees that has been included in past authorization and 
appropriations acts. This provision applies only to Department of 
Defense funds. It does not prohibit the use of Department of Justice 
funds that might be needed in connection with a transfer for the 
purpose of a criminal trial, and it does not prohibit the closure of 
Gitmo.
  The provision requires the Department of Defense to issue procedures 
addressing ambiguities in the review process established for Gitmo 
detainees. The provision clarifies but does not overturn the Executive 
order issued by the President earlier this year.
  The provisions require the Department of Defense to establish 
procedures for determining the status of detainees, including, as I 
indicated before, for the first time, a military judge and a military 
lawyer for a detainee who will be held in long-term military custody.
  The bill clarifies procedures for guilty pleas in trials by military 
commission. This provision would require a separate trial on the 
penalty, with a unanimous verdict needed to impose the death penalty. 
So while a death penalty could be imposed by a commission, the detainee 
would have no assurance of that result, for those detainees who want 
that assurance so they can make themselves martyrs.
  As I have already indicated, these provisions have been substantially 
modified as a result of extensive discussion with administration 
officials. We did not make every change requested by the 
administration, although we adopted many of them--probably most of 
them--and made additional changes to address specific concerns raised 
by administration officials.
  Mr. President, as we are here today, we have over 96,000 U.S. 
soldiers, sailors, airmen, and marines on the ground in Afghanistan, 
with 23,000 more remaining in Iraq. While there are issues on which we 
may disagree, we all know we must provide our troops with the support 
they need as long as they remain in harm's way.
  Senate action on the national defense authorization bill for fiscal 
year 2012 will improve the quality of life of our men and women in 
uniform. It will give them the tools they need to remain the most 
effective fighting force in the world. Most important of all, it will 
send an important message that we as a nation stand behind them and 
appreciate their service.
  We look forward to working with our colleagues to promptly pass this 
important legislation. And as I yield the floor, I again want to thank 
Senator McCain and all the members of our committee for their hard work 
on this bill, as well as our staffs for their extraordinary capability. 
But I want to thank personally Senator McCain for everything he has 
done to make it possible for us to get to the floor at this time.

                               Exhibit 1

Summary of $21 Billion in Additional Cuts Resulting From Second Markup 
       of National Defense Authorization Act for Fiscal Year 2012


                          Airland Subcommittee

       Army Programs: The bill would cut an additional $2.8 
     billion in Army Procurement and $800 million in RDTE. This 
     includes over $1 billion in reductions proposed by the Army, 
     and over $2 billion for programs that had unjustified or 
     excessive growth, misaligned schedules, fact of life changes 
     including terminations, or other management challenges. These 
     recommended reductions include $518.7 million for the Joint 
     Tactical Radio System, $224.0 million for Warfighter 
     Information Network-Tactical, $172.5 million for Ground 
     Soldier System-Nett Warrior, and $157.3 for HMMWV 
     recapitalization programs. The bill would also transfer over 
     $600 million from the base request to the overseas 
     contingency operations accounts for capabilities directly or 
     closely related with military operations in Iraq and 
     Afghanistan such as increased ISR, mine protected vehicles, 
     armoring kits, and base defense and force protection systems.
       Navy Programs: The bill would cut an additional $724.5 
     million in Navy Procurement and $55.9 million in RDTE. This 
     includes $532.1 million for programs that had unjustified or 
     excessive growth, misaligned schedules, fact of life changes 
     including terminations, or other management challenges. These 
     recommended reductions include $163.5 million for the E-2D 
     Advanced Hawkeye, $159.9 million for spares and repair parts, 
     $69.9 million for AMRAAM, and $99.7 million for the F/A-18E/F 
     Hornet.
       Air Force Programs: The bill would cut an additional $910.2 
     million in Air Force Procurement and $596.0 million in RDTE 
     for programs that had unjustified or excessive growth, 
     misaligned schedules, fact of life changes including 
     terminations, or other management challenges. These 
     recommended reductions include $145 million for the A-10, 
     $120 million for AFNET, $103 million for initial spares and 
     repair parts, and $101 million for the AMRAAM. The bill would 
     also transfer $87.2 million from the base request to the 
     overseas contingency operations accounts for activities 
     directly or closely related with military operations in Iraq 
     and Afghanistan such as war consumables.


             Emerging Threats and Capabilities Subcommittee

       Program Delays and Under-Execution: The bill would reduce 
     funding for science and technology and information technology 
     by $216 million due to excessive program growth and program 
     delays; reduce funding for U.S. Special Operations Command by 
     $135 million due to unjustified growth and items already 
     funded in recent reprogramming actions; reduce funding for 
     counter-drug programs by $128 million based on a DOD 
     assessment that this funding is excess to need; reduce 
     funding for counter-proliferation programs by $43 million due 
     to slow execution; reduce funding for the Joint IED Defeat 
     Organization (JIEDDO) by $85 million based on unjustified 
     program growth; and reduce funding for the Chemical and 
     Biological Defense Program by $40 million due to under-
     execution and program delays.


                         Personnel Subcommittee

       Military Personnel Funding: The bill would reduce funding 
     for military personnel by $100.6 million, by taking an 
     additional $42.6 million in unobligated balances and using 
     updated CBO estimates for savings attributable to a change in 
     the calculation of hostile fire pay.
       Defense Health Care: The bill includes a $330.0 million cut 
     to private sector care under the Defense Health Program, 
     based on an assessment of historical under execution rates 
     for private sector care.
       Military Spouse Career Advancement Accounts (MyCAA): The 
     bill reduces funding for the program by $120 million. This 
     reduction was offered by the Department of Defense because 
     although the President's budget request included $190 million 
     for the program, DOD has indicated that as a result of its 
     redesign of the MyCAA program, only $70 million is needed for 
     execution in fiscal year 2012.


                         Readiness Subcommittee

       Military Construction: The bill would cut an additional 
     $527 million in military construction funding. This includes 
     three domestic projects valued at $83.1 million, the largest 
     of which the Technology Center's Third Floor Fit Out, valued 
     at $54.6 million does not need funding because NSA has 
     indicated that it has sufficient unobligated balances to 
     complete the project. The balance of the cuts are for: (1) 
     overseas military construction projects in areas that are 
     subject to an ongoing strategic review (including five 
     projects in EUCOM valued at $179.6 million); (2) planning and 
     design funds rendered unnecessary due to previous cuts; and 
     (3) programs that are not fully budgeted for in the FYDP.
        Operation and Maintenance: The bill would cut an 
     additional $3.1 billion in operation and maintenance funding. 
     This includes $1.5 billion in reductions proposed by the 
     military services; $315 million for ammunition account cuts 
     based on inefficient ammunition management and 
     recommendations from the military services; $294 million for 
     excess growth in service contractors and civilian employees; 
     and $258 million in the OCO accounts for a transfer of Coast 
     Guard support to the Department of Homeland Security.
       Transfers to Overseas Contingency Operations Funding: The 
     bill would transfer to OCO accounts $4.9 billion of operation 
     and maintenance funding for activities closely associated 
     with military operations in Iraq and Afghanistan, including 
     MRAP vehicle sustainment, body armor sustainment, overseas 
     security guards, theater security packages, depot maintenance 
     and readiness funding in support of combat operations, and

[[Page 17818]]

     CENTCOM headquarters public affairs. Most of these activities 
     have previously been funded from OCO accounts.


                         Seapower Subcommittee

       Navy Programs: The bill would cut an additional $234.4 
     million in Navy Procurement and $496.7 million in RDTE for 
     programs that had unjustified or excessive growth, misaligned 
     schedules, fact of life changes including terminations and a 
     Navy-requested realignment of the VXX Presidential Helicopter 
     program, or other management challenges. The recommended 
     reductions include $120 million for JTRS, $70 million for the 
     Future Unmanned Carrier-Based Strike System, $63 million for 
     ship contract design and live fire T&E, and $58 million for 
     the Standard Missile.
       Marine Corps Programs: The bill would make additional 
     reductions of $101.0 million in Procurement, Marine Corps due 
     to slow program execution or contract award delays.
       Air Force Programs: The bill would cut an additional $108.6 
     million in Air Force Procurement for unnecessary post 
     production funding for the C-17 program and $45.9 million in 
     RDTE for programs that had contract delays or where the 
     programs were being re-phased.


                         Strategic Subcommittee

       Space: The bill would reduce funding for space programs by 
     $233 million due to slow execution in the development of the 
     Family of Advanced Line of Sight Terminals (FAB-T) used in 
     conjunction with the Advanced Extremely High Frequency (AEHF) 
     satellite system; by $300 million by dropping authorization 
     for the long term lease of a commercial satellite by the 
     Defense Information Systems Agency due to a lack of an 
     analysis of alternatives; and by $105 million in connection 
     with delays in contract awards associated with GPS systems 
     under development.
       Department of Energy: The bill would reduce funding for 
     environmental cleanup at former atomic weapons production 
     sites by $356 million due to slow program execution; reduce 
     the NNSA nonproliferation program by $168 million due to cost 
     overruns for a pit disassembly facility to produce mixed 
     oxide fuel, which is now developing a new program base line; 
     and for NNSA program management by $45 million due to an 
     excessive rate of growth.
       Missile Defense: The bill would reduce funding by $55 
     million for the procurement of Standard Missile-3 Block IB 
     missiles due to a test failure which requires an 
     investigation, correction, and retest, delaying production 
     (an additional $260 million of funding would be moved from 
     procurement to the R&D account to facilitate the fixes); and 
     reduce funding for the Terminal High Altitude Area Defense 
     (THAAD) missile defense system by $120 million to reflect the 
     reality of slower production rates due to delays in the 
     program. A few joint or Army programs would be reduced by $47 
     million for under-execution.
       Intelligence Funding: The bill includes a number of 
     reductions to the Military Intelligence Program because of 
     late contract awards, slow execution rates, program delays, 
     and changes in programs since mark-up; it also includes 
     reduced funding for the National Intelligence Program 
     reflecting cuts agreed to by the two intelligence committees.


                           General Provisions

       Troop Reductions in Afghanistan: The bill would reduce OCO 
     funding by $5.0 billion due to the President's decision to 
     withdraw the 33,000 U.S. surge force from Afghanistan, with 
     10,000 to be withdrawn by December 2011 and the remaining 
     23,000 to be withdrawn by next summer. The Department of 
     Defense has informed us that the $5.0 billion is no longer 
     needed as a result of the planned Afghanistan troop 
     reduction.
       Afghanistan Security Forces Fund: The bill would reduce 
     funding for the Afghanistan Security Forces Fund (ASFF) to 
     $11.2 billion, a $1.6 billion reduction from the President's 
     request. The Commander, U.S. Central Command, has determined 
     that FY2012 ASFF funding can be reduced by $1.6 billion 
     because of efficiencies and cost avoidances achieved by the 
     NATO Training Mission in Afghanistan in its plans for 
     building and sustaining the Afghan Army and Police.


                           Amendment No. 1092

    (Purpose: To bolster the detection and avoidance of counterfeit 
                           electronic parts)

  Mr. Levin. Mr. President, pursuant to a unanimous consent request 
which was previously entered into on this matter, I send to the desk an 
amendment on behalf of myself and Senator McCain.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Michigan [Mr. Levin] for himself and Mr. 
     McCain, proposes an amendment numbered 1092.

  Mr. LEVIN. I ask unanimous consent that further reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. LEVIN. Mr. President, I call for regular order with respect to 
the amendment.
  The PRESIDING OFFICER. The amendment is now pending.
  Mr. LEVIN. Is it now pending first in line?
  The PRESIDING OFFICER. It is now pending first in line.
  Mr. LEVIN. I thank the Presiding Officer, and I want to make one 
quick comment about this amendment.
  This is a bipartisan amendment that addresses the massive issue 
created by counterfeit parts getting into the defense supply system. It 
is something our staffs have investigated heavily.
  Senator McCain and I are introducing this bipartisan amendment. We 
hope it has strong support in this Senate. It will address a critically 
important issue we have now seen in the defense supply system with 
millions of counterfeit parts--mainly from China--getting into our 
defense system and threatening the security of our troops, the 
effectiveness of their mission, and costing the taxpayers a heck of a 
lot of money.
  The PRESIDING OFFICER. The senior Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, I ask unanimous consent to engage in a 
brief colloquy with the chairman, Senator Levin.
  The PRESIDING OFFICER (Mrs. Hagan). Without objection, it is so 
ordered.
  Mr. McCAIN. First of all, I wish to thank the Chairman for the long 
years of work we have had together. This is the culmination of this 
year's work which is coming to the floor after great difficulty and a 
lot of obstacles. I want to thank the Senator again for the spirit of 
bipartisanship, which is a long tradition in the committee which was 
practiced by our predecessors. Obviously, we know on occasion that we 
have differences of views, and sometimes we--especially I--express 
those in perhaps a passionate manner. But the fact is, at the end of 
the day, we continue to come together and work together for the good of 
this Nation's security.
  The reason I ask the Senator is because I think our colleagues ought 
to understand the context of this bill. First of all, it is a new bill, 
and it has a reduction of some $20 billion in authorization in order to 
keep with the Budget Control Act, a total now of a $27 billion 
reduction, which is a significant amount of money. It seems to me our 
colleagues should understand this $9.8 billion cut in defense 
procurement, $3.5 billion cut in research, development, test, and 
evaluation, $1.6 billion cut in military construction, $6.7 billion in 
overseas--these are significant reductions already in what we had 
originally envisioned as necessary for our Nation's defense capability.
  I would ask the chairman, these are painful decisions we had to make. 
For those who somehow believe it is business as usual in the Department 
of Defense and on the Defense authorization, it simply is not correct. 
We have already made significant reductions, I ask my colleague.
  Mr. LEVIN. I agree with my friend from Arizona. We literally worked 
months to get to the first reduction which was in our original bill. 
Then when the Congress adopted the Deficit Reduction Act, which 
required additional reductions, these are very difficult decisions to 
make because they in many cases will increase risks which we don't want 
to increase but nonetheless have got to accept some additional degree 
of risk on some of our programs in order to do the fiscally responsible 
thing. I agree with my friend.
  Mr. McCAIN. Could I ask my colleague, also, two more points. One is 
that we also have planned for an additional well over $400 billion 
reductions in the next decade, and those will again entail at some 
point an increase in risk. So in that context, I would appreciate again 
an expression of the chairman's view of a Draconian cut that would take 
place as a result of sequestration. The Secretary of Defense has 
testified before our committee of the ``devastating effects,'' as have 
our military leaders.
  Mr. LEVIN. These cuts that would result from sequestration are 
massive

[[Page 17819]]

not just in defense but also in nondefense discretionary areas. The 
purpose of that threat is to hopefully prevent it from taking place, as 
with any other kind of a sword of Damocles held over people's heads--
our heads--that if we don't reach some kind of an agreement with our 
special committee, the group of 12 that is working so hard to come up 
with a reduction that will meet the requirements of the bill, we would 
then have a sequestration, across-the-board cuts, which are not the 
rational way to budget, are massive, Draconian--to use the word which 
the Senator from Arizona quoted. And that is true in both defense and 
nondefense. But, again, the purpose of having that sequestration 
process in place is, hopefully, an incentive so that it doesn't take 
place.
  Mr. McCAIN. Finally, I would ask the chairman, we have met the 
requirements of the Appropriations Committee with this additional $20 
billion reduction in this ``new'' legislation. Then it seems it would 
be only appropriate that the Appropriations Committee meet the 
provisions of authorization that are in the authorization bill.
  In other words, I am told there are some differences in the 
Appropriations Committee's bill as far as what the authorizing 
committee's responsibilities are. I hope the Appropriations Committee 
would address those differences in deference to our role as 
authorizers.
  Mr. LEVIN. That is always our hope. It doesn't work out the way we 
wish frequently, but it is always our hope that the way it should 
work--at least theoretically--around here is that should be what the 
appropriators do. That has not worked out that way in I don't know how 
many recent years. The Senator and I have had some discussions about 
that. When I first got here, many years ago, that was an issue which 
had not been resolved. But I think what the Senator sets out is the 
hope that the appropriators would look at our authorizations and follow 
our authorizations.
  Mr. McCAIN. I thank the Senator from Michigan.
  I finally wish to comment. I am more than hoping. I intend to 
identify those areas of difference between the authorizing committee 
and the Appropriations Committee, and fully expect the appropriating 
committee--unless there is some overriding reason--to conform with the 
authorization bill.
  Again, I thank Senator Levin and his staff for the work we are doing. 
And I thank the leadership. I thank Senator Reid for bringing the bill 
to the floor. I know he has a lot of important priorities, but I 
believe it is very important that we continue an over half-century 
tradition of the Senate taking up, passing, and then finally seeing 
enacted into law the Defense authorization bill.
  I think it is a valid statement to say that there is no greater 
priority the people's representatives have than to take every measure 
we can possible to ensure the security of our Nation and the men and 
women who serve in it. This legislation is the result of literally 
thousands of hours of discussion, debate, hearings, input to make sure 
we do the very best job we can to protect our Nation.
  As I mentioned earlier, with the committee's action earlier this week 
we have ensured that our authorization top line of $526 billion for the 
base Defense budget complies with the budget allocation levels adopted 
by the Senate Appropriations Committee for fiscal year 2012.
  We have worked with the administration over the past several weeks to 
address their concerns with the detainee provisions in our bill. We 
understand the administration is still not satisfied with the committee 
work. We have made many clarifications, modifications at the request of 
the administration to the detainee provisions as they were reported 
from the committee in June. As a result, we were able to report out the 
bill again this week with an overwhelming bipartisan vote of 26 to 0.
  We will be glad to continue our discussions with the administration. 
I am grateful the administration reached out to us and that because of 
that discussion in negotiations with Mr. Brennan and others from the 
White House we were able to make some changes. I regret they haven't 
been sufficient to overcome their objections, but we will continue to 
work with them. This is a very important issue.
  Obviously, our collective goal is to make sure that members of 
terrorist organizations, specifically al-Qaida, do not return to the 
fight, and that we make sure we are able to treat al-Qaida members who 
are captured in keeping with international law, but at the same time in 
keeping with the priority interests of America's national security. So 
I understand there will be an amendment on that issue or amendments. We 
look forward to debating and discussing that aspect.
  Whatever additional concerns that may remain with the detainee 
provisions should be dealt with, as they will be, through debate and 
amendment. But, importantly, all of the aspects of this bill are of 
such vital importance to supporting the men and women of our Armed 
Forces and their families. We have already started to work on 
amendments that we know our colleagues are preparing to offer on this 
bill, and I encourage all my colleagues to file their germane 
amendments as quickly as possible.
  Obviously, I repeat, the legislation is extremely important to our 
Nation's defense and the men and women in uniform. I know all of my 
colleagues appreciate that fact.
  I would hope that this year, unlike in recent previous years, we will 
not add to this bill policy riders that are not relevant to the bill.
  The committee bill before the Senate is the culmination of 11 months 
of hard work conducted through 71 hearings and meetings this year on 
the full range of national security priorities and issues. This 
tradition of deliberative review and oversight is typical of what the 
Defense authorization bill has provided our Nation's military for over 
50 years, without fail. The committee's priorities this year and every 
year start with our bipartisan commitment to improve the quality of 
life for the men and women of the all-volunteer force--active duty, 
National Guard, and Reserves--and their families, through fair pay, 
improved policies, benefits commensurate with the sacrifices of their 
service, and by addressing the needs of the wounded, ill, and injured 
servicemembers and their families.
  To do these things, this bill authorizes a 1.6-percent across-the-
board pay raise for all members of the uniformed services, authorizes 
pay incentives for recruitment and retention of our most highly skilled 
and highly sought-after men and women, and improves the Uniformed Code 
of Military Justice to more effectively respond to accusations of 
certain types of misconduct. This bill provides essential resources, 
training, technology, equipment, and force protection our military 
needs to succeed in their missions, including authorizing a 6-percent 
increase in funding for our enormously important professional and 
dedicated special operations forces who play such a large role in our 
counterterrorism operations worldwide, and over $2.4 billion for the 
Department of Defense counter-improvised explosive device activities. I 
cannot overemphasize the importance of the timely funding of these 
counter-IED funds given the increase in the use of this kind of attack 
against our troops, first in Iraq and now in Afghanistan.
  The bill enhances the capability of our military and that of our 
allies to conduct counterinsurgency operations, including the authority 
to provide support to those aiding U.S. Special Operations in combating 
terrorism in Yemen and East Africa, authorization of $400 million for 
the Commanders Emergency Response Program--known as CERP--in 
Afghanistan, and authorization of $11.1 billion to train and equip the 
Afghan security forces for the security of the Afghan people.
  The bill strengthens and accelerates nuclear nonproliferation 
programs while maintaining a credible nuclear deterrent, reducing the 
number of nuclear weapons, and ensuring the safety, security, and 
reliability of the nuclear stockpile, the delivery systems, and the 
nuclear infrastructure. In this regard, the bill authorizes $1.1 
billion to continue development of the Ohio-class

[[Page 17820]]

submarine replacement program to modernize the sea-based leg of the 
nuclear triad of delivery platforms. It improves our ability to counter 
nontraditional threats, focusing on terrorism and cyber warfare; in 
part by requiring DOD to acquire and incorporate capabilities for 
discovering previously unknown cyber attacks and establishing a new 
Joint Urgent Operational Need Fund to allow the Department to rapidly 
field new systems in response to battlefield requirements. It 
authorizes DOD to immediately void a contract if a contractor has been 
determined by the commander, U.S. Center Command, to be actively 
opposing U.S. forces in Afghanistan.
  A related provision would provide enhanced audit authority to assist 
in the enforcement of this provision. It authorizes over $13 billion 
for new construction of critical facility projects that have a direct 
impact on the readiness and operations of our military while also 
providing much needed construction jobs in a struggling economy.
  In contrast to these enhancements and new authorities, the committee 
also had to make some very difficult decisions. The President's budget 
request of $553 billion was cut by nearly $27 billion in recognition of 
the difficult budget situation our country faces. These difficult 
funding reductions include: $10 billion cut in the operation and 
maintenance accounts for the military services used to fund readiness 
and training activities. This was done mainly by scaling back the 
growth in service contracts while also reducing certain accounts for 
daily operating activities and training; a $9.8 billion cut in defense 
procurement accounts for programs that had more money than could be 
efficiently put under contract this year and programs that were not 
able to meet production milestones; a $3.5 billion cut in the research, 
development, test and evaluation accounts by examining the performance 
of hundreds of programs and identifying those that showed excessive 
cost growth or a lack of performance; $1.6 billion in cuts in military 
construction projects, mostly at overseas locations, to allow for a 
review of our U.S. military force posture worldwide. In addition, the 
bill cuts $6.7 billion from the President's budget request of $118 
billion for overseas contingency operations, known as OCO, due to a 
forecast of reduced operations in Afghanistan during 2012.
  These cuts are the first step in what will be an extremely critical 
debate on the right amount of defense spending over the next 10 years. 
We will need to make some very difficult decisions that will 
undoubtedly increase risk as we decide whether to continue or terminate 
costly and, in some cases, troubled and overdue programs. We will need 
an informed and honest debate on which defense requirements and 
capabilities most effectively and efficiently protect the full range of 
our Nation's interests.
  As such, this committee's review and curtailment of troubled, 
wasteful or unnecessary programs is not only essential to ensure proper 
stewardship of taxpayer funds but also stays true to the intent of 
preserving funds for war fighter priorities. Along these lines, this 
bill proposes to cut: $452 million for the Enhanced Medium Altitude 
Reconnaissance and Surveillance System due to program delays; $192 
million from related Brigade Combat Team Modernization projects due to 
a program termination by the Army; $200 million for the Joint Tactical 
Radio System due to program delays; $406 million for the Medium 
Extended Air Defense Systems, known as MEADS, which is a high-risk 
joint program for air defense with Germany and Italy which the Army has 
decided not to deploy operationally; $519 million for the Joint 
Tactical Radio System, called JTRS, as a result of program execution 
and cost concerns; $244 million for Warfighter Information Network-
Tactical; $173 million for Ground Soldier System-Net Warrior; $157 
million for HMMWV recapitalization programs; $108 million for 
unnecessary postproduction funding for the C-17 Program; $233 million 
due to slow execution in the development of the family of Advanced Line 
Of Sight Terminals used in conjunction with the Advanced Extremely High 
Frequency Satellite System; $300 million by curtailing authority for 
long-term lease of a commercial satellite by the Defense Information 
Systems Agency due to a lack of an analysis of alternatives; $105 
million in connection with delays in contract awards associated with 
GPS systems under development.
  Even after this long list of cuts to troubled programs, I would have 
liked to have done more.
  I wish to point out that in the days when we were increasing defense 
spending, it was one thing not to be in sync with the appropriations 
committee. In the days of reductions in defense spending, it is 
absolutely vital that the Appropriations Committee follow the guidance 
and authorization of the authorizing committee. I intend to do 
everything in my power to make sure that happens.
  An example of what I would have liked to have seen more of is the 
Joint Strike Fighter or the F-35 Programs. I offered an amendment 
during the committee's markup that would have put the program on a 1-
year probation if the costs under the fixed-price contract for the 
fourth lot of early production aircraft grew by more than 10 percent 
over their target cost by the end of the year. My goal was to send a 
strong, simple, and powerful message to the Pentagon and to Lockheed 
Martin, a message that we will no longer continue down the road of 
excessive cost growth and schedule slips on this program just because 
other alternatives are hard to come by.
  We now are faced with a prospect of the first $1 trillion weapons 
system in history, which it certainly was not originally designed to 
be.
  As it turned out, the amendment did not go forward as a result of a 
tie vote in committee. An alternative provision offered by Chairman 
Levin will instead require that the fifth lot of early production F-35 
aircraft be procured under a fixed-price contract and that Lockheed 
Martin bear the entire responsibility for any cost overrun other than 
certain limited costs needed to make specific changes that the 
government requests. Because I feel it is essential to use fix-price 
contracts for large Pentagon weapons programs, I supported the 
chairman's amendment during the markup and I support it now.
  Today, as we speak, the Pentagon is negotiating with Lockheed Martin 
on who will bear the cost of changes to the design and manufacturing of 
the aircraft that could come down the road as a result of thousands of 
hours of flight testing that lie ahead. In this sense, the excessive 
overlap between development and production that is called concurrency 
is now coming home to roost. The Defense Department quite rightly says 
it will not sign any contract for the next lot until Lockheed Martin 
agrees to pay a reasonable share of these concurrency costs, and 
Lockheed Martin doesn't want to bear the risk of new discoveries.
  Let me be clear. I strongly support the Department of Defense 
position. I think it reflects exactly the congressional view reflected 
in our markup. As we agree to buy more early production jets while most 
of the development testing has yet to be done, Lockheed Martin must be 
held increasingly accountable for cost overruns that come as a result 
of wringing out necessary changes in the design and manufacturing 
process for this incredibly expensive aircraft.
  How does this legislation affect pending negotiations? It means on 
the next production lot, Congress expects the Department to negotiate a 
fixed-price contract that requires Lockheed Martin to assume an 
increased share of any cost overruns. It requires a ceiling price for 
that lot that is lower than the previous contract for the last lot 
purchased. It ensures a shared responsibility for reasonable 
concurrency cost increases.
  In other words, the deal we negotiate on this next production lot 
must be at least as good, if not better, than the deal we negotiated 
under the previous one. Otherwise, we are moving in the wrong direction 
and it will only be a matter of time before the American people and the 
U.S. Congress lose faith

[[Page 17821]]

in the F-35 Program, which is already the most expensive weapons 
program in the history of this country.
  I look forward to having the opportunity to address this and other 
significant national security policies related to detainee policies, 
cyber operations, Iranian aggression, Pakistan, acquisition reform, and 
the way we buy space programs and launch services, further limiting the 
use of fixed-price contracts for procurement, reducing the cost of 
military health care, counterfeit parts, and the future of our military 
in the face of major budget reductions.
  On the issue of counterfeit parts, I commend the initiative of the 
chairman to address this critical issue. The proliferation of 
counterfeit parts threatens the safety of our men and women in uniform, 
our national security, and our economy. We cannot risk a ballistic 
missile interceptor missing its target or a helicopter pilot unable to 
fire his or her weapons or display units failing in aircraft cockpits 
or any other system failure, all because of a counterfeit electronic 
part. Nor can we keep affording the hundreds of thousands, even 
millions, of dollars to fix the systems they penetrate.
  Our committee has been conducting an investigation for the past year, 
and we will have an amendment--there is one already pending--as a 
result of this outstanding work.
  I also plan to offer amendments that will start us on the course of 
an updated plan for U.S. military forces in the Pacific theater. The 
current plan to move 8,700 marines, 9,000 family members from their 
current bases on Okinawa to Guam is now estimated to require spending 
between $18 and $23 billion on Guam to build up its capabilities as a 
permanent base. This is an increase of well over $10 billion from the 
original estimate. I believe the pricetag will continue to rise. As a 
result, I, along with Chairman Levin and Senator Webb and other 
colleagues, view this program as unworkable, unaffordable, and an 
unnecessary strain on the relations between our government and the 
Government of Japan. Recognizing this strain, both the Armed Services 
Committee and the Military Construction and Veterans Affairs' Committee 
of the Appropriations Committee have stopped funding Guam military 
construction projects until the Department of Defense provides a master 
plan and considers alternatives that may provide the needed Marine 
forward presence at much less expense.
  Let's face it, we simply are at a level we cannot afford under the 
present plan. I also understand our relations with Japan are very 
important in this whole move. We cannot send a signal that America is 
leaving the area. In fact, I was very pleased to see the agreement the 
President of the United States signed with the Prime Minister of 
Australia just yesterday that provides for a joint operating base in 
Australia. But we must understand the delicacy of our relations with 
the Government and people of Japan, especially in the time of rising 
concern about some of the behavior that has been exhibited by the 
Chinese.
  I believe we need to take advantage of this pause to convene a 
congressional commission of experts in Asian affairs, with multilateral 
input, to review our national security interests in the Pacific region 
over the next 30 years and charter that commission to propose a posture 
for our military forces that will both strengthen our traditional 
alliances while offering opportunities for cooperative efforts with 
emerging partners and allies to solidify our mutual interests in the 
region.
  In the face of the doubt about the scope and timing of the Pacific 
realignments, we also need to ensure that this pause in potentially 
unnecessary spending is extended in 2012 to the use of defense funds to 
activities that have no direct impact on military functions or missions 
on Guam, such as the purchase of civilian school buses and an artifact 
repository and a mental health clinic on Guam. While these projects may 
have legitimate value to the Government of Guam to address current 
needs for citizens of Guam, they simply are not my idea of top defense 
priorities in the fiscal environment we face.
  In addition, despite the efforts of Congress to ban earmarks and 
special interest projects, this bill contains almost $850 million in 
authorizations of funding for items and programs not requested by the 
administration. The full Senate needs to consider the merits of these 
unrequested spending items and to determine whether they are top 
defense priorities in today's fiscal environment.
  The bill also cuts $330 million for private sector care under the 
Defense Health Program, based on an assessment of historical 
underexecution rates. This is the first step in an important progress 
in helping the Department of Defense control spiralling health care 
costs. It is the other challenges we face in this bill where we could 
have and should have done more.
  Secretary Panetta, speaking at the Woodrow Wilson Center, said:

       The fiscal reality facing us means we also have to look at 
     the growth in personnel costs, which are a major driver of 
     budget growth and are, simply put, on an unsustainable 
     course.

  The Secretary concludes:

       If we fail to address [these costs], then we won't be able 
     to afford the training and equipment our troops need in order 
     to succeed on the battlefield.

  Providing the Department with the authority to adjust Tricare PRIME 
enrollment fees based on a realistic index of national health 
expenditures per capita, as the administration requested, would have 
been the right thing to do. Instead, this bill limits all future 
enrollment fee increases to the cost-of-living adjustment for military 
retired pay.
  Military retirees and their families deserve the best possible care 
and nothing less in return for a career of military service. But we 
cannot ignore the fact that health care costs will undermine the combat 
capability and training and readiness of our military if we don't begin 
to control the cost growth now. Our committee report reflects the 
desire of the committee to review options for phasing in more realistic 
future adjustments beginning in fiscal year 2014, and that is exactly 
what we must do.
  I wish to emphasize a point here. I am solemnly aware of the 
commitment this Nation has made to the men and women who have served in 
the military regarding health care and benefits. This Nation has made 
promises for many years and has endeavored to keep those promises. But 
we are faced with a set of dire circumstances regarding the long-term 
viability of entitlement programs that threatens to undermine a whole 
range of promises we have made to every American.
  I am also keenly aware that in this unprecedented fiscal crisis 
facing this country, providing for our national defense is the most 
important responsibility that our or any government has. It is our 
Nation's insurance policy. And in a world that is more complex and 
threatening than I have ever seen, we cannot allow arbitrary budget 
arithmetic to drive our defense strategy in spending. We have to look 
at every program to determine what risks we can afford to take without 
risking the lives and welfare of those brave young Americans who 
volunteered to serve in the military.
  As such, some of the defense cuts being discussed--particularly as a 
result of sequestration--would do grave harm to our military and our 
Nation's security. The immediate impact of a sequester, according to 
Secretary Panetta, who previously served as chairman of the House 
Budget Committee and Chief of Staff to President Bill Clinton, could be 
a 23-percent across-the-board cut to our Nation's defense programs. 
Shipbuilding and construction contracts would have to be curtailed. 
Civilian personnel and contractors would have to be furloughed. The end 
results of these cuts after 10 years would be ``the smallest ground 
force since 1940, the smallest number of ships since 1915, and the 
smallest Air Force in its history.'' The United States would face 
``substantial risk of not being able to meet our defense needs.''
  Defense spending is not what is sinking this country into fiscal 
crisis, and if the Congress and the President act on that flawed 
assumption, they will create a situation that is truly

[[Page 17822]]

unaffordable--the decline of U.S. military power and a hollow military. 
We cannot let this happen. Despite a significant decline in defense 
spending, the growing threats we face around the world demand a strong 
and resolute U.S. military that continues as the first line of 
protection for peace, freedom, justice, and democracy around the world.
  I have had the privilege of a long career in public service, but in 
all my years I don't think I have ever seen a geopolitical environment 
as complex and as multidimensional as the one we face today. This will 
only increase in the years to come. The rise of China is one of the 
most seminal events in world history, but it is not an isolated 
occurrence. Other nations across the Asia-Pacific--most notably India--
are also growing rapidly and using their newfound wealth to enhance 
their comprehensive national power, especially new military 
capabilities.
  The challenge for the United States is this: How do we, as a historic 
Pacific power, use the next few years--despite the necessary cuts that 
will have to be made in our defense spending--to make smart, strategic 
investments that set us up to shape the future of the coming Pacific 
century? That means a more geographically dispersed and operationally 
resilient regional force posture. It means developing new operational 
concepts, such as the Defense Department's AirSea Battle concept, which 
aims to enable us to operate effectively in an anti-access and area-
denial environment. It means taking advantage of the many opportunities 
we face to enhance the capabilities and interoperability of our 
alliances and partnerships. And perhaps most of all, it means making 
some difficult and at times painful choices about where we can go, what 
we do, and what we can do without. We all must take responsibility for 
these choices.
  When we talk about our increasing focus on the Asia-Pacific region, 
what this does not mean and cannot mean is a lack of commitment to the 
broader Middle East. After all, the United States still has a capacity 
to do at least two things at once, and we cannot afford to allow that 
to change.
  The Middle East and north Africa are undergoing perhaps the most 
consequential period of upheaval since the collapse of the Ottoman 
Empire. Governments with long patterns of authoritarian control--some 
of them our partners--are falling under the popular pressure of 
millions of citizens who desire dignity, freedom, and opportunity. Our 
old and dear ally Israel faces a more tumultuous and potentially 
threatening position than it has in decades. At the same time, new 
regional leaders, such as Turkey and Qatar and the UAE, are playing a 
more confident and assertive role in shaping the events of the region 
despite the failure of leadership that led us to the full withdrawal of 
U.S. troops in Iraq. The success of that country remains a critical 
national security interest of the United States. We must remain 
committed to Iraq's success and stability. And all the while, the 
Iranian regime continues to threaten the security of the region and 
that of the United States.
  Amid all of these complicated and important global trends, it is 
absolutely vital that the Members of this body be allowed to engage in 
a fulsome and serious debate about the vital national security 
interests contained in this bill. I hope there will be a generous 
opportunity to offer amendments and debate them. I am confident we can 
do this while still moving diligently and quickly along.
  We have given the majority leader the commitment that we will work to 
ensure Senate consideration of this bill on an expedited basis. This 
Chamber must have the opportunity to complete this bill and then send 
it to the conference with the House. We need to have a conference 
report before the end of the year.
  We cannot continue to place critical authorizations in appropriations 
bills or continuing resolutions because we cannot get the Defense 
authorization bill done in a timely manner. As an example, this bill 
includes extensions for several important counternarcotics authorities 
that expired at the end of fiscal year 2011. The expiration of these 
authorities has had a direct impact on DOD efforts to combat illicit 
trafficking networks where proceeds often directly fund the activities 
of terrorists and other criminal organizations that pose a significant 
threat to U.S. security interests. Timely passage of the Defense 
authorization bill will ensure that these counternarcotics missions can 
continue in places such as Afghanistan, Colombia, and along our 
southern border.
  I, for one, am not proud of the 9-percent approval rating in the 
performance of Congress determined by various polls. They are right--we 
need to do more for the American people. I hope we can reverse this 
downward trend in our approval by tackling the critical national 
security challenges facing this country in an efficient and effective 
manner.
  I look forward to working with Senator Levin to pass this bill as 
quickly as possible and get it into law for the benefit of our military 
and our country. I would ask our colleagues--as we usually do--to get 
their amendments to us so we can have them considered and have as 
prompt action as possible on them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Let me thank my friend from Arizona for his great work on 
this bill and the way in which he and our members, our brothers and 
sisters on the committee, including the Presiding Officer, worked so 
well together on a bipartisan basis and the way our staffs worked 
together. We are now in a position where we can consider amendments, as 
the Senator from Arizona said, pending the receipt of amendments for 
our consideration.
  I yield the floor.
  Mr. McCAIN. Madam President, what is the pending business before the 
Senate?
  The PRESIDING OFFICER. The pending business is the McCain-Levin 
amendment No. 1092.
  Mr. McCAIN. I think that is the Levin-McCain amendment.
  The PRESIDING OFFICER. That is correct.
  Mr. McCAIN. I would like to discuss that amendment. This amendment is 
a result of the effort made by our committee staff and other members of 
the committee to identify a very serious problem that can affect our 
Nation's security; that is, the counterfeiting of critical components 
that end up in our defense systems--in some cases, helicopters; in some 
cases, aircraft; in some cases, missiles--literally every high-tech 
aspect of our Nation's defense systems.
  We traced, in hearings under Senator Levin's leadership, the way in 
which, through different shell companies, these parts that originate in 
China that are counterfeit end up, through various establishments and 
then by our major parts suppliers, in our weapons systems. There 
already have been occasions where there have been system failures, and 
there have also been situations which have inhibited or reduced 
readiness and further capabilities. So far, thank God, it has not 
resulted in any casualties or deaths, but there is very little doubt 
that this counterfeiting poses a serious threat. According to our 
findings, some 70 percent of these counterfeit parts come from China.
  It has to be stopped. We don't know, to tell my colleagues the truth, 
if all the parts of this amendment will stop it because it is a huge 
money-making business, but I think this initial amendment will move us 
in the right direction to try to bring at least under some control the 
flow of these counterfeit parts into our Nation's defense.
  So I hope that with the help of my colleagues we could adopt this 
amendment as rapidly as possible and move on to the next one. I know of 
no one who objects to it. I know there are other members of the 
committee who were involved in the examination of this situation, and 
perhaps they would like to come and speak on it. But I would recommend 
to the chairman that we move on this amendment as quickly as possible.
  Mr. LEVIN. Madam President, I thank the Senator from Arizona. I very

[[Page 17823]]

briefly described this amendment before, but I will take a few minutes 
now to describe it in some greater length because it is very 
significant. It is going to totally change the way we buy replacement 
parts for our weapons systems to avoid the absurdity that we have so 
many counterfeit parts, including used parts, where we need new parts 
on these weapons systems.
  The investigative staff of our committee looked at just a slice of 
the Defense chain for getting replacement parts. In that one slice of 
that supply chain, they identified 1,800 examples of where counterfeit 
parts were in our weapons systems. There were 1,800 different examples, 
but they involve millions of parts.
  What happens here is that these used computers that originate from 
China, which are called e-waste, are sent back to China where they are 
pulled apart. The electronic parts are then washed, frequently in a 
stream--and there are pictures of these parts being washed in streams--
dried out in the open, and then they go mainly to one place in China, 
Shantou. The surfaces of these parts are then sanded down, new surfaces 
are put on them, and a number is placed on them to make them look like 
new parts. Then, those parts, through various ways, get into the supply 
chain. That is what we have to stop.
  This is dangerous for our troops. It jeopardizes their missions. We 
believe we are losing approximately 11,000 American jobs that would be 
making these parts if they weren't counterfeited overseas. That is just 
one estimate by the Semiconductor Industry Association. Our 
semiconductor manufacturers suffer about $7.5 billion in lost revenue. 
So there is a safety issue and a mission threat issue here, first and 
foremost, but this is also an unnecessary and unfair blow to the 
American economy and to American jobs.
  This is what this amendment does. We are requiring the Secretary of 
Homeland Security to establish a program of enhanced inspection of 
electronic parts imported from any country that is determined by the 
Secretary of Defense to be a significant source of counterfeit parts in 
the DOD supply chain.
  This amendment requires the Department of Defense and its suppliers 
to purchase electronic parts from original equipment manufacturers and 
their authorized dealers, or from trusted suppliers who meet 
established standards for detecting and avoiding counterfeit parts. It 
establishes requirements for notification, inspection, testing, and 
authentication of electronic parts that are not available from such 
suppliers.
  It requires the Department of Defense and DOD contractors who become 
aware of counterfeit parts in the supply chain to provide written 
notification to the Department of Defense inspector general, the 
contracting officer, and the Government-Industry Data Exchange 
Program--GIDEP--or a similar program designated by the Secretary of 
Defense.
  The amendment would authorize Customs to share information with 
original component manufacturers from electronic parts inspected at the 
border to the extent needed to determine whether an item is a 
counterfeit.
  It requires large Department of Defense contractors to establish 
systems for detecting and avoiding counterfeit parts in their supply 
chains, and it authorizes the reduction of contract payments to 
contractors who fail to develop adequate systems.
  The amendment requires the Department of Defense to adopt policies 
and procedures for detecting and avoiding counterfeit parts in its own 
direct purchases, and for assessing and acting upon reports of 
counterfeit parts from Department of Defense officials and DOD 
contractors.
  The amendment authorizes the suspension and debarment of contractors 
who repeatedly fail to detect and avoid counterfeit parts or otherwise 
fail to exercise due diligence in the detection and avoidance of 
counterfeit parts.
  The amendment also includes a bill Senator Whitehouse introduced that 
was passed out of the Judiciary Committee to toughen criminal sentences 
for counterfeiting military goods or services.
  Finally, the amendment requires the Department of Defense to define 
the term ``counterfeit part'' which is a critical and long overdue step 
toward getting a handle on the problem.
  We also make it clear that it is the supplier of the counterfeit part 
who is going to pay for its replacement, and not the taxpayers of the 
United States.
  This amendment touches the jurisdiction of two or three other 
committees, so we have sent this amendment to the other committees to 
try to clear this amendment. The Judiciary Committee is one, and I 
think Homeland Security is another, and I believe the Finance Committee 
is the third. We are hoping we can get prompt, positive response, but 
obviously we want to make sure those other committees are consulted and 
that they concur. If not, we would have to then make changes in the 
amendment, probably, in order to accommodate what those concerns are. 
But there are some jurisdictional issues here which we are currently 
working out.
  I had an opportunity this morning, with Senator McCain, to talk to 
Senator Leahy, who was before our committee introducing a nominee, to 
alert him to the fact that we had this amendment which touched on the 
jurisdiction of his committee. I hope by now the language of the 
amendment has been shared with the staffs of those three committees--
and I think I have them all--but we intend to do exactly that.
  Mr. McCAIN. Madam President, will the Senator yield for a question?
  Mr. LEVIN. Surely.
  Mr. McCAIN. Is it not also true that as the Senator mentioned, and I 
wish to emphasize, that Senator Whitehouse's Combating Counterfeiting 
Military Act is a part of this bill, so that would hopefully satisfy at 
least the Judiciary Committee? I see the distinguished Senator from 
Iowa here. He does not intend to address this issue, but I hope we can 
get the committees of jurisdiction involved in this as quickly as 
possible. I think this is an issue we should not delay too much longer.
  Mr. LEVIN. Well, we do need to consult with those committees. That is 
underway. I am hopeful the committees and their leaders will take a 
prompt look at this and see if there is any problem with the language 
from the perspective of their committees.
  Mr. McCAIN. If the chairman will further yield briefly, so we will 
not voice vote this until we get the signoff of the relevant 
committees; is that correct?
  Mr. LEVIN. That is correct.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. I ask unanimous consent to address the Senate as in 
morning business.
  The PRESIDING OFFICER (Mr. Manchin). Without objection, it is so 
ordered.


                       Constitutionality of PPACA

  Mr. GRASSLEY. Mr. President, I am pleased the Supreme Court has 
agreed to hear the arguments in three cases challenging the 
constitutionality of the health care reform law Congress passed 2 years 
ago. I appreciate that the Obama administration asked the Supreme Court 
to hear this question. In light of the importance of these cases, I 
have written to Chief Justice Roberts asking him to provide live audio 
and video coverage of the oral arguments.
  The constitutionality of the health care law was the subject of a 
hearing in the Judiciary Committee last February. Regrettably, the 
Judiciary Committee would not hold such a hearing until after the bill 
became law. Those who voted for that law should have given these 
constitutional questions more attention before they voted for the bill. 
Today I wish to discuss the issues that are presented in the cases, 
focusing primarily on the constitutionality of the individual mandate 
and another recent appellate court ruling on that topic.
  When Congress passed this law last year, we were told it would be 
very popular and truly and clearly constitutional. Neither is true. 
Polls show that the law remains unpopular. The law's individual mandate 
provision requires nearly all Americans who do not otherwise have 
health insurance to purchase

[[Page 17824]]

such insurance or to pay a monetary penalty. That provision also raises 
serious constitutional questions about the scope of congressional power 
to regulate interstate commerce.
  Normally, the Supreme Court grants only 1 hour for oral argument. 
Here, the constitutional questions associated with the bill are so 
difficult that the Supreme Court has decided to devote 5\1/2\ hours to 
oral argument. The answers to the questions are not clear. Besides 
considering the commerce clause question, the Court will also hear oral 
arguments on three other questions. The first is severability: Will the 
remainder of the law stand if the individual mandate is struck down? 
Normally, the Court does not even consider severability until it has 
decided that a part of a statute is, in fact, unconstitutional. The 
fact that at least four Justices have voted to hear arguments on this 
question should cause uneasiness among those who are confident that the 
law is constitutional. The second issue is the constitutionality of the 
law's expansion of the Medicaid Program upon the States. The third is 
whether procedurally the law can be challenged in the courts before it 
actually takes effect.
  There is always the possibility that after all the briefs, all the 
arguments, and all the public expectations, the Supreme Court will 
finally resolve whether the health care law is, in fact, 
constitutional. Conversely, the Court could determine that it is too 
soon for it to rule on the issue because the law hasn't fully gone into 
effect.
  Before the Supreme Court agreed to hear these cases, the U.S. Court 
of Appeals for the DC Circuit ruled that the individual mandate was 
within the constitutional power to regulate interstate commerce. That 
court concluded that this result followed from existing Supreme Court 
decisions. It also ruled that Congress could, therefore, require 
private individuals to purchase any product that Congress chose. The 
majority opinion was written by Judge Laurence Silberman.
  I respect Judge Silberman, but I strongly dispute his ruling and I 
wish to take this opportunity to outline my disagreements with Judge 
Silberman.
  I think Judge Silberman has selectively read Supreme Court decisions. 
For instance, he noted that no Supreme Court has ever held the commerce 
clause authority is limited to people who are currently engaging in an 
activity that involves interstate commerce, but it is equally true that 
no Supreme Court case has ever held that the commerce clause covers 
people who are not engaging in an activity and may never do so in the 
future. It is not clear why Judge Silberman focused only on the first 
formulation and did not consider the second. This omission is even more 
peculiar when compounded by his omission of the Supreme Court's 
repeated skepticism of congressional claims that it can exercise a 
power that it never before discovered in more than 200 years of our 
constitutional history. The Court has always been wary when a new power 
is claimed.
  Judge Silberman recognized that the power claimed here to require 
that the purchase of a product or service is novel, but he did not 
continue with the next step that the Supreme Court would have taken. 
Instead, the judge concluded that the argument against the power was 
equally novel.
  I think it is common sense no one would have made such an argument if 
Congress had not claimed this power. For instance, when the Supreme 
Court in the Plaut case ruled that Congress could not reinstate a 
statute of limitations once it had expired, it pointed out that 
Congress had never done that. It did not belittle the argument against 
the practice by characterizing it, as Judge Silberman did, as novel. In 
fact, the argument against the novel claimed power won.
  Judge Silberman stated that Congress cannot regulate noneconomic 
behavior based on a weak link to interstate commerce. He ruled that 
Congress cannot regulate intrastate economic activity that in the 
aggregate does not substantially affect interstate commerce. Agreeing 
with Judge Silberman, so far so good. But then he found that decisions 
whether to purchase health insurance do affect interstate commerce. 
However, the Supreme Court has never ruled that Congress can regulate 
decisions--in other words, thoughts--on whether to purchase a good or 
service. The Court for decades has referred to the power of Congress to 
regulate activities that affect interstate commerce.
  Since Congress cannot regulate noneconomic activities or intrastate 
economic activities that have no combined effect on commerce, then it 
follows naturally that Congress cannot regulate at all inactivity--such 
as refraining from buying a product.
  Judge Silberman considered the ``activity'' argument and, in my mind, 
he repeated an earlier error. He concluded that no Supreme Court case 
had ever said that existing activity was necessary for Congress to 
exercise its power to regulate interstate commerce.
  But it is just as true that many Supreme Court cases have described 
the kinds of activities Congress may regulate under the commerce 
clause. Judge Silberman could have as accurately found that no Supreme 
Court case has ever held that Congress has the power to regulate 
commerce in the absence of an activity.
  Another way Judge Silberman selectively read the Supreme Court 
precedents is that he could have struck down the individual mandate 
consistent with all Supreme Court precedents.
  This point was confirmed in the Judiciary Committee hearing we held 
in February. I asked the witnesses whether the Supreme Court could 
strike down the individual mandate without overruling any of these 
precedents. The Republicans' witnesses both responded that the Court 
could do so. The Democrats' witnesses identified no cases that would 
have to be overturned. So not only is the individual mandate 
unconstitutional, but the Supreme Court could strike it down without 
overturning any of its precedents.
  Judge Silberman disagreed. He said the mandate here is close to the 
facts of Wickard v. Filburn, a famous 1942 Supreme Court decision that 
broadly read the powers of Congress to regulate interstate commerce. 
The Court then upheld the second Agricultural Adjustment Act. Under 
that law, a farmer could be penalized for growing wheat on his own farm 
even for the use of his own family and livestock. He could not grow 
that wheat if he exceeded his wheat quota. The homegrown wheat 
substituted for the wheat the farmer otherwise would have had to 
purchase on the open market, so the Court concluded that would depress 
the price of wheat when combined with the actions of similar farmers 
all across the country. So, obviously, in Filburn, that farmer affected 
interstate commerce. That may not make sense to us today, but it made 
sense in 1942, and it is still a precedent.
  Judge Silberman, however, ruled that the regulation at issue in that 
case is very similar to the individual mandate, which is an inactivity 
if you decide not to purchase it, and that any activity involved in the 
Wickard case was incidental to simply owning a farm.
  I take issue with that. The Wickard case differs conceptually from 
the individual mandate. Farmer Filburn, in 1942, could avoid the 
regulation by ceasing to farm, by no longer engaging in the regulated 
activity. In fact, that is true in all of the cases Judge Silberman 
cited. A person can avoid laws penalizing cultivation of marijuana by 
not cultivating marijuana. A person can avoid laws criminalizing child 
pornography by not downloading child pornography. A person can avoid 
public accommodation regulations by not operating a public 
accommodation. Those are activities Congress can constitutionally 
regulate under the commerce clause.
  But that is not the case with the individual mandate. You cannot 
avoid being subject to that mandate. If you exist, if you are alive, an 
individual in this country, you are regulated. And, of course, that is 
not the situation with respect to any other decisions Judge Silberman 
cited. It is why he is, respectfully, wrong to find that the 
infringements on liberty are the same in those cases as they are in the 
individual mandate. The liberty of avoiding the regulation was 
preserved in the

[[Page 17825]]

laws at issue in those cases. Liberty would prevail because you did not 
have to abide by the law if you were not in that business, but not so 
with the individual mandate under the health care reform bill.
  Moreover, I disagree with Judge Silberman's assertion that it is for 
political reasons and not constitutional ones that it took until 2010 
for Congress to conclude that the Constitution allows it to force 
people to buy goods or services. If this power truly existed, Congress 
would have exercised it frequently and long ago.
  Why would Congress pass tax incentives to encourage people to buy 
hybrids if Congress could simply order you or anybody else to buy 
hybrids? Why would Congress give strong incentives for farmers not to 
grow wheat so as to keep the price up when it could force people--the 
consumer--simply to buy wheat? Why could it not raise the price of beef 
by requiring vegetarians to purchase it, so long as it did not require 
them to eat that beef? Why would Congress take the political heat for 
raising taxes when it could order some people to pay third parties for 
goods and services?
  Even more sinister, Members of Congress could use this supposed power 
under the commerce clause to entrench ourselves in office. Congress 
could require that the goods and services Americans must purchase be 
limited to those providers who contribute to the political party of the 
Members. Or it could prohibit purchases from those providers who 
contribute to the other political party. It could require people to buy 
houses or cars or other products in areas where that political party 
has its base of support. Sounds a little bit like Mussolini's Italy, 
doesn't it?
  Before the Supreme Court's Lopez decision, there were people who 
believed Wickard v. Filburn, since 1942, gave Congress the ability to 
regulate anything Congress chose to regulate. Then, in the Lopez case, 
the Supreme Court ruled that the commerce clause did not permit 
Congress to regulate the possession of handguns near schools. At the 
time, there was widespread fear among liberals that the power of 
Congress to regulate interstate commerce would be jeopardized. Those 
fears did not materialize. Similarly, today, people such as Judge 
Silberman again believe that Wickard v. Filburn gives Congress the 
ability to regulate nearly anything it chooses and, therefore, the 
individual mandate must be upheld. I do not agree.
  Where I give Judge Silberman credit--and if you knew the man, you 
would know this is his character--is in his intellectual honesty. 
Unlike the Obama administration, Judge Silberman recognizes the truth. 
If Congress can force people to buy health insurance, he admits, it can 
force people to buy any goods or services. It can regulate inactivity 
because it can affect interstate commerce. This is consistent with the 
opinion of the Congressional Budget Office, which wrote in a 1994 
memorandum that ``a mandate-issuing government'' could lead ``[i]n the 
extreme'' to ``a command economy, in which the President and the 
Congress dictated how much each individual and family spent on all 
goods and services. . . . '' That is not the America our Constitution 
writers envisioned.
  At the oral arguments in the DC Circuit, the judges asked the Obama 
administration lawyer if Congress could require Americans to buy 
broccoli, or to buy cars to keep General Motors in business, or to set 
up mandatory retirement accounts in place of Social Security. The 
lawyer weaseled an answer, saying that ``It would depend.'' That is not 
a principled position on the nature of the supposed powers of Congress, 
which has no limit.
  Judge Silberman is a former Ambassador to what used to be Yugoslavia. 
He understands the difference between a command economy and a free 
market economy. What his decision implicitly states is that Wickard v. 
Filburn permits Congress to enact a command economy with no individual 
economic freedom whatsoever. But our Constitution provides protections 
for private property and for contracts. It establishes some form of a 
free market system. Judge Silberman's interpretation may imply that 
Wickard v. Filburn was wrongly decided and should be overturned, but I 
do not believe it is necessary to overrule that decision, any more than 
it was necessary to reverse the Filburn case when they decided the 
Lopez case.
  Apart from cases, we need to go back to the basics. We should 
consider first principles in evaluating the constitutionality of the 
individual mandate in the health care reform bill. The people are 
sovereign in our country. The government serves the people, not the 
other way around. That is enforced through our Constitution. And that 
Constitution gives Congress just limited powers.
  In the Federalist Papers, James Madison wrote that the powers of the 
Federal Government are few and are defined, and the powers of the 
States are many and are undefined. Although there is much more 
interstate commerce in today's economy than there was in 1787, the 
power is still limited. If Congress can require Americans to purchase 
goods and services that Congress chooses, without a limiting principle, 
then there is no limited Federal Government. There would be no issue 
that Congress could not address at the Federal level. There would be no 
range of State powers that the Federal Government cannot usurp. And 
there would be no individual economic autonomy that the Federal 
Government must respect. Surely, the Constitution would not have been 
ratified if Americans had understood it to permit such a result.
  The upcoming Supreme Court decisions on the constitutionality of the 
individual mandate are important, not only for the fate of that 
provision but for their effect on the powers of the Federal Government 
and for the very survival of individual economic activity.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.


                           Amendment No. 1084

  Mr. KIRK. Mr. President, I wish to speak on the pending amendment. I 
rise in support of the Kirk-Manchin-Heller and Blunt amendment 
regarding Iran. What we know with regard to Iran is that they have 
persecuted 330,000 Baha'is in their country, registered their houses, 
kicked their kids out of university, made sure that they can do no 
business with the Iranian Government.
  We know Iran is the chief sponsor of the terrorist group Hezbollah 
that has had a grip on southern Lebanon. We know Iran jumped the Shiite 
divide to also support the terrorist group called Hamas in the Sunni 
community.
  We know Iran has been a state sponsor of terror as certified by 
Presidents Carter, Reagan, Bush, Clinton, Bush, and Obama.
  We know Iran recently sentenced an Iranian actress to 90 lashes for 
appearing in an Australian movie without a headdress.
  We know Iran recently arrested 70 of its fashion designers, for 
crimes I cannot even imagine that they would have committed.
  But, most importantly, we know the International Atomic Energy Agency 
has certified that now Iran has enriched uranium far beyond what it 
needs to run a civilian reactor program; that Iranian military 
personnel have been involved in acquiring information on the design of 
nuclear weapons; that the Iranians are working on the details of a 
warhead for their Shahab-3 missile that fits all of the profiles of a 
nuclear weapon.
  Finally, we know, according to the Attorney General of the United 
States, Eric Holder, that Iran and its Iranian Revolutionary Guards 
Quds force established a bomb plot with the Mexican cartel, the Zetas, 
to blow up a Georgetown restaurant, to kill a number of Americans, even 
talked about possibly killing Senators, in an effort to assassinate the 
Saudi Arabian Ambassador to the United States here in Washington, DC.
  I think it is clear with this bipartisan amendment that we all 
recognize we are at a turning point and that we need new sanctions 
against Iran. Without crippling sanctions, I believe we have then 
turned the international community on the path toward war,

[[Page 17826]]

likely between Iran and our allies, in Israel.
  This would cause a needless loss of life. It would lead to higher 
energy prices for the West, an increase in instability in Europe when 
we can least afford it. Therefore, we need to level crippling 
sanctions, especially against the Iranian center of gravity, the 
Central Bank of Iran.
  The Central Bank of Iran is the principal funder of the Ahmadinejad 
regime itself. It is probably the source of funds so substantially 
provided to terrorist groups by Iran to Hamas and Hezbollah. It is the 
Central Bank of Iran that is supporting operations in Afghanistan and 
Iraq against our allies there.
  It is the Central Bank of Iran that is the principal underlying 
financial support for the Iranian nuclear program, and the Central Bank 
of Iran that is the paymaster for the Iranian Revolutionary Guards 
force, especially their Quds force. Likely the money that was planned 
for the Zetas to carry out the bomb plot in Washington, DC, had its 
origin point with the Central Bank of Iran.
  That is why 92 Senators, Republicans and Democrats, despite these 
partisan times, have joined to say we should level this crippling 
sanction against the Central Bank of Iran.
  I thank the 92 Senators who signed the Schumer-Kirk letter. 
Indications are that the Obama administration is going to take further 
actions on the Central Bank of Iran. This amendment lays out the full 
roadmap for what we should do.
  What does the amendment do? It is patterned after the bipartisan 
amendment adopted under the authorship of Democratic California 
Congressman Howard Berman, unanimously adopted in the House Foreign 
Affairs Committee, that says for any business, if you do business with 
the Central Bank of Iran, you cannot do business with the United States 
of America.
  We know that world financial arrangements and especially oil markets 
are complicated instruments, so under this bipartisan amendment we have 
a 180-day timeclock to make sure that especially key allies and friends 
of the United States can unhook from Iranian oil and the financial ties 
that bind them to Iran. This is particularly important for Turkey, for 
Sri Lanka, for Italy, and for Greece, who would all use that time under 
this amendment to unhook from Iran.
  In this, I think we are going to have a very willing partner in the 
Government of Saudi Arabia, recently obviously focused on, because the 
Iranians tried to kill their Ambassador to the United States. I will be 
meeting with that Ambassador tomorrow. I think this amendment lays the 
groundwork not just to work with Israel, not just to work with Saudi 
Arabia, but our allies, to collapse the Central Bank.
  Without action, I think we turn the Middle East and especially the 
Persian Gulf toward war. That is why we should take every nonmilitary 
action possible to avoid that conflict, to collapse the Central Bank of 
Iran.
  There are a number of bipartisan heroes in this story--Senator 
Lieberman, who has been a key actor on these issues and a partner with 
me on many of these issues; Senator Gillibrand also who has helped out; 
obviously Senator Schumer, who was the coauthor of the 92-Senator 
letter on the Central Bank of Iran; Senator Menendez, who also has an 
outstanding idea on creating an Iranian oil-free zone; and obviously my 
bipartisan partner on this and best friend in the Senate, Senator 
Manchin, who joined me on this effort.
  Together, we can have a clear statement about what has happened with 
the IAEA and the Iranian nuclear program, with their record on human 
rights, with their record on support for terrorism and, most 
importantly, according to the Attorney General, with a brazen attempt 
to attack the United States directly with this bomb plot.
  I urge Members of this Chamber to vote for this amendment, which is 
now pending to the National Defense Authorization Act, because it puts 
a clear statement forward, levels the toughest nonmilitary sanction we 
had, helps reduce the chance for war or market and oil instability and 
higher prices, and has such a strong bipartisan pedigree behind it.
  I yield the floor.
  Mr. McCAIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. AYOTTE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. AYOTTE. Mr. President, as a member of the Senate Armed Services 
Committee and as the ranking member of the Readiness Subcommittee, I 
wish to speak for a few moments and comment on the National Defense 
Authorization Act.
  I will begin by thanking the majority leader for honoring his 
commitment to bring the National Defense Authorization Act to the floor 
for debate, amendment, and passage. As Leader Reid pointed out this 
morning, this would have been the first time in a half century in which 
we would not have passed a national defense authorization bill. In the 
midst of two wars, with our brave sons and daughters and husbands and 
wives fighting in Iraq and Afghanistan, with our country facing a 
serious threat from radical Islamist terrorists, that would have been 
unacceptable.
  I very much thank Chairman Levin and Ranking Member McCain for their 
leadership. In this era that has been characterized by gridlock and 
partisanship in Washington, the Armed Services Committee has 
represented a welcome exception. The Senate Armed Services Committee 
has a long-enjoyed, well-deserved reputation for professionalism and 
bipartisanship as we work across party lines to support our troops and 
their families who sacrifice so much for our country to keep us safe.
  This bipartisan spirit is reflected by the fact that the Armed 
Services Committee unanimously reported the initial Defense 
authorization bill out of committee this summer, and did so again this 
week, after reducing the authorization levels consistent with the 
requirements we need to meet, in light of the fiscal crisis our country 
faces, and after revising the detainee compromise to take into 
consideration some of the administration's concerns.
  This year, once again, the quality of Senator Levin's and Senator 
McCain's leadership is reflected in the quality of the legislation the 
Armed Services Committee has produced. This bill will ensure that our 
war fighters have what they need to accomplish their missions, protect 
themselves, and defend our country.
  I am especially proud of the work of the Readiness Subcommittee. It 
has been a pleasure to work with Chairman McCaskill. Our committee made 
significant, well-informed reductions that achieve taxpayer savings 
without endangering our military readiness.
  However, going forward, I wish to raise one issue. We have to guard 
against excessive cuts to our readiness accounts that will leave our 
troops and our Nation less prepared for future contingencies. In light 
of the supercommittee meeting in Washington, we have to come to an 
agreement to avoid what Secretary Panetta has described as catastrophic 
and a deep concern for our national security if those sequestration 
cuts occur.
  I am particularly pleased key provisions of the Brown-Ayotte ``no 
contracting with the enemy'' legislation are included in the bill. This 
provision will make it easier for the Defense Department, contracting 
officials in Central Command area operations, to void contracts with 
contractors that, unfortunately, in some instances, have funneled 
taxpayer dollars to our enemies.
  Let me conclude by saying that, again, I very much appreciate the 
leadership and bipartisan nature of the work done on the Armed Services 
Committee. This is a very important bill that I am very glad we are 
going to take up and fully debate in the Senate. I certainly urge my 
colleagues to pass this bill.


                           Amendment No. 1065

  Ms. AYOTTE. Mr. President, I ask unanimous consent to set aside the 
pending amendment and call up amendment No. 1065.

[[Page 17827]]

  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The clerk will report.
  The bill clerk read as follows:

       The Senator from New Hampshire [Ms. Ayotte], for herself, 
     Mr. McCain, and Mr. Reed, proposes an amendment numbered 
     1065.

  Ms. AYOTTE. 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: Relating to the force structure for strategic airlift 
                               aircraft)

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

     SEC. 136. STRATEGIC AIRLIFT AIRCRAFT FORCE STRUCTURE.

       Section 8062(g)(1) of title 10, United States Code, is 
     amended--
       (1) by striking ``October 1, 2009'' and inserting ``October 
     1, 2011''; and
       (2) by striking ``316 aircraft'' and inserting ``301 
     aircraft''.

  Ms. AYOTTE. Mr. President, the amendment I have just offered to the 
Defense authorization bill is an amendment that Senator Reed from Rhode 
Island is joining me in sponsoring.
  The amendment itself would allow the Air Force to reduce its 
strategic airlift aircraft inventory to what they need to meet our 
readiness needs. It would save $1.2 billion of taxpayer money in the 
next few years, without compromising the readiness we need to protect 
our Nation.
  Our Nation's strategic air fleet provides global air mobility to the 
U.S. military. As GEN Raymond Johns, commander of the Air Force Air 
Mobility Command, said in his statement in a hearing before the Armed 
Services Committee, where we had this amendment addressed:

       The strategic airlift is a national asset allowing America 
     to deliver hope, to fuel the fight, and to save lives 
     anywhere in the world within hours of getting the call.

  In order to meet this need, the United States uses C-5s and C-17s as 
their strategic airlift capability, and current Federal law sets the 
Air Force's minimum number of strategic aircraft at 316. However, the 
Air Force and the administration--when the Department of Defense 
submitted their budget request, they made very clear that we don't need 
to keep the minimum requirement at 316 to meet the needs of our 
country; that only a minimum requirement of 301 aircraft are needed to 
meet the strategic airlift capacity requirements of our country. The 
requirement to maintain the bottom-line limit of 316 is a situation 
where Congress is requiring the Air Force to maintain planes it does 
not need to protect the readiness of our country. So it was the Air 
Force that wanted this amendment to be brought forward to ensure we can 
save taxpayer dollars--over $1 billion.
  This is very important at a time when we are asking our military, as 
a result of the Budget Control Act, over the next 10 years, to reduce 
spending by close to $450 billion. So they have to look at areas where 
we are spending money we don't need or where we are maintaining assets 
we do not need to meet our readiness.
  That is why I brought this amendment forward. It is a commonsense 
amendment that I am so pleased Senator Reed has joined me on. I hope my 
colleagues will support it in this time of great fiscal challenges. But 
the need remains ever present to protect our national security against 
those who would want to harm Americans and our allies for what we 
believe in.
  We have to allow the Air Force and our Armed Forces to make sensible 
decisions on where they need to put resources to protect our country. 
That is what this amendment does. I will say we had a full hearing in 
the subcommittee of the Armed Services Committee on the strategic 
airlift aircraft requirement. The military testified uniformly that 
reducing the number of the strategic airlift from 316 to 301 would put 
us in a very strong position to meet every contingency that we can 
anticipate going forward, including multiple contingencies around the 
world, as well as homeland events.
  This area has been studied very carefully. It will allow us to 
continue to protect our country, but again, will save $1.2 billion in 
taxpayer money over the next few years.
  I urge my colleagues to support this amendment.
  Mr. McCAIN. Will the Senator yield for a question?
  Ms. AYOTTE. I will yield to the Senator.
  Mr. McCAIN. Is it correct that the U.S. Air Force not only supports 
this but considers it one of their very high priorities?
  Ms. AYOTTE. Yes, this is a very high priority of the Air Force, 
because in this difficult time when they are making reductions, this is 
an area where they can meet our national security needs. Yet Congress 
has actually asked the Air Force to maintain more planes than it needs. 
So this is a commonsense provision that is very important to our Air 
Force.
  Mr. McCAIN. In these times of very difficult budgetary decisions that 
are having to be made, is it not true also the President's budget in 
2011 had included a plan to retire 17 C-5As in 2011 and 5 in 2012?
  Ms. AYOTTE. Yes. Actually, this amendment I am bringing forward is 
consistent with the administration's budget request they submitted for 
the Congress's consideration. So this is a situation where, after a 
careful hearing we had before a subcommittee of the Armed Services 
Committee, and after the administration had submitted its request, and 
after the Air Force asked for this, it makes complete sense that we 
would allow them to reduce this strategic airlift capacity.
  Mr. McCAIN. May I ask if any State where these aircraft are presently 
stationed would lose that mission or whether the older C-5s would 
convert to new C-17s? Is that pretty much the conclusion the Senator 
would draw from the Air Force plan?
  Ms. AYOTTE. This is not going to be a diminishment for States. This 
is just going to be a right-sizing of the fleet.
  What I am concerned about is if we don't pass amendments such as 
this, where the administration has asked for it, where all of the data 
supports that we don't need to keep the level at 316, and where we can 
save $1.2 billion by doing it, how can we then ask our military to make 
significant reductions if we don't allow them to take such commonsense 
action such as this?
  Mr. McCAIN. I thank the Senator from New Hampshire, and I hope we can 
dispose of this amendment. I don't know if a recorded vote would be 
required by any of the Members, but I hope we can voice vote it.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, first, let me thank the Senator from New 
Hampshire for not only her comments about the committee work and myself 
and Senator McCain personally, but I want to tell her, and tell anyone 
within the sound of my voice, what a valuable member of our committee 
she is. She is someone who is there all the time, and I very much value 
the input she gives to us because of her regular presence at our 
hearings and our meetings. So I thank her for that as well as her 
comments.
  I also thank her for this amendment. It is a good amendment. I 
understand from my staff, and from what the Senator said as well, there 
was a hearing held specifically on this subject, and that Senator Reed, 
as chairman, made a commitment to hold that hearing, as I understand 
it. He is a cosponsor of the amendment of Senator Ayotte. As far as I 
can see, it is a good amendment, a sound amendment, and it does what 
Senator McCain said, as well as what the Senator from New Hampshire has 
said. It avoids spending money on something we can't afford to spend 
money on.
  I don't know of any objection on this side, and I support the 
amendment.
  Ms. AYOTTE. I thank the Senator.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  The Senator from Arizona.
  Mr. McCAIN. Is it true we are trying to clear the amendment on both 
sides at the moment?
  Mr. LEVIN. I don't know of an objection on this side. As far as I am 
concerned, if there is no further debate, the Presiding Officer can put 
the question.

[[Page 17828]]


  Mr. McCAIN. I ask the Chair to put it to a vote.
  The PRESIDING OFFICER. If there is no further debate, without 
objection, the amendment is agreed to.
  The amendment (No. 1065) was agreed to.
  Ms. AYOTTE. I thank the chairman.
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mr. McCAIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, I thank the chairman, Senator Levin, 
and the ranking member, Senator McCain, for the immensely important 
work they have done on the bill we are considering, S. 1867, the 
National Defense Authorization Act. It is a massively important bill, a 
big bill, and I want to focus on one part of it--a seemingly small 
section but a vitally important provision of the bill--that enables our 
Department of Defense to more effectively counter improvised explosive 
devices, known as IEDs, which have been a major source of attacks 
against United States and coalition forces in the wars of Iraq and 
Afghanistan and threaten not only our troops there but all around the 
world as well as our coalition partners.
  I thank particularly one of my colleagues, Senator Bob Casey, who has 
been a champion of these efforts against the IEDs or roadside bombs for 
some time. He has been a relentless and tireless leader in this effort 
and has included me and others, and I am proud to join him in seeking 
more effective measures.
  This summer saw the highest volume of IED incidents ever recorded in 
Operation Enduring Freedom, approximately 1,800 a month. That is a 
staggering and alarming number, and they continue. These devices are 
deadly and devastating, killing and maiming our troops and causing loss 
of limbs, traumatic brain injury, posttraumatic stress, and other 
horrific injuries that are the signature wounds of the ongoing wars. In 
fact, roadside bombs cause 60 percent of all casualties in Afghanistan. 
They are the hidden killers in this war.
  I speak with the urgency of an elected official whose State citizens 
are at risk and who are returning with these signature wounds of war 
and whose lives and limbs can be preserved if we act effectively. I 
speak as a citizen who has visited the hospitals and the troops who 
have come back. We have all visited our constituents and their 
families, their loved ones, their friends and neighbors who have been 
victims of these terrible weapons of destruction.
  Most IEDs in Afghanistan, in fact more than 80 percent, are made with 
materials originating in Pakistan. There is no magic bullet or panacea 
to solving this problem or addressing the challenge. It will take a 
comprehensive fight. Both the provisions contained in the Foreign 
Operations appropriations bill with regard to Pakistan and the vital 
force protection equipment in the Defense authorization bill are 
essential to shutting down the sources of bomb-making materials in 
Pakistan. They include steps to interdict bomb-making materials at the 
border and to provide the armor and force protection against the IED 
threat.
  Roadside bombs in Afghanistan are typically made with calcium 
ammonium nitrate, a very common fertilizer. It is a seemingly innocent 
product but capable of detonation when processed and packaged in these 
roadside bombs and then placed in areas where our troops go. This 
fertilizer from Pakistan accounts for more than 80 percent of the IEDs 
in Afghanistan. Every day bags of this fertilizer are smuggled to 
Afghanistan from Pakistan, sometimes hidden in the convoys of goods 
that cross the open 1,500-mile border. The fertilizer pellets are 
boiled down and the material is put in a package or container with an 
explosive detonator that is often linked to a simple trigger system--
something such as a tripwire buried in the sand awaiting the tire of a 
passing vehicle or the foot of an American soldier on patrol. At this 
moment, thousands of our soldiers and Marines have been injured. 
Thousands of these bombs are buried in Afghanistan soil and, sadly, 
many more will be planted in the coming weeks and months.
  Again, my colleague from Pennsylvania, Senator Casey, has been a 
leader in the Senate and, indeed, led a bipartisan group of Senators, 
including myself, in writing to the Secretary of State to request a 
greater diplomatic effort by our government to encourage Pakistan to 
stem the flow of bomb-making materials into Afghanistan. Then, in 
August, we went on an official trip, a CODEL, to take the message 
straight to the Government of Pakistan. We met with the most senior 
leaders of Pakistan and we urged stronger action against the misuse of 
everyday materials by terrorist groups in making the bombs that kill 
and maim our troops in Afghanistan. We took this message to officials 
of Pakistan at the highest level, and they responded with a plan that 
is supposedly being implemented.
  The fact is, stronger measures are needed. We need a crackdown and a 
shutdown on the bomb-making materials, the fertilizer, and the calcium 
ammonium nitrate that is transported and smuggled across the border so 
that it can be made into bombs and maim and kill troops from 
Connecticut and from across the country--troops who are innocent 
victims--and the people of Pakistan and Afghanistan themselves who have 
become victims.
  We saw firsthand how our troops seek to protect themselves from these 
IEDs. In fact, at a sand-swept compound in Helmand Province in 
Afghanistan our congressional delegation saw the most common types of 
protective practices and devices, including how our soldiers and 
marines wear body armor, lie face down in the dirt and drag a 10-foot 
pole with a hook on the end on the ground to look for the telltale 
signs of an IED. Other measures range from the use of dogs that sniff 
out bombs to huge armor vehicles and more advanced technology. But even 
with the most effective and advanced means of detection and disarming 
bombs, body armor is still essential to protecting our troops.
  Pakistan's plan to address the IED smuggling supply chain, which is a 
threat to its own people as well as our soldiers and marines, has yet 
to prove effective. The plan addresses border security, regulation of 
fertilizer materials, and promoting public awareness of the threat 
posed by these IEDs. But we cannot rely on Pakistan's goodwill to 
ensure this important work is given the priority it requires.
  There can be no ambiguity, no doubt, no uncertainty in our 
relationship with Pakistan, and that is why I support the even stronger 
measures Senator Casey has championed in a process he has suggested 
that would withhold any assistance if verification cannot be 
accomplished. The Pakistanis need to prove with action, not mere plans 
or conferences, that they are stemming and stopping the flow of 
fertilizer. They need to prove more than good will or good intentions 
but effective action to stem and stop the flow of all of the bomb-
making materials across the border.
  We also must support efforts by the Department of Defense to procure 
and deploy body armor and equipment, such as this bill does, that 
protects all our troops in harm's way. We are all familiar with the 
force protection development such as enhanced ceramic plates and 
redesigning vehicles with V-shaped hulls to deflect blast impact. These 
advances, make no mistake, came at great expense in terms of blood and 
treasure to our Nation. We learned how to properly equip our troops in 
some respects for these measures. But even as the end of Operation 
Enduring Freedom is now in sight, the requirement to develop even 
better protection continues and it must be relentless and tireless.
  We cannot abandon our efforts. We simply cannot abandon this fight to 
protect our troops in the field. The lessons learned will serve to 
honor our commitment to ensure that the brave men and women who protect 
our freedom and protect our safety and security have the best 
protection we can provide them.

[[Page 17829]]

  Enhanced ballistic armor, including underwear protection--or blast 
boxers--are essential to combatting the threat of roadside bombs. When 
an IED detonates against dismounted troops, it blasts sand and 
fragments that shred skin, literally tears apart the skin of our 
troops. Covering their legs and groin area with flexible armor can 
prevent amputation of a limb or worse.
  I have asked and been informed about delivery of this equipment. To 
date, 165,000 of the tier 1 sets of blast protection have been 
delivered into theater. The Marine Corps received 15,000 sets of tier 
2-level protection, delivered 4 days ahead of schedule. By the middle 
of next month, the Army will also receive its complete requirement of 
tier 2-level sets.
  This armor was adapted from one of our allies, British forces, and 
the Army has now established domestic production of the equipment. I am 
hopeful that additional types of protection will also be processed and 
produced and sent and I hope it will be expeditiously.
  When I learned of this lifesaving equipment and the challenges 
involved in delivery, I wrote to the Department of Defense urging swift 
delivery of the body armor. I was joined by colleagues Senators Casey, 
Bennet, and Whitehouse. I am hopeful this program will be an example of 
our body armor procurement system working effectively. I am hopeful it 
will set an example and provide a model for this body armor being 
provided expeditiously, as it is needed. I look forward to our passing 
the Defense authorization bill, which continues these efforts to supply 
body armor and equipment needed for troops in Afghanistan.
  This bill provides also for the equipment needed to interdict IEDs, 
from the small backpacks carried by our troops to UAVs to giant Buffalo 
vehicles. Interdiction also requires the right specialized equipment to 
detect materials to make those IEDs as they are smuggled across the 
porous Afghan-Pakistan border. This effort also requires training and 
awareness of both our military personnel and our allies in this fight. 
As of September 2011, the Afghan border police had 20,852 personnel. 
This growth is encouraging.
  But the border police have problems with endemic corruption, and they 
are effective only to the extent that our special forces augment this 
effort. Our special forces, our special operators, should be encouraged 
and enabled to continue this effort. Interdiction is an integral part 
to larger efforts to understand battles based in this region. Force 
alone can't solve this problem. We need better intelligence and the 
right detection equipment, combined with the efforts of our special 
forces. It must be truly a comprehensive effort, as the Defense 
authorization bill clearly recognizes. We need to show all who live on 
both sides of this border that the cost of supplying the ingredients of 
these bombs that kill and maim our troops is too high for them, just as 
it is too high for us to tolerate.
  Let me again thank chairman Senator Levin and ranking member Senator 
McCain for their recognition of this problem. Our Nation has spent more 
than $\1/2\ trillion in support of the war in Afghanistan. We have 
sustained more than 2,800 coalition casualties. An Afghanistan that is 
stable and self-sufficient certainly is our goal, and it depends upon 
the tactical success of these efforts.
  IEDs remain the weapon of choice of our enemy. Should we not learn to 
successfully counter the threat of IEDs, we will see this asymmetrical 
threat repeated on the battlefield, wherever our troops are deployed 
around the world.
  Given the enormity of this challenge, I urge my colleagues to remain 
committed to this goal, remain true to this strategy, and counter these 
IEDs. We must authorize both our foreign operations expenses and this 
bill and I thank my colleagues for their truly bipartisan support of 
these efforts.
  I yield the floor.
  Mr. CARDIN. As to the floor privileges, Mr. President, let me just 
comment how valuable these Navy fellows are in our offices. I am very 
grateful for LCDR Knisley's service in my office, and I know Senator 
Wicker feels the same.
  LCDR Shane Knisley will be leaving my office next month, and I wish 
to thank him very much for the service he has provided in the Senate.


             Unanimous Consent Request--Executive Calendar

  Mr. CARDIN. Mr. President, in a moment, I am going to be asking 
unanimous consent that the Senate take up to confirm the nomination of 
Ken Kopocis to be Assistant Administrator for the Office of Water for 
the Environmental Protection Agency.
  Before I make that unanimous consent request, I wish to just take a 
moment to say a few words about this nominee and the process that has 
taken place in Senate.
  I have known Ken Kopocis since I was first elected to Congress in 
1986 and have worked personally with him on a number of water-related 
issues. Ken has extensive background in water policy and legislative 
issues, having worked at the Congress for 25 years. I worked with him 
first when I was in the House of Representatives. I know the Presiding 
Officer also, when he was in the House, remembers the good work Ken did 
for the House of Representatives. He has now worked, of course, in the 
Senate.
  He has played a role in crafting and defending numerous pieces of 
environmental legislation, including the Clean Water Act. At a time 
when there are so many controversial issues concerning water issues in 
the Congress, I think it is important we have someone at the helm who 
has the confidence of Senators on both sides of the aisle.
  I have the honor of chairing the Subcommittee on Water and Wildlife 
in the Environment & Public Works Committee. Ken Kopocis enjoys the 
confidence of all the members of our committee.
  When his nomination was considered in the Environment & Public Works 
Committee back in July--that is when we took it up--Ken was praised by 
both Republicans and Democrats alike. Most of my colleagues have had 
the opportunity to work with him, and they are enthusiastic about his 
credentials and his levelheaded bipartisan approach to every issue.
  It is time the Senate take up this confirmation. It is the right 
thing to do.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session to consider Calendar No. 403, that the nomination be 
confirmed with no intervening action or debate; that no further motions 
be in order to the nomination; that any statements related to the 
nomination be printed in the Record; that the President be immediately 
notified of the Senate's action and the Senate then resume legislative 
session.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Wyoming.
  Mr. BARRASSO. Mr. President, reserving the right to object. There are 
still questions that need to be answered and information that needs to 
be provided by Mr. Kopocis.
  I am concerned about the depth of his past involvement to change the 
scope of the Clean Water Act beyond congressional intent. To me, this 
nominee still needs to explain his views on public and stakeholder 
input on regulations he would be in charge of and explain his 
understanding--his understanding--of the role of Congress versus the 
role of the Environmental Protection Agency in terms of who makes the 
laws in this country.
  Until those issues are clarified, I do not believe it is appropriate 
for this nominee to move forward.
  Therefore, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCAIN. Mr. President, I ask for regular order.
  The PRESIDING OFFICER. The Senator from Maryland has the floor.
  Mr. CARDIN. Mr. President, I am going to yield the floor in just a 
moment.
  Let me say to my friend from Wyoming, I am going to do my best to 
make sure the Senator gets all the information he needs. I wish to make 
sure every Senator has all the information they need. I think this is a 
very important position to be filled. Mr.

[[Page 17830]]

Kopocis has the qualifications and confidence. I wish to make sure that 
is done as quickly as possible. I respect my colleague's views, and I 
will work to make sure he gets all the information he needs.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, it is my understanding that the Senator 
from Colorado, Mr. Udall, is coming over to propose an amendment and I 
hope that will happen momentarily and I hope Members will be prepared 
with other amendments that we can dispose of this afternoon.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. WICKER. Mr. President, I rise this afternoon in support of the 
fiscal year 2012 national defense authorization bill.
  As ranking member on the Seapower Subcommittee, I wish to thank both 
Chairman Levin and Ranking Member McCain for their leadership. It is 
somewhat of an achievement in actually getting the bill to the floor at 
this time, and I appreciate their determination.
  As we approach the Thanksgiving holiday next week, I would like to 
take a moment to honor the men and women of our Armed Forces. We are 
grateful for their service, and our thoughts and prayers are with those 
now deployed at sea and ashore. My own State of Mississippi is home to 
many brave servicemembers. Their sacrifices are matched, of course, by 
those of their families who have supported them day in and day out as 
they selflessly serve this country.
  As ranking member of the Seapower Subcommittee, I have had the 
pleasure of working with my friend Senator Reed of Rhode Island, who is 
chairman of that subcommittee. We both worked to ensure that this bill 
meets a wide range of procurement, sustainment and research and 
development needs for the Navy and the Marine Corps.
  Our deliberations were informed by, among other things, a series of 
hearings we held that addressed force structure and modernization for 
the Department of the Navy. This process has resulted in a bill that 
contains provisions which will deliver important capabilities and 
support our sailors and marines.
  The bill before us is supportive of the President's shipbuilding 
budget request and contributes to the continued vitality of our 
shipbuilding industrial base which is very important. At a time when we 
are concerned about job creation, the last thing we want to do is let 
our industrial base be chipped away.
  The fiscal year 2012 shipbuilding budget funds new construction for 
various types and classes of ships, including an aircraft carrier, 
amphibious ships, submarines, and large and small surface combatants, 
totaling more than $15 billion.
  From our discussions during the Seapower Subcommittee meetings, it 
has become abundantly clear that members are concerned about challenges 
in maintaining fleet capacity among many classes of ships and the 
capability gaps that exist that have a real effect on the sailors who 
crew these ships. From amphibious ships to aircraft carriers to 
destroyers and to submarines, our Navy must maintain an adequate 
balance among all classes of ships to ensure our Navy can execute these 
responsibilities.
  Through classified briefings we have received from senior officials 
in the Navy and in the intelligence community, the Seapower 
Subcommittee also is well aware of the imminent and emerging threats 
facing our sea services. America must maintain its capability to 
project power and uphold our obligations to our friends and allies 
throughout the world. This means robust investment in seapower, and I 
am heartened that this bill contains such an investment.
  With the Deficit Reduction Committee's recommendations due to 
Congress in less than 1 week, I know all my colleagues agree that 
cutting our deficit and reducing our national debt responsibly is a 
must. Failing to act will put the burden on our children and 
grandchildren. We must make tough decisions now on spending because our 
current track is unsustainable.
  I hope the Deficit Reduction Committee is able to come to an 
agreement on spending priorities because the alternative is 
unacceptable cuts in national defense. We must remember that national 
defense is solely a Federal responsibility. Failure to reach consensus 
would have grave consequences for our military. Marine Corps Commandant 
GEN James Amos cautioned about such cuts earlier this week.
  In conclusion, I believe the national defense authorization bill 
reaffirms our commitment to national security and to our men and women 
in uniform.
  I urge my colleagues to act quickly on this important piece of 
legislation, and once again I thank and commend my friends, Chairman 
Levin and Ranking Member McCain.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. UDALL of Colorado. Mr. President, I ask unanimous consent the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. UDALL of Colorado. Mr. President, I come to the floor to comment 
on the NDAA, the bill in front of us today. I want to start my remarks 
by acknowledging the leadership of Chairman Levin and Ranking Member 
McCain. Under their tutelage and leadership the committee has worked 
tirelessly to craft a Defense Authorization Act that provides our Armed 
Forces with the equipment, the services, the training, and the overall 
support they need to keep us safe while they themselves are being 
protected. I thank the chairman and ranking member, my colleagues, and, 
most important, the wonderful staff that works for us for their 
diligence and dedication to this important work.
  I also come to the floor to speak out against a proposed change that 
I think would alter what has been a very effective set of terrorist 
detention policies and procedures. I believe to make those changes 
would complicate our capacity to prosecute the war on terror and call 
into question the principles we as Americans hold dear.
  I filed an amendment, No. 1107, that would take a look at what is 
proposed in the NDAA. We have a solemn obligation to pass the National 
Defense Authorization Act. But we also have a solemn obligation to make 
sure those who are fighting the war on terror have the best, most 
flexible, most powerful tools possible. I have to say again, and I will 
say it more than two times in my remarks, I am worried these changes we 
are about to push through would actually hurt our national security.
  I am a proud member of the Senate Armed Services Committee. As I have 
implied, and I want to be explicit, I understand the importance of this 
bill. I understand what it does for our military, which is why, in sum, 
what I am going to propose with my amendment is that we pass the NDAA 
without these troubling provisions but with a mechanism by which we can 
consider what is proposed and perhaps at a later date include any 
applicable changes in the law.
  We need to hear from the Department of Defense, our intelligence 
community, and the administration more broadly on what our men and 
women in the field actually need to effectively prosecute the war on 
terror, especially before we change detainee policies that are already 
working. As I am saying, I have serious concerns about the detainee 
provisions that have been included in the bill.
  In my opinion, and in the opinion of many others--and I will share 
those opinions and insights with my colleagues--these provisions 
disrupt the capacity of the executive branch to enforce the law, and 
they impose unwise and unwarranted restrictions on our ability to 
aggressively combat international terrorism. In so doing, they inject 
legal uncertainty and ambiguity that may only complicate the military's 
operations and detention practices.

[[Page 17831]]

  I am not the only one who has serious concerns. The Secretary of 
Defense has urged us to oppose these new provisions. Both chairmen of 
the Intelligence and Judiciary Committees strongly oppose them. The 
President's team is recommending a veto. These are people whose 
opinions should be carefully considered before we put these new 
proposals into our legal framework.
  In the Statement of Administration Policy the White House states:

       We have spent 10 years since September 11, 2001, breaking 
     down the walls between intelligence, military and law 
     enforcement professionals; Congress should not now rebuild 
     those walls and unnecessarily make the job of preventing 
     terrorist attacks more difficult.

  Those are striking words that should give us all pause as we face 
what seems to me a bit of a rush to submit these untested and legally 
controversial restrictions on our ability to prosecute terrorists.
  I ask unanimous consent to have the entire Statement of 
Administration Policy printed in the Record at the conclusion of my 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. UDALL of Colorado. Mr. President, these are complex issues that 
have far-reaching consequences for intelligence, civilian law 
enforcement agencies, and our intelligence community as they work to 
keep Americans safe from harm. Despite this fact, the Department of 
Defense and the national security staff, as far as I know, had little 
opportunity to review or comment on the final language in the 
provisions. As a result, these provisions restrained the ``Executive 
Branch's options to utilize, in a swift and flexible fashion, all the 
counterterrorism tools that are now legally available.''
  That quote comes directly from a letter addressed to the Armed 
Services Committee from Secretary Panetta. I think we all know that 
before he held the job he has now, Secretary of Defense, Mr. Panetta, 
was the Director of the CIA. He very well knows the threats facing our 
country, and he knows we cannot afford to make mistakes when it comes 
to keeping our citizens safe.
  I also ask unanimous consent that Secretary Panetta's letter be 
printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. UDALL of Colorado. Mr. President, the provisions I am speaking to 
are well intended. I have much admiration for my colleagues who propose 
them, but I think we need to take some more time to consider the 
ramifications. The United States, our country, can currently choose 
from several options when prosecuting terrorists. That flexibility has 
allowed us to try, convict, and imprison hundreds of terrorists, and it 
allows the government to select the venue that will provide the highest 
likelihood of obtaining a conviction. The current detention provisions 
in the bill we are debating would strip away that flexibility and 
potentially impair our capacity to successfully prosecute and convict 
terrorists. It is not clear to me why, after 10 years of successfully 
prosecuting terrorists and preventing another 9/11-like attack, why we 
would want to limit our options while our enemies are constantly 
adapting their tactics and expanding their efforts to do us harm.
  In a recent op-ed in the Chicago Times, a bipartisan group of three 
former Federal judges, including William S. Sessions, who was also the 
appointed Director of the FBI under President Reagan, said it best when 
describing these provisions:

       Legislation now making its way through Congress would seek 
     to over-militarize America's counterterrorism efforts, 
     effectively making the U.S. military the judge, jury and 
     jailer of terrorism suspects to the exclusion of the FBI and 
     local and State law enforcement agencies. As former Federal 
     judges, we find this prospect deeply disturbing. Not only 
     would such an effort ignore 200 years of legal precedent, it 
     would fly in the face of common sense.

  And I ask unanimous consent that op-ed be printed in the Record at 
the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 3.)
  Mr. UDALL of Colorado. I also point out these provisions raise 
serious questions as to who we are as a society and what our 
Constitution seeks to protect. One section of these provisions, section 
1031, could be interpreted as allowing the military to capture and 
indefinitely detain American citizens on U.S. soil. Section 1031 
essentially repeals the Posse Comitatus Act of 1878 by authorizing the 
military to perform law enforcement functions on American soil. That 
alone should alarm my colleagues on both sides of the aisle. But there 
are other problems with these provisions that must be resolved.
  These detainee provisions are unnecessary, counterproductive, and 
potentially harmful to our counterterrorism efforts. I know I have said 
this a couple of times already, but it feels as though they are being 
rushed through in a manner that does not serve us well. The Department 
of Defense has had little input. There have been no hearings. Earlier 
this week the changes were presented to us in the Armed Services 
Committee just hours before we were asked to vote on them. These are 
just too important a set of questions to let them pass without a 
thorough review and far greater understanding of their effect on our 
national security and our fight against terrorism. It feels to this 
Senator that we are rushing hastily to address a solution in search of 
a problem. We ought to hear from the Department of Defense, the 
intelligence community, our colleagues, and other relevant committees 
before we act. Do we believe this Congress--again, let me underline 
that after 10 years of successfully prosecuting the war on terror--
should substitute its views for that of our Defense, intelligence, and 
Homeland Security leadership without careful analysis?
  I recently received a letter signed by 18 retired military leaders in 
opposition to these provisions. The letter states that: ``Mandating 
military custody would undermine legitimate law enforcement and 
intelligence operations crucial to our security at home and abroad.'' I 
could not agree more.
  I would ask unanimous consent that this letter be printed in the 
Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 4.)
  Mr. UDALL of Colorado. We are already trying and convicting 
terrorists in both civilian courts and under military commissions. The 
provisions that are in this bill would require the DOD to shift 
significant resources away from their mission, to act on all the fronts 
all over the world, and they would become a police force and jailer. 
This is not what they are good at. This is not what we want them to do. 
I think it has potentially dangerous consequences because we have 
limited resources and limited manpower. We would not lose anything by 
taking a little bit more time to discuss and debate these provisions, 
but we could do real harm to our national security by allowing this 
language, unscrutinized, to pass, and that is exactly what our highest 
ranking national security officers are warning us against doing.
  This is a debate we need to have. It is a healthy debate, but we 
ought to be armed with all of the facts and expertise before we move 
forward. The least we can do is take our time, be diligent, and hear 
from those who will be affected by these new limitations on our ability 
to prosecute terrorists.
  It concerns me that we would tell our national security leadership--a 
bipartisan national security leadership, by the way--that we would not 
listen to them and that Congress knows better than they do. It doesn't 
strike me that that is the best way to secure and protect the American 
people. That is why I have filed amendment No. 1107. I think it is a 
commonsense alternative that will protect our constitutional principles 
and beliefs while also allowing us to keep our Nation safe. The 
amendment has a clear aim, which is to ensure we follow a thorough 
process and hear all views before rushing forward with new laws that 
could be harmful to our national security.

[[Page 17832]]

  What is in the amendment? It is straightforward. Specifically the 
amendment would require that our Defense, intelligence, and law 
enforcement agencies report to Congress with recommendations for any 
additional authorities or flexibility they need in order to detain and 
prosecute terrorists. In other words, let's not put the cart before the 
horse or fix something that is not broken. Let's first hear from the 
stakeholders as to what laws they believe need to be changed to give 
them better tools to do their job.
  My amendment then asks for hearings to be held so we can fully 
understand the views of respected national security experts. Moreover, 
it would require input from each of the relevant committees to ensure 
that we have carefully considered the benefits and consequences of our 
actions. The chairmen of our Judiciary and Intelligence Committees have 
deep concerns about the detainee provisions in the pending legislation. 
And, of course, as we underwent this process, the existing laws that 
guide our actions today would remain in place. They have been 
successful.
  I see some of my colleagues who I think share my views who have come 
to the floor. They also made the compelling case that it is a system 
that is working. Why would we change it without thinking it through? It 
is straightforward, it is common sense, and it allows us to make sure 
we will win the war on terror.
  Mr. DURBIN. Will the Senator from Colorado yield for a question, 
through the Chair?
  Mr. UDALL of Colorado. Yes.
  Mr. DURBIN. I thank the Senator from Colorado for his strong 
statement and totally support his position. This change in the Defense 
authorization bill goes beyond a military decision. It goes to the 
fundamental questions of principles of our Constitution and our body of 
law. As a member of the Senate Judiciary Committee, I believe this 
matter should have been considered as well by the Senate Judiciary 
Committee, and I believe Senator Feinstein has expressed the feeling 
that it should have been considered as well by the Senate Intelligence 
Committee.
  I wish to use one example to ask the Senator from Colorado a 
question. When we had the so-called Underwear Bomber, the passenger on 
a commercial aircraft who tried to detonate a bomb--and thank God was 
unsuccessful--he was subdued, arrested, and interrogated by the Federal 
Bureau of Investigation in Detroit. After that investigation was 
underway--and he surrendered some information--he stopped talking, at 
which point the FBI investigators read him his Miranda rights.
  Then later, working with his parents, he resumed talking to the 
investigators and literally--according to the FBI--gave a dramatic 
amount of information helpful to us in keeping America safe and 
stopping terrorism. He was then prosecuted in the criminal courts of 
America, article 3 courts, and ultimately, weeks ago, pled guilty.
  Mr. McCAIN. Will the Senator state his question.
  Mr. DURBIN. I am going to. I would say to the Senator from Arizona, I 
think it is important we take some time on this important issue.
  Mr. McCAIN. I would say it is important that all voices be heard.
  Mr. DURBIN. Senator McCain, of course, as the ranking member, will 
have ample opportunity to express his point of view.
  What I am asking the Senator from Colorado is this: Taking into 
consideration the language that is now being presented in this Defense 
authorization bill, particularly section 1032, it is my understanding 
the Federal Bureau of Investigation could not have continued their 
interrogation of this suspected terrorist without first contacting our 
military and bringing them in to determine whether they had 
jurisdiction over this matter. In other words, time would have been 
lost, opportunities would have been lost, information might have been 
lost by following the new section in the bill.
  I am asking the Senator from Colorado if this is a decision which he 
believes we should make in the haste of a Defense authorization bill or 
ought to step back and work with the President of the United States, 
the FBI, the military, and our intelligence forces to make sure we do 
not lose an opportunity to catch an alleged terrorist, to interrogate 
them, and to keep this country safe.
  Mr. UDALL of Colorado. I thank the Senator from Illinois for his 
question. My understanding is the Senator from Illinois is correct, 
that provision 1032 would change the way in which interrogations would 
unfold. There may be some in the Senate who would see it differently, 
but that is all the more reason to adopt my amendment, which would 
allow a thorough process of hearing from the very experts who 
interrogated the Underwear Bomber and other experts who have been on 
the front lines in fighting terrorism. We ought to go slow. We should 
not fix something that is working fine right now.
  I thank the Senator for his question.
  Mr. DURBIN. If the Senator from Arizona will forgive me, I would ask 
one more question through the Chair. The question goes back to the 
point the Senator made: Section 1031, as I understand it, would be a 
departure from current law and would say that those who are American 
citizens can be detained indefinitely if they are suspected of certain 
terrorist conduct. I ask the Senator from Colorado: Is that the point 
the Senator made in his statement?
  Mr. UDALL of Colorado. The Senator from Illinois is correct. Mr. 
President, 1031 would do just that, and it would come directly at a 
piece of law, posse comitatus, which dates back to the Civil War, that 
is held dear by all of us in America because it distinguishes between 
the military used to protect us against foreign foes and how we manage 
our own civil affairs here at home.
  Also, as the Senator alludes to, it causes questions to be raised 
about something that is very sacred in our system of law, which is the 
writ of habeas corpus. You have to prove why you hold someone. You 
cannot detain an American citizen indefinitely in any other 
circumstance.
  I thank the Senator for his questions.
  Mr. LEVIN. Would the Senator yield for a question?
  Mr. UDALL of Colorado. I would be happy to yield for a question.
  Mr. LEVIN. We explicitly wrote into this bill the following language: 
that the procedures providing for the determination that somebody is an 
Al-Qaida terrorist or related, affiliated one is not required to be 
implemented until after the conclusion of the interrogation session, 
which is ongoing at the time the determination is made.
  Is the Senator familiar with that language which explicitly says that 
the President will adopt the procedures--whatever procedures the 
President determines--to make sure there is no interference with an 
ongoing interrogation by the civilians as it appears in section 2(c) on 
page 363? Is the Senator familiar with that?
  Mr. UDALL of Colorado. I am familiar with the language in the general 
way it has been introduced. I would say to the chairman of the Armed 
Services Committee that we had a chance to review this language 
starting about 48 hours ago.
  One of the reasons I think my amendment is important is it would give 
those voices, which are being heard more and more as of today, who have 
concerns with this provision--they are not sure how it applies--that 
that is all the more reason to slow this down, to keep the existing law 
in place, and go through a more thorough process to understand the 
ramifications of the waiver provision and the other provisions the 
chairman and ranking member----
  Mr. LEVIN. Is it not true, however, that the language which is in 
this bill that I just read clearly provides there will not be any 
interference with an interrogation session, that those procedures are 
to be determined by the President, and that it explicitly says there 
will not be any interference with the interrogation and the procedures 
will guarantee there will not be? That is the point of this language.
  I don't understand how the statement could be made that this language 
in this bill interferes with the interrogation by civilian authorities 
and the

[[Page 17833]]

FBI when the very language here says they will not interfere with that 
interrogation. I wonder if the Senator could explain to me his 
agreement with the Senator from Illinois that something in this bill 
would result in an interference with an interrogation.
  Mr. UDALL of Colorado. What I would say to my friend is that just 
having had an opportunity to review this language in the last 48 hours, 
I have no question about his intent, but I have heard from people with 
much greater expertise than I have that there are questions that are 
still unanswered. Maybe this provision is appropriate and will do what 
the chairman says it will do. But, again, that is why I think it would 
be well worth our time to take a further look at what is involved in 
these provisions.
  Mr. LEVIN. I do appreciate the Senator's response. I have one other 
question, and that has to do with an American citizen who is captured 
in the United States and the application of the custody pending a 
Presidential waiver to such a person. I wonder whether the Senator is 
familiar with the fact that the language which precluded the 
application of section 1031 to American citizens was in the bill we 
originally approved in the Armed Services Committee, and the 
administration asked us to remove the language which says that U.S. 
citizens and lawful residents would not be subject to this section.
  Is the Senator familiar with the fact that it was the administration 
which asked us to remove the very language which we had in the bill 
which passed the committee, and that we removed it at the request of 
the administration that this determination would not apply to U.S. 
citizens and lawful residents? Is the Senator familiar with the fact 
that it was the administration which asked us to remove the very 
language, the absence of which is now objected to by the Senator from 
Illinois?
  Mr. UDALL of Colorado. I am familiar now because the Senator from 
Michigan has shared that fact with me. I am also familiar with the fact 
that the administration has other questions and concerns which has 
caused it to issue a set of provisions and issues they wish to further 
consider.
  Mr. LEVIN. I thank my friend.
  Mr. LEAHY. Would the Senator yield for a question?
  Mr. UDALL of Colorado. I would be happy to yield to my friend from 
Vermont.
  Mr. LEAHY. Is the Senator from Colorado aware that the administration 
has raised real concerns--both DOD and the White House--saying that 
requiring the President to devise the kind of procedures discussed in 
this bill creates all kinds of problems, and that this is one of the 
reasons why both the Senate Intelligence Committee and the Senate 
Judiciary Committee have asked to have the opportunity to hold hearings 
on a section that obviously involves the jurisdiction of both the 
Senate Intelligence and Senate Judiciary Committees?
  Mr. UDALL of Colorado. I am. The Senator from Vermont is correct. 
That knowledge on my part is, in part, one of the reasons I filed the 
amendment we are discussing right now.
  Mr. LEAHY. I thank the Senator.
  Mr. UDALL of Colorado. I thank the Senator from Vermont.
  I yield the floor.

                               Exhibit 1

         Executive Office of the President, Office of Management 
           and Budget,
                                Washington, DC, November 17, 2011.

                   Statement of Administration Policy


 S. 1867--National Defense Authorization Act for FY 2012--(Sen. Levin, 
                                 D-MI)

       The Administration supports Senate passage of S. 1867, the 
     National Defense Authorization Act for Fiscal Year (FY) 2012. 
     The Administration appreciates the Senate Armed Services 
     Committee's continued support of our national defense, 
     including its support for both the base budget and for 
     overseas contingency operations and for most of the 
     Administration's initiatives to control spiraling health 
     costs of the Department of Defense (DoD).
       The Administration appreciates the support of the Committee 
     for authorities that assist the ability of the warfighter to 
     operate in unconventional and irregular warfare, authorities 
     that are important to field commanders, such as the 
     Commanders' Emergency Response Program, Global Train and 
     Equip Authority, and other programs that provide commanders 
     with the resources and flexibility to counter unconventional 
     threats or support contingency or stability operations. The 
     Administration looks forward to reviewing a classified annex 
     and working with the Congress to address any concerns on 
     classified programs as the legislative process moves forward.
       While there are many areas of agreement with the Committee, 
     the Administration would have serious concerns with 
     provisions that would: (1) constrain the ability of the Armed 
     Forces to carry out their missions; (2) impede the Secretary 
     of Defense's ability to make and implement decisions that 
     eliminate unnecessary overhead or programs to ensure scarce 
     resources are directed to the highest priorities for the 
     warfighter; or (3) depart from the decisions reflected in the 
     President's FY 2012 Budget Request. The Administration looks 
     forward to working with the Congress to address these and 
     other concerns, a number of which are outlined in more detail 
     below.
       Detainee Matters: The Administration objects to and has 
     serious legal and policy concerns about many of the detainee 
     provisions in the bill. In their current form, some of these 
     provisions disrupt the Executive branch's ability to enforce 
     the law and impose unwise and unwarranted restrictions on the 
     U.S. Government's ability to aggressively combat 
     international terrorism; other provisions inject legal 
     uncertainty and ambiguity that may only complicate the 
     military's operations and detention practices.
       Section 1,031 attempts to expressly codify the detention 
     authority that exists under the Authorization for Use of 
     Military Force (Public Law 107-40) (the ``AUMF''). The 
     authorities granted by the AUMF, including the detention 
     authority, are essential to our ability to protect the 
     American people from the threat posed by al-Qa'ida and its 
     associated forces, and have enabled us to confront the full 
     range of threats this country faces from those organizations 
     and individuals. Because the authorities codified in this 
     section already exist, the Administration does not believe 
     codification is necessary and poses some risk. After a decade 
     of settled jurisprudence on detention authority, Congress 
     must be careful not to open a whole new series of legal 
     questions that will distract from our efforts to protect the 
     country. While the current language minimizes many of those 
     risks, future legislative action must ensure that the 
     codification in statute of express military detention 
     authority does not carry unintended consequences that could 
     compromise our ability to protect the American people.
       The Administration strongly objects to the military custody 
     provision of section 1032, which would appear to mandate 
     military custody for a certain class of terrorism suspects. 
     This unnecessary, untested, and legally controversial 
     restriction of the President's authority to defend the Nation 
     from terrorist threats would tie the hands of our 
     intelligence and law enforcement professionals. Moreover, 
     applying this military custody requirement to individuals 
     inside the United States, as some Members of Congress have 
     suggested is their intention, would raise serious and 
     unsettled legal questions and would be inconsistent with the 
     fundamental American principle that our military does not 
     patrol our streets. We have spent ten years since September 
     11, 2001, breaking down the walls between intelligence, 
     military, and law enforcement professionals; Congress should 
     not now rebuild those walls and unnecessarily make the job of 
     preventing terrorist attacks more difficult. Specifically, 
     the provision would limit the flexibility of our national 
     security professionals to choose, based on the evidence and 
     the facts and circumstances of each case, which tool for 
     incapacitating dangerous terrorists best serves our national 
     security interests. The waiver provision fails to address 
     these concerns, particularly in time-sensitive operations in 
     which law enforcement personnel have traditionally played the 
     leading role. These problems are all the more acute because 
     the section defines the category of individuals who would be 
     subject to mandatory military custody by substituting new and 
     untested legislative criteria for the criteria the Executive 
     and Judicial branches are currently using for detention under 
     the AUMF in both habeas litigation and military operations. 
     Such confusion threatens our ability to act swiftly and 
     decisively to capture, detain, and interrogate terrorism 
     suspects, and could disrupt the collection of vital 
     intelligence about threats to the American people.
       Rather than fix the fundamental defects of section 1032 or 
     remove it entirely, as the Administration and the chairs of 
     several congressional committees with jurisdiction over these 
     matters have advocated, the revised text merely directs the 
     President to develop procedures to ensure the myriad problems 
     that would result from such a requirement do not come to 
     fruition. Requiring the President to devise such procedures 
     concedes the substantial risks created by mandating military 
     custody, without providing an adequate solution. As a result, 
     it is likely that implementing such procedures would inject 
     significant confusion into counterterrorism operations.

[[Page 17834]]

       The certification and waiver, required by section 1033 
     before a detainee may be transferred from Guantanamo Bay to a 
     foreign country, continue to hinder the Executive branch's 
     ability to exercise its military, national security, and 
     foreign relations activities. While these provisions may be 
     intended to be somewhat less restrictive than the analogous 
     provisions in current law, they continue to pose unnecessary 
     obstacles, effectively blocking transfers that would advance 
     our national security interests, and would, in certain 
     circumstances, violate constitutional separation of powers 
     principles. The Executive branch must have the flexibility to 
     act swiftly in conducting negotiations with foreign countries 
     regarding the circumstances of detainee transfers. Section 
     1034's ban on the use of funds to construct or modify a 
     detention facility in the United States is an unwise 
     intrusion on the military's ability to transfer its detainees 
     as operational needs dictate. Section 1035 conflicts with the 
     consensus-based interagency approach to detainee reviews 
     required under Executive Order No. 13567, which establishes 
     procedures to ensure that periodic review decisions are 
     informed by the most comprehensive information and the 
     considered views of all relevant agencies. Section 1036, in 
     addition to imposing onerous requirements, conflicts with 
     procedures for detainee reviews in the field that have been 
     developed based on many years of experience by military 
     officers and the Department of Defense. In short, the matters 
     addressed in these provisions are already well regulated by 
     existing procedures and have traditionally been left to the 
     discretion of the Executive branch.
       Broadly speaking, the detention provisions in this bill 
     micromanage the work of our experienced counterterrorism 
     professionals, including our military commanders, 
     intelligence professionals, seasoned counterterrorism 
     prosecutors, or other operatives in the field. These 
     professionals have successfully led a Government-wide effort 
     to disrupt, dismantle, and defeat al-Qa'ida and its 
     affiliates and adherents over two consecutive 
     Administrations. The Administration believes strongly that it 
     would be a mistake for Congress to overrule or limit the 
     tactical flexibility of our Nation's counterterrorism 
     professionals.
       Any bill that challenges or constrains the President's 
     critical authorities to collect intelligence, incapacitate 
     dangerous terrorists, and protect the Nation would prompt the 
     President's senior advisers to recommend a veto.
       Joint Strike Fighter Aircraft (JSF): The Administration 
     also appreciates the Committee's inclusion in the bill of a 
     prohibition on using funds authorized by S. 1867 to be used 
     for the development of the F136 JSF alternate engine. As the 
     Administration has stated, continued development of the F136 
     engine is an unnecessary diversion of scarce resources.
       Medium Extended Air Defense Systems (MEADS): The 
     Administration appreciates the Committee's support for the 
     Department's air and missile defense programs; however, it 
     strongly objects to the lack of authorization of 
     appropriations for continued development of the MEADS 
     program. This lack of authorization could trigger unilateral 
     withdrawal by the United States from the MEADS Memorandum of 
     Understanding (MOU) with Germany and Italy, which could 
     further lead to a DoD obligation to pay all contract costs--a 
     scenario that would likely exceed the cost of satisfying 
     DoD's commitment under the MOU. Further, this lack of 
     authorization could also call into question DoD's ability to 
     honor its financial commitments in other binding cooperative 
     MOUs and have adverse consequences for other international 
     cooperative programs.
       Overseas Construction Funding for Guam and Bahrain: The 
     Administration has serious concerns with the limitation on 
     execution of the United States and Government of Japan funds 
     to implement the realignment of United States Marine Forces 
     from Okinawa to Guam. The bill would unnecessarily restrict 
     the ability and flexibility of the President to execute our 
     foreign and defense policies with our ally, Japan. The 
     Administration also has concerns over the lack of 
     authorization of appropriations for military construction 
     projects in Guam and Bahrain. Deferring or eliminating these 
     projects could send the unintended message that the United 
     States does not stand by its allies or its agreements.
       Provisions Authorizing Activities with Partner Nations: The 
     Administration appreciates the support of the Committee to 
     improve capabilities of other nations to support 
     counterterrorism efforts and other U.S. interests, and urges 
     the inclusion of DoD's requested proposals, which balance 
     U.S. national security and broader foreign policy interests. 
     The Administration would prefer only an annual extension of 
     the support to foreign nation counter-drug activities 
     authority in line with its request. While the inclusion of 
     section 1207 (Global Security Contingency Fund) is welcome, 
     several provisions may affect Executive branch agility in the 
     implementation of this authority. Section 1204 (relating to 
     Yemen) would require a 60-day notify and wait period not only 
     for Yemen, but for all other countries as well, which would 
     impose an excessive delay and seriously impede the Executive 
     branch's ability to respond to emerging requirements.
       Unrequested Authorization Increases: Although not the only 
     examples in S. 1867, the Administration notes and objects to 
     the addition of $240 million and $200 million, respectively, 
     in unrequested authorization for unneeded upgrades to M-1 
     Abrams tanks and Rapid Innovation Program research and 
     development in this fiscally constrained environment. The 
     Administration believes the amounts appropriated in FY 2011 
     and requested in FY 2012 fully fund DoD's requirements in 
     these areas.
       Advance Appropriations for Acquisition: The Administration 
     objects to section 131, which would provide only incremental 
     funding--undermining stability and cost discipline--rather 
     than the advance appropriations that the Administration 
     requested for the procurement of Advanced Extremely High 
     Frequency satellites and certain classified programs.
       Authority to Extend Deadline for Completion of a Limited 
     Number of Base Closure and Realignment (BRAC) 
     Recommendations: The Administration requests inclusion of its 
     proposed authority for the Secretary or Deputy Secretary of 
     Defense to extend the 2005 BRAC implementation deadline for 
     up to ten (10) recommendations for a period of no more than 
     one year in order to ensure no disruption to the full and 
     complete implementation of each of these recommendations, as 
     well as continuity of operations. Section 2904 of the Defense 
     Base Closure and Realignment Act imposes on DoD a legal 
     obligation to close and realign all installations so 
     recommended by the BRAC Commission to the President and to 
     complete all such closures and realignments no later than 
     September 15, 2011. DoD has a handful of recommendations with 
     schedules that complete implementation close to the statutory 
     deadline.
       TRICARE Providers: The Administration is currently 
     undertaking a review with relevant agencies, including the 
     Departments of Defense, Labor, and Justice, to clarify the 
     responsibility of health care providers under civil and 
     workers' rights laws. The Administration therefore objects to 
     section 702, which categorically excludes TRICARE network 
     providers from being considered subcontractors for purposes 
     of the Federal Acquisition Regulation or any other law.
       Troops to Teachers Program: The Administration urges the 
     Senate's support for the transfer of the Troops to Teachers 
     Program to DoD in FY 2012, as reflected in the President's 
     Budget and DoD's legislative proposal to amend the Elementary 
     and Secondary Education Act of 1965 and Title 10 of the U.S. 
     Code in lieu of section 1048. The move to Defense will help 
     ensure that this important program supporting members of the 
     military as teachers is retained and provide better oversight 
     of 6 program outcomes by simplifying and streamlining program 
     management. The Administration looks forward to keeping the 
     Congress abreast of this transfer, to ensure it runs smoothly 
     and has no adverse impact on program enrollees.
       Constitutional concerns: A number of the bill's provisions 
     raise additional constitutional concerns, such as sections 
     233 and 1241, which could intrude on the President's 
     constitutional authority to maintain the confidentiality of 
     sensitive diplomatic communications. The Administration looks 
     forward to working with the Congress to address these and 
     other concerns.

                               Exhibit 2


                                     The Secretary of Defense,

                                Washington, DC, November 15, 2011.
     Hon. Carl Levin,
     Chairman, Committee on Armed Services,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: I write to express the Department of 
     Defense's principal concerns with the latest version of 
     detainee-related language you are considering including in 
     the National Defense Authorization Act (NDAA) for Fiscal Year 
     2012. We understand the Senate Armed Services Committee is 
     planning to consider this language later today.
       We greatly appreciate your willingness to listen to the 
     concerns expressed by our national security professionals on 
     the version of the NDAA bill reported by the Senate Armed 
     Services Committee in June. I am convinced we all want the 
     same result--flexibility for our national security 
     professionals in the field to detain, interrogate, and 
     prosecute suspected terrorists. The Department has 
     substantial concerns, however, about the revised text, which 
     my staff has just received within the last few hours.
       Section 1032. We recognize your efforts to address some of 
     our objections to section 1032. However, it continues to be 
     the case that any advantages to the Department of Defense in 
     particular and our national security in general in section 
     1032 of requiring that certain individuals be held by the 
     military are, at best, unclear. This provision restrains the 
     Executive Branch's options to utilize, in a swift and 
     flexible fashion, all the counterterrorism tools that are now 
     legally available.
       Moreover, the failure of the revised text to clarify that 
     section 1032 applies to individuals captured abroad, as we 
     have urged, may needlessly complicate efforts by frontline 
     law enforcement professionals to collect

[[Page 17835]]

     critical intelligence concerning operations and activities 
     within the United States.
       Next, the revised language adds a new qualifier to 
     ``associated force''--``that acts in coordination with or 
     pursuant to the direction of al-Qaeda.'' In our view, this 
     new language unnecessarily complicates our ability to 
     interpret and implement this section.
       Further, the new version of section 1032 makes it more 
     apparent that there is an intent to extend the certification 
     requirements of section 1033 to those covered by section 1032 
     that we may want to transfer to a third country. In other 
     words, the certification requirement that currently applies 
     only to Guantanamo detainees would permanently extend to a 
     whole new category of future captures. This imposes a whole 
     new restraint on the flexibility we need to continue to 
     pursue our counterterrorism efforts.
       Section 1033. We are troubled that section 1033 remains 
     essentially unchanged from the prior draft, and that none of 
     the Administration's concerns or suggestions for this 
     provision have been adopted. We appreciate that revised 
     section 1033 removes language that would have made these 
     restrictions permanent, and instead extended them through 
     Fiscal Year 2012 only. As a practical matter, however, 
     limiting the duration of the restrictions to the next fiscal 
     year only will have little impact if Congress simply 
     continues to insert these restrictions into legislation on an 
     annual basis without ever revisiting the substance of the 
     legislation. As national security officials in this 
     Department and elsewhere have explained, transfer 
     restrictions such as those outlined in section 1033 are 
     largely unworkable and pose unnecessary obstacles to 
     transfers that would advance our national security interests.
       Section 1035. Finally, section 1035 shifts to the 
     Department of Defense responsibility for what has previously 
     been a consensus-driven interagency process that was informed 
     by the advice and views of counterterrorism professionals 
     from across the Government. We see no compelling reason--and 
     certainly none has been expressed in our discussions to 
     date--to upset a collaborative, interagency approach that has 
     served our national security so well over the past few years.
       I hope we can reach agreement on these important national 
     security issues, and, as always, my staff is available to 
     work with the Committee on these and other matters.
           Sincerely,
                                                      John McCain.

                               Exhibit 3

                [From the Chicago Tribune, Oct. 7, 2011]

                           Beyond Guantanamo

       (By Abner Mikva, William S. Sessions and John J. Gibbons)

       A new shift in philosophy has begun to emerge among 
     lawmakers in Washington. Legislation now making its way 
     through Congress would seek to overmilitarize America's 
     counterterrorism efforts, effectively making the U.S. 
     military the judge, jury and jailer of terrorism suspects, to 
     the exclusion of the FBI and local and state law enforcement 
     agencies. As former federal judges, we find this prospect 
     deeply disturbing. Not only would such an effort ignore 200 
     years of legal precedent, it would fly in the face of common 
     sense.
       The bill in question, the 2012 National Defense 
     Authorization Act, would codify methods such as indefinite 
     detention without charge and mandatory military detention, 
     and make them applicable to virtually anyone picked up in 
     anti-terrorism efforts--including U.S. citizens--anywhere in 
     the world, including on U.S. soil. Such an effort to restrict 
     counterterrorism efforts by traditional law enforcement 
     agencies would sadly demonstrate that many members of 
     Congress have very little faith in America's criminal justice 
     system.
       It is a fact that our criminal justice system is uniquely 
     qualified to handle complex terrorism cases. Indeed, civilian 
     courts have successfully overseen more than 400 terrorism-
     related trials, whereas military commissions have handled 
     only six. While the use of military commissions may 
     occasionally be appropriate under the Constitution, the 
     Guantanamo military commissions remain subject to serious 
     constitutional challenges that could result in overturned 
     guilty verdicts. The simple truth is that existing federal 
     courts operate under rules and procedures that provide all 
     the tools necessary to prosecute terrorism cases and they are 
     not subject to the same legal challenges as military 
     commissions.
       We need access to proven instruments and methods in our 
     fight against terrorism. Stripping local law enforcement and 
     the FBI of the ability to arrest and gather intelligence from 
     terrorism suspects and limiting our trial options is 
     counterintuitive and could pose a genuine threat to our 
     national security. Furthermore, an expanded mandatory 
     military detention system would lead to yet more protracted 
     litigation, infringe on law enforcement's ability to fight 
     terrorism on a local and state level, and invite the military 
     to act as law enforcement within the borders of our states.
       In the face of these disturbing developments, we are 
     encouraged by the fact that the administration has expressed 
     its own concerns. The Obama White House has raised strong 
     objections to congressional efforts to undermine the use of 
     our traditional criminal justice system, efforts that would 
     effectively eliminate the administration's ability to 
     leverage ``the strength and flexibility'' of the system to 
     ``incapacitate dangerous terrorists and gather critical 
     intelligence.'' In previous statements, President Barack 
     Obama said he intends to oppose any attempt to extend or 
     expand such restrictions in the future. We submit to the 
     president that the future is now.
       We firmly believe the United States can preserve its 
     national security without resorting to sweeping departures 
     from our constitutional tradition. We call on Obama and 
     Congress to support a policy for detention and trial of 
     suspected terrorists that is consistent with our Constitution 
     and maintains the use of our traditional criminal justice 
     system to combat terrorism. Further restricting the tools at 
     our disposal is not in the best interest of our national 
     security.

                               Exhibit 4

                                                 November 7, 2011.
       Dear Senator: We write today to thank you for signing on to 
     the October 21, 2011 letter to Senator Reid regarding 
     detainee provisions 1031-1033 in the National Defense 
     Authorization Act. We are members of a nonpartisan group of 
     forty retired generals and admirals concerned about the 
     implications of U.S. policy regarding enemy prisoner 
     treatment and detention. We have been following the public 
     debate concerning the provisions closely and are troubled by 
     the overreaching nature of the legislation that would allow 
     for indefinite detention without trial, mandatory military 
     custody of counterterrorism suspects and permanent transfer 
     restrictions imposed on inmates already at GTMO, some of whom 
     have been cleared for release.
       We understand there has been significant disagreement about 
     the provisions and exactly what their impact on national 
     security would be; however, the fact that such disagreement 
     exists underscores that further public debate is needed and 
     the provisions should not go forward as a part of the NDAA.
       Regardless of how one interprets the intent of the 
     provisions, it does not cure the underlying defect: over-
     militarization of our counter terrorism response. Our 
     military does not want nor seek to try all foreign terror 
     suspects. Congress has wisely enacted dozens of criminal laws 
     to incapacitate potential terrorists, and federal courts have 
     convicted more than 400 of terrorism related crimes since 9/
     11. Using military commissions as a one-size-fits-all 
     response threatens our security because commissions do not 
     have the same broad array of criminal laws that our federal 
     courts have.
       Military custody may be an incident of battlefield 
     operations, but mandating military custody would undermine 
     legitimate law enforcement and intelligence operations 
     crucial to our security at home and abroad. Providing an 
     individualized waiver would only serve to politicize each 
     decision and possibly paralyze effective national security 
     response.
       We thank you again for signing on to the October 21, 2011 
     letter to Senator Reid and your attention to these important 
     issues. As former members of our armed forces, please call on 
     us as a resource as debate moves forward on detainee 
     provisions as part of the NDAA
           Sincerely,
         General Joseph P. Hoar, USMC (Ret.); General Charles C. 
           Krulak, USMC (Ret.); General William G. T. Tuttle Jr., 
           USA (Ret.); Lieutenant General Robert G. Gard Jr., USA 
           (Ret.); Vice Admiral Lee F. Gunn, USN (Ret.); 
           Lieutenant General Charles Otstott, USA (Ret.);Rear 
           Admiral Don Guter, USN (Ret.); Rear Admiral John D. 
           Hutson, USN (Ret.); Major General William L. Nash, USA 
           (Ret.); Major General Thomas J. Romig, USA (Ret.); 
           Major General Walter L. Stewart, Jr., ANG (Ret.); 
           Brigadier General James Cullen, USA (Ret.); Brigadier 
           General Evelyn P. Foote, USA (Ret.); Brigadier General 
           Leif H. Hendrickson, USMC (Ret.); Brigadier General 
           David R. Irvine, USA (Ret.); Brigadier General John H. 
           Johns, USA (Ret.); Brigadier General Murray G. 
           Sagsveen, USA (Ret.); Brigadier General Stephen N. 
           Xenakis, USA (Ret.).

  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, for the sake and the accommodation of the 
schedules of my colleagues, I ask unanimous consent that following my 
remarks and whoever the speaker is on the other side designated by the 
chairman, Senator Ayotte be recognized, and then after a speaker from 
the other side, if necessary, Senator Chambliss, followed by a speaker 
on the other side, followed by Senator Graham. I do that because of the 
time constraints of my colleagues. So I ask unanimous consent and 
agreement from the Senator from Michigan.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Reserving the right to object, before we go into the 
series of

[[Page 17836]]

speakers, I ask unanimous consent that I be allowed to just call up and 
then set aside amendment No. 1072, which is sponsored by myself and 
Senator Graham, and there is a list of 67 cosponsors.
  Mr. McCAIN. Sure. I yield to the Senator from Vermont.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. I thank my friend from Arizona.


                           Amendment No. 1072

 (Purpose: To enhance the national defense through empowerment of the 
  National Guard, enhancement of the functions of the National Guard 
   Bureau, and improvement of Federal-State military coordination in 
                      domestic emergency response)

  I ask unanimous consent to call up amendment No. 1072.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Vermont [Mr. Leahy], for himself and Mr. 
     Graham, and others, proposes an amendment numbered 1072.

  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. LEAHY. Mr. President, this is on behalf of myself, Senators 
Graham, Rockefeller, Ayotte, Baucus, Begich, Bennet, Bingaman, 
Blumenthal, Blunt, Boozman, Boxer, Scott Brown, Sherrod Brown, Burr, 
Cantwell, Cardin, Carper, Casey, Coats, Conrad, Coons, Corker, Crapo, 
Durbin, Enzi, Feinstein, Franken, Gillibrand, Grassley, Hagan, Harkin, 
Heller, Hoeven, Inhofe, Inouye, Johanns, Ron Johnson, Tim Johnson, 
Klobuchar, Landrieu, Lautenberg, Lee, Lugar, Manchin, McCaskill, 
Menendez, Merkley, Mikulski, Moran, Murray, Ben Nelson, Pryor, Risch, 
Sanders, Schumer, Shaheen, Snowe, Stabenow, Tester, Mark Udall, Vitter, 
Warner, Whitehouse, and Wyden. It has been called up, and I ask 
unanimous consent to have it set aside to deal with the pending matter.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Without objection, the foregoing request from the Senator from 
Arizona is----
  Mr. LEVIN. Reserving the right to object, and I don't object because 
that is the way we should proceed, going back and forth, and usually we 
do that informally. I don't know whether there may be implications 
because I don't know who will be speaking.
  Mr. President, I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. I thank my friend from Michigan. I do that for the 
convenience of my colleagues because I know there will also be others 
coming to speak on this important issue.
  I wish to point out that the Senator from South Carolina--a member of 
the National Guard, one of the major authors of the Detainee Treatment 
Act, and a person who has tried hundreds of cases in military courts--
brings a degree of knowledge and expertise on this issue.
  The Senator from New Hampshire served as attorney general of her 
State for a number of years. She understands the Miranda rights. She 
has been a student and leader on this issue of detainee treatment.
  Also, of course, Senator Chambliss, in his role as the Republican 
leader on the Intelligence Committee, has a deep and longstanding 
involvement on detainee issues and the requirements for making our 
Nation safe.
  I will be fairly brief except to say that by any judgment, the 
President's policy, the President's strategy, the President's movements 
concerning detainees have been a total and abysmal failure. If the 
President of the United States would have had a coherent policy that 
made any sense whatsoever to anyone, we would not have had to act in 
the Senate Armed Services Committee.
  Let me point out a couple of facts. The President of the United 
States campaigned saying that he would close Guantanamo Bay. Guantanamo 
Bay remains open. The President of the United States also said we would 
have detainees tried in civilian as well as military courts, and that 
was a position he has held.
  So they had a great idea: Let's take Khalid Shaikh Mohammed to New 
York City. That was a great idea. Let's have $300 million in security 
costs while they have a trial of one of the most notorious 
international criminals. Obviously, that one got the support it 
deserved.
  Thanks to the release policy of Guantanamo, 27 percent of the 
detainees of Guantanamo who have been released are back in the fight, 
trying to kill Americans--only this time they have a red badge of 
courage and a degree of legitimacy because they spent time in 
Guantanamo Bay. Leaders of al-Qaida have been released from Guantanamo 
Bay under this administration. They were released under the Bush 
administration as well, to be fair, but we didn't know at that time how 
many of them would return to the fight. Some of the leaders in Yemen 
whom we are speaking about who are now doing everything they can to 
kill Americans were released from Guantanamo Bay. That can't be viewed 
as a successful policy. Thirty individuals in Guantanamo today are 
citizens of Yemen. We can't release them, obviously, back to Yemen.
  So now what do we do in order not to have people go to Guantanamo 
Bay? We are now using U.S. naval ships to detain suspected terrorists. 
For 60 days, they kept a suspected al-Qaida member on board a ship. 
Now, when I support the construction of more Navy ships, I have a lot 
of missions in mind. Serving as a detainment facility for suspected 
terrorists is not one of them.
  The Underwear Bomber was Mirandized 50 minutes into custody, and the 
Senator from Illinois forgot to mention that several weeks went by 
before the Underwear Bomber's family came and convinced him to 
cooperate. Suppose there had been an impending attack on the United 
States of America during the 50 minutes in captivity before he was 
Mirandized. Most Americans don't believe al-Qaida members should be 
Mirandized, as the Senator from New Hampshire, who has had a lot of 
experience with individuals who have exercised their Miranda rights, 
will point out.
  So the administration policy has been a complete failure. What we are 
trying to do in this legislation--and we have tried and tried again to 
satisfy many of the concerns the administration has, including, I would 
point out, doing certain things such as making this legislation only 
for 1 year--not permanent but only for 1 year--and we have put into 
this legislation a national security waiver which is a mile wide. If 
the President of the United States decides that an individual should be 
given a trial in civilian court, he has a waiver that all he has to do 
is exercise. So I am not exactly sure why the administration feels so 
strongly about a 1-year restriction, with a national security waiver 
that is a mile wide. We made a couple of other changes at the request 
of the administration. So I can only assume that somehow this has some 
sort of political implications--and I don't say that lightly--as most 
of the actions concerning this whole detainee issue seem to be driven 
by.
  So there were hearings held in the Senate Armed Services Committee. 
There was input from different sources. The Senator from Michigan has 
been fair and objective on this issue, and I am very appreciative of 
that. The vote in the Senate Armed Services Committee was, I believe, 
26 to 0.
  We feel very strongly that these provisions in this bill are 
necessary to keep Americans secure. We want to stop more than one out 
of every four of these detainees going back into the fight. We want to 
make sure the military court system applies here to people who are 
noncitizens and known members of al-Qaida. All of it seems to me to 
make perfect sense.
  So obviously the administration ratcheted up the stakes today with a 
threat of a veto. I hope they are not serious about it. There is too 
much in this bill that is important to this Nation's defense.
  I yield the floor.
  Mr. LEVIN. I wonder if we can amend the unanimous consent agreement. 
There is nobody that I know of on this side at the moment who wants to 
speak

[[Page 17837]]

in support of the amendment, so I am wondering if it would be agreeable 
to the ranking member to have two Members on his side go and then two 
Members on our side, should that occur.
  Mr. McCAIN. That is not agreeable to me. I would say that they have 
the ability to walk over here if they are interested.
  Mr. LEVIN. In that case, I note the absence of a quorum.
  Mr. McCAIN. I would agree to that, but it is not fair.
  Mr. LEVIN. I don't want you to agree if you think it is not fair.
  Mr. McCAIN. You know it is not fair. If you have a speaker, bring 
them up.
  Mr. LEVIN. I am in opposition to the amendment. I want to be fair.
  The PRESIDING OFFICER. Does the Senator from Arizona agree with the 
revised unanimous consent request?
  Mr. McCAIN. I agree.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I rise in opposition to the motion of 
the Senator from Colorado. As the vice chairman of the Senate 
Intelligence Committee, let me just say in response to the statement 
from the distinguished chairman of the Judiciary Committee that there 
has not been a lack of discussion of this issue, both within the Armed 
Services Committee and within the Intelligence Committee. While I am 
not permitted to talk about what has gone on within the Intelligence 
Committee, I assure my colleagues that this has been a major issue from 
a discussion standpoint for a number of months. In fact, it has been a 
point of discussion for almost 3 years now. I will get into some of 
that in my comments.
  Secondly, just in quick response to the comment of the Senator from 
Illinois, the assistant majority leader, when he talked about how we 
would treat U.S. citizens under this, I know how smart he is, and he is 
my friend, but he obviously hasn't read the bill. There is a specific 
exclusion for citizens of the United States being required to be 
detained by the military in this bill.
  Over the past several years, there has been an ongoing debate 
concerning our Nation's ability to fully and lawfully interrogate 
suspected terrorists. One thing remains clear: After all of these years 
after 9/11, we still lack an unambiguous and effective detention 
policy. The consequences of that failure are very real. If we had 
captured bin Laden, what would we have done with him? If we had 
captured Anwar al-Awlaki, what would we have done with him? If today we 
capture Zawahiri, the leader of al-Qaida, what would we do with him? 
Many of us have posed these same questions to various administration 
officials, and the wide variety of responses only confirms that there 
is no policy. That is unacceptable, and that is why the detainee 
provisions in this bill are so absolutely critical.
  I think it is fair to say that if we had captured bin Laden or 
Awlaki, we could have gained very actionable intelligence from either 
one of them, and that is our primary goal. But how would we have done 
that? We have no detainee policy; there is no place we could have taken 
them for long-term interrogation. The closest thing to a policy we have 
heard from the administration is that Guantanamo is off the table. But 
that is not helpful when they provide no other alternatives.
  We have heard some administration officials say holding detainees on 
ships for brief periods of time solves this detention problem. Now, 
Senator McCain just addressed that issue, and we have a great U.S. 
Navy. It is not the intention of the U.S. Navy to function in a way of 
sailing ships around the world and having terrorists brought to ships 
for detention. A state-of-the-art facility like Guantanamo Bay is off 
the table, but holding someone on a ship, never intended to be a 
floating prison and prohibited from long-term detention by the Geneva 
Conventions is somehow a humane replacement for Guantanamo? That simply 
does not make sense.
  The intent behind the detainee provisions in this bill is very 
simple: We must be able to hold detainees for as long as it takes to 
get significant foreign intelligence information without them lawyering 
up, as the Christmas Day bomber did so famously after only 50 minutes 
of interrogation.
  Again, to my friend from Illinois, who talked about the fact that 
once this young man's parents got involved, that after his Miranda 
rights had been given to him, he gave us an awful lot of intelligence--
and that is true in his case--I doubt very seriously that Zawahiri's 
parents, who probably are not even alive, are going to step up and tell 
their son: You ought to go in and talk to these folks and give them all 
the details about the way you helped plan the September 11 attacks on 
the United States of America. We just know with high-value targets that 
is not going to happen on a wholesale basis, and we simply need to be 
in a position to gain actionable intelligence from every one of those 
individuals.
  While I fully support the detainee provisions in this bill, I believe 
there are other improvements that can and should be made. For example, 
I am cosponsoring Senator Ayotte's amendment which will allow our 
intelligence interrogators to use lawful interrogation methods beyond 
those set forth in the Army Field Manual.
  We need to be clear on exactly what this means. This amendment does 
not authorize or condone torture, and every technique used in every 
interrogation must comply with our laws and treaty obligations. I 
believe there needs to be flexibility in how we interrogate terrorists. 
But even more so I believe it is foolish to publicize--as the Army 
Field Manual does--the specific techniques that can be used in 
interrogating a suspected terrorist.
  Over the years, we have heard repeatedly from the intelligence 
community that the element of surprise is sometimes our greatest asset 
in gathering timely intelligence from detainees. Senator Ayotte's 
amendment gives the intelligence community the ability to use 
techniques that have not been broadcast over the Internet. In my 
opinion, that makes a lot of sense. I hope my colleagues will agree 
because the folks we are dealing with in the terrorist world today--
these guys who are the meanest, nastiest killers in the world; who wake 
up every morning trying to figure out ways to kill and harm Americans--
are not stupid. They carry laptops. They know how to use the Internet. 
We gain valuable information oftentimes through the airwaves. We know 
how smart they are, and we know they have the capability of going on 
the Internet today and reviewing the Army Field Manual. They know 
exactly the way they are going to be interrogated and the type of 
techniques that are going to be used to gain intelligence from them.
  The Armed Services Committee has worked very hard on a bipartisan 
basis to come up with legislation that will improve congressional 
oversight of detainee matters, as well as provide greater assurance 
that detainees who pose a threat to our national security are not 
released so they can return to the fight.
  As the vice chairman of the Intelligence Committee, I have a specific 
interest in making sure our intelligence community has the ability to 
gather timely and actionable intelligence from detainees. I believe 
this bill will help our intelligence interrogators do exactly that, and 
I urge my colleagues to support these provisions fully as was done on a 
unanimous basis within the Armed Services Committee when this issue was 
discussed, debated, and talked about thoroughly during the markup.
  I yield to my friend from New Hampshire.
  Mr. LEVIN. No. Yield the floor.
  Mr. CHAMBLISS. I am sorry. I thought you gave us two, Mr. Chairman.
  Mr. LEVIN. You had two, I believe. You were the second, I think.
  Mr. McCAIN. I think what the chairman meant was, there would be two 
if----
  Mr. LEVIN. If we did not have somebody here, we were going to do it 
two at a time.
  Mr. McCAIN. Yes. I think it is the other side's turn.
  The PRESIDING OFFICER (Mrs. McCaskill). The Senator from Rhode 
Island.

[[Page 17838]]


  Mr. WHITEHOUSE. Madam President, I appreciate the courtesy of the 
Senator from New Hampshire. I will not speak long. I know she is here 
waiting to speak, as we go back and forth across the aisle in sequence.
  I want to begin by thanking Chairman Levin and his ranking member, 
Senator McCain, for the work they have done on this detention issue. I 
think they have made a lot of progress, and I look forward to 
continuing to work on the Senate floor to try to conclude what I hope 
will be a successful agreement for everyone.


                           Amendment No. 1092

  But I am here to speak about amendment No. 1092 to the National 
Defense Authorization Act, which is the piece that has been put in that 
responds to the serious and ever-growing problem of counterfeit parts 
that appear in our military supply chain.
  Our Nation asks a lot of our troops. We send them far away. We send 
them into danger. We ask them to suffer prolonged separation from their 
families. We ask them to put their life and limb in peril. In return, 
we have a high obligation to give them the best possible equipment to 
fulfill their vital missions and come home safely.
  In order to assure the proper performance of our weapons systems, of 
our body armor, of our aircraft parts, and of countless other mission 
critical parts, we have to make sure they are legitimate and not 
counterfeit parts.
  That was why I introduced the Combating Military Counterfeits Act, 
which was reported without objection by the Judiciary Committee on July 
21 of this year. It is cosponsored by my colleague, Senator Graham, 
whom I see on the floor; by the ranking member, Senator McCain--again, 
my appreciation to him--Senator Coons; the chairman of the Judiciary 
Committee, Senator Leahy; Senator Kyl; Senator Schumer; Senator Hatch; 
Senator Blumenthal; and Senator Klobuchar. I thank all of those 
cosponsors for their support and leadership on this important issue.
  I particularly want to thank Chairman Levin and Ranking Member McCain 
for including this legislation in their amendment No. 1092, which was 
offered earlier today.
  Senator Levin and Senator McCain led an in-depth investigation in the 
Armed Services Committee into this problem of military counterfeits, 
and they have drawn on that investigation in making these important 
reforms that will protect military procurement from counterfeit parts. 
I am very glad they believe, as I do, the enhanced criminal penalties 
in my bill would provide a useful complement to those important 
changes.
  Prosecutors have an important role to play in the fight against 
military counterfeiters. The criminals who sell counterfeit military 
products should not get off with light sentences. They knowingly sell 
the military, for instance, counterfeit body armor that could fail in 
combat, a counterfeit missile control system that could short-circuit 
at launch, or a counterfeit GPS that could fail under battlefield 
conditions.
  The Combatting Military Counterfeits Act of 2011 makes sure 
appropriate criminal sanctions attach to such reprehensible criminal 
activity, first, by doubling the maximum statutory penalty for an 
individual who trafficks in counterfeits and knows the counterfeit 
product either is intended for military use or is identified as meeting 
military standards; and, second, by directing the Sentencing Commission 
to update the sentencing guidelines as appropriate to reflect our 
congressional intent that trafficking in counterfeit military items be 
punished seriously, sufficiently to deter this kind of reckless 
endangering of our servicemembers.
  The administration has called for these increased sentences for 
trafficking in counterfeit military products. In the private sector, 
this legislation is supported by the U.S. Chamber of Commerce, the 
National Association of Manufacturers, the Semiconductor Industry 
Association, DuPont, the International Trademark Association, and the 
International AntiCounterfeiting Coalition. I thank all of them for 
their work and leadership on this issue.
  One semiconductor manufacturer, ON Semiconductor, which has a 
development center in East Greenwich, in my home State of Rhode Island, 
has written a letter of support explaining that military counterfeits 
are a particular problem since ``[m]ilitary grade products are 
attractive to counterfeiters because their higher prices reflect the 
added costs to test the products to military specifications, 
specifications that include the full military temperature range.'' So 
it is a target area for counterfeiters.
  I will say, without going on at any great length, the examples are 
shocking. The Defense Department, for instance, has found out in 
testing that what it thought was Kevlar body armor was, in fact, 
nothing of the sort and could not protect our troops the way proper 
Kevlar can. In another example, a supplier sold the Defense Department 
a part that it falsely claimed was a $7,000 circuit that met the 
specifications of a missile guidance system.
  A January 2010 study by the Commerce Department quoted a Defense 
Department official as estimating that counterfeit aircraft parts were 
``leading to a 5 to 15 percent annual decrease in weapons systems 
reliability.'' The investigation, led by Chairman Levin and Ranking 
Member McCain, revealed countless other grave and sobering examples.
  I am glad we are responding to the serious and ever-growing threat 
posed by counterfeit military parts. Again, I thank Chairman Levin and 
Ranking Member McCain for their great work to eliminate counterfeit 
parts from the military supply chain, and I hope all my colleagues will 
support their amendment No. 1092.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, first, let me thank Senator Whitehouse 
for the extraordinary effort he has made to go after counterfeit parts. 
We have incorporated his legislation in our legislation. It is a 
critically important part of our legislation. But his leadership has 
been early, often, and strong on this issue, and we commend and thank 
him for it. Hopefully, when this amendment gets passed, there will be a 
recognition of the critical role the Senator from Rhode Island played. 
It is an ongoing saga to stop counterfeiting coming in, mainly from 
China. This is a major effort to stem that flow.
  Mr. WHITEHOUSE. I thank the chairman and the ranking member.
  Mr. McCAIN. Madam President, could I just add my words of 
appreciation, along with those of the chairman, for Senator 
Whitehouse's hard work on this very important issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. Madam President, I rise in opposition to the amendment 
offered by the Senator from Colorado to strike the detainee provisions 
from the defense authorization markup--provisions that were agreed upon 
on an overwhelming bipartisan basis in the Armed Services Committee.
  I would like to start first by revisiting the history of this and 
where we are because the reason the Armed Services Committee, in the 
first place, thought it was very important we discuss this issue in 
committee and address it is that having participated in hearings over 
the course of months and months in the Armed Services Committee, there 
has been witness after witness from our Defense Department who has come 
in and our military leaders with whom we have been talking about the 
detention policy and asking them very important questions about where 
we are and how we are going to ensure that our military and 
intelligence community has the tools they need to protect America, and 
also asking them about this issue of detainees and how we are treating 
them.
  Because one of the important facts my esteemed colleague from 
Georgia, as well as the ranking member, Senator McCain, mentioned, is 
that we have a recidivism rate of 27 percent from Guantanamo--those who 
have reengaged our soldiers again and are back in theater. I was very 
concerned

[[Page 17839]]

about this in the Armed Services Committee. That caused, over a series 
of months, us to ask about the administration's detainee policy.
  I just want to share some of the comments that were made over that 
period of time in February. Secretary Michael Vickers said the 
administration is in the final stages of revising or establishing its 
detention policy.
  Now, that was 8 months ago, and we are now 10 years into this war. In 
April I questioned GEN Carter Ham, the Commander of Africa Command, 
about what we would do if we captured a member of al-Qaida in Africa. 
Do you know what he told me. He said, ``We would need some lawyerly 
help on answering that one.''
  So this is an area that cried out for clarification on a bipartisan 
basis because it is so important to ensure that while we remain at war 
with terrorists that we have the right policies in place to protect 
Americans. That is why the Armed Services Committee worked very hard.
  I thank the chairman of the committee, Chairman Levin, for his 
diligent work, along with other members of the committee for coming 
forward with this provision--that the Senator from Colorado is seeking 
to strike--as well as the ranking member, Senator McCain.
  What ended up happening is, we brought forward a compromise that 
passed overwhelmingly out of committee originally in June. In fact, it 
passed out 25 to 1, and then the administration raised some concerns 
about it. In reaction to those concerns, I know the chairman of the 
Armed Services Committee, as well as the ranking member and some others 
of us, including myself, sat down with members of the administration to 
hear out their concerns and to try to accommodate their concerns while 
still making sure we had a policy that would give proper guidance, 
would protect Americans, and would fundamentally deal with this issue 
of making sure, in the first instance, that we reaffirmed our authority 
that we are at war with al-Qaida post 9/11; second, reaffirming that 
when we are at war the presumption is military custody because the 
priority has to be gathering intelligence to protect our country; and 
then, third, those who are released from Guantanamo, making sure there 
is a standard in place so they cannot reengage back into the battle to 
harm our troops, our partners, and our allies.
  In that process, that is how this provision was derived that Senator 
Udall from Colorado seeks to strike with his amendment. If we were to 
eliminate these provisions, we would be putting our country in a 
position where these important issues are not being addressed, and they 
need to be addressed just based on what we have heard from our military 
leadership over many months in the Armed Services Committee.
  So I would also echo what Senator Chambliss, who is the vice chairman 
of the Intelligence Committee, said. This is an issue that has been 
thoroughly discussed in this body and cries out for passage in the 
Defense Authorization Act. I want to point out a couple of very 
important parts to this. Now, I am someone who, on the recent 
appropriations bill, the CJS appropriations bill, brought an amendment 
that would have provided for military commissions trials for members of 
al-Qaida and associated forces who have committed an attack against us 
or our coalition partners because I am deeply concerned that this 
administration has been treating these types of cases as common 
criminal cases.
  When I brought that amendment forward, it did not pass this body. I 
feel very strongly that the policy should be that we treat these cases 
for what they are, military cases, because we remain at war and our 
priorities should be to gather intelligence. But I point out the fact 
that after my amendment lost, I sat down with the chairman of the Armed 
Services Committee, the ranking member, and the administration to hear 
out their concerns.
  So while this amendment--I would have gone further in my amendment--
addresses many of the objections that were raised--in fact, I think all 
of the objections which were raised to the amendment I brought to the 
floor from the other side; that is, we have given the administration 
flexibility to make the decision on whether they believe it is 
appropriate, based on national security concerns, which has to be the 
primary concern and consideration of how to treat those who have 
committed an attack on our country who are members of al-Qaida or 
associated forces, and also who are not members of this country, so who 
are foreign citizens and are seeking to attack our country or have 
attacked our country in a way that the administration can decide it is 
best to handle them in a civilian court or a military system.
  So all of the objections that were raised to my amendment--I stand by 
my amendment--but they are addressed in this compromise. And to hear 
the objection to it, that there is not flexibility, it is very clear 
that is just not true when you look at the language in this amendment 
because we adjusted the amendment to address the administration's 
concerns to say no interrogation will be interrupted based upon this 
amendment; that interrogations have to be the priority, and we are 
giving the administration maximum flexibility under this amendment.
  So I do not understand why there are such objections continuing when 
this is as a result of a very good, strong good-faith effort to address 
any operational concerns that were raised based on the amendment I 
brought and even based on the prior language which, in my view, I think 
was very sufficient.
  I want to point out something that is very important. In the course 
of the discussions we had with the administration on section 1031, 
which we have heard cited as a section that could be used to detain 
Americans indefinitely, this section was changed based on feedback from 
the administration. In fact, the administration asked us to actually 
strike a provision in it that would have said American citizens--it did 
not apply to American citizens, and, in fact, had to comply with the 
Constitution of the United States.
  So I am a little bit apoplectic to understand why the administration 
is raising an objection about something they actually asked to be 
removed on a section they told us they were satisfied with and based on 
revisions that we made that they wanted. We said we would be happy to 
make these accommodations because we wanted to make sure we got this 
right.
  So on that section, I do not understand why we are in a position 
where the Senator from Colorado is trying to remove it--the 
administration is objecting to it--when we took the language they gave 
us and incorporated it directly into the National Defense Authorization 
Act.
  One point I think is being lost: So why is it that this amendment 
creates an initial presumption for military custody? This is the most 
important point. The priority has to be in protecting American citizens 
by gaining available intelligence to protect our country. The esteemed 
Senator from Illinois cited the case of the so-called Christmas Day or 
Underwear Bomber as an example of how cases have worked well.
  Well, I think it is important to appreciate the facts of that case. 
This is a situation where the underwear bomber is caught with the 
explosives strapped to him, where there are hundreds of witnesses on 
the plane, and they were able to make their case in the absence of any 
interrogation or confession. What ended up happening is he was 
questioned at the scene for about 50 minutes? Then he was read his 
Miranda rights, one of those being: You have the right to remain 
silent.
  Let's think about that for a second. We would want to tell 
terrorists: You have you have the right to remain silent. Common sense 
will tell you telling a terrorist they have the right to remain silent 
is counter to what we need to do to protect Americans. We do not want 
them to remain silent, we want them to tell us everything they know. 
But continuing on with that case, the only reason he reengaged in 
providing information for our country is because his parents 
intervened. Weeks later, his parents convinced him

[[Page 17840]]

he should cooperate with us; that he should provide information and 
tell us what he knew.
  If our interrogation policy for people who commit attacks on our 
country is going to be, well, we hope a parent comes and intervenes to 
help us get information that will protect Americans, I think we are in 
trouble if that is our intelligence-gathering procedure.
  So I wanted to point out, since that case is cited as an example by 
the Senator from Colorado and the Senator from Illinois as to why this 
section should be struck, if anything, I think that case points out why 
we need guidance in this area and why it is very important the priority 
be on gathering intelligence.
  That is what this amendment does. It gives the administration 
sufficient flexibility, based on concerns they raised, operational 
concerns. If the FBI is conducting an interrogation, they do not have 
to stop it because of anything in this provision. That is very clear.
  If the administration wants to treat someone in a civilian court, 
even though I do not think they should versus a military commission who 
is a member of al-Qaida who has attacked our country, that waiver is in 
here. That flexibility is in here.
  This was a reasonable compromise where people like me who would have 
gone a lot further did not get what we wanted. But what we did do is 
get a very strong bipartisan compromise that came out of this committee 
overwhelmingly. When we had a vote at the beginning of the week, and 
the Senator from Colorado raised the very same amendment to strike this 
provision, it was rejected overwhelmingly on a bipartisan basis.
  So I hope this Chamber will also overwhelmingly reject striking this 
very important provision from the National Defense Authorization Act.
  Again, we cannot be in a position where we spend the next year in the 
Armed Services Committee again hearing from our military leaders: The 
administration is still in the final stages of revising or establishing 
its detention policy. I certainly do not want to hear again from one of 
our generals, when I ask him about our detention policy and what we are 
going to do with terrorists: I would need some lawyerly help in 
answering that one.
  This amendment gives us the guidance we need. I would ask my 
colleagues to reject striking it from the authorization.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I view the detention provisions of 
this bill as real pernicious, as an attack on the Executive power of 
the President, and contrary to the best interests of this Nation. So I 
rise to express my strong opposition to three specific detention 
provisions in the Defense authorization bill.
  There was some discussion on the Senate floor that the Intelligence 
Committee had reviewed these. This is not true. I would like to read a 
letter that I sent to the majority leader that was signed by every 
Democratic member of the Intelligence Committee on October 21.

       We write as members of the Senate Judiciary Committee--

  Because there were some Judiciary Committee members on this.

     and the Senate Select Committee on Intelligence, to express 
     our grave concern with subtitle D, titled Defense Matters of 
     title 10 of S. 1253, the National Defense Authorization Act 
     for Fiscal Year 2012. We support the majority of provisions 
     in the bill which further national security and are of great 
     importance. But we cannot support these controversial 
     detention positions.

  Then we go on to say--and I will not read the whole letter. I will 
put the whole letter in the Record.

       The executive branch must have the flexibility to consider 
     various options for handling terrorism cases, including the 
     ability to prosecute terrorists for violations of U.S. law in 
     Federal criminal court.
       Yet, taken together, sections 1031 and 1032 of subtitle (d) 
     are unprecedented and require more rigorous scrutiny by 
     Congress. Section 1031 needs to be reviewed to consider 
     whether it is consistent with the September 18, 2001, 
     authorization for use of military force, especially because 
     it would authorize the indefinite detention of American 
     citizens without charge or trial . . .

  I will stop reading here, but again, I want to emphasize this point. 
We are talking about the indefinite detention of American citizens 
without charge or trial. We have not done this at least since World War 
II when we incarcerated Japanese Americans. This is a very serious 
thing we are doing. People should understand its impact.
  I want to outline the provisions in the Armed Services bill that 
would further militarize our counterterrorism efforts and ignore the 
testimony and recommendations of virtually all national security and 
counterterrorism officials and experts. We have heard from the 
Secretary of Defense, the Attorney General, the general counsel of the 
Defense Department, and John Brennan, the Assistant to the President 
for Homeland Security and Counterterrorism. Every one of them opposes 
these provisions. They have to carry them out. They are the 
professionals responsible for so doing. Yet, we are going to 
countermand them?
  The first problematic provision, section 1032, requires mandatory 
military custody with no consideration of the details of individual 
cases. The bill mandates military detention of any non-U.S. citizen who 
is a member of al-Qaida, or an associated force, whatever that may be, 
and who planned or carried out an attack, or attempted attack, on this 
country or abroad. Here is the problem: The Armed Services Committee 
ignores the administration's request to have this provision apply only 
to detainees captured overseas. Therefore, any noncitizen al-Qaida 
operative captured in the United States would be automatically turned 
over to military custody.
  Military custody for captured terrorists may make sense in some 
cases, but certainly not all. Requiring it in every case could harm our 
Nation's ability to investigate and respond to terrorist threats and 
create major operational hurdles. For example, the FBI has 56 local 
field offices around the country. It is staffed with agents who can 
arrest, interrogate, and detain. The military does not. As has been the 
policy of Republican and Democratic Presidents before and after 9/11, 
the decision about where to hold a prospective terrorist should be 
based on the facts of each case, and should be made by national 
security professionals in the executive branch.
  In a letter, Secretary Panetta said this week that this provision 
``restrains the executive branch's options to utilize, in a swift and 
flexible fashion, all the counterterrorism tools that are now legally 
available.''
  He added that the bill as written ``. . . may needlessly complicate 
efforts by frontline law enforcement professionals to collect critical 
intelligence concerning operations and activities within the United 
States.''
  This is the man who ran the CIA and is now running the Department of 
Defense, and we are going to ignore him? Are we saying it doesn't make 
any difference what he says? I am not part of that school of thought. I 
think what he says does make a difference.
  I ask unanimous consent to have Secretary Panetta's November 15 
letter printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                     The Secretary of Defense,

                                Washington, DC, November 15, 2011.
     Hon. Carl Levin,
     Chairman, Committee on Armed Services, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: I write to express the Department of 
     Defense's principal concerns with the latest version of 
     detainee-related language you are considering including in 
     the National Defense Authorization Act (NDAA) for Fiscal Year 
     2012. We understand the Senate Armed Services Committee is 
     planning to consider this language later today.
       We greatly appreciate your willingness to listen to the 
     concerns expressed by our national security professionals on 
     the version of the NDAA bill reported by the Senate Armed 
     Services Committee in June. I am convinced we all want the 
     same result--flexibility for our national security 
     professionals in the field to detain, interrogate, and 
     prosecute suspected terrorists. The Department has 
     substantial concerns, however, about the revised text, which 
     my staff has just received within the last few hours.
       Section 1032. We recognize your efforts to address some of 
     our objections to section

[[Page 17841]]

     1032. However, it continues to be the case that any 
     advantages to the Department of Defense in particular and our 
     national security in general in section 1032 of requiring 
     that certain individuals be held by the military are, at 
     best, unclear. This provision restrains the Executive 
     Branch's options to utilize, in a swift and flexible fashion, 
     all the counterterrorism tools that are now legally 
     available.
       Moreover, the failure of the revised text to clarify that 
     section 1032 applies to individuals captured abroad, as we 
     have urged, may needlessly complicate efforts by frontline 
     law enforcement professionals to collect critical 
     intelligence concerning operations and activities within the 
     United States.
       Next, the revised language adds a new qualifier to 
     ``associated force''--that acts in coordination with or 
     pursuant to the direction of al-Qaeda.'' In our view, this 
     new language unnecessarily complicates our ability to 
     interpret and implement this section.
       Further, the new version of section 1032 makes it more 
     apparent that there is an intent to extend the certification 
     requirements of section 1033 to those covered by section 1032 
     that we may want to transfer to a third country. In other 
     words, the certification requirement that currently applies 
     only to Guantanamo detainees would permanently extend to a 
     whole new category of future captures. This imposes a whole 
     new restraint on the flexibility we need to continue to 
     pursue our counterterrorism efforts.
       Section 1033. We are troubled that section 1033 remains 
     essentially unchanged from the prior draft, and that none of 
     the Administration's concerns or suggestions for this 
     provision have been adopted. We appreciate that revised 
     section 1033 removes language that would have made these 
     restrictions permanent, and instead extended them through 
     Fiscal Year 2012 only. As a practical matter, however, 
     limiting the duration of the restrictions to the next fiscal 
     year only will have little impact if Congress simply 
     continues to insert these restrictions into legislation on an 
     annual basis without ever revisiting the substance of the 
     legislation. As national security officials in this 
     Department and elsewhere have explained, transfer 
     restrictions such as those outlined in section 1033 are 
     largely unworkable and pose unnecessary obstacles to 
     transfers that would advance our national security interests.
       Section 1035. Finally, section 1035 shifts to the 
     Department of Defense responsibility for what has previously 
     been a consensus-driven interagency process that was informed 
     by the advice and views of counterterrorism professionals 
     from across the Government. We see no compelling reason--and 
     certainly none has been expressed in our discussions to 
     date--to upset a collaborative, interagency approach that has 
     served our national security so well over the past few years.
       I hope we can reach agreement on these important national 
     security issues, and, as always, my staff is available to 
     work with the Committee on these and other matters.
           Sincerely,
                                                  Leon E. Panetta.

  Mrs. FEINSTEIN. Let me explain why this proposal is bad policy.
  Consider the case of Najibullah Zazi. He was arrested in September of 
2009 as part of an al-Qaida conspiracy to carry out suicide bombings of 
the New York City subway system. The FBI arrested Zazi after they had 
followed him on a 24/7 basis. He began providing useful intelligence to 
the FBI once captured.
  If the mandatory military custody in the Armed Services bill were 
law, all of the surveillance activities, all of what the FBI did would 
be in jeopardy. Instead of interrogating him about his coconspirators, 
or where he had hidden other bombs, the FBI would have squandered 
valuable time determining whether Zazi was a member or part of al-Qaida 
or an ``associated force.'' Requiring law enforcement and national 
security professionals to determine whether an individual meets a 
specific legal definition adds a delay--most people would have to admit 
this. Also a waiver process takes time as it proceeds through the 
President and Secretary of Defense, both of whom believe it unduly 
complicates the ability to immediately interrogate an individual or 
prevent another attack.
  Suppose a terrorist such as Zazi were forced into mandatory military 
custody. Then the government could also have been forced to split up 
codefendants, even in cases where they otherwise could be prosecuted as 
part of the same conspiracy in the same legal system.
  Zazi was a permanent legal resident. His coconspirators were both 
U.S. citizens. They would be prosecuted on terrorist charges in Federal 
criminal court, but Zazi himself would be transferred to military 
custody. Two different detention and prosecution systems would play out 
and could well complicate a unified prosecution.
  Incidentally, in the Zazi case, prosecutors have obtained convictions 
against six individuals, including guilty pleas from Zazi, who faces 
life in Federal prison without parole.
  What could be better than that? If it is not broke, don't fix it. 
What is happening now isn't broke. That is the point.
  Guess what. I try to do my homework, I read the intelligence, and I 
try to know what is happening. It is working. The government has its 
act together. Now arbitrarily this is going to change because there is 
a predilection of some people in this body that the military must do it 
all--if they cannot do it all, a part of it. But what this does is 
essentially militarize certain criminal terrorist acts in the United 
States. I have a real problem with that. I don't understand why 
Congress would want to jeopardize successful terrorism prosecutions.
  The former speaker was talking about Farouq Abdulmutallab, better 
known as the Underwear Bomber, from Christmas Day in 2009. 
Abdulmutallab was brought into custody in Detroit after failing to 
detonate a bomb on Northwest Flight 253. He was interrogated almost 
immediately by FBI special agents. And he talked.
  Some critics contend that Abdulmutallab stopped talking later that 
day because he was Mirandized. That happens to be correct, at least 
temporarily. But what these critics don't mention is that he likely 
would have been even less forthcoming to military interrogators.
  It was FBI agents who traveled to Abdulmutallab's home in Nigeria and 
persuaded family members to come to Detroit to assist them in getting 
him to talk. The situation would have been very different under Section 
1032. Under the pending legislation, it would have been military 
personnel who were attempting to enlist prominent Nigerians to assist 
in their interrogation, and Abdulmutallab would have been classified as 
an enemy combatant and held in a military facility and, therefore, his 
family would not be inclined to cooperate. This is we have been told on 
the Intelligence Committee.
  For the record, Umar Farouq Abdulmutallab pleaded guilty to all 
charges last month in a Federal criminal court in Michigan and will 
likely spend his life behind bars. What can be better than that? Where 
can the military commission come close to that effort? In fact, they 
can't. They had 6 cases, minor sentences, or released, plus 300 to 400 
convictions in Federal Court.
  To conclude on this mandatory military custody provision, the Defense 
Department has made clear it does not want the responsibility to take 
these terrorists into mandatory military custody. But do we know 
better? I don't think so.
  The Department of Justice has said that approximately one-third of 
terrorists charged in Federal Court in 2010 would be subject to 
mandatory military detention, absent a waiver from the Secretary of 
Defense.
  The administration contends that the mandatory military custody is 
unwise because our allies will not extradite terrorist suspects to the 
United States for interrogation and prosecution--or even provide 
evidence about suspected terrorists--if they will be sent to a military 
brig or Guantanamo.
  Finally, the military isn't trained or equipped for this mission--
they have plenty to do as it is--but the Department of Justice is.
  As John Brennan, the Assistant to the President for Homeland Security 
and Counterterrorism, said in March:

       Terrorists arrested inside the United States will, as 
     always, be processed exclusively through our criminal justice 
     system. As they should be.

  I agree.

       The alternative would be inconsistent with our values and 
     our adherence to the rule of law. Our military does not 
     patrol our streets or enforce our laws in this country. Nor 
     should it.

  I could add that our military doesn't spend its resources and 
expertise surveilling terrorists in the U.S. like Najibullah Zazi, as 
the FBI did, to know his every move, to know where he bought the 
chemicals, to know the

[[Page 17842]]

amount of chemicals, to know what backpacks they had, and to follow him 
to New York. It makes no sense to me to have to transfer that 
jurisdiction.
  The second problematic provision imposes burdensome restrictions to 
transfer detainees out of Guantanamo, section 1033. This provision 
essentially establishes a de facto ban on transfers of detainees out of 
Gitmo, even for the purpose of prosecution in U.S. courts or another 
country.
  The provision requires the Secretary of Defense to make a series of 
certifications that are unreasonable--and, candidly, unknowable--before 
any detainee is transferred out of Gitmo.
  Again, here is an example: The administration proposed eliminating 
the requirement that the Secretary of Defense certify that the foreign 
country where the detainee will be sent is not ``facing a threat that 
is likely to substantially affect its ability to exercise control over 
the individual.''
  How can the Secretary of Defense certify that--facing a threat that 
is likely to not just affect, but substantially affect, its ability to 
exercise control over the individual? What does it mean for a nation to 
``exercise control'' over a former Gitmo detainee? Does he have to be 
in custody? Can he have an ankle bracelet? Is he remanded to his home? 
Is he in some county facility somewhere? What does it mean?
  The Secretary of Defense must also certify, in writing, that there is 
virtually no chance that the person being transferred out of American 
custody would turn against the United States once resettled.
  I agree with the sentiment, but as it is written, this is another 
impossible condition to satisfy.
  The administration tried to work with the Armed Services Committee to 
make this section more workable, but the input by professionals in the 
defense, law enforcement, and intelligence communities, quite frankly, 
was rejected.
  The committee didn't address the concerns of the administration 
except to limit these restrictions to 1 year.
  In his November 15 letter, Secretary Panetta wrote he was troubled 
this section remains essentially unchanged and that none of the 
administration's concerns or suggestions for the provision were 
adopted. This in itself is a concern. The views of the professionals 
who do this day in and day out should be considered. Congress is not on 
the streets, we are not shadowing terrorists, we are not putting 
together intelligence. So I find this just terribly imperious.
  The third problematic detention provision reverses the interagency 
process of detention reviews for those detained at Guantanamo.
  Let me begin by saying I support detention of terrorists under the 
law of war. There must be a way to hold people who would, if free, take 
up arms against us. But detention without charge, perhaps forever, is a 
power that must be subject to serious review to ensure it is applied 
correctly and that we are only holding people--in some cases for 
decades--with cause and careful consideration and review.
  Incidentally, this would apply to U.S. citizens. Do we want to go 
home and tell the people of America we are going to hold them, if such 
a situation comes up, without any thorough and considered review? It is 
just not the American way.
  In March, the President issued an executive order that laid out the 
process for reviewing each detainee's case to make sure indefinite 
detention continues to be an appropriate and preferred course. Section 
1035 essentially reverses the interagency process created by the 
President's order.
  Let me just say a few things about this process. The Secretary of 
Defense is in charge of the decision. He is allowed to reject the 
findings of an interagency review board that includes a senior official 
from the State Department, the Department of Defense, the Justice 
Department, DHS, the Office of the Director of National Intelligence, 
and the Office of the Chairman of the Joint Chiefs of Staff. They, 
together, review a case of a person who could be held forever without 
trial, without charge. They can deliberate on the kind of threat this 
individual continues.
  There are people who are in Guantanamo--or I should say who were in 
Guantanamo--who were simply in the wrong place at the wrong time. That 
is possible for an American as well. Everything we are all about is to 
see that the system is a just system. This is not just and particularly 
not for a U.S. citizen. I don't care who they are, they have certain 
rights under the Constitution as a U.S. citizen.
  Why should we place the Department of Defense above the unified 
judgment of five other departments on what is, at its heart, a question 
about the legality of continued detention, the assessment of the threat 
a detainee poses, and the options available to handle that individual?
  Secretary Panetta is not requesting new authority in this section. 
Again, reading from the Secretary's November 15 letter, he says:

       Section 1035 shifts to the Department of Defense 
     responsibility for what has been a consensus-driven 
     interagency process that was informed by the advice and views 
     of counterterrorism professionals from across the Government. 
     We see no compelling reason--and certainly none has been 
     expressed in our discussions to date--to upset a 
     collaborative, interagency approach that has served our 
     national security so well over the past few years.

  Let me conclude by saying I support the vast majority of provisions 
in this authorization. The bill improves our national security and it 
is essential to meet our commitment to the men and women of our Armed 
Forces. I understand all that, and I have voted for virtually every 
Defense authorization bill. But I intend to continue to oppose these 
three detention policy provisions.
  I have not made up my mind, candidly, how I will vote on this bill. I 
guess maybe I see things a little differently than many in this body, 
because one of the things I have learned in my time here is the 
importance of the U.S. Constitution--and I have had 18 years on the 
Judiciary Committee--and what it means to have due process of law, and 
that means for everybody. That is for the poorest person on the street, 
the wealthiest person or whoever it is. Criminals are entitled to due 
process of law.
  How can we do this? It may not stand the test of constitutionality. 
But be that as it may, despite having raised these concerns months ago 
and offered suggestions to address them, this bill does very little to 
resolve my three principal concerns and those of the administration 
about mandatory military custody and the possibility this bill will 
create operational confusion and problems in the field.
  I look forward to the debate. Candidly, I hope sides haven't 
hardened. The three amendments I will offer will--one will strike the 
language, one will insert the word ``abroad,'' in section 1032, and one 
will carry with it the administration's proposal. I hope there will be 
the opportunity to offer these amendments.
  I can't think of anything more serious that we are doing, and I must 
tell you a lot of effort has gone into putting the FBI in a position by 
creating a huge intelligence operation within the Federal Bureau of 
Investigation to be able to deal with terrorist threats in this 
country. We also have a Department of Homeland Security to do that as 
well. To now say the military is going to take over in certain 
situations is going to end up unworkable, if, in fact, this becomes the 
law and I hope it will not.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I wonder if the Senator from California 
might offer those amendments right now and call them up so we can get a 
vote on them. We are trying to vote on amendments, and I am wondering 
if she could call up one of those amendments, we could debate it, and 
then vote on it.
  Mrs. FEINSTEIN. I only found out this bill was coming up this 
morning, so the administration is reviewing the largest amendment at 
the present time.
  The other two amendments, we may already have filed those.
  We have filed those, but I would prefer to wait until we have the 
larger

[[Page 17843]]

amendment, which is being reviewed by the administration, and then I 
will be making a decision as to which I want to go with.
  Mr. LEVIN. Which amendment is the larger one?
  Mrs. FEINSTEIN. This is the amendment currently being reviewed by the 
administration.
  Mr. LEVIN. Is that one of the three?
  Mrs. FEINSTEIN. Yes.
  Mr. LEVIN. Which was the larger of the three; can the Senator 
describe it for us?
  Mrs. FEINSTEIN. There are several amendments.
  Mr. LEVIN. Which is the one currently being reviewed, if the Senator 
is able to share that with us.
  Mrs. FEINSTEIN. This essentially would strike the detention 
provisions and replace them with proposals from the executive branch. 
It reflects what the White House offered to Senators Levin and McCain 
as compromise language on the detention provisions to address the 
opposition raised by the administration.
  Mr. LEVIN. I thank the Senator.
  Mrs. FEINSTEIN. I have more to say, but I am not sure.
  Mr. LEVIN. That helps. I thank the Senator.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Madam President, one, I would like to begin by thanking 
Senators Levin and McCain. I don't know how long Senator Levin and I 
have been working on this together--it seems like forever--trying to 
get a detainee policy in a post-9/11 world that the courts will accept 
and that lives within our values. I have just been thinking throughout 
the years about the journey we have taken--beginning with the Bush 
administration--where the idea of indefinite detention of unlawful 
enemy combatants originated by executive order.
  I do believe, since 9/11, we have been in a state of undeclared war 
with organizations such as al-Qaida. The Congress created legislation 
early on--right after the attacks of 9/11--allowing the President to 
use military force against al-Qaida. Part of being able to engage 
someone militarily is to detain those we capture. But that has been 
years ago. This is the first time Congress has spoken since the early 
days of the war.
  We tried during the Bush administration to work with the Bush people 
to create a law of war detention system by statute. We had a problem 
there. They felt the executive order was the way to go. I have always 
believed when the Congress and the White House work together, the 
courts appreciate it as being a more collaborative process. So we went 
from sort of one extreme--to where we had military commissions that 
were almost legislating a conviction--to a better product, and the end 
product was the 2009 bill we worked on with Senator Levin that got 
almost 80 votes. So we have come a long way.
  About the detention issue. Here is what I have been trying to 
accomplish for years. I wish to make sure we understand the difference 
between fighting a war and fighting a crime. When it comes to al-Qaida 
operatives, whether they are captured in the United States or overseas, 
the first thing we should be doing as a nation is trying to find out 
what that person knows about the attack in question or future attacks. 
When we capture an enemy prisoner, the first thing our military does is 
turn the person over to the military intelligence community for 
questioning.
  I am of the belief that we have the ability to question people under 
the law of war without congressional authorization. But when the 
Congress acts, it is better for us all. So in this bill, working with 
Senators Levin and McCain, we have, as a body, said the President--this 
President and all future Presidents--will have the ability to detain a 
member of al-Qaida and other allied organizations, regardless of where 
they are captured in the world, and hold them as an enemy combatant.
  Under the law of war, when we capture an enemy prisoner, there is no 
magic date we have to let them go. The problem with this war, unlike 
other wars, is there will not be a definable end. We had 400,000 German 
prisoners in military prisons inside the United States during World War 
II. We weren't going to let those folks go if they had been in jail 1 
year. Not one of them got to go see a Federal judge saying: Let me out 
of here.
  Under the law of war of our military, the executive branch of 
government has the authority to protect the Nation, and courts have not 
interfered with that 200-year right.
  What is different about this war? There are no capitals to conquer, 
there is no air force to shoot down or navy to sink. So we have people 
who don't wear uniforms who are roaming the globe, and they don't have 
a home country, they have a home idea, and we are fighting an ideology. 
Sometimes they make it to our soil and sometimes they don't.
  So here is what we are trying to do. We are trying to create a hybrid 
system, for lack of a better word. If you captured an al-Qaida member 
overseas in Afghanistan, Iraq, or Yemen, it is clear that they have no 
constitutional right to petition a judge in the United States: Let me 
go.
  When we put people in Guantanamo Bay, the Bush administration argued 
that prison wasn't subject to legal review by our courts. And in the 
Hamdi case involving a U.S. citizen captured in Afghanistan, the 
Supreme Court held that we could hold an American citizen as an enemy 
combatant. They suggested to the Bush administration a procedure to 
ratify that decision. They pointed to an Army regulation, 190--I can't 
remember the number--and we tried to come up with a procedure that 
would allow us some due process as a nation for an enemy combatant, 
including an American citizen.
  In the Boumediene case, the Court said: Wait a minute. We are going 
to allow a habeas petition by those held as enemy combatants--American 
citizens or non-American citizens--if they are at Guantanamo Bay 
because we have control over that facility. That is part of the United 
States in terms of our legal infrastructure.
  So the law of the land is that if you are captured overseas, even if 
you are an American citizen, you can be held as an enemy combatant and 
questioned by our military with no right to proceed to a criminal 
venue. It is not a choice to try them or let them go. You can hold an 
unlawful enemy combatant for an indefinite period of time just like you 
could hold any other enemy prisoner in any other war. But what we have 
done differently in this war is we have said: Our courts will review 
the military's decision to declare you as an enemy combatant in a 
habeas procedure--not a criminal trial but a habeas procedure--as to 
whether there is sufficient evidence to label you as an unlawful enemy 
combatant.
  So, to my colleagues on the other side, the law of the land by the 
Supreme Court is that an American citizen can be held as an enemy 
combatant. Like every other enemy combatant, they have habeas rights, 
but they don't have the right to say: Try me in a civilian court or 
military commission court, because when we capture someone, the goal is 
to gather intelligence.
  The Christmas Day Bomber, the Times Square case--the reason many of 
us want military custody from the outset is that under domestic 
criminal law, other than a very narrow public safety exception, we 
don't have the right under criminal law to hold someone for an 
indefinite period of time without providing them a lawyer and telling 
them what their legal rights are or charging them in a court of law. 
And let me say, as a military lawyer, I would never want that to be the 
case. I don't want to change our domestic criminal system to allow us 
to grab someone and hold them indefinitely, pending criminal charges, 
without the right to a lawyer, the right to remain silent being 
presented to the defendant, and presentment to court, because that is 
what criminal law is all about. Under military law, whether it is here 
at home or abroad, you can hold someone suspected of being an enemy 
agent, enemy prisoner, and you can interrogate them humanely and 
lawfully--and we have good laws now governing interrogation 
procedures--without having to present them to a court. That is

[[Page 17844]]

the difference between intelligence gathering and fighting a crime.
  The Padilla case was an American citizen captured inside the United 
States. He was held for about 4 years in Charleston Naval Brig, and the 
Fourth Circuit Court of Appeals ruled that, yes, an American citizen 
captured within the United States can be held as an unlawful enemy 
combatant, but they have the right to counsel when it comes to 
presenting their habeas case. They don't have the ability to tell the 
interrogator and the military: I don't want to talk to you now. I want 
my lawyer.
  When you are talking to a military interrogator or the FBI or the CIA 
trying to gather intelligence, you don't have a right to remain silent, 
you don't have a right to a lawyer because we are trying to defend 
ourselves against an enemy bent on our destruction. The day we decide 
to treat you as a common criminal, even a terrorist suspect, all those 
civilian rights attach.
  So this bill is trying to create a process that if you are captured 
in the United States, this legislation says that you will be 
presumptively put in military custody because that is the only way we 
can hold you and interrogate you because under domestic criminal law, 
that is not available, nor should it be.
  There is a waiver provision here. If the administration believes that 
military custody is not the right way to go, they can waive that. But 
the day you turn someone over to civilian authorities for the purpose 
of prosecution, you have a very limited window to gather intelligence 
because all the criminal rules apply. And what we are trying to do is 
to make sure we can defend ourselves and not overly criminalize the 
war. That is why this is so important.
  As to the White House concerns--they wanted to have that flexibility 
without any statutory involvement--I believe this will serve the Nation 
well long after President Obama leaves office. I don't know who the 
next President will be, but I do believe this: We will be under threat 
and siege by an enemy bent on our destruction.
  So if you believe, as I do, that we are at war but it is a different 
kind of war, please give your Nation--our Nation--the ability to defend 
us. And the best way to be safe in the war on terror is to gather good 
intelligence and hit them and stop them before they hit you because 
they could care less about dying. So intelligence gathering is the way 
to keep us safe.
  Most enemy prisoners captured in traditional wars never go to court. 
The last thing I am worried about is how you prosecute these guys. The 
first thing I worry about is, what do they know, and what is coming our 
way?
  So the provisions of 1032 apply to captures within the United States. 
And we are saying that when an al-Qaida operative suspected of being 
involved in a terrorist act--a very limited class of cases, by the 
way--is captured on our soil, we would like them to be in military 
custody from the get-go. But we have provisions that say: You don't 
have to make that decision or interrupt an interrogation. There is a 
window of time in which you can deal with the case without having to 
make the waiver. We are not impeding interrogations, and we are not 
saying you have to stay in military custody forever because we give 
this administration and future administrations the flexibility to waive 
that provision if it makes sense.
  To the Christmas Day Bomber--he was read his Miranda rights within an 
hour, his family was involved, and it turned out that he pled guilty. I 
am not a professional interrogator, but I do know this: You don't read 
an enemy prisoner their rights when you capture them on the battlefield 
in a war. The question is, Is the United States part of the 
battlefield? That is really what this is about. Are we going to allow 
the enemy to get here, and all of a sudden all the rules change because 
they made it to our homeland? I would argue that the closer they are to 
us, the more we want to know. So it would be an absurd outcome that if 
somehow the enemy could find a way to get to our homeland, all the 
rules change because if you capture one of these guys in Yemen, nobody 
is suggesting you have to give them a lawyer.
  Well, when you get to the United States, what we are suggesting is 
that we have a legal system that understands the difference between 
fighting a war and fighting a crime, and if you are suspected of being 
an al-Qaida member, citizen or not, we are going to find out what you 
know through lawful interrogation techniques. That has to be done under 
the military system because civilian domestic criminal law doesn't 
allow that to be done.
  That is what we created here--a bifurcated system with waivers. If we 
don't have this in place, we are going to lose intelligence and our 
Nation is going to be at risk. People are going to get killed if we 
lose good intelligence.
  So, to me, the idea of reading someone their Miranda rights doesn't 
make a lot of sense, but you have the flexibility to do that, if you 
choose, out in the field. You just have to get a waiver. So when you 
capture somebody on the homeland, I don't want our people to think that 
you have to give them a lawyer and read them their rights and that you 
can't question them about what they know about attacks against our 
homeland. That is dumb. That doesn't make us a better people, that 
makes us less safe. Let's put them in military custody, with the right 
to waive that. Let's give our interrogators plenty of time to find out 
what is going on. Then we will make a decision about where to 
prosecute.
  I believe Federal courts have a role in the war on terror. There have 
been plenty of cases involving terrorism that went to Federal court 
where you had a good outcome. There have been cases going to Federal 
court where you had less than a stellar outcome. The key is, if you are 
holding an enemy combatant for 4 or 5 years under the law of war, I 
don't think it makes sense to put them in civilian court. You should 
put them in military commissions. And we are talking about people we 
have been holding for a period of time because we looked at them as a 
military threat, not as a common criminal.
  So the provisions in 1032 are good law that will stand the test of 
time. It will allow us on our homeland to do what we can do overseas. 
Wouldn't it be odd not to be able to protect yourself because the enemy 
got to the United States less than you could if you captured them 
overseas?
  Now let's talk a little bit about American citizens. There are a few 
people--and I give them credit for having passionate, honest-held 
beliefs that the President of the United States doesn't have the 
authority to designate an American citizen who has now joined al-
Qaida--to issue an order to kill him--this al-Awlaki guy who was in 
Yemen. The bottom line is, the President, through a legal process we 
created years ago, made a determination that an American citizen has 
joined the enemy forces, and he issued an order through a legal process 
that says: If you find this guy, you can capture or kill him.
  Now, wouldn't it be odd if you had a law that says you can kill 
somebody, but when you capture them, you can't hold them for a very 
long time, you can't indefinitely detain them? Well, death is pretty 
indefinite. So if you can kill a guy, why in the world can't you hold 
them and interrogate them to find out what they know about this attack 
or future attacks?
  So let's be consistent. It makes sense to me that if an American 
citizen wants to join al-Qaida, they are no longer our friend, they are 
our enemy. And if the evidence is solid and it has gone through a legal 
process and this President or any other President determined that an 
American citizen is now operating abroad trying to harm us, joining al-
Qaida, I believe they have the absolute legal and moral authority to 
identify that person as a threat to the United States; kill or capture. 
And if you don't agree with me, fine. I think about 80 percent of my 
fellow citizens do. It would be absurd not to be able to have that 
ability. Citizenship is something to be respected. It is something to 
be cherished. It is not a ``get out of jail free'' card when you turn 
on your fellow citizens.
  So at the end of the day, we have a system in place now that I am 
very proud of.

[[Page 17845]]

  To Senator Levin, we have negotiated and we have compromised because 
the administration had some legitimate concerns. They had some 
legitimate concerns about Congress overly mandating how you detain, 
interrogate, and try prisoners. What we have come up with is the 
balance I have been seeking for 5 years. If you capture someone in the 
United States, you start with the presumption that you are going to 
gather intelligence in a lawful manner and prosecution is a secondary 
concern. We give the executive branch the ability to waive that 
requirement, and we have conditions on that requirement that will not 
interrupt an interrogation.
  But we need to let this President know, and every other President, 
that if you capture someone in the homeland, on our soil--American 
citizen or not--who is a member of al-Qaida, you do not have to give 
them a lawyer or read them the rights automatically. You can treat them 
as a military threat under military custody, just like if you captured 
them overseas.
  So this provision that Senators Levin, McCain Ayotte, and all of us 
have worked on makes perfect sense to me. It is a balance between 
protecting our homeland, living within our values, and giving the 
executive branch the flexibility they need to protect us, but just 
using good old-fashioned common sense. Under domestic criminal law, you 
cannot hold someone indefinitely without giving them a lawyer or 
reading them their rights, nor should you. But under military law, if 
you have evidence that the person is a military threat, you don't have 
to give them a lawyer. That makes no sense whether you capture them 
here or overseas.
  Everyone held as an unlawful enemy combatant has the right to access 
our Federal courts. Under this bill, it is not just one time you get to 
go to court. We create an annual review process so that if you are held 
as an enemy combatant in military prison or civilian prison, you will 
get an annual review. We don't want you to go into a black legal hole. 
We don't want an enemy combatant determination to be a de facto life 
sentence.
  I am proud of this work product. We go further than what the courts 
require. The courts require a habeas review of any person held as an 
enemy combatant. But at the end of the day, we say you have an annual 
review.
  That requirement is for people captured in the United States, held at 
Gitmo. It doesn't apply to people held in Afghanistan. Thank God it 
doesn't. But in circumstances where someone is captured in the United 
States, held at Guantanamo Bay, every person will have their day in 
court to challenge the status of enemy combatant, and if they are going 
to be held indefinitely, they are going to get an annual review process 
as to whether it makes sense to hold them for 1 year.
  Again, I wish to emphasize in war we do not have to let people go who 
are a danger. Most of these cases are intel cases. We are not fighting 
a crime, we are fighting a war. If the intelligence is good enough to 
convince a Federal judge that this person is a military threat, why in 
God's name would you want to let him go because of the passage of time? 
Our message to al-Qaida recruits is don't join al-Qaida because you 
could get killed or wind up dying in jail. Isn't that the message we 
want to send? Why in the world would we require our Nation to release 
somebody when the evidence presented to a Federal judge is convincing 
enough for him to sign off on what the military determined at an 
arbitrary point in time? That doesn't make us better people. It would 
make us less safe.
  This bill is a very sound, balanced work product, and I will stand by 
it, I will fight for it, and I respect those who may disagree. But why 
did we take out the language Senator Levin wanted me to put in about an 
American citizen could not be held indefinitely if caught in the 
homeland? The administration asked us to do that. Why did they ask us 
to do that? It makes perfect sense. If American citizens have joined 
the enemy and we captured them at home, we want to make sure we know 
what they are up to, and we do not want to be required, under our law, 
to turn them over to a criminal court, where you have to provide them a 
lawyer at an arbitrary point in time. So the administration was 
probably right to take this out.
  Simply stated, if you are an American citizen and you want to join 
al-Qaida: Bad decision; you could get killed or you could spend the 
rest of your life in military prison as a military threat or you could 
wind up in an article 3 court and maybe get the death penalty. I want 
people to know there is a downside to joining the enemy. I want to give 
our country the tools we need as a nation to fight an enemy and do it 
within our values. I don't want to waterboard people, but I don't want 
the only interrogation tool to be the Army Field Manual, online where 
anybody can read it. I wish to make sure everybody has a chance to say: 
I am not an enemy combatant. But I don't want to criminalize the war by 
capturing somebody on our soil and saying: You have a right to remain 
silent, when we would never read that right and present that to them if 
we captured them overseas.
  We want to make sure we can gather intelligence, whether we capture 
them at home or abroad, whether they are an American citizen or not, if 
there is evidence they have joined al-Qaida.
  To my colleagues, if you join al-Qaida, no matter where you join, no 
matter where you take up arms against the United States, we have every 
right in the world to treat you as a military threat. People who have 
joined al-Qaida are not members of a mob. They are not trying to enrich 
themselves. They are trying to put the world into darkness. Our laws 
need to distinguish the difference between a guy who robbed a liquor 
store and somebody who wants to blow up an airplane over Detroit or 
blow up innocent people in Times Square. If you do not understand that 
difference and if you do not have a legal system that can recognize 
that difference, then we have failed the American people.
  This is a good work product. It has strong bipartisan support. We 
worked with the administration. But we are in a long war where a lot is 
at stake. I have tried to be as reasonable as I know how to be, and 
this work product is the best effort of a lot of well-meaning people, 
Republicans and Democrats. I will defend it. If you want to keep 
arguing about it, some people suggested we will talk a long time about 
this--yes, we will talk a long time about this. We will have a good 
discussion among ourselves as to whether an al-Qaida operative caught 
in the United States gets more rights than if we caught him overseas. 
We will have an argument among ourselves as to whether our military 
should be able to gather intelligence to protect us, regardless of 
where the person is captured, and the question for the nation is: Is 
America part of the battlefield? You better believe it is part of the 
battlefield. This is where they want to come. This is where they want 
to hurt us the most. If they make it here, they should not get more 
rights than they would get if they attacked us overseas.
  They should not be tortured because it is about us, not about them. 
The reason I don't want to torture anybody is because I like being an 
American. I think it makes us stronger than our enemies. There are ways 
to get good intelligence from the enemy without having to mimic their 
behavior. I do believe the military's work product should be judged and 
reviewed in Federal court in a reasoned way. That is part of this 
legislation. I do not want anybody to be sitting in jail forever 
without some review process so that one day maybe they could get out.
  But here is what I will not tolerate. I will not criminalize what is 
a war. I will not put this Nation in the box of having captured a 
terrorist, when the evidence is solid that we know they are part of the 
enemy trying to kill us and say we have to give them a lawyer or let 
them go because of the passage of time. That makes no sense.
  Senator Levin, Senator McCain, this is a product we should be proud 
of. We should fight for it, and we are going to fight. If you want to 
make it a long fight, it will be a long fight. We are not giving up.
  Mr. McCAIN. Will the Senator yield for a question?

[[Page 17846]]

  The PRESIDING OFFICER (Mr. Begich). The Senator from Arizona.
  Mr. GRAHAM. Yes.
  Mr. McCAIN. I am a little puzzled. Maybe the Senator from South 
Carolina has a response to this. Perhaps Chairman Levin does. We did 
give a national security waiver, which is very generous, in that the 
President just has to certify that it is in the national interest.
  Mr. GRAHAM. Right.
  Mr. McCAIN. Why does he think that would not be acceptable if there 
were a case where an individual would be held by civilian authorities 
rather than military authorities?
  Mr. GRAHAM. The only answer I can give to Senator McCain is that 
there is a legitimate concern about encroaching on executive power. I 
have that concern. The executive branch is the lead agency in this war. 
They are the lead agency when it comes to prosecuting crime. But what I 
am trying to do, along with his help and that of Senator Levin, is to 
create statutory authority for this President and future Presidents 
that will serve the Nation well.
  Congress has been too quiet and too silent. During the Bush years, we 
did not assert ourselves enough. We let things go. We were reluctant to 
get involved. Now we are involved in a constructive way.
  What we have said as a Congress, if this bill passes, is that the 
executive branch has flexibility, but the Congress of the United 
States--which has powers when it comes to war--believes that an al-
Qaida operative, those associated with al-Qaida, should be initially 
held in military custody because we are trying to gather intelligence. 
As I tried to explain, if you turn them over to civilian authorities 
for law enforcement purposes, then the whole process of intelligence 
gathering stops. You have to read Miranda rights. There is a very 
limited public safety exception. We allow a waiver if that is in the 
best interests of our national security. We have requirements in the 
bill not to impede interrogation. That is why we are doing this, 
because we want a process that will allow us to deal with people caught 
in the United States in a consistent way from administration to 
administration and understand the distinction between gathering 
intelligence to defend yourself in a war and prosecuting a crime.
  Mr. McCAIN. Everyone we capture may not be as stupid as the couple 
who waived their Miranda rights. One of them is going to be pretty 
smart and certainly not waive their Miranda rights. Wouldn't that make 
sense over time?
  Mr. GRAHAM. The Senator is absolutely right. The flexibility of 
whether to Mirandize somebody exists. I don't know what is the best 
way. I do believe the best start is to take the Christmas Day Bomber 
off the plane and interrogate him in terms of what he knows about 
future attacks, how he planned this attack, and worry about prosecution 
in a secondary fashion. The only way you can do that is through a 
military custody intelligence-gathering process.
  At the end of the day, I do believe it makes a lot of sense for the 
Congress to weigh in. We have not done it before. We have balanced this 
out. The administration's concerns have been met as much as I know how 
to meet them, and I am very proud of the work product.
  Mr. LEVIN. Will the Senator yield for a question?
  Mr. GRAHAM. Yes.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. The Christmas Day Bomber, I believe he was taken off that 
plane in Detroit, he was interrogated by the FBI; is that correct?
  Mr. GRAHAM. Yes, I believe so.
  Mr. LEVIN. There was nothing wrong with that. That was the choice of 
the executive branch. It worked here.
  Mr. GRAHAM. Nothing wrong with that.
  Mr. LEVIN. We make it flexible. This is something which I heard today 
from the supporters of this amendment. They want flexibility.
  Mr. GRAHAM. Right.
  Mr. LEVIN. That is exactly what we provide in this amendment. That is 
the question Senator McCain just asked: If this administration or any 
administration decides that they want to provide the civilians with 
opportunity to interrogate, for whatever length of time they want, they 
are going to set the procedures under this language in our bill; is 
that not correct? The President will determine the procedures. If he 
wants those procedures to be civilian control until some point, that is 
going to be up to the President. We may disagree with that or not.
  Mr. GRAHAM. Exactly.
  Mr. LEVIN. There are Members of our body who very strongly disagree 
with that.
  Mr. GRAHAM. Right.
  Mr. LEVIN. But that is not who is going to decide. We are not going 
to make the decision that the person is going to be given or not given 
civilian interrogation. That decision is going to be made by a 
President who sets the procedures for interrogation and will decide 
whether to provide a waiver; is that correct?
  Mr. GRAHAM. That is contract. If I might continue the conversation 
for a minute, if you don't mind. Would the Senator agree with me that 
if we all of a sudden required our soldiers to read Miranda warnings to 
an al-Qaida operative caught in Afghanistan, people would think we were 
crazy?
  Mr. LEVIN. I would think it would be a very bad policy.
  Mr. GRAHAM. OK. What if we have the very same person who made it out 
of Afghanistan and makes it to America. I think most people would want 
us to gather intelligence to find out what is coming next. Would the 
Senator agree with me, if you put someone in civilian control for the 
purpose of prosecution, intelligence gathering becomes very difficult?
  Mr. LEVIN. Not necessarily. I think there are occasions where the 
civilian interrogation may be actually more workable.
  Mr. GRAHAM. OK. Fair enough. But does the Senator agree with me that 
you cannot indefinitely hold someone under domestic criminal law 
without presenting them to court or reading them Miranda rights?
  Mr. LEVIN. That is correct--indefinitely. But how long that lasts is 
a procedure the President is going to determine.
  Mr. GRAHAM. Right. But here is the point we are going to make. Some 
of us believe that presentment to a court and a Miranda warning may not 
be the best way to go, in terms of gathering intelligence. Under 
military custody for intelligence gathering there is no right to remain 
silent; does the Senator agree with that?
  Mr. LEVIN. Under military custody, yes.
  Mr. GRAHAM. So we are starting the game with military custody but for 
the reasons the Senator just said--and they may be good reasons, to say 
that is not the right way to go--they can go down another path. That is 
all we are trying to do. Because there is a sort of a gap when it comes 
to someone caught in the United States. We are trying to provide 
clarity, what to do with an al-Qaida member caught in the United 
States, to create flexibility but start the process with intelligence 
gathering because, in the United States, if you hold someone, under the 
law enforcement model, caught in the United States, you have to read 
them their rights. You have to present them to court.
  If they are in military custody, you don't have to do that. But what 
system fits the situation best should be left to the executive branch. 
We are just creating an avenue for military custody that can be waived.
  Mr. LEVIN. That is correct, providing flexibility which we should 
provide in order for the executive branch to have what they want, which 
is the flexibility. There, I think, many of our colleagues believe 
there is too much flexibility. But whether that is right or----
  Mr. GRAHAM. Oh, yes, they are over here. There are plenty of them.
  Mr. LEVIN. But whether they are right or wrong, the facts are in this 
bill there is flexibility. It is carefully laid out. The President will 
lay out the procedures and notify the Congress of those procedures. But 
the point is, we do provide the very flexibility that the

[[Page 17847]]

President of the United States has sought. We give them that 
flexibility, and it seems to me for the characterization of this bill 
to be that there is no flexibility, that somebody must go into military 
detention, is inaccurate. We ought to debate policy, but we should not 
debate what the words of a bill are.
  One other thing. Is it not correct that when it is said, as the 
Senator from California did, that this provision has unprecedented and 
new authority for indefinite detention of American citizens without 
trial, that as a matter of fact we had in section 1031, in the bill 
filed months ago, language which would have exempted American citizens? 
It was the administration that wrote 1031 the way it is now and has 
approved of that language; is that not correct?
  Mr. GRAHAM. That is absolutely correct. Let's talk about indefinite 
detention and what it means. When someone is captured as a member of 
al-Qaida--the Bush administration has had people at Guantanamo Bay for 
years. They are being held under the law of war. Does the Senator agree 
with that?
  Mr. LEVIN. I am sorry?
  Mr. GRAHAM. The Bush administration has had prisoners held at 
Guantanamo Bay for years now who have not been prosecuted. They are 
held under the law of war.
  Mr. LEVIN. That is correct.
  Mr. GRAHAM. The Obama administration has continued to hold at least 
48 under that same theory.
  Mr. LEVIN. And believes they have that authority.
  Mr. GRAHAM. I believe they are right. All the Congress is saying to 
the President--this one and future Presidents--is we agree with you, 
that if the person is a member of al-Qaida or an affiliated group, you 
can hold them as an enemy combatant without the requirement to let them 
go at an arbitrary point in time, but under the law, if they are at 
Guantanamo Bay or captured in the United States, they have a habeas 
right to appeal that determination to a judge.
  Under our bill, does the Senator agree with me, we have done more 
than that? We have created an annual review process so the person being 
indefinitely held will have some due process every year?
  Mr. LEVIN. The Senator is correct. The Senator has led the way to 
have this kind of additional protection for those prisoners. There is 
greater protection in this bill because of that review process than 
there is without this bill.
  Mr. GRAHAM. Right. And we should do that.
  Mr. LEVIN. If I could, one other question, because the Senator is an 
expert on this subject. Is it also not true for the first time in terms 
of determining whether a person is, in fact, somebody who needs to be 
detained under the law of war--for the first time when that 
determination is made, that person is entitled to a lawyer and entitled 
to a military judge?
  Mr. GRAHAM. Let me tell the Senator how he is dead right. I offered 
an amendment to the first bill we put on the table here on the floor 
about this, and I had a requirement of a military lawyer being given to 
the respondent at a combat status review tribunal. Every person being 
held as an enemy combatant by our military gets a combat status review 
tribunal. We are saying that tribunal has to be chaired by a military 
judge, and we are saying they can access a lawyer. That, to me, is a 
welcomed change.
  The Obama administration and the Bush administration decided to put 
the military judge requirement in place. But this now is a statutory 
requirement, so the next President is going to be bound to do that. We 
are trying to create a process to allow a status tribunal hearing to be 
done in a more due-process friendly fashion. We require a judge and we 
provide access to counsel. To me that is a giant step forward.
  Mr. LEVIN. And it is the law for the first time; is that not correct?
  Mr. GRAHAM. For the first time it is now not the whim of the 
administration. It will be the law of the land.
  Mr. McCAIN. If this bill is enacted.
  Mr. GRAHAM. If this bill is enacted.
  Mr. McCAIN. To kind of summarize this issue for our colleagues, we 
believe an al-Qaida operative is an enemy combatant and, therefore, the 
assumption should be that that enemy combatant should be under military 
custody whether it be in the United States or any place else?
  Mr. GRAHAM. That is correct.
  Mr. McCAIN. I would argue especially in the United States since that 
poses the greatest threat. However, with our assumption that that 
person should be held under military custody, we still give a very wide 
waiver in case there are extenuating circumstances.
  In other words, we are saying that we assume an al-Qaida operative, 
or a suspected al-Qaida operative, is an enemy combatant wherever they 
are on Earth and, therefore, they should be under military custody 
unless there is some reason that the President determines otherwise.
  The counterargument we are hearing, in summary, is that because that 
al-Qaida operative is apprehended in the United States, therefore, they 
should fall under civil authority, thereby negating the assumption that 
he is an enemy combatant; he is a common criminal. This is a very 
important principle in this discussion we are having.
  How do you treat a suspected al-Qaida terrorist who wants to, in the 
case of the Underwear Bomber, blow up a plane with 100 some-odd 
passengers on it? Shouldn't that person be treated as an enemy 
combatant and, therefore, subject to all of the rules of military 
people who are under the supervision of the military? Isn't that what 
we are debating here? The ACLU and the left, with all due respect, feel 
that person should be--first of all, that al-Qaida operatives should be 
treated under our criminal system rather than treated as an enemy 
combatant who wants to do great harm to the United States of America. 
Is that an accurate description of what we are talking about here?
  Mr. GRAHAM. Yes, with one caveat. There is a line of thinking that we 
should be using Federal courts exclusively, that military commissions 
are not appropriate in any circumstance, and that we should be using 
the law enforcement model once we deal with an al-Qaida operative, 
particularly here in the United States.
  What we are saying in this legislation is that the battlefield 
includes our own homeland. So that argument being made by the ACLU, I 
think, will bear that because most Americans feel we are not dealing 
with somebody who robbed a liquor store. These people present a 
military threat, and we should be able to gather intelligence in a 
lawful way.
  The administration's concern was, are we overstepping Executive 
power. I have, quite frankly, said I am concerned about that. Peter was 
concerned about that; Dave was concerned about that; I have been 
concerned about that because I don't believe you can have 535 attorneys 
general or commanders in chief.
  What we did to accommodate that concern is what the Senator from 
Arizona said, we started out with a military custody requirement that 
can be waived and the procedures to be waived are in the hands of the 
executive branch. As Senator Levin has indicated, this, to me, is very 
flexible and is so flexible that I feel very good about it.
  If it were a mandate to put everybody in military custody and try 
them in military commissions, even though I think that is the best 
thing to do, I would object, because the flexibility to make those 
decisions needs to be had in the executive branch. There may be a time 
when an article 3 court is better than a military commission court for 
an al-Qaida operative. I don't want the Congress to say article 3 
courts could never be used. I don't want the Congress to say military 
commissions are bad. We now have a good military commission system. We 
have a process where the homeland is part of the battlefield. The 
individual being captured on our homeland can be held to gather 
intelligence under military law. And if somebody is smarter than us and 
believes that is not the right model, they can change the model.

[[Page 17848]]

  That is the best we can do, and that is the best I am going to do 
because I am very worried that in the future we are going to lock 
ourselves down into policies that would have an absurd outcome that if 
you made it to America, we cannot gather intelligence, which would be 
crazy. There is no good reason for that.
  Mr. LEVIN. Would the Senator yield?
  Mr. GRAHAM. Yes.
  Mr. LEVIN. In addition to providing in this bill that the 
determination as to whether somebody is al-Qaida is to be made through 
procedures which the President will adopt, No. 1, which is flexibility.
  Mr. GRAHAM. Right.
  Mr. LEVIN. No. 2, that determination shall not interfere with any 
interrogation which is undertaken by civilian or any other authorities; 
is that not correct? And, finally, on top of that, there is a waiver 
that is provided. We have all of that protection. So the statements 
that are made on this floor and in some of the press that somehow or 
other we are pushing everybody who is determined to be al-Qaida into 
the military detention system is not accurate because we have those 
three protections, the procedures for that decision as to whether 
someone is al-Qaida, our procedures, which the President is going to 
adopt; secondly, we only apply this to al-Qaida, not to everybody who 
might be captured; and, third, we have a waiver for triple protection 
to protect what the Senator rightly is sensitive to, and that is there 
be flexibility in the executive branch.
  All of us may say we want it done one way or another. We may presume 
it be done one way or another, we may wish that it be done one way, 
civilian or military. Some of us may have different opinions. That is 
not the point. That is not the issue. The issue is what does this bill 
provide. This bill provides a reasonable amount of flexibility and does 
not tell the President you must turn somebody who is suspected of being 
al-Qaida over to the civilians at any point or to the military at any 
point.
  Mr. GRAHAM. If I may add another layer of process here. Some people 
on our side say that is way too much. You should throw these people in 
military--Senator Lieberman, my dear friend, if you left it up to him, 
everybody caught as an al-Qaida operative would be thrown in military 
custody and would be held as long as we need to hold them and would be 
tried by military commissions.
  At the end of the day that is sort of where I come out, but I am not 
going to create a 535-commander-in-chief body here because there are 
times when that may not work. What we have done is what the Senator 
said. If you capture someone at home, it is as the Senator described. 
The reason, to my colleagues on this side, I wanted to build in the 
things the Senator described is because I am very worried about 
crossing over out of our lane into the executive lane. I think we have 
created a great process.
  But here is what happens to that al-Qaida operative. Not only does 
the executive branch have the flexibility to go one way versus the 
other, starting with the idea of military custody, but all the things 
the Senator said are true.
  What do they have beyond that? If someone is being held as an enemy 
combatant, there are regulations requiring that they be presented to a 
combat status review tribunal, now with a military judge, access to 
counsel--I think it is within 60--I cannot remember the time period. 
That is done. Then they have the right to take that decision and appeal 
it to a habeas Federal district court judge.
  No one in America is going to be held as an enemy combatant who 
doesn't get their day in Federal court. But their day in Federal court 
is a habeas proceeding, not a criminal trial. If the judge agrees with 
the United States that you are, in fact, an enemy combatant, then you 
can be held indefinitely, but we require an annual review. If the judge 
lets you go, they have to let you go. This is the best we can do. This 
is a hybrid system. In no other war do you have access to a Federal 
court.
  As I said before, this is war without end, and if we don't watch it, 
an enemy combatant determination can be a de facto life sentence 
because there will never be an end to these hostilities probably in my 
lifetime. I recognize that. And in working with the Senator from 
Michigan and Peter and others, we have come up with a process now that 
allows the Federal court to review the military decision. We will have 
an annual review process if the judge agrees with the military. That, 
to me, is due process that makes sense in a war without an end; 
something you would not do in World War II, but something we need to do 
here.
  So to the critics, please read the damn bill. I apologize for saying 
it that way, but you are talking about things that don't exist. There 
is plenty of flexibility and waiver requirements in this bill. No one 
is being held indefinitely without due process. Not only is this due 
process you wouldn't get in any other war, this is due process beyond 
what exists today only if we can pass this bill.
  I don't mind being considered by some of my colleagues as maybe too 
friendly to due process. The reason I am so passionate about this is 
what we do sets a precedent for the world and the future. If one of our 
guys is captured, I can look the other people in the eye--al-Qaida 
could care less, but other people might--and say we are a rule of law 
nation. I believe in the rule of law, but there is a difference between 
the rule of law of fighting a crime and fighting a war.
  I am proud of the military legal system. I do believe the military 
justice system has a role to play in this war. In military commissions, 
the judges are the same judges who administer justice to our own 
troops, the same prosecutors, the same defense attorneys, the same 
jurors. I am proud of the military legal system. I am proud of the 
Federal court system. I want to use both.
  Senator Levin, we have been working on this for years. This is the 
best work product I have seen. I hope my colleagues will understand we 
have thought long and hard about this, and if we don't get a process in 
place that has some definition, some certainty, some guidance, we are 
letting our Nation down.
  This is a good bill, and I hope people will vote for it.
  Mr. LEVIN. If this bill contained the provisions as described by our 
friend from California, I would vote against our bill.
  Mr. GRAHAM. So would I, at my own detriment.
  I don't want to mandate the executive branch to do everything as 
Lindsey Graham would like. I want to start with a theory that makes 
sense and provides flexibility to change it if that makes sense. I 
don't want anybody to be in jail because somebody in the military said 
they are an enemy combatant. I want a Federal judge involved in a 
sensible way. I want due process to make sure we can tell the world: 
You are not sitting in a jail because somebody said you were guilty of 
something. You had a chance to challenge that. But to the critics: I 
will not stand for the idea that we can't defend ourselves under the 
law of war, because I believe we are at war. In war, we have the right 
to hold enemy prisoners. We don't have to let them go to kill again. In 
war, you can hold people and gather intelligence in a human way.
  That is what we are able to do under this bill--fight a war within 
our values.
  I yield.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I see the Senator from Illinois on the 
Senate floor, whom I know is very heavily involved in this issue. I 
think we have been debating this amendment now for about 3 hours, at 
least, and we have had a number of speakers from both sides.
  I hope that perhaps we can go ahead and vote on this amendment. I was 
informed and the chairman was informed by Senator Reid that there is a 
limited amount of time that can be spent on this bill. I realize how 
important it is to him, but we have no further speakers right now. I 
know the Senator from Illinois wishes to speak on it. But

[[Page 17849]]

would it be agreeable that after we have exhausted the number of 
speakers that we could go ahead and vote on the amendment?
  Mr. DURBIN. No. It is not pending.
  Mr. McCAIN. It is too bad. Let me just say to the Senator from 
Illinois, this is an important issue, and I understand how important it 
is to him. But this legislation has a lot to do with defending this 
country. For the Senator to hold up the entire bill because he doesn't 
think it has been discussed enough is a disservice to the men and women 
in the military whose concerns and needs this bill addresses, as well 
as the needs of the Nation's security.
  So we took up this amendment in the belief that we were going to go 
ahead and debate it and vote on it. So the Senator from Illinois, if we 
are forced to not be able to complete work on this legislation, I think 
bears a pretty heavy burden because we have a lot of other provisions 
in this bill that are also vitally important to the security of this 
Nation.
  We have had spirited debate. I have been involved in this legislation 
of the national defense authorization bill for a quarter of a century. 
We have moved forward and we have had debate and we have had votes. I 
hope we can do that now so we can move forward to other issues.
  The Senator from Kentucky is on the Senate floor with an amendment he 
would like to have debated and voted on, and we have about 100 more. So 
I say to the Senator from Illinois that after we have had sufficient 
debate, I hope we can go ahead and vote on the amendment.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I don't know--I now have the floor, so I 
will proceed.
  First, let me thank the Senator from Arizona. We have served together 
in the House and in the Senate. I respect him very much. I certainly 
have the highest respect, as well, for the Senator from Michigan. But I 
will tell my colleagues this: If the argument is, if we don't vote on 
this amendment tonight the security of the United States is in peril, 
that is a little hard to make because we are not going to finish this 
bill tonight, No. 1. No. 2, it is pretty clear the administration 
opposes this particular amendment, at least I have been told they do. 
No. 3, if we are talking about something as fundamental as changing 
some laws in this country relative to the U.S. Constitution, I have to 
agree with Senator Leahy, the chairman of the Judiciary Committee, and 
Senator Feinstein, the chairman of the Intelligence Committee, that 
this great body should take the time, debate the issue, and vote on it 
in a timely fashion.
  I am not here to filibuster this matter, but I am here to discuss it.
  To those who have come to the floor and said it is imperative to move 
now to change the way we deal with terrorist detainees in the United 
States, I would like to make a record for them.
  For the record, over the last 10 years we have dealt with alleged 
terrorists in the United States. During that 10-year period of time 300 
alleged terrorists have been successfully prosecuted in the criminal 
courts of America and incarcerated safely in American prisons--300. 
During that same 10-year period of time, six--count them, six--have 
been subjected to prosecution through military tribunals. So the score 
is 300 to 6 for those who want to change the system, with 300 saying we 
have a pretty darn good Federal Bureau of Investigation, we have 
excellent lawyers at the Department of Justice, and the American court 
system has responded well to keep us safe. So the notion that this has 
to be changed tonight to keep America safe, I don't know there is any 
evidence to support that.
  I listened to some of the arguments on the Senate floor, and I wish 
to call to the attention of my colleagues that this is not an 
insignificant change in the law. If section 1031 is enacted into law, 
for the first time we will be saying in the law that we can detain 
indefinitely an alleged terrorist who is an American citizen within the 
United States of America.
  Mr. GRAHAM. Would the Senator yield?
  Mr. DURBIN. I will yield after I complete my point. I believe most of 
us feel if someone is charged with terrorism--an American citizen--that 
normally they would be subjected to constitutional protections and 
rights as American citizens. For those who believe in military 
tribunals--and I know the Senator from South Carolina does because he 
has been engaged in them personally and feels they are an honorable and 
effective way of prosecuting individuals--he knows, as I do, we have 
gone through in the last 10 years a series of Supreme Court cases that 
have questioned whether we are handling military tribunals in the right 
fashion.
  The law is not settled when it comes to military tribunals, but the 
law is clearly settled when it comes to article 3 criminal courts, to 
the point that 300 alleged terrorists have been successfully prosecuted 
and convicted.
  So I think this is worthy of debate. It is a valid issue. The 
security of America will always be a valid issue on the floor of the 
Senate. But let's do it in a thoughtful way. This matter was not 
referred to the Senate Judiciary Committee. It was not referred to the 
Senate Intelligence Committee. It was decided by the Armed Services 
Committee. As good as they are, as great as the people are who serve on 
that committee, there are others who should have a voice in the 
process.
  I yield to the Senator from South Carolina if he has a question he 
would like to direct through the Chair.
  Mr. GRAHAM. I thank the Senator from Illinois. I wish to respond. No. 
1, it is good to debate. It is good to have discussions about important 
matters. The Senator from Illinois is right. There is nothing more 
important than defending the homeland.
  Now, let me just state the law as I understand it. The Hamdi case was 
an American citizen captured in--
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Would my friend from South Carolina allow a unanimous 
consent request?
  Mr. GRAHAM. Absolutely.


 Unanimous Consent Agreement--Conference Report to Accompany H.R. 2112

  Mr. REID. I ask unanimous consent that the Senate now proceed to the 
consideration of the conference report to accompany H.R. 2112, an act 
making consolidated appropriations for the Departments of Agriculture, 
Commerce, Justice, Transportation, and Housing and Urban Development 
and related programs; that there be up to 90 minutes of debate, equally 
divided between the two leaders or their designees; that upon the use 
or yielding back of time, the Senate proceed to vote on the adoption of 
the conference report; further, that the vote on adoption be subject to 
a 60 affirmative-vote threshold.
  Before there is a response to my request, I would tell everyone we 
are going to be in session tomorrow. I have spoken to the two managers 
of the bill. We will likely not have votes tomorrow. In fact, I don't 
think we will have votes tomorrow. But I would say to all Senators if 
they have amendments to offer, they should offer them because the time 
for the Defense authorization bill is winding down. People can't sit 
around and say we will do something next week because next week may be 
a lot shorter.
  Mr. LEVIN. Will the leader yield for a question?
  Mr. REID. I would like to change that from 90 minutes to 120 minutes.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Kentucky.
  Mr. PAUL. Mr. President, reserving the right to object.
  Mr. LEVIN. Would the Senator yield for a question? I think I may be 
able to satisfy Senator Paul, I hope.
  Mr. PAUL. Yes.
  Mr. LEVIN. Would the leader make that unanimous consent effective 
after there is 5 more minutes of discussion between ourselves?
  Mr. REID. We can make it effective after a half hour of discussion.
  Mr. LEVIN. And after Senator Paul calls up an amendment and after 
Senator Merkley calls up an amendment and then lay them aside.

[[Page 17850]]

  The PRESIDING OFFICER. Is there objection to the modified request?
  Mr. LEVIN. Would that be acceptable?
  Mr. REID. I accept the modification with pleasure.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Finally, we will get some people offering some amendments.
  Mr. LEVIN. If I could just comment very quickly to my friend from 
Illinois.
  Mr. REID. Can we get the consent?
  Mr. LEVIN. I think the Chair ordered it.
  The PRESIDING OFFICER. Yes.
  Mr. REID. The Senator from South Carolina has the floor.
  Mr. GRAHAM. I yield if it will make this proceed faster.
  Mr. LEVIN. I just wanted to ask the Senator a question.
  Mr. REID. I would say to my friend, my friend from South Carolina 
yielded to me for a unanimous consent request.
  The PRESIDING OFFICER. The Senator from South Carolina has the floor.
  Mr. GRAHAM. If I may respond to my friend from Illinois, Hamdi was an 
American citizen captured in Afghanistan. He had joined al-Qaida--the 
Taliban, I guess in that case. We captured him when we went into 
Afghanistan. We brought him back and we held him as an enemy combatant 
for intelligence-gathering purposes. His case went to the Supreme 
Court. The Supreme Court said we could hold an American citizen as an 
unlawful enemy combatant, we just have to create procedures, a due 
process requirement. Eventually, the court said every unlawful enemy 
combatant has a habeas right.
  The law of the land is clear that an American citizen helping the 
enemy overseas can be held indefinitely. But they have the right to 
petition a judge as to whether the initial determination was correct. 
If the habeas judge believes there is not enough evidence to hold this 
enemy combatant, then they have to release them. But if the judge 
agrees with the government that there is enough evidence to hold them 
as an enemy combatant, they can be held indefinitely. This President is 
holding 48 people at Guantanamo Bay who have never seen a criminal 
courtroom because of the theory of law of war.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. I say to the Senator from South Carolina, I yielded for a 
question.
  The PRESIDING OFFICER. That is correct.
  Mr. DURBIN. Can the Senator bring it to a question?
  Mr. GRAHAM. The question is--I forget what I said.
  Mr. DURBIN. Let me just say to my colleague, whom I respect and count 
as a friend, the critical difference between the Senator from Michigan 
and the Senator from South Carolina is this: The Hamdi case involved an 
American citizen, part of the Taliban, arrested in Afghanistan, OK? The 
Senator from South Carolina made that point when he said the word 
``overseas.'' Unfortunately, section 1031 does not create that 
distinction. An American citizen arrested in the United States, charged 
with terrorism, without any connection to overseas conduct--having been 
arrested overseas, I should say--is still going to be subject to 
indefinite detention.
  The only thing I would add is this: I think this is a good exchange, 
and I think we need more. The notion that we have to hurry up and get 
this done in the next 5 minutes is not, I don't think, an appropriate 
way to deal with this. I know Senator Paul and Senator Merkley are 
waiting, and I am prepared to yield the floor at this point.
  If this matter comes up again this evening, I hope we can engage in 
further discussion.
  Mr. LEVIN. I just have a question, if the Senator would yield, of the 
Senator from Illinois.
  Mr. DURBIN. Sure.
  Mr. LEVIN. Is the Senator aware of the fact that section 1031 in the 
bill we adopted months ago in the committee had exactly the language 
that the Senator from Illinois thinks should be in this section 31, 
which would make an exception for U.S. citizens in lawful residence? 
That was in our bill. I am wondering if the Senator is aware that the 
administration asked us to strike that language from section 1031 so 
that the bill in front of us now does not have the very exception the 
Senator from Illinois would like to see in there.
  Mr. DURBIN. I have the greatest respect for the Senator and the 
administration, but I think I am also entitled to my own conclusion.
  Mr. LEVIN. No, I understand. But I am just asking the Senator, is the 
Senator aware it was the administration that asked us to strike that 
language, the exception for U.S. citizens?
  Mr. DURBIN. Not being a member of the committee, I did not follow it 
as closely as the Senator did. I respect him very much and take his 
word.
  Mr. LEVIN. I thank the Senator.
  Mr. DURBIN. I yield the floor.
  The PRESIDING OFFICER (Mr. Franken). The Senator from Kentucky.


                           Amendment No. 1064

  Mr. PAUL. Mr. President, I ask unanimous consent to set aside the 
pending amendment and call up my amendment No. 1064.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Kentucky [Mr. Paul], for himself and Mrs. 
     Gillibrand, proposes an amendment numbered 1064.

  Mr. PAUL. 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 repeal the Authorization for Use of Military Force Against 
                        Iraq Resolution of 2002)

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

     SEC. 1230. REPEAL OF AUTHORIZATION FOR USE OF MILITARY FORCE 
                   AGAINST IRAQ.

       The Authorization for Use of Military Force Against Iraq 
     Resolution of 2002 (Public Law 107-243; 116 Stat. 1498; 50 
     U.S.C. 1541 note) is repealed effective on the date of the 
     enactment of this Act or January 1, 2012, whichever occurs 
     later.

  Mr. PAUL. Mr. President, this amendment will call for a formal end to 
the war in Iraq. Our Founding Fathers intended the power to commit the 
Nation to war be lodged in Congress, and that is what the Constitution 
says. The power to declare war is one of the most important powers 
given to Congress, and it should remain in Congress.
  James Madison wrote at the beginning in the Federalist Papers that 
``[t]he Constitution supposes what history demonstrates, that the 
Executive is the branch most prone to war . . . therefore the 
Constitution has with studied care vested that power [to declare war] 
in the Legislature.''
  We are calling for a formal end to the war in Iraq as the troops come 
home, as the President has planned by January 1. This will reclaim the 
power to declare war that is vested in Congress. It allows for checks 
and balances and is an important milestone and an important retaining 
of power for Congress. So I will ask very careful deliberation of a 
formal end to the war in Iraq by supporting this amendment.
  At this time, I would like to yield the floor to Senator Merkley.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, just briefly, I would ask the indulgence 
of the Senator from Oregon. I just would ask the Senator from South 
Carolina if he would finish the response, and I am sure it would only 
take him 2 or 3 minutes to finish.
  Mr. GRAHAM. I promise, I will.
  Mr. McCAIN. So I ask unanimous consent that Senator Merkley be 
recognized after the Senator from South Carolina speaks for a couple 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. I thank the Senator from Oregon.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, the exchange with Senator Durbin was very 
good. The law of the land is pretty clear--unequivocal, in my view--
that an American citizen captured overseas

[[Page 17851]]

can be held as an enemy combatant, and every enemy combatant held at 
Guantanamo Bay or captured in the United States has habeas rights. The 
Padilla case involves an individual who was captured in the United 
States, suspected of being an al-Qaida operative, and was held for 4 
years. He appealed his case to the Fourth Circuit, and the Fourth 
Circuit said: You have a right to a lawyer to prepare your habeas case, 
but you do not have a right to a lawyer to interrupt the interrogation. 
You can be held as an enemy combatant, and they can gather intelligence 
for an indefinite period.
  That is the law of the land, and that is why the administration came 
over and said the provision that Carl and I were talking about really 
would change the law. They are preserving the ability, if they want 
to--they do not have to do this--basically, to hold an American.
  Here is the thought process for the body and the Nation: If you 
capture somebody--not just involved in terrorism; that is not just what 
we are talking about--al-Qaida operatives involved in an attack on the 
United States, if they are an American citizen--who cares?--if they are 
doing that, we want to know what they know, interrogate them and hold 
them for prosecution, or just hold them so they will not go back to the 
fight. That is the law.
  All we are doing is creating a procedure for that system to be 
followed. We are not doing anything different than already exists. This 
notion, somehow, that the homeland is not part of the battlefield is 
absurd. Why in the world would we give somebody rights who came to 
America to attack us different than we would if we caught them 
overseas, when the point is, they are involved with the enemy--American 
citizen or not. We are just creating a procedure that will allow that 
situation to be handled. So that is why the administration objected to 
our language, and I think they are right.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.


                           Amendment No. 1174

  Mr. MERKLEY. Mr. President, I ask unanimous consent to set aside the 
pending amendment and call up my amendment No. 1174.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The legislative clerk read as follows:

       The Senator from Oregon [Mr. Merkley], for himself, Mr. 
     Lee, Mr. Udall of New Mexico, Mr. Paul, and Mr. Brown of 
     Ohio, proposes an amendment numbered 1174.

  Mr. MERKLEY. 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 express the sense of Congress regarding the expedited 
 transition of responsibility for military and security operations in 
             Afghanistan to the Government of Afghanistan)

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

     SEC. 1230. SENSE OF CONGRESS ON TRANSITION OF MILITARY AND 
                   SECURITY OPERATIONS IN AFGHANISTAN.

       (a) Findings.--Congress makes the following findings:
       (1) After al Qaeda attacked the United States on September 
     11, 2001, the United States Government rightly sought to 
     bring to justice those who attacked us, to eliminate al 
     Qaeda's safe havens and training camps in Afghanistan, and to 
     remove the terrorist-allied Taliban government.
       (2) Members of the Armed Forces, intelligence personnel, 
     and diplomatic corps have skillfully achieved these 
     objectives, culminating in the death of Osama bin Laden.
       (3) Operation Enduring Freedom is now the longest military 
     operation in United States history.
       (4) United States national security experts, including 
     Secretary of Defense Leon E. Panetta, have noted that al 
     Qaeda's presence in Afghanistan has been greatly diminished.
       (5) Over the past ten years, the mission of the United 
     States has evolved to include a prolonged nation-building 
     effort in Afghanistan, including the creation of a strong 
     central government, a national police force and army, and 
     effective civic institutions.
       (6) Such nation-building efforts in Afghanistan are 
     undermined by corruption, high illiteracy, and a historic 
     aversion to a strong central government in that country.
       (7) Members of the Armed Forces have served in Afghanistan 
     valiantly and with honor, and many have sacrificed their 
     lives and health in service to their country.
       (8) The United States is now spending nearly 
     $10,000,000,000 per month in Afghanistan at a time when, in 
     the United States, there is high unemployment, a flood of 
     foreclosures, a record deficit, and a debt that is over 
     $15,000,000,000,000 and growing.
       (9) The continued concentration of United States and NATO 
     military forces in one region, when terrorist forces are 
     located in many parts of the world, is not an efficient use 
     of resources.
       (10) The battle against terrorism is best served by using 
     United States troops and resources in a counterterrorism 
     strategy against terrorist forces wherever they may locate 
     and train.
       (11) The United States Government will continue to support 
     the development of Afghanistan with a strong diplomatic and 
     counterterrorism presence in the region.
       (12) President Barack Obama is to be commended for 
     announcing in July 2011 that the United States would commence 
     the redeployment of members of the United States Armed Forces 
     from Afghanistan in 2011 and transition security control to 
     the Government of Afghanistan.
       (13) President Obama has established a goal of removing all 
     United States combat troops from Afghanistan by December 
     2014.
       (b) Sense of Congress.--It is the sense of Congress that--
       (1) the President should expedite the transition of the 
     responsibility for military and security operations in 
     Afghanistan to the Government of Afghanistan;
       (2) the President should devise a plan based on inputs from 
     military commanders, the diplomatic missions in the region, 
     and appropriate members of the Cabinet, along with the 
     consultation of Congress, for expediting the drawdown of 
     United States combat troops in Afghanistan and accelerating 
     the transfer of security authority to Afghan authorities 
     prior to December 2014; and
       (3) not later than 90 days after the date of the enactment 
     of this Act, the President should submit to Congress a plan 
     with a timetable and completion date for the accelerated 
     transition of all military and security operations in 
     Afghanistan to the Government of Afghanistan.

  Mr. MERKLEY. Mr. President, I offer this amendment with several 
original cosponsors: Senator Mike Lee, Senator Rand Paul, Senator Tom 
Udall, and Senator Sherrod Brown. I would like to thank them for 
joining in this effort to address our military presence in Afghanistan 
and the fact that our military forces have done such an excellent job 
of completing the original missions of destroying al-Qaida training 
camps and bringing justice to those responsible for 9/11.
  But over this past decade, our mission has changed to one of nation 
building--a mission that is obstructed by vast corruption, by 
extraordinary traditional cultural resistance to a strong central 
government, and by a very high illiteracy rate. These factors should 
have us rethinking how to have the most effective use of our military 
forces, our intelligence assets, in taking on the war on terror, and 
that we should be engaging in counterterrorist efforts using our 
resources wherever the terrorist threat emerges across the world rather 
than concentrating these vast resources in Afghanistan.
  Our sons and daughters, fathers and mothers, sisters and brothers 
could not have done a better job in their military mission. But it is 
right that now we do less nation building abroad and we do more nation 
building at home. It is right that now we refocus our effort to have 
the most effective strategy to take on terrorism around the world. It 
is in that philosophy that we come together in a bipartisan fashion to 
propose this amendment. We ask that colleagues take a chance to 
consider it and join us in redirecting our efforts to be more 
effective.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, first, I ask unanimous consent to add 
Senators Akaka, Chambliss, Blumenthal, Inhofe, Gillibrand, Ben Nelson, 
Stabenow, and Mark Udall as cosponsors of amendment No. 1092, which is 
the pending Levin-McCain amendment on counterfeit parts.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Secondly, Mr. President, we are going to move now, I 
believe, to the conference report. But I do want to remind folks of 
what Senator McCain said; which is, we will be here tomorrow morning. 
We are here to try to clear amendments. We want to be able

[[Page 17852]]

to give our colleagues as much opportunity as possible to debate and to 
clear amendments. But we have to move this bill. We are not going to be 
given a whole week after we come back to get this bill passed, 
hopefully.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, what is the pending business before the 
Senate?
  The PRESIDING OFFICER. S. 1867 is still pending.
  Mr. McCAIN. Is not the Paul amendment the pending business?
  The PRESIDING OFFICER. The Merkley amendment is pending.
  Mr. McCAIN. The Merkley amendment is pending.
  Mr. President, I ask unanimous consent that the Paul amendment be 
the--
  Mr. LEVIN. No. Regular order.
  Mr. McCAIN. OK, that the regular order be--
  The PRESIDING OFFICER. The Levin amendment is now pending.
  Mr. LEVIN. The Levin-McCain amendment.
  The PRESIDING OFFICER. The Levin-McCain amendment is now pending.
  Mr. McCAIN. I thank the Presiding Officer.


                           Amendment No. 1064

  I would just like to say a couple words about the Paul amendment. I 
would just like to point out, we will still have 16,500 Americans in 
Iraq for an extended period of time. Now, whether they should be there 
is the subject of another debate on another day. But to then not be 
able to do whatever is necessary to protect the lives and safety of 
those men and women who will continue to serve the country, sometimes 
in variously difficult circumstances--I think this amendment is 
unwarranted.
  Finally, I would like to ask my colleagues who have further views on 
the detainee issue if they would come over and add their voices to the 
debate and discussion because we would like to dispose of this 
amendment. I respect the desire of the Senator from Illinois that 
everybody be allowed to speak. We have been now speaking on this single 
amendment for, I believe, well over 3 hours.
  So if there is further discussion on the Udall amendment, I would 
very much like to have a vote on it so we can bring other important 
issues before the body.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I ask unanimous consent to enter into a 
colloquy with my colleague from New Hampshire.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. We are talking about this amendment. Let's debate this 
amendment. Let's vote on this amendment. But the heart of the issue is 
whether the United States is part of the battlefield in the war on 
terror. The statement of authority I authored in 1031, with cooperation 
from the administration, clearly says someone captured in the United 
States is considered part of the enemy force regardless of the fact 
they made it on our home soil. The law of war applies inside the United 
States not just overseas. The authorization to use military force right 
after the war began allowed us to go into Afghanistan and use detention 
and capture and military force to deal with the enemy in Afghanistan 
and other places overseas.
  To my colleague from New Hampshire, does she believe al-Qaida 
considers American soil part of the battlefield?
  Ms. AYOTTE. In response to the Senator from South Carolina, I would 
say, unfortunately, our country is the goal for al-Qaida, and we saw 
that with September 11 and the horrible attacks on our country that day 
that killed Americans.
  They want to come here and harm us and hit us where it hurts us the 
most. So, unfortunately, America is part of the battlefield. To put 
ourselves in a position where we would not allow our military 
intelligence, law enforcement, to have the tools they need to gather 
the most intelligence to protect Americans on our soil would lead to an 
absurd result.
  Mr. GRAHAM. Does the Senator agree that with Senator Levin and a very 
bipartisan work product we have now created a legal system that says 
the following: If a U.S. citizen, a non-U.S. citizen is involved in an 
al-Qaida attack on our Nation, and is captured within the United 
States, we are allowing our military the ability to hold them as part 
of the enemy force, to question and interrogate them for intelligence 
gathering, and that right we have overseas to hold somebody now exists 
in the United States because the threat is the same?
  Ms. AYOTTE. I would say to my colleague from South Carolina, when he 
spoke on the floor he captured the most important part of this; that 
is, without the amendment we have been debating, we do not even give 
our military, law enforcement, intelligence officials the ability to 
decide which system is best in each incident. Rightly so, when you are 
in our country, when you are an American citizen, you are given your 
Miranda rights. You are told: You have the right to remain silent. You 
have the right to have a lawyer. We need to make sure we do not create 
a distinction where if you are captured abroad, you are treated one 
way--and we are giving our officials maximum flexibility to gather as 
much information as possible to protect our country--but if you make it 
here, the rules are different, and we do not give the officials who are 
set to protect us every day, both from a military and law enforcement 
end, the flexibility they need to gather maximum intelligence.
  It would just be an absurd result to treat it differently. It would 
almost encourage: Come to America--unfortunately--to attack us because 
you will actually be given greater rights if the attack occurs here.
  Mr. GRAHAM. Would the Senator agree that what we have been able to do 
on the committee is basically say, in law for the first time, that the 
homeland is part of the battlefield; that military custody is available 
to hold a suspected al-Qaida operative caught in the United States--
American citizen or not--but we are going to allow the administration--
this administration and all future administrations--to change that 
model if they believe it is best?
  To me, we have created a right by our intelligence community, law 
enforcement community, to do at home what they can do overseas. If we 
do not do that, that would just not only be absurd, I think it would 
make us all less safe for no higher purpose. So to my colleagues who 
believe we are changing something, all we are trying to do is make sure 
that when the enemy makes it to America, we can hold them and gather 
intelligence to protect ourselves, no more and no less.
  We start with the presumption of military custody. But if the experts 
in the field, this administration or future administrations, believe 
that model is not best, they can seek a waiver. That, to me, is what we 
should have been doing for years. Because the battlefield, to those who 
are listening, is an idea, not a country. We are battling an idea; that 
is, a terrible idea.
  Their idea is, if you are a moderate Muslim seeking to worship God a 
different way, you are not worthy of living. If you are a Jew or a 
Gentile, you name it, if you do not bow to their view of religion, then 
you are going to live in hell. So that is what we are fighting. At the 
end of the day, this legislation creates a process to deal with the 
threats in our own backyard and, unfortunately, does the Senator from 
New Hampshire agree, that there is going to be further radicalization, 
that homegrown terror is where this war is going to?
  Ms. AYOTTE. I would agree with the Senator from South Carolina that 
unfortunately there are threats we face within our own country from 
homegrown radicalism. But also let's not forget, this amendment, in 
terms of the military custody, applies to members of al-Qaida or 
associated forces who have planned an attack against our country or our 
coalition partners and are not U.S. citizens. So in this provision we 
are talking about foreigners

[[Page 17853]]

coming to our country who are members of al-Qaida and who want to harm 
Americans, if we think about what happened on September 11.
  I would also add, I think it is very important what is in this 
important provision of the Defense Authorization Act, in response to 
the Senator from California, who raised the case of Zazi as an example 
where she thought that case would be impacted by this amendment, that 
is simply, with all respect to the Senator from California, not the 
case.
  Because if one looks at the language in our amendment, we have given 
flexibility to the executive branch to conduct the interrogations, to 
have surveillance. So in the Zazi case, there was surveillance 
undertaken. We put express language in here allowing the executive 
branch to allow law enforcement to conduct surveillance, to conduct 
interrogation.
  I would point out that provision in terms of the amount of 
flexibility we have actually given the executive branch. But most 
importantly, we have dealt with the issue the Senator talked about, 
which is, in the absence of this provision, when terrorists come to our 
country and attack us, we are in a position where, under our law 
enforcement system, they have to give Miranda rights. They have the 
right to presentment. We are simply saying they have the option to make 
sure they can put intelligence gathering as the top priority.
  So this, as the Senator has identified and talked about, is a very 
reasonable compromise. As the Senator knows, my colleague from South 
Carolina, I would have actually liked to have seen this go further. But 
it is very important that we bring this forward.
  Mr. GRAHAM. I would add that Senator Lieberman would have gone 
further than the Senator. There is nobody whom I respect more than 
Senator Lieberman, but we are trying to find a balanced way.
  So in summary, 1032, the military custody provision, which has 
waivers and a lot of flexibility, does not apply to American citizens, 
and 1031, the statement of authority to detain, does apply to American 
citizens. It designates the world as the battlefield, including the 
homeland.
  Are you familiar with the Padilla case? That is a Federal court case 
involving an American citizen captured in the United States who was 
held for several years as an enemy combatant. His case went to the 
Fourth Circuit. The Fourth Circuit Court of Appeals said: An American 
citizen can be held by our military as an enemy combatant, even if they 
are caught in the United States, because once they join the enemy 
forces, then they present a military threat and their citizenship is 
not a sort of a get-out-of-jail-free card; that the law of the land is 
that an American citizen can be held as an enemy combatant. That went 
to the Fourth Circuit. That, as I speak, is the law of the land.
  Ms. AYOTTE. That is right. That is the law of the land. That is what 
is reflected in this provision in the Defense Authorization Act. It is 
reflective of case law issued by our U.S. Supreme Court, which in not 
only that case but in subsequent cases basically said, in those 
instances, you do have to provide habeas-type relief.
  Mr. GRAHAM. In the Padilla case, that went to the Fourth Circuit. The 
Hamdan case went to the Supreme Court. That was capture overseas. But 
the Fourth Circuit ruling stands that an American citizen captured in 
the United States can be held as an enemy combatant.
  But 1032, requiring military custody, is only for noncitizens 
captured in the United States. So the bottom line is, I think we have 
constructed a very sound, solid system that deals with homeland 
captures and homeland threats. We have created due process that 
understands this is a war without end, that no one is going to be held 
in jail indefinitely without going to a Federal court to make their 
case that they are unfairly held, that if the Federal court rules with 
the government, there is an annual review process that would allow the 
opportunity to get out in the future based on an evaluation of the 
case.
  From a due process point of view, I am very proud of the work 
product. I think it makes sense. I think it is a balance between our 
right to be safe and our rights to provide individuals with due 
process. But the big breakthrough is that we are now, for the first 
time as a Congress, creating a system that not only will allow this 
President flexibility and guidance, but future Presidents, and it will 
help us in further court challenges.
  Quite frankly, the Congress is saying, through this bill, if someone 
is caught in the United States, citizen or not, joining al-Qaida, 
trying to do harm to our Nation, we are going to create a system where 
you can be held, you can be prosecuted, you can be interrogated within 
our values, and we are not going to create an absurd result that if you 
make it here, none of that applies. That is all we are trying to do. 
Does the Senator agree with that?
  Ms. AYOTTE. I would agree with that. The Senator has already pointed 
out how important it is to have these provisions in place to give the 
officials who do this work every day whom we have so much respect for 
the ability to gather intelligence.
  We need this provision to protect our country from attacks on our 
homeland. It is so important. I would ask one question of the Senator 
from South Carolina. He is familiar with the military commissions.
  Mr. GRAHAM. If I may, I think we need to move to the appropriations 
conference report. We will do it very quickly.
  Ms. AYOTTE. I will ask the Senator quickly. The Senator from Illinois 
said we have only had six civilian trials with terrorists.
  Mr. GRAHAM. Military commissions.
  Ms. AYOTTE. Six military commission trials and hundreds of civilian 
trials of terrorists. I would ask the Senator, did the administration 
suspend military commission trials for a period of time?
  Mr. GRAHAM. The reason we have not had more is because the Obama 
administration withdrew charges. Thank goodness they have reinstated 
charges. There are military commission hearings going on as we speak. I 
am in the camp of ``all the above.''
  Sometimes article 3 courts are the best venue, sometimes military 
commissions. The Ghailani case was someone we held as an enemy 
combatant for years, took to Federal court and 200-and-something 
charges and got convicted on 1. Our Federal courts are not set up to 
deal with people who have been held as enemy combatants under the law 
of war, then tried in civilian systems.
  The Christmas Day Bomber, it made perfect sense to me to put him in 
an article 3 court. We found out he was a low-level guy, not one of the 
higher-ups. But if we catch someone here at home or overseas who is 
involved deeply in terrorism in terms of what they know, then we would 
hold them for a period of time to question them.
  Then, if you wanted to decide to prosecute, military commissions make 
the most sense. So the only reason we have not had more military 
commission trials is because they have been stopped. I am not saying 
Federal courts are not an appropriate venue sometimes. I am saying that 
when you hold someone under the law of war for years to gather 
intelligence, which you have a right to do, we need to keep them in the 
same system, and you see what happens when you mix systems.
  I am very proud of the bill, great debate to have, long overdue. If 
we can get this enacted into law, I will say this: Americans can look 
anyone in the world in the eye and say: We have robust due process. We 
can also tell the people in this country whom we are sworn to protect 
that we have a system that recognizes the difference between an al-
Qaida operative trying to kill us and destroy our way of life and a 
common criminal. We need to do both.
  I yield the floor.
  Mr. SHELBY. Mr. President, I rise to speak regarding the Agriculture-
CJS-THUD Appropriations Conference Report that the Senate will be 
voting on today. I was the only conferee not to sign this conference 
report and I regret to say that I have serious concerns with provisions 
in this bill.

[[Page 17854]]

  The conference report contains language that will raise the loan 
limits for FHA to over $729,000. I strongly oppose this language for 
three reasons. First, this change means that FHA, along with the GSEs 
will continue to crowd out the private sector. The government currently 
accounts for 96 percent of mortgage-backed security issuance in this 
country. We desperately need private sector investment to return so 
that we can finally achieve sustained growth in the housing market. 
Second, raising the loan limits for only FHA puts further pressure on 
the FHA and the taxpayer. Just this week, we learned that there is 
nearly a 50 percent chance the taxpayers will need to bail out the FHA. 
Increasing the loan limit only increases the risk that the taxpayer 
will have to bail out FHA. Finally, this will cause the American 
taxpayer to subsidize homes for wealthy buyers. Helping affluent people 
buy homes worth over three quarters of a million dollars is directly at 
odds with FHA's mission to develop affordable housing.
  It is a shame that this bill contains these ill-advised provisions, 
as there is so much worthwhile contained elsewhere within the text. I 
particularly want to commend Chairman Inouye and Vice Chairman Cochran, 
and CJS Subcommittee Chair Mikulski and Ranking Member Hutchison, for 
the great work they did in supporting the Space Launch System, SLS, 
NASA's heavy lift rocket. The bill we will vote on this evening 
provides $1.86 billion to support SLS, $60 million above the 
President's request. The bill puts us on a path towards regaining our 
rightful place as the world's lead spacefaring nation. SLS will take us 
beyond low Earth orbit, where we have been stuck for decades, and once 
again make the American space program the envy of the world.
  It is only as a result of continual pressure from both houses of 
Congress that the U.S. has not completely forfeited space supremacy to 
the Russians and the Chinese. The Obama administration's 2009 plan 
would have abandoned NASA's focus on manned exploration and instead 
subsidized so-called ``commercial'' space companies to perform endless 
taxi missions to low Earth orbit. Apollo astronaut Eugene Cernan, 
rightfully called the Obama plan a ``pledge to mediocrity.''
  Fortunately, Congress has pushed back hard. Many of my Senate 
colleagues and I joined to pass authorization and appropriations 
legislation requiring NASA to develop a 130 metric ton heavy lift 
vehicle that will take America's next generation of astronauts to the 
moon and beyond. In countless hearings and private meetings with NASA 
and the administration we have come to an agreement that the primary 
purpose of NASA is to expand human frontiers, not serve as a grant 
administrator for speculative private ventures. Thankfully, after more 
than 2 years of continual pressure from Congress and the American 
people, we appear to have achieved a breakthrough. NASA is moving ahead 
with SLS and this CJS Appropriations bill will ensure that they have 
the resources to implement the plans the Administrator has laid out.
  It is important to note that the recently announced SLS acquisition 
strategy goes to great lengths to control cost and technical risk. The 
strategy makes maximum use of existing contracts and flight-tested 
hardware from the Constellation and Shuttle programs while leaving room 
for competition where appropriate. Neil Armstrong recently told a House 
panel: ``Predicting the future is inherently risky, but the proposed 
Space Launch System includes many proven and reliable components which 
suggest that its development could be relatively trouble free.''
  Mr. President, SLS is a bold and workable plan with strong support in 
both chambers and both parties. Although I have serious reservations 
about the overall legislation, I thank my colleagues on the CJS 
Subcommittee for embracing American leadership and the promise of 
American ingenuity through their support for SLS.

                          ____________________