[Congressional Record (Bound Edition), Volume 157 (2011), Part 13]
[Senate]
[Pages 18598-18644]
[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 
resume consideration of S. 1867, which the clerk will report.
  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.

  Pending:

       Merkley amendment No. 1174, to express the sense of 
     Congress regarding the expedited transition of responsibility 
     for military and security operations in Afghanistan to the 
     Government of Afghanistan.
       Feinstein amendment No. 1125, to clarify the applicability 
     of requirements for military custody with respect to 
     detainees.
       Feinstein amendment No. 1126, to limit the authority of the 
     Armed Forces to detain citizens of the United States under 
     section 1031.
       Franken amendment No. 1197, to require contractors to make 
     timely payments to subcontractors that are small business 
     concerns.
       Begich amendment No. 1114, to amend title 10, United States 
     Code, to authorize space-available travel on military 
     aircraft for members of the Reserve components, a member or 
     former member of a Reserve component who is eligible for 
     retired pay but for age, widows and widowers of retired 
     members, and dependents.
       Shaheen amendment No. 1120, to exclude cases in which 
     pregnancy is the result of an act of rape or incest from the 
     prohibition on funding of abortions by the Department of 
     Defense.
       Collins amendment No. 1105, to make permanent the 
     requirement for certifications relating to the transfer of 
     detainees at U.S. Naval Station Guantanamo Bay, Cuba, to 
     foreign countries and other foreign entities.
       Collins amendment No. 1155, to authorize educational 
     assistance under the Armed Forces Health Professions 
     Scholarship Program for pursuit of advanced degrees in 
     physical therapy and occupational therapy.
       Collins amendment No. 1158, to clarify the permanence of 
     the prohibition on transfers of recidivist detainees at U.S. 
     Naval Station Guantanamo Bay, Cuba, to foreign countries and 
     entities.
       Inhofe amendment No. 1097, to eliminate gaps and 
     redundancies between the over 200 programs within the 
     Department of Defense that address psychological health and 
     traumatic brain injury.
       Inhofe amendment No. 1099, to express the sense of Congress 
     that the Secretary of Defense should implement the 
     recommendations of the Comptroller General of the United 
     States regarding prevention, abatement, and data collection 
     to address hearing injuries and hearing loss among members of 
     the Armed Forces.
       Inhofe amendment No. 1100, to extend to products and 
     services from Latvia existing temporary authority to procure 
     certain products and services from countries along a major 
     route of supply to Afghanistan.
       Inhofe amendment No. 1093, to require the detention at U.S. 
     Naval Station Guantanamo Bay, Cuba, of high-value enemy 
     combatants who will be detained long-term.
       Casey amendment No. 1139, to require contractors to notify 
     small business concerns that have been included in offers 
     relating to contracts let by Federal agencies.
       McCain (for Cornyn) amendment No. 1200, to provide Taiwan 
     with critically needed U.S.-built multirole fighter aircraft 
     to strengthen its self-defense capability against the 
     increasing military threat from China.
       McCain (for Ayotte) amendment No. 1068, to authorize lawful 
     interrogation methods in addition to those authorized by the 
     Army Field Manual for the collection of foreign intelligence 
     information through interrogations.
       McCain (for Brown (MA)/Boozman) amendment No. 1119, to 
     protect the child custody rights of members of the Armed 
     Forces deployed in support of a contingency operation.
       McCain (for Brown (MA)) amendment No. 1090, to provide that 
     the basic allowance for housing in effect for a member of the 
     National Guard is not reduced when the member transitions 
     between Active-Duty and full-time National Guard duty without 
     a break in Active service.
       McCain (for Brown (MA)) amendment No. 1089, to require 
     certain disclosures from postsecondary institutions that 
     participate in tuition assistance programs of the Department 
     of Defense.
       Udall (NM) amendment No. 1153, to include ultralight 
     vehicles in the definition of aircraft for purposes of the 
     aviation smuggling provisions of the Tariff Act of 1930.
       Udall (NM) amendment No. 1154, to direct the Secretary of 
     Veterans Affairs to establish an open burn pit registry to 
     ensure that members of the Armed Forces who may have been 
     exposed to toxic chemicals and fumes caused by open burn pits 
     while deployed to Afghanistan or Iraq receive information 
     regarding such exposure.
       Udall (NM)/Schumer amendment No. 1202, to clarify the 
     application of the provisions of the Buy American Act to the 
     procurement of photovoltaic devices by the Department of 
     Defense.
       McCain (for Corker) amendment No. 1171, to prohibit funding 
     for any unit of a security force of Pakistan if there is 
     credible evidence that the unit maintains connections with an 
     organization known to conduct terrorist activities against 
     the United States or U.S. allies.
       McCain (for Corker) amendment No. 1173, to express the 
     sense of the Senate on the North Atlantic Treaty 
     Organization.
       Levin (for Bingaman) amendment No. 1117, to provide for 
     national security benefits for White Sands Missile Range and 
     Fort Bliss.
       Levin (for Gillibrand/Portman) amendment No. 1187, to 
     expedite the hiring authority for the defense information 
     technology/cyber workforce.
       Levin (for Gillibrand/Blunt) amendment No. 1211, to 
     authorize the Secretary of Defense to provide assistance to 
     State National Guards to provide counseling and reintegration 
     services for members of Reserve components of the Armed 
     Forces ordered to Active Duty in support of a contingency 
     operation, members returning from such Active Duty, veterans 
     of the Armed Forces, and their families.
       Merkley amendment No. 1239, to expand the Marine Gunnery 
     Sergeant John David Fry Scholarship to include spouses of 
     members of the Armed Forces who die in the line of duty.
       Merkley amendment No. 1256, to require a plan for the 
     expedited transition of responsibility for military and 
     security operations in Afghanistan to the Government of 
     Afghanistan.
       Merkley amendment No. 1258, to require the timely 
     identification of qualified census tracts for purposes of the 
     HUBZone Program.
       Leahy amendment No. 1087, to improve the provisions 
     relating to the treatment of certain sensitive national 
     security information under the Freedom of Information Act.
       Leahy/Grassley amendment No. 1186, to provide the 
     Department of Justice necessary tools to fight fraud by 
     reforming the working capital fund.
       Wyden/Merkley amendment No. 1160, to provide for the 
     closure of Umatilla Army Chemical Depot, Oregon.
       Wyden amendment No. 1253, to provide for the retention of 
     members of the Reserve components on Active Duty for a period 
     of 45 days following an extended deployment in contingency 
     operations or homeland defense missions to support their 
     reintegration into civilian life.
       Ayotte (for Graham) amendment No. 1179, to specify the 
     number of judge advocates of the Air Force in the regular 
     grade of brigadier general.
       Ayotte (for Heller/Kirk) amendment No. 1137, to provide for 
     the recognition of Jerusalem as the capital of Israel and the 
     relocation to Jerusalem of the U.S. Embassy in Israel.
       Ayotte (for Heller) amendment No. 1138, to provide for the 
     exhumation and transfer of remains of deceased members of the 
     Armed Forces buried in Tripoli, Libya.
       Ayotte (for McCain) amendment No. 1247, to restrict the 
     authority of the Secretary of Defense to develop public 
     infrastructure on Guam until certain conditions related to 
     Guam realignment have been met.
       Ayotte (for McCain/Ayotte) amendment No. 1249, to limit the 
     use of cost-type contracts by the Department of Defense for 
     major defense acquisition programs.
       Ayotte (for McCain) amendment No. 1220, to require 
     Comptroller General of the United States reports on the 
     Department of Defense implementation of justification and 
     approval requirements for certain sole-source contracts.
       Ayotte (for McCain) amendment No. 1248, to expand the 
     authority for the overhaul and repair of vessels to the 
     United States, Guam, and the Commonwealth of the Northern 
     Mariana Islands.
       Ayotte (for McCain) amendment No. 1118, to modify the 
     availability of surcharges collected by commissary stores.
       Sessions amendment No. 1182, to prohibit the permanent 
     stationing of more than two Army brigade combat teams within 
     the geographic boundaries of the U.S. European Command.
       Sessions amendment No. 1184, to limit any reduction in the 
     number of surface combatants of the Navy below 313 vessels.
       Sessions amendment No. 1274, to clarify the disposition 
     under the law of war of persons detained by the Armed Forces 
     of the United States pursuant to the authorization for use of 
     military force.
       Levin (for Reed) amendment No. 1146, to provide for the 
     participation of military technicians (dual status) in the 
     study on the termination of military technician as a distinct 
     personnel management category.
       Levin (for Reed) amendment No. 1147, to prohibit the 
     repayment of enlistment or related bonuses by certain 
     individuals who become employed as military technicians (dual 
     status) while already a member of a Reserve component.
       Levin (for Reed) amendment No. 1148, to provide rights of 
     grievance, arbitration, appeal, and review beyond the 
     adjutant general for military technicians.

[[Page 18599]]

       Levin (for Reed) amendment No. 1204, to authorize a pilot 
     program on enhancements of Department of Defense efforts on 
     mental health in the National Guard and Reserves through 
     community partnerships.
       Levin (for Reed) amendment No. 1294, to enhance consumer 
     credit protections for members of the Armed Forces and their 
     dependents.
       Levin amendment No. 1293, to authorize the transfer of 
     certain high-speed ferries to the Navy.
       Levin (for Boxer) amendment No. 1206, to implement 
     commonsense controls on the taxpayer-funded salaries of 
     defense contractors.
       Chambliss amendment No. 1304, to require a report on the 
     reorganization of the Air Force Materiel Command.
       Levin (for Brown (OH)) amendment No. 1259, to link domestic 
     manufacturers to defense supply chain opportunities.
       Levin (for Brown (OH)) amendment No. 1261, to extend 
     treatment of base closure areas as HUBZones for purposes of 
     the Small Business Act.
       Levin (for Brown (OH)) amendment No. 1263, to authorize the 
     conveyance of the John Kunkel Army Reserve Center, Warren, 
     OH.
       Levin (for Leahy) amendment No. 1080, to clarify the 
     applicability of requirements for military custody with 
     respect to detainees.
       Levin (for Wyden) amendment No. 1296, to require reports on 
     the use of indemnification agreements in Department of 
     Defense contracts.
       Levin (for Pryor) amendment No. 1151, to authorize a death 
     gratuity and related benefits for Reserves who die during an 
     authorized stay at their residence during or between 
     successive days of inactive-duty training.
       Levin (for Pryor) amendment No. 1152, to recognize the 
     service in the reserve components of the Armed Forces of 
     certain persons by honoring them with status as veterans 
     under law.
       Levin (for Nelson (FL)) amendment No. 1209, to repeal the 
     requirement for reduction of survivor annuities under the 
     Survivor Benefit Plan by veterans' dependency and indemnity 
     compensation.
       Levin (for Nelson (FL)) amendment No. 1236, to require a 
     report on the effects of changing flag officer positions 
     within the Air Force Material Command.
       Levin (for Nelson (FL)) amendment No. 1255, to require an 
     epidemiological study on the health of military personnel 
     exposed to burn pit emissions at Joint Base Balad.
       Ayotte (for Blunt/Gillibrand) amendment No. 1133, to 
     provide for employment and reemployment rights for certain 
     individuals ordered to full-time National Guard duty.
       Ayotte (for Murkowski) amendment No. 1286, to require a 
     Department of Defense inspector general report on theft of 
     computer tapes containing protected information on covered 
     beneficiaries under the TRICARE program.
       Ayotte (for Murkowski) amendment No. 1287, to provide 
     limitations on the retirement of C-23 aircraft.
       Ayotte (for Rubio) amendment No. 1290, to strike the 
     national security waiver authority in section 1032, relating 
     to requirements for military custody.
       Ayotte (for Rubio) amendment No. 1291, to strike the 
     national security waiver authority in section 1033, relating 
     to requirements for certifications relating to transfer of 
     detainees at U.S. Naval Station Guantanamo Bay, Cuba, to 
     foreign countries and entities.
       Levin (for Menendez/Kirk) amendment No. 1414, to require 
     the imposition of sanctions with respect to the financial 
     sector of Iran, including the Central Bank of Iran.


                           Amendment No. 1125

  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes of debate on the Feinstein amendment.
  The Senator from Arizona.
  Mr. McCAIN. Madam President, before we begin the debate, and with the 
Senator from California on the floor, for the benefit of our colleagues 
and the chairman, there are two pending Feinstein amendments, as I 
understand it. The Senator from California has agreed to the half hour 
equally divided as the chair just said, and then I understand the 
Senator from California has agreed to the second amendment at 4 p.m.; 
is that correct?
  Mrs. FEINSTEIN. That is correct.
  Mr. McCAIN. So prior to that, I would ask my friend the chairman if 
we could have an hour of debate starting at 3 o'clock equally divided 
before the vote at 4:00 on the second Feinstein amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEVIN. Reserving the right to object, I just want to know if the 
Senator from California understands that the vote on the second 
Feinstein amendment would be at 4:00 and that the debate would begin at 
3:00, with that hour equally divided.
  Mrs. FEINSTEIN. I do. I have a four corners meeting on the Energy and 
Water appropriations bill. That is my problem. So the later it is, the 
better it is for me.
  Mr. LEVIN. So is a 4 o'clock vote after an hour of debate acceptable?
  Mrs. FEINSTEIN. Yes. My understanding is the House chairman only has 
until 3 o'clock, but I anticipate we will take all that time. So I 
can't change that.
  Mr. LEVIN. So it is agreeable, then, that there will be an hour of 
debate on the second amendment starting at 3 o'clock with a vote at 4 
o'clock?
  Mrs. FEINSTEIN. Yes.
  Mr. LEVIN. I also ask unanimous consent that there be no second-
degree amendments to the Feinstein amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. CORNYN. I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Arizona.
  Mr. McCAIN. If we can then--obviously, we can call a vote at any 
particular time. So I would suggest again that we try to dispose of 
other amendments after the vote on the first Feinstein amendment, and 
then we will try to dispose of additional amendments between the 
disposition of the first Feinstein amendment and the second one, with 
the hour of debate equally divided, and Senator Feinstein can begin.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I rise to ask my colleagues to 
support amendment No. 1125, which will limit mandatory military custody 
to terrorists captured outside the United States. This amendment is 
cosponsored by Senators Leahy, Durbin, Udall, Kirk, Lee, Harkin and 
Webb.
  This is a very simple amendment. It adds only one word--the word 
``abroad''--to section 1032 of the underlying bill. I strongly believe 
if it is not broke, do not fix it. The ability to have maximum 
flexibility in the United States is very important, and I totally 
support the Executive having that flexibility.
  This bill creates a presumption that members or parts of al-Qaida or 
associated forces will be held in the military system. That is what 
concerns me because the military system has not produced very well over 
the last 10 years.
  I want to take a moment to contrast some cases.
  On this chart, we have sentences--five of them from military 
commissions and five or six from Federal courts. The Federal courts 
have actually convicted over the last 10, 11 years not 300 people but 
400 people.
  Military commissions are limited to some six convictions. Let's take 
a look at what they are.
  A very famous one is Salim Hamdan because he brought a Supreme Court 
case. He was bin Laden's driver. He was acquitted of conspiracy and 
only convicted of material support for terrorism. He received a 5-month 
sentence by the military commission and was sent back to his home in 
Yemen to serve the time before being released in January of 2009.
  No. 2: David Hicks entered into a plea on material support for 
terrorism and was given a 9-month sentence, mostly served back home in 
Australia.
  Omar Khadr pled guilty in exchange of an 8-year sentence, but he will 
likely be transferred to a Canadian prison.
  Ibrahim Ahmed Mahmoud al-Qosi pled guilty to conspiracy and material 
support to terrorism. His final sentence was 2 years pursuant to a plea 
deal.
  Noor Uthman Muhammed pled guilty to conspiracy and material support 
to terrorism. His final sentence will be less than 3 years pursuant to 
his plea agreement.
  Ali Hamza al-Bahlul received a life sentence after he boycotted the 
entire commission process.
  On the other hand, you have sentences from the Federal courts.
  You have Richard Reid, the Shoe Bomber--life in prison.
  ``Blind Sheik'' Omar Abdel Rahman--life in prison for the plot to 
bomb New York City.
  Twentieth Hijacker Zacarias Moussaoui--life in prison.
  Ramzi Yousef--life in prison for the 1993 World Trade Center bombing 
and the Manila Air plot.

[[Page 18600]]

  Umar Farouk Abdulmutallab--probably life in prison; will be sentenced 
in January 2012.
  Najibullah Zazi--potential life in prison. This is the man, with 
conspirators, who was going to bomb the New York subway.
  There is definitive evidence that is irrefutable that the Federal 
courts have done a much better job than the military commissions.
  Why this constant press, that if it is not broke we are going to fix 
it anyway, I do not understand. Why the constant push to put people in 
military custody rather than provide the flexibility so that evidence 
can be evaluated quickly? This person will get life in a Federal court 
versus an inability or a problem in a military commission or vice 
versa. I think the Executive should have that.
  I think the last 10 years have clearly shown that this country is 
safer than it has ever been. Terrorists are behind bars where they 
belong and plots have been thwarted, so the system is working.
  This amendment would make clear that under section 1032, U.S. Armed 
Forces are only required to hold a suspected terrorist in military 
custody when he is captured abroad. All the amendment does is add one 
word--that is the word ``abroad''--to make clear that the military will 
not be roaming our streets looking for suspected terrorists. The 
amendment does not remove the President's ability to use the option of 
military detention or prosecution inside the United States.
  The administration has threatened to veto this bill, and has said:

       [It] strongly objects to the military custody provision of 
     section 1032 [because it] would tie the hands of our 
     intelligence and law enforcement professionals.

  Perhaps, most importantly, addressing the issue of this amendment 
specifically, on November 15, Defense Secretary Leon Panetta wrote 
this:

       The failure of the revised text to clarify that section 
     1032 applies to individuals captured abroad . . . may 
     needlessly complicate efforts by frontline law enforcement 
     professionals to collect critical intelligence concerning 
     operations and activities within the United States.

  The Director of National Intelligence, Jim Clapper, also wrote a 
letter on November 23, to say that he opposes the detainee provisions 
of this bill because they could--and I quote--``restrict the ability of 
our nation's intelligence professionals to acquire valuable 
intelligence and prevent future terrorist attacks.''
  The administration suggested this change to the Armed Services 
Committee, but it was rejected. So the administration has had to 
threaten a veto on the bill. Who knows whether they will. I certainly 
do not know. This amendment limiting mandatory military custody to 
detainees outside the United States is a major improvement to the bill, 
and I ask my colleagues to support it.
  I have a very hard time because I have watched detainees carefully as 
part of the Senate Intelligence Committee, and we are doing a study on 
the detention and treatment of high-value detainees. This has been 
going on for 2 years now. It is going to be a 4,000-page document, and 
it is going to be classified. But it will document what was actually 
done with each of the high-value detainees and what was learned from 
them. It shows some very interesting things. But the upshot of all of 
this is that we should keep military custody to people arrested abroad 
and have the wide option in this country, which is the case now, and 
not mandate--mandate--that military custody and military commission 
trial must be for everyone arrested in the United States.
  You will hear that anyone who comes to the United States who carries 
out a criminal act, a terrorist act under the laws of war, should be 
subject to military custody. The problem is, 10 years of experience has 
not worked. How many years' experience do we need? How many sentences--
six cases--and this is all there is in 10 years.
  I know the other side got very upset when Abdulmutallab was 
Mirandized. The fact of the matter is, every belief is Abdulmutallab is 
going to do a life sentence in a Federal prison, put away somewhere in 
a place where he cannot escape and where the treatment is very serious.
  I have, again, a hard time knowing why if it is not broke we need to 
fix it, and why we need to subject everybody who might be arrested in 
this country to a record that is like this: 5-month sentence, 9-month 
sentence, 8-year sentence, 2-year sentence, 3 years pursuant to a plea 
agreement, and one life sentence, when you have 400 cases that have 
been disposed of in a prompt way in a Federal court, who are serving 
long sentences in Federal prison.
  I wish to hold the remainder of my time and have an opportunity to 
respond to the distinguished chairman and ranking member.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I wish to yield----
  Mr. LEVIN. Before the Senator yields time to the Senator----
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Will the Senator refrain for 1 minute? While Senator 
Feinstein is here, I understand it is now preferable from our leader 
that the vote be at 2 o'clock, not immediately following this half-hour 
debate.
  Mrs. FEINSTEIN. If that is possible, that would be helpful. But it is 
whatever Senators want.
  OK. All right.
  Mr. McCAIN. Does the Senator want to unanimous-consent that?
  Mr. LEVIN. Madam President, I ask unanimous consent that the vote, 
which was previously scheduled to occur at the end of the half hour of 
debate on this amendment, now be rescheduled for 2 o'clock.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LEVIN. Madam President, relative to the time between that half 
hour and 2 o'clock, that time, hopefully, would be used. It will be by 
me for my remarks on this amendment, by the way, because after the 30 
minutes, if it is used totally, I would want an opportunity to speak 
during that time, if necessary in morning business. But there are other 
amendments we believe can be voice voted during that period of time, I 
believe my friend from Arizona would agree. So that time will be 
fruitfully used. But the time now is 2 o'clock for the vote on that 
first Feinstein amendment.
  I thank my friend.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, the vote will be at 2 o'clock. The 
Senators from New Hampshire and South Carolina wish to speak. I do not 
know if the chairman wishes to be before or during that or in between. 
But, also, it does not change the agreement we have, which has not been 
agreed to but we have agreed we will attempt to have a vote on the 
second Feinstein amendment at 4 o'clock still. Is that correct? We will 
attempt to do that?
  Mr. LEVIN. It will continue to be our intent. It was objected to 
before. But we hope that objection will be removed. If it is not 
removed, we will have to have all these votes at the end of the day 
instead of during the day.
  Mr. McCAIN. So beginning at 3, whether we have a unanimous consent 
agreement--because the Feinstein amendment is very important--I would 
ask, informally, if we do not have a unanimous consent agreement, that 
we have an hour equally divided beginning at 3 so we can debate the 
second Feinstein amendment.
  In the meantime, as the chairman said, we will try to dispense with 
voice votes and other agreed-upon amendments, and perhaps even maybe a 
recorded vote if necessary on one of the amendments.
  I would remind my colleagues, we run out of time at 6 o'clock this 
evening, and we would rather do it in a measured fashion, allowing 
recorded votes or debate before those recorded votes, because those 
pending amendments will be voted on after 6 p.m. tonight.
  I hope I did not say anything the chairman does not agree with.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. No. I agree with what the Senator said and what the intent 
is

[[Page 18601]]

here; that, hopefully, we could have an hour debate starting at 3 
o'clock. We will try to lock that in at a later time, after giving 
folks notice. But if there is objection to votes before the time runs 
out, the 30-hour clock runs out, then we will have to have all those 
votes after the 30-hour clock runs out, and it does not make any sense 
to do that. But if there is going to be an objection, then that is the 
way it will have to be.
  What Senator McCain is saying--and I totally agree with him--is, even 
if we are put in that position, which I hope we are not, that at least 
we could use the time between now and then for debate on those 
amendments which we would have to vote on at a later time. I totally 
agree with my friend from Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I yield 7 minutes to the Senator from 
New Hampshire and 8 minutes to the Senator from South Carolina.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. Madam President, I rise in opposition to the amendment 
offered by the Senator from California, amendment No. 1125. I would 
start with this: We have heard repeatedly--not only from the Senator 
from California but also from the Senator from Illinois--about the 
number of cases in our civilian system where we have tried terrorists 
versus the number of military commissions.
  I think there is one thing that needs to be clarified upfront here; 
that one of the first acts the President took when he came into office 
was to actually suspend all military commissions for about 2 years. So 
to compare the number of cases in our civilian system versus the number 
of military commission trials we have had is a false comparison when we 
suspended these trials for over 2 years. I want to say that upfront.
  But I think the chart the Senator shows actually misses the point of 
why we have this amendment before us; that is, we need to gather 
intelligence. When we have captured a member of al-Qaida who is 
planning an attack against the United States of America, the first goal 
has to be, obviously, getting that person away from where he can 
threaten us again to kill Americans, but also, just as importantly, to 
gather intelligence to protect America. The criminal justice system is 
set up to see that justice is served in a particular case, not to see 
that we have the maximum tools in the hands of our intelligence 
officials to gather information.
  Yet it seems to me that if you look in the context of Senator 
Feinstein's amendment 1126 that we have already talked about on the 
floor, she wants to limit the administration. The case law of our 
Supreme Court that is going back to World War II would take us before 
9/11. And heaven forbid if we had an American citizen who was one of 
the participants in an incident such as we had occur on our soil on 9/
11. Our military would not be permitted to hold that person and to 
question them to get the maximum amount of information and protect our 
country.
  With respect to this amendment she has pending before the Senate, 
1125, I want to point out that the amendment would lead to a very 
absurd result. Essentially what it would say is if you are a member of 
al-Qaida, planning or committing an attack against the United States of 
America, a foreigner, and you make it to our soil, as the 9/11 
conspirators did who committed that horrible attack on our country, 
then you cannot be held in military custody. There is no mandatory 
military custody under those circumstances. Yet we will hold you in 
mandatory military custody if you are found overseas. So, in other 
words, please, their goal is unfortunately to come to the homeland, to 
come to our country to attack us here, and in our country we need the 
authority to, in the first instance--the presumption should be to hold 
those individuals in military custody so that we are not reading them 
Miranda rights. To tell a terrorist: You have the right to remain 
silent is counter to what we need to do to protect Americans and make 
sure that--for example, I will use the Christmas Day Bomber as an 
example because it has been cited so many times here on this floor.
  That day, when he was found on the plane, after 50 minutes of 
questioning, he was read his Miranda rights and he invoked his Miranda 
rights and remained silent. It was only 5 weeks later after we tracked 
down his parents and convinced him to cooperate that he actually 
provided more information.
  We are very fortunate that he was only involved in one event, that it 
was not a 9/11-type event where there were multiple events on American 
soil planned. But what if after that 50 minutes we waited 5 weeks to 
get more information, yet there had been more events coming that day? 
That is what is at issue here. Let's bring ourselves back to September 
11. What if we had caught the individuals who were on one of those 
planes before it took off on
9/11? What if in that instance we would not hold those members of al-
Qaida in military custody that instant to make sure that we could get 
the maximum amount of information from them to hopefully, God forbid, 
prevent the lifting off of the other flights and what happened on that 
horrible day in our country's history?
  I have to believe that if we were standing here immediately after the 
events of 9/11, I do not think we would be debating this amendment, 
deciding whether if you make it to our homeland we will not hold you in 
military custody in the first instance, to find out how much 
information you have, to make sure you are not part of multiple attacks 
on the United States of America.
  If the amendment of the Senator from California passes, what kind of 
message are we sending to members of al-Qaida, foreigners who are 
planning attacks against the United States of America? We are laying 
out, unfortunately in my view, a welcome mat to say: If you make to it 
America, you will not be held in military custody. But if you attack us 
overseas, then you will be held in military custody. Why would we 
create a dual standard where we should be prioritizing protecting our 
homeland, protecting the United States of America? This leads to an 
absurd result.
  I would hope my colleagues would reject the Senator's amendment to 
say that only those members of al-Qaida who do not make it to our 
homeland to attack us right here on our soil will be held in the first 
instance in mandatory military custody. Because our goal has to be here 
to protect Americans and to make sure we do not create a dual standard 
where if you are captured over there, we are going to hold you in 
military custody, but if you are captured and if you make it here, you 
are going to be getting greater rights, we will process you in the 
civilian system, and we will tell you you have the right to remain 
silent. We should not be telling terrorists they have the right to 
remain silent. We should be protecting Americans. If we were to pass 
this amendment, it would create an absurd standard where you get 
greater rights when are you here on our soil. I think that makes us 
less safe.
  I would urge my colleagues to reject both of the Senator's 
amendments, both 1126 that would deny the executive branch the 
authority to hold them----
  The PRESIDING OFFICER. The Senator's time has expired.
  Ms. AYOTTE. Madam President, I ask unanimous consent for 30 seconds 
to wrap up.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. AYOTTE. Madam President, I would ask my colleagues to reject 1126 
as well, which would take away the authority of the executive branch as 
allowed by our Supreme Court and would make us less safe in this 
country as well as 1125. We have to protect America and make sure we 
get the maximum information to prevent future attacks on this country.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 3 minutes remaining of the 
original 30 minutes.
  Mrs. FEINSTEIN. Thank you very much.

[[Page 18602]]


  Mr. LEVIN. Would the Senator yield for a question?
  Mrs. FEINSTEIN. Not on my time. On the Senator's time.
  Mr. LEVIN. On my time. Quick question. After the 30 minutes expires, 
because we are not going to have a vote now, there would be additional 
time should the Senator need it after that 30 minutes.
  Mrs. FEINSTEIN. I appreciate it. I may well use it.
  Madam President, I object to the statement just made that this will 
make the United States of American less safe. Ten years of experience 
has shown it has not. Plot after plot after plot has been interrupted. 
I have served on the Intelligence Committee for 11 years now. We follow 
this closely. This country is much more safe because things have 
finally come together with the process that is working.
  The FBI has a national security division with 10,000 people. There 
are 56 FBI offices. The military does not have offices to make arrests 
around this country. This constant push that everything has to be 
militarized--they were wrong on Hamdi, they were wrong on Hamdan. And 
it keeps going. And that it is terrible to protect people's rights. I 
do not think that creates a safe country. This country is special 
because we have certain values, and due process of law is one of those 
values. So I object. I object to holding American citizens without 
trial. I do not believe that makes us more safe. I object to saying 
that everything is mandatory military commission and military custody 
if anyone from abroad commits a crime in this country. The 
administration has used the flexibility in a way that they have won 
every single time. There have been no failures.
  The Bush administration as well used the Federal courts without 
failure. They have gotten convictions. The military commissions have 
failed, essentially; 6 cases over 10, 11 years. I pointed out the 
sentences. So to say that what we are doing is to make this country 
less safe may be good for a 30-second sound bite, but it is not the 
truth.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. I say to my good friend from California, you are a 
patriot. You are here for all of the right reasons. We just have a 
strong disagreement about where we stand as a nation.
  Nobody interrupted the Christmas Day Bomber plot. The people on the 
plane attacked the guy before he could blow it up. There was no FBI 
agent there. There was no CIA agent there. We are lucky, thank God, the 
passengers did it. So there is nothing to suggest that our intelligence 
community does not need as many tools as possible because the guy got 
through the system. We are lucky as hell the bomb did not go off.
  Mrs. FEINSTEIN. Would the Senator yield for a question?
  Mr. GRAHAM. The Times Square Bomber, nobody interrupted that plot. 
The guy did not know how to set the bomb off. We are lucky as hell the 
bomb did not go off. So do not stand here and tell me that we have got 
it right, because we have not. And here is the point: We never will 
always get it right. I am not saying that as criticism. Because we are 
going to get hit again. We cannot be right and lucky all of the time.
  To those who are trying to defend us, the one thing I do not want to 
do is micromanage the war. Here is the political dynamic. You have got 
people on the left who hate the idea of saying ``the war on terror.'' 
If you left it up to them, they would never, ever use the military, 
they would always insist that the law enforcement model be used because 
they do not buy into the idea of we are at war. So you have got one 
part of the country, a minority, that wants to criminalize the war. If 
we ever go down that road, woe be unto us.
  You have got people on my side--the Senator is right about this. They 
have gone the other way. If you left it up to people on my side, there 
would be a law passed tomorrow that you could never, ever read a 
Miranda right to a terrorist caught anywhere in the United States.
  I do not agree with that way of thinking. To my fellow members of the 
U.S. military, you have not failed at Guantanamo Bay. You have not 
failed. Because you sentenced someone to 9 months to me validated the 
fact that those who are taking an oath to defend us, when they are put 
in a position of passing judgment on people accused of trying to kill 
us all, will be fair.
  So when you say a military commission tribunal at Guantanamo Bay gave 
a 9-month sentence and that is a failure, I say, as a proud member of 
the military, I am proud of the fact that you can judge a case based on 
the facts and the law and not emotion. So I am very proud of the fact 
that military commissions can do their job as well as the civilian 
courts.
  I say to our Federal prosecutors and our Federal juries and our 
Federal judges, I am proud of you too. We should be using an ``all of 
the above'' approach. There are times that Federal courts are better 
than military commissions. There are times that military commissions 
are better than Federal courts.
  The 1032 language has nothing to do about what venue you choose. This 
provision is simple in its concept. It is a compromise between those on 
the left who say you must criminalize this war; we are not at war; you 
are going to have to use the law enforcement model; you can neither 
gather military intelligence, who do not believe that the military has 
a role on the homeland to gather intelligence, which is an absurd 
concept, never acknowledged before in any other war.
  When American citizens helped the Nazis, collaborated with Nazis to 
engage in sabotage, not only were they held as enemy combatants during 
World War II, they were tried by military commissions. We no longer 
allow American citizens to be tried by military commissions. I think 
that is a reasoned decision. But what we do not want to do is prevent 
our intelligence community from holding an al-Qaida affiliated member 
and gathering intelligence.
  If an American citizen went to Pakistan and got radicalized in a 
madrasah and came back to the United States and landed at Dulles 
Airport and got a rifle and started shooting everyone on the Mall, I 
believe it is in our national security interests to give our 
intelligence community the ability to hold that person and gather 
intelligence about: Is another guy coming? What did you do? What future 
threats do we face? And not automatically Mirandize him. But if they 
choose to Mirandize him, they can. In this legislation, we presume 
military custody, but it can be waived.
  That is the point I am trying to make. Senators Levin and McCain have 
struck a balance between one group that thinks the military can only be 
used and nobody else and another group that says we can never use the 
military. We have that balance. If we upset this balance, we are going 
to make us not only less safe, the Congress is going to do things on 
our watch that we have never done in any other war.
  A word of warning to my colleagues: If we had a bill on the floor of 
the Senate saying we are not going to read Miranda rights to terrorists 
who are trying to kill us all, 70 percent of the American people would 
say: Heck yes.
  I don't want this bill to come up. I believe the people who are best 
able to judge what to do is not any politician, they are the experts in 
the field fighting this war. We are saying we can waive the presumption 
of military custody, we can write the rules to waive it, but we believe 
we should start with that construct.
  Let me read to you what the general counsel for the Department of 
Defense said today:

       Top national security lawyers in the Obama administration 
     say U.S. citizens are legitimate military targets when they 
     take up arms with al-Qaida. The government lawyers, CIA 
     counsel Stephen Preston, and Pentagon counsel Jeh Johnson, 
     did not address the Awlaki case. But they said U.S. citizens 
     don't have immunity when they are at war with the United 
     States.

  The President of the United States was right to target this citizen 
when he went to Yemen to help al-Qaida. I am glad we took him out. So 
would it not

[[Page 18603]]

be absurd that we can kill him, but we cannot detain him? If he came 
here, we cannot question him for military intelligence gathering. So 
this is a compromise between two forces that are well intended but will 
take us into a bad policy position: the hard left who wants to say the 
military has no role in protecting us on the homeland and some people 
on my side who say the law enforcement community cannot be involved at 
all.
  So Senator Levin and Senator McCain have constructed a concept that 
provides maximum flexibility, gives guidance to the law enforcement 
community, starts with a presumption that I like and can be waived and 
will not impede an ongoing investigation. That is the part of the bill 
that was changed.
  To my good friend from California, we have the balance we have been 
seeking for 5 years. To me, this is what we should be doing as a 
nation--creating legislation that allows those who are fighting the war 
the tools they need. In this case, we start with the presumption of 
military custody because that allows us to gather intelligence. Under 
the domestic criminal law, we cannot hold someone and ask them about 
future attacks, because we are investigating a crime. Under military 
law, when somebody joins the enemy and engages in an act of war against 
the Nation, our military intelligence community can hold that person 
for as long as it takes to find out what they know about future 
attacks. If the guy gets off of a plane and starts killing people at 
the mall, when we grab him and he says I want my lawyer, we can say: 
You are not entitled to a lawyer. We are trying to gather intelligence.
  At the end of the day, use military commission trials, use Federal 
courts, and read Miranda rights when we think it makes sense; but we 
don't have to because the law allows us to hold people, under military 
custody, who represent a military threat. The law allows us to kill 
American citizens who have joined al-Qaida abroad. That has been the 
law for decades. I hope this compromise that Carl Levin and John McCain 
have crafted--and I say to Carl Levin, I have been in his shoes. When 
John and I were on the floor saying don't waterboard people--gather 
intelligence but don't become like the enemy--a lot of Americans 
believed we should waterboard these people, do whatever we need to do 
because they are so vicious and hateful. But John McCain knows better 
than anybody in this body what it is like to be tortured.
  I wish to protect America without changing who we are. It has always 
been the law that when an American citizen takes up arms and joins the 
enemy, that is not a criminal act; that is an act of war. They can be 
held and interrogated about what they did and what they know because 
that keeps us safe. If we take that off the table, with homegrown 
terrorism becoming the greatest threat we face, we will have done 
something no other Congress has done in any other war.
  The PRESIDING OFFICER. The original 30 minutes has expired.
  Mr. GRAHAM. Madam President, I thank Senators Levin and McCain for 
drafting a compromise that I think speaks to the best of this country. 
To my colleagues, please don't upset this delicate balance. If you do, 
you will open a Pandora's box.
  Mr. McCAIN. Madam President, I say to both Senators while they are on 
the floor, if it had not been for their invaluable effort, this 
legislation would not have come about. I thank them for their 
incredibly important contributions, using the benefit of the experience 
that both Members have.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I wonder if I might take a few 
minutes to make a couple statements.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEVIN. Madam President, I have no objection.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I wished to say with respect to 
Abdulmutallab, what was very new there was that an explosive had been 
invented that could go through a magnetometer without detection. It is, 
to my knowledge, the first time anyone came into the United States--
this young Nigerian from a very prominent Nigerian family--wearing a 
diaper that had enough of this PETN, this new explosive, to blow up the 
plane. He missed in detonation and it caught on fire and the fire was 
put out.
  There have been other incidents of trying to smuggle this PETN in 
cartridges of computers and they even had dogs going to the airport and 
they could not smell the explosive inside the computer cartridge. That 
was in Dubai. It is a very dangerous explosive. It is new, and it has 
been improved. It is something we need to be very wary of.
  I also wish to point out that there is a public safety exception to 
Miranda. We do not have to Mirandize someone or we could continue to 
question them, if there is a public safety risk. So Mirandizing an 
individual is not a point in this argument, in my view, because we can 
continue the interrogation.
  What is a point, in my argument, is that the FBI now has competence; 
that there is a group of special experts who can be flown to a place 
where someone is arrested and do initial interrogation. They are 
specifically trained and, to the best of my knowledge, they are 
effective at interrogating. My point is, the system is working, and we 
should keep it as it is.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. While Senator Graham is on the floor, I ask unanimous 
consent to have a colloquy with him about this section 1032, the 
section at issue.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. I very much appreciate Senator Graham's remarks. He said 
the provision provides for military custody as a beginning or starting 
point. I wonder whether he would agree that not only is it a beginning 
point, but it is only for a narrow group of people who are determined 
to be al-Qaida or their supporters.
  Mr. GRAHAM. Yes. It is not only a presumption that can be waived, 
based on what the experts in the field think is necessary; the waiver 
provision is incredibly flexible. You do not have to stop an 
interrogation to get the waiver. The executive branch can write the 
procedures. Not only is it a presumption that can be waived, it is also 
limited to a very narrow class of people. It has nothing to do with 
somebody buying gold. I don't know about Senator Levin, but people call 
me, who are on the right, saying: Don't let Obama put me in jail 
because I think he is a socialist or are you going to be able to grab 
me because of my political views? I tell my staff to be respectful and 
read them the language. The only people who need to worry about this 
provision are a very narrow group of people who are affiliated with al-
Qaida, engaged in hostile acts.
  Mr. LEVIN. Would the Senator also agree with me that under the 
provision in the bill, on page 360--we were told that civilian trials 
are preferable to military trials, preferable to the detention of an 
unlawful combatant. Does the Senator agree that every one of those 
options is open to the executive branch and that there is no preference 
stated, one way or the other, for which approach is taken to people who 
are detained?
  Mr. GRAHAM. Not only would I agree that 1032 and 1031--the compromise 
language about statement of authority to detain and military detaining 
as a presumption--has nothing to do with the choice of venue, there are 
people on my side who are champing at the bit to prohibit civilian 
courts from being used in al-Qaida-driven cases; is the Senator 
familiar with that?
  Mr. LEVIN. Yes.
  Mr. GRAHAM. I am of the view that we are overly criminalizing the 
war. I don't want to adopt that policy. There is nothing in this 
language that has anything at all to do with how you try somebody and 
what venue you pick. I am in the camp--and I think Senator Levin is 
too--of an all-of-the-above approach. I am proud of our civilian courts 
and our military courts. The

[[Page 18604]]

Senator and I are probably not in the best position to determine that. 
Let's let the experts do it.
  Mr. LEVIN. That is exactly the point. This language, when it is 
described as language that says somehow or other it works against using 
civilian courts, is from folks who haven't read our language. The 
language is explicit. On page 360, lines 3 through 14 in the bill, it 
says the disposition of a person under the law of war may include the 
following--and then they talk about detention under the law of war, 
trial under title X, which is the military trial, transfer for trial by 
an alternative court or competent tribunal having lawful jurisdiction; 
that is, article III courts, and transfer or return of custody to the 
country of origin. There are no others. There is no preference stated 
for which of those venues would be selected by the executive branch.
  Mr. GRAHAM. Is this a fair statement: If it was your goal to prevent 
military commissions from ever being used, you didn't get your way in 
this legislation. If it was your goal to mandate that military 
commissions are the only venue to be used, you didn't get your way in 
this legislation because this legislation doesn't speak to that issue 
at all.
  Mr. LEVIN. That is absolutely true. Senator Graham brought to the 
floor something that was stated this morning by the top lawyer for the 
Obama administration. I think everybody ought to listen to this. There 
has been so much confusion about what is in the bill and what isn't. 
Right now, there is authority to detain U.S. citizens as enemy 
combatants. That authority exists right now. That is not me saying it, 
that is the Supreme Court that has said it as recently as Hamdi, when 
they said there is no bar to this Nation holding one of its own 
citizens as an enemy combatant. That is current law. That is the 
Supreme Court saying that. Then, the Supreme Court also said in Hamdi 
that they see no reason for drawing a line because a citizen, no less 
than an alien, can be part of supporting forces hostile to the United 
States or coalition partners and engaged in armed conflict against the 
United States.
  Top lawyers for the President, this morning, acknowledged this. I 
wish every one of our colleagues could hear what Senator Graham brought 
to the floor. Top national security lawyers in the administration say 
U.S. citizens are legitimate military targets when they take up arms 
with al-Qaida.
  Are we then going to adopt an amendment that says to al-Qaida that if 
you attack us overseas, you are subject to military detention, but if 
you come here and attack us, you are not subject to military detention? 
That is what the first Feinstein amendment says.
  Mr. GRAHAM. If I may just add--not only is that the effect, that 
would be a change in law because the Senator agrees with me that in 
other conflicts, prior to the one we are in today, American citizens, 
unfortunately, have been involved in aiding the enemy; is that correct?
  Mr. LEVIN. I am sorry, I was distracted.
  Mr. GRAHAM. Does the Senator agree with me that in prior wars 
American citizens have been involved in aiding the enemy of their time?
  Mr. LEVIN. They have, and they have been held accountable.
  Mr. GRAHAM. Yes. And the In re Quirin case, which Hamdi cited and 
affirmed, was a fact pattern that went as follows: We had German 
saboteurs, some living in America before they went back to Germany--I 
think one or two may have been an American citizen--who landed on our 
shores with a plot to blow up different parts of America. During the 
course of their efforts, American citizens aided the Nazis. The Supreme 
Court said when an American citizen chose to help the Nazis at home, on 
our homeland, they were considered to be an enemy belligerent 
regardless of their citizenship, and we could detain one of our own 
when they sided with the enemy.
  Mr. LEVIN. There was a naturalized citizen involved in Quirin, who 
was arrested, as I understand it, on Long Island, and who was charged 
with crimes involving aiding and supporting the enemy.
  Mr. GRAHAM. Let's talk about the world in which we live today.
  Mr. LEVIN. And military detention.
  Mr. GRAHAM. Military detention and tried by a military commission.
  Mr. LEVIN. Exactly. By the way, I think executed.
  Mr. GRAHAM. And executed. The Senator from Michigan and I have said, 
along with our colleagues, that military commissions cannot be used to 
try American citizens.
  Mr. LEVIN. That is correct.
  Mr. GRAHAM. Our military has said they do not want that authority. 
They want to deal with enemy combatants when it comes to military 
commission trials. But our military CI and FBI have all understood 
their power to detain for intelligence-gathering purposes is an 
important power. It is not an exclusive power.
  So let's talk about today's threat. The likelihood of homegrown 
terrorism is growing. Does the Senator agree that the homegrown 
terrorist is becoming a bigger problem?
  Mr. LEVIN. It is an issue, absolutely.
  Mr. GRAHAM. So in a situation where an American citizen goes to 
Pakistan and gets radicalized in a madrasah, gets on a plane and flies 
back to Dulles Airport, gets off the plane and takes up arms against 
his fellow citizens, then goes to the mall and starts randomly shooting 
people, the law we are trying to preserve is current law, which would 
say if the experts decide it is in the Nation's best interests, they 
can hold that American citizen as they were able to hold the American 
citizen helping the Nazis and gather intelligence.
  That is a right already given. Senator Feinstein's amendment, even 
though I don't think it is well written, could possibly take that away. 
That is 1031. But what we are saying is, we want to preserve the 
ability of the intelligence community to hold that person under the law 
of war and find out: Is anybody else coming? Are you the only one 
coming? What do you know? What madrasah did you go to? How did you get 
over? How did you get back?
  We want to preserve their ability to hold that person under the law 
of war for interrogation. But we also concede, if they think it is 
better to give them their Miranda rights, they can. That is what the 
legislation we create will do. Does the Senator agree with that?
  Mr. LEVIN. I do. And the top lawyers of the administration 
acknowledged as much this morning when they said U.S. citizens are 
legitimate military targets when they take up arms with al-Qaida.
  The provisions we are talking about in section 1032, which Senator 
Feinstein would modify so that it is only al-Qaida abroad who would be 
subject to this presumption of a military detention, but al-Qaida who 
come here--and, by the way, American citizens are not even covered 
under 1032. But the foreign al-Qaida fighters who come here to attack 
us are not going to be subject to that presumption of military 
detention which, again, can be waived. It has nothing to do with in 
what venue they are tried. The administration, the Executive, has total 
choice on that. It is just whether we are going to start with an 
assumption if they are determined to be al-Qaida, if they are a foreign 
al-Qaida person, they sure as heck ought to be subject to that same 
assumption whether they attack us here or whether they attack us 
overseas.
  Mr. GRAHAM. Wouldn't it be kind of hard to explain to our 
constituents that our top lawyers in the Pentagon and CIA said today 
that once an American citizen decides to help al-Qaida they can be 
killed in a drone attack, but the Congress somehow says, OK, but they 
can't be detained?
  Mr. LEVIN. I wouldn't want to try to hold that position.
  Mr. GRAHAM. Does the Senator believe America is part of the 
battlefield in our global war on terror?
  Mr. LEVIN. It has been made part of the battlefield without any 
doubt. On September 11, the war was brought here by al-Qaida. How do we 
suggest that a foreign al-Qaida member should not be subject to an 
assumption to begin with, if they are determined to be al-Qaida, that 
they are going to be detained--that we should not start with that 
assumption--subject to procedures which the administration

[[Page 18605]]

adopts. It is totally in their hands. It cannot interfere with a 
civilian interrogation. It cannot interfere with civilian intelligence. 
We are very specific about it. The procedures are written by the 
executive branch. They can try them anywhere they want.
  But if they bring a war here--they bring a war here--we are going to 
create an assumption that they can be subject, and are going to be 
subject, to military detention.
  Mr. GRAHAM. Well, my belief is that most Americans would want our 
military being able to combat al-Qaida at home as much as they would 
abroad. I think most Americans would be very upset to hear that the 
military has no real role in combatting al-Qaida on our own shore, but 
we can do anything we want to them overseas.
  Frankly, there are very good people on our side who want to mandate 
that the military has custody, and no one else, so we never have to 
read Miranda rights. Quite frankly, there are people on the left, 
libertarians, well-meaning people, who want to prevent the idea of a 
person being held under military custody in the homeland because they 
do not think we are at war and this is really not the battlefield.
  What the Senator and I have done is to start with the presumption 
that focuses on intelligence gathering because the Senator and I are 
more worried about what they know about future attacks than how we are 
going to prosecute them.
  Under domestic criminal law, we can't hold someone indefinitely. The 
public safety law I will talk about in a bit, but I say to my good 
friend from California, the public safety exception was a very 
temporary ability to secure a crime scene. It was not written regarding 
terrorism. So our law enforcement officials cannot use the public 
safety exception to hold an al-Qaida operative for days and question 
them. The only way to do that legally is under the law of war. In every 
other war we have had that right, and we are about to change that.
  Mr. LEVIN. If I can interrupt, we have that right abroad against 
members of al-Qaida. But under this approach we would not be able to 
assume that military detention at home, again, subject to waiver and 
subject to all the other protections we have.
  Mr. GRAHAM. Right. Well, let's keep talking about it because the more 
we talk about it the more interesting the whole concept becomes.
  The last time I looked, there were no civilian jails overseas. So 
when we capture a terrorist overseas, the only place we can detain them 
is in military custody. If they make it at home to say the military 
can't hold a person and interrogate them under the law of war, the only 
way we can hold an al-Qaida operative who made it to America is under 
the law enforcement model. This is not ``Dragnet.'' We are trying to 
make sure both systems are preserved, starting with the presumption of 
intelligence gathering.
  Here is the key distinction. To my colleagues who worry about how we 
prosecute someone, that is really the least of my concerns. I am 
worried about intelligence gathering. I have confidence in our civilian 
system and confidence in our military system. But shouldn't we be 
concerned, most of all, Senator Levin, that when we capture one of 
these operatives on our shores or abroad that we hold them in a humane 
fashion but a fashion to gather intelligence?
  Imagine if we got one of the 9/11 hijackers. Wouldn't it have been 
nice to have been able to find out if there was another plane coming 
and hold them as long as necessary to get that information humanely? To 
say we can't do that makes us a lot less safe.
  Mr. LEVIN. We could do that if we captured them in Afghanistan, but 
here we are going to be treating them differently. It ought to probably 
be worse. In other words, people who bring the war here, it seems to 
me, at a minimum ought to be subject to the same rules of interrogation 
as they would be if they were captured and part of al-Qaida in 
Afghanistan.
  I don't understand the theory behind this. As a matter of fact, when 
we adopted the authorization for use of military force, it would seem 
to me the first people we would want to apply the authority of that 
authorization to would be al-Qaida members who attack this country.
  Mr. GRAHAM. That is the only group subject to this provision; is that 
correct?
  Mr. LEVIN. The only group that is protected.
  Mr. GRAHAM. But this provision we wrote only deals with that.
  Mr. LEVIN. Exactly.
  Mr. GRAHAM. No one is going to be put in jail because they disagree 
with Lindsey Graham or Barack Obama. We are trying to fight a war.
  I would say something even more basic. It is in my political 
interest, quite frankly, being from South Carolina--a very conservative 
State, great people--to be able to go home and say I supported 
legislation to make sure these terrorists trying to come here and kill 
us never hear the words ``you have the right to remain silent.'' Most 
people would cheer.
  It would have been in my interest years ago, quite frankly, to have 
gone back and said: You know what. I wish the worst thing that could 
happen to our guys caught by these thugs and barbarians is that they 
would get waterboarded. They get their heads cut off. Yet we have all 
these people worried about how we treat them in trying to find out a 
way to protect the country. That would be in my political interest, and 
I am sure it would probably be in your political interest to say: Wait 
a minute, we don't want to militarize this conflict.
  At the end of the day, what I wanted to say about the Senator and 
Senator McCain is that one of you is a warrior who has experienced 
worse than waterboarding and doesn't want that to be part of his 
country's way of doing business. The other is someone who has been a 
very progressive, solid, left-of-center Senator for years. I am a 
military lawyer who comes from a very conservative State, but I want to 
fight this war--I don't believe we are fighting a crime--but I want to 
fight it in a way that doesn't come back to haunt us. I don't want to 
create a system on our watch that could come back and haunt our own 
people. I don't want to say that every enemy prisoner in this war has 
to go to trial because what if one of our guys is captured in a future 
war? Do we want them to be considered a war criminal just because they 
were fighting for the United States?
  So what we are trying to do is to create policy that is as flexible 
as possible but understands the difference between fighting a war and 
fighting a crime.
  Mr. LEVIN. Mr. President, I understand there are other Senators who 
may be coming over to speak, and I will be happy to yield the floor 
whenever that happens because this is the time which is not structured 
before the scheduled vote at 2 p.m. But if I can continue, then, until 
another Senator comes to the floor, I want to just expand on this one 
point which has been made which has to do with whether there is 
something in this section of ours that would allow our military to 
patrol our streets. We have heard that.
  Well, we have a posse comitatus law in this country. That law 
embodies a very fundamental principle that our military does not patrol 
our streets. There is nothing in section 1032 or anywhere else in this 
bill that would permit our military to patrol our streets.
  I think Senator Graham is probably more familiar with what I am going 
to say than perhaps any of our colleagues. We have a posse comitatus 
statute in this country. It makes it a crime for the military to 
execute law enforcement functions inside the United States.
  That is unchanged. That law is unchanged by anything in this bill.
  Mr. GRAHAM. Does the Senator know why that law was created?
  Mr. LEVIN. I think we had a fear a couple hundred years ago that that 
might happen.
  Mr. GRAHAM. One of the things you learn in military law school is the 
Posse Comitatus Act, because if a military member or a unit is asked to 
assist in a law enforcement function, that is prohibited in this 
country. Why is that? We don't want to become a military state. We have 
civilian law

[[Page 18606]]

enforcement that is answerable to an independent judiciary.
  The Posse Comitatus Act came about after Reconstruction, because 
during the Reconstruction era the Union Army occupied the South. They 
were the judge, jury, and law enforcement. They did it all because 
there was no civilian law enforcement. After the South was 
reconstructed, a lot of people felt that was not a good model to use in 
the future; that we don't want to give the military law enforcement 
power; they are here to protect us against threats, foreign and 
domestic; law enforcement activities are completely different.
  Now we have National Guard members on the border. That is not a law 
enforcement function. That is the national security function. But I 
have been receiving calls that say our legislation overturns the Posse 
Comitatus Act. Here is why that is completely wrong.
  Surveilling an al-Qaida member, capturing and interrogating an al-
Qaida member is not a law enforcement function; it is a military 
function. For the Posse Comitatus Act to apply, you would have to 
assume that a member of al-Qaida is a common criminal and our military 
has no legal authority here at home to engage the enemy if they get 
here.
  You talk about perverse. You would be saying, as a Congress, that an 
al-Qaida member who made it to America could not be engaged by our 
military. What a perverse reading of the Posse Comitatus Act.
  The reason al-Qaida is a military threat and not a common criminal 
threat is because the Congress in 2001 so designated. I think most 
Americans feel comfortable with the idea that the American military 
should be involved in fighting al-Qaida at home, and that is not a law 
enforcement function.
  Mr. LEVIN. That is why we have very carefully pointed this provision 
1032 to a very narrow group of people--people who are determined to be 
members of or associated with al-Qaida.
  Then the question becomes, Well, how is that determination made? What 
are the procedures for that? The answer is it is left up to the 
executive branch to determine those procedures. Can there be any 
interference with the civilian law enforcement folks who are 
interrogating people that they arrest? If someone tries to blow up 
Times Square and they are being interrogated by the FBI, is there any 
interference with that interrogation? None. We explicitly say that 
there is no such interference.
  What about people who are seeking to observe illegal conduct? Is 
there any interference with that? There is none. We specifically say 
those procedures shall not interfere with that kind of observation, 
seeking intelligence. We are not interfering with the civilian 
prosecution, with the civilian law enforcement at all.
  The rules to determine whether someone is a member of al-Qaida are 
rules which the executive branch is going to write. They can't say, 
Well, this thing authorizes the interference with civilian 
interrogation when, as a matter of fact, it specifically says it won't, 
and the procedures to determine whether somebody is governed by this 
assumption are going to be written by the FBI and the Justice 
Department and the executive branch. And, on top of that, there is a 
waiver.
  Mr. GRAHAM. May I add something. I want to respond to one of my good 
friends, Senator Paul, who said, Well, that is all good, but sometimes 
in democracies you let in very bad people and I don't want to give 
broad power to the executive branch that could result in political 
persecution.
  I would tell you--Senator Levin may find this hard to believe--there 
are people on my side who don't trust President Obama and his 
administration. Some of them don't think he is an American. Some of 
them believe that if we pass this law, you are going to give the Obama 
administration the power to come on and pick them up because they go to 
a rally somewhere.
  All I can say to Senator Paul and others: I share the concern about 
unlimited executive power. I support the Posse Comitatus Act. I don't 
support the idea that the military can't fight al-Qaida when they come 
here. We are not talking about law enforcement functions.
  But here is what happens: If someone is picked up as a suspected 
enemy combatant under this narrow window, not only does the executive 
branch get to determine how best to do that--do you agree with me that, 
in this war, that every person picked up as an enemy combatant--citizen 
or not--here in the United States goes before a Federal judge, and our 
government has to prove to an independent judiciary outside the 
executive branch by a preponderance of the evidence that you are who we 
say you are and that you have fit in this narrow window? That if you 
are worried about some abuse of this, we have got a check and balance 
where the judiciary, under the law that we have created, has an 
independent review obligation to determine whether the executive branch 
has abused their power, and that decision can be appealed all the way 
to the Supreme Court?
  Mr. LEVIN. That guarantee is called habeas corpus. It has been in our 
law. It is untouched by anything in this bill. Quite the opposite; we 
actually enhance the procedures here. The Senator from South Carolina 
has been very much a part of the effort here.
  Mr. GRAHAM. Much to my detriment.
  Mr. LEVIN. With all the risks that are entailed of being 
misunderstood and all the rest. That is something the Senator from 
South Carolina has engaged in, to try to see if we can put down what 
the detention rules are--by the way, ``are''--because as the 
administration itself said in its statement of administration policy, 
the authorities codified in this section--authorities codified in 
section 1031 they are referring to--those authorities already exist.
  Mr. GRAHAM. In this case where somebody is worried about being picked 
up by a rogue executive branch because they went to the wrong political 
rally, they don't have to worry very long, because our Federal courts 
have the right and the obligation to make sure the government proves 
their case that you are a member of al-Qaida and didn't go to a 
political rally. That has never happened in any other war. That is a 
check and balance here in this war. And let me tell you why it is 
necessary.
  This is a war without end. There will never be a surrender ceremony 
signing on the USS Missouri. So what we have done, knowing that an 
enemy combatant determination could be a de facto life sentence, is we 
are requiring the courts to look over the military's shoulder to create 
checks and balances. Quite frankly, I think that is a good 
accommodation.
  Mr. LEVIN. Not only is what the Senator said accurate, but we have 
done something else in this bill. There is an Executive order that was 
issued some years ago that said there should be a periodic review 
process for folks who are being detained under the law of war. Because 
it is so unclear as to when this war ends, there is real concern about 
that. What do we do about that? So in this bill what we require the 
executive branch to do--and I am now quoting from section 1035--is to 
adopt procedures for implementing a periodic review process. Those 
procedures don't exist now. They are not formalized. So we want to 
formalize them for the very reason that the Senator from South Carolina 
addressed: because we want to make sure that since we don't know when 
this particular war is going to end, it is kind of hard to define it 
and everyone is concerned about that, you have got to have review 
procedures. The greatest review procedure of all is habeas corpus. But 
there are also requirements in the Executive order for a periodic 
review process of whether somebody is still a threat or not a threat, 
for instance. The war may still be going on, but the person may no 
longer be a threat.
  Should there be an opportunity for the person to say that? Well, 
there should be. There surely should be a regular review process. The 
Senator from South Carolina has been very much involved in this kind of 
due process. But what we put into our bill--which would have been 
eliminated, by the way, if

[[Page 18607]]

the Udall amendment had been adopted yesterday--is a requirement that 
the Executive order's procedures be adopted, because so far we haven't 
seen that.
  Mr. GRAHAM. I would say why I wanted to do that. I want to be able to 
say--and not to my political advantage. But I want to be able to tell 
people post-Abu Ghraib, post-early Guantanamo Bay, we have cleaned up 
our act. We are trying to get the balance we didn't have originally. I 
want to be able to tell people we no longer torture in America. That is 
why you and I wrote the Detainee Treatment Act, with Senator McCain, 
the War Powers Act that clearly bans waterboarding.
  I want to be able to tell anybody who is interested that no person in 
an American prison--civilian or military--held as a suspected member of 
al-Qaida will be held without independent judicial review. We are not 
allowing the executive branch to make that decision unchecked. For the 
first time in the history of American warfare, every American combatant 
held by the executive branch will have their day in Federal court, and 
the government has to prove by a preponderance of the evidence you are 
in fact part of the enemy force. And we did not stop there. Because 
this could be a war without end, we require an annual review process 
where each year the individual's case is evaluated as to whether they 
still maintain a threat or they have intelligence that could be 
gathered by longer confinement.
  What I would say to our colleagues is that we have tried to strike 
that balance. There are a lot of people who don't like the idea that 
you give these terrorists Federal hearings and lawyers and all that 
other stuff. There are a lot of people who don't like the fact that we 
do have now humane interrogation techniques. But I like that, because I 
want to win this war on our terms, not theirs. So I couldn't be more 
proud of this bill.
  To my colleagues on the right who want to mandate military custody 
all the time and you never can read them their Miranda rights, I am 
sorry, I can't go there. To our friends on the left who want to say the 
military has no role in this war at home, I am sorry, I can't go there. 
Military commissions make sense sometimes, sometimes Federal courts 
make sense.
  I will end on this note. This compromise that we have come up with I 
think will stand the test of time. Unfortunately, most likely radical 
Islam as we know it today is not going to be defeated in our lifetime, 
and I hope to have created on my watch as a Senator a legal system that 
has robust due process, that adheres to our values, but also recognizes 
we are at threat like any other time in recent memory and allows us to 
protect ourselves within the values of being an American. I cannot tell 
you how much I appreciate working with the Senator and Senator McCain, 
and I think we have accomplished that after 10 years of trying.
  Mr. LEVIN. Mr. President, I yield the floor.
  Mr. MANCHIN. Mr. President, I ask unanimous consent to speak as if in 
morning business.
  The PRESIDING OFFICER (Mr. Coons). Without objection, it is so 
ordered.


                     Extension of Payroll Tax Cuts

  Mr. MANCHIN. Mr. President, I want to speak on these very strange 
days in Washington, in this Congress.
  This esteemed body's approval rating is at 9 percent, and I am having 
a hard time finding the 9 percent. It seems to me that the only thing 
we are working hard on is whether we can get the approval rating to 
zero, and I think we seem to be going in that direction.
  We fight over political solutions that can't pass and, more 
importantly, won't solve this Nation's great problems. We fight for 
political points and mistakenly believe that the American people care 
who is up or down. But they don't.
  I didn't come to Washington for the purpose of playing games, taking 
names, or keeping score. That is not what I was sent here to do. That 
is not what the people of West Virginia want me to do. I came here to 
fix things and to be a part of the solution. I have not come here to 
worry about my next election or whether Republicans or Democrats are up 
or down. I came here to do what I could to improve life for the next 
generation. I, for one, am willing to sacrifice my next election so the 
next generation can win. And if that means losing, so be it.
  I rise today to speak about the next chapter of this sad state of 
affairs which the American people are forced to witness: whether we 
should extend and expand the payroll tax cut that will cost more than 
$240 billion in 1 year.
  Many accusations are being thrown back and forth in the debate over 
the so-called tax cuts or tax increases, depending on which side of the 
fence you are on. There is one very basic fact that is missing from all 
of this very important conversation: Americans pay for one thing with 
our payroll tax--One. Social Security.
  Social Security isn't just another government program. It was 
established in 1935 to provide economic security for our Nation's 
seniors who worked hard and earned their retirement benefits. They 
worked their whole life to provide our generation and those that will 
follow with a better and greater America.
  Yet at the time when our Nation faces a death spiral of debt, when we 
should be talking about how we can come together to fix a fiscal 
nightmare that will threaten the very programs we care about such as 
Social Security, instead we are talking about undermining the very 
foundation of our longest standing retirement program. Right now, 
Social Security is on a collision course. By 2037, according to the 
trustees, if we do not do anything, benefits for everyone will have to 
be cut by 22 percent. Yet we are digging a deeper hole by destabilizing 
its funding with this recommendation. All in return for what? A 
temporary measure that has already cost nearly $120 billion and has at 
best created few if any jobs.
  In the real world, when policy doesn't work, we stop and try 
something else. Apparently, in Washington we double down. Why would we 
do this? Why would we double down on a policy that did not work? The 
answer is simple. For the sake of a short-term political gain, leaders 
of both parties and the President are willing to fight over how we 
should pay for a failed program that jeopardizes the fundamental way 
that we pay for our retirement security in this country. That does not 
make any sense to me, and it does not make any sense to the good people 
in West Virginia.
  I know in the coming days we are going to hear a lot of political 
talk about extending the payroll tax. What they are saying sure sounds 
good: More money in our pockets. In fact, politicians will offer 
assurances that Social Security will not be hurt at all. My good 
friend, who will be speaking also on this, Senator Kirk from Illinois, 
is going to show a graph that basically shows that to be different.
  What you will not hear them say, though, is that reducing payroll 
taxes even temporarily would take more than $240 billion out of Social 
Security's funding stream, if we approve the President's proposal. We 
certainly will not hear them say the way they would repay those 
hundreds of billions of dollars is through our general revenue fund. If 
we extend the cuts this year, what about the next year and the year 
after? When does it stop? When do we have the political will to finally 
say we better start paying again for Social Security.
  Our approval rating is at 9 percent, and we are rapidly losing the 
support of our family members. Just how many Americans really believe 
that Congress will make sure our general fund is solid enough to live 
up to the responsibility of funding Social Security? If the payroll tax 
cut is extended as it stands this year, the average family in West 
Virginia will pay $14 less per week. For a lot of people that is a lot 
of money. But the few West Virginians who even realize they are getting 
help say they would gladly give that up in return for a reliable Social 
Security safety net or for a real tax reform that cuts rates across the 
board and that ensures that every American, especially the wealthy, 
will start paying their fair share. They would gladly do that.

[[Page 18608]]

  Let me be clear. As a country, we cannot expect that Social Security 
will remain secure if we keep telling Americans we do not have to pay 
for it, and that is exactly the conclusion people will reach if we keep 
reducing their contributions. Social Security is one of our highest 
priorities as a country, and we should not let the Federal Government 
undermine Social Security by convincing Americans they do not really 
have to pay for it.
  Then, again, there are some in Washington who want us to believe the 
very act of reducing our contributions to Social Security will spur job 
creation. Unfortunately, the reality is very different.
  We tried the payroll tax cut last year, and I supported it. But I 
will not double down on the failed policy, especially one that 
jeopardizes the future of Social Security. Truth be told, over the last 
year I traveled more than 18,000 miles in my State, and I have yet to 
find very many West Virginians who even know they are getting a 
discount, let alone business owners who say they will hire anybody if 
we give them a discount for 1 year.
  What business owners do tell me is that what they want more than 
anything is some certainty and some confidence in this economy; that we 
will do the right thing and stabilize this economy. Instead, the 
President and leadership in both parties are trying to give them more 
of the same failed policies--taking steps that will further undermine 
our finances, worsen our debt crisis, and jeopardize hundreds of 
billions from Social Security's regular funding stream, all without the 
reality that it will create any jobs.
  With this great Nation now more than $15 trillion in debt--it will be 
$17 trillion next year and going to $21 trillion by 2021--the enormity 
of this problem is that just servicing the debt by 2021 will be greater 
than what we spend on our Department of Defense to secure this great 
Nation. We cannot afford to continue to double down on failed policies.
  As for taxes, don't get me wrong. I don't want to see Americans 
paying higher taxes. No way. I simply want a commonsense tax system 
that ensures everyone pays their fair share, especially the wealthy, 
who have benefitted the most from this failed tax system we have right 
now--real tax reform that will lower tax rates for everyone as we close 
the loopholes, credits, and offsets that allow some corporations and 
some Americans to avoid paying their fair share. It is time to stop all 
of that.
  Some will say that it is impossible; it cannot be done. I think they 
are wrong. It requires leadership from the White House to every corner 
of Congress, and it requires each and every one of us to be willing to 
sacrifice our political futures for the Nation's future. I, for one, am 
willing to do just that.
  This is our moment. At this critical moment in our history we must 
get our financial house in order and letting Americans believe we do 
not have to pay for Social Security is wrong. It is dead wrong. It is 
the wrong policy. It is wrong for our seniors, it is wrong for our 
future, and I will not vote for it, period, under any condition. For 
the sake of the next generation we must get our fiscal house in order, 
and we can do that if we are willing to make difficult decisions.
  I will not vote for either of these two proposals to extend the 
payroll tax cuts. Looking forward for the sake of our Nation, I hope we 
will begin to work on a proposal that makes the hard decisions while 
also protecting the programs and commitments we value as a nation. For 
myself, and I believe many of my colleagues, there is a bipartisan path 
forward that can help save this Nation, and I have my good colleague, 
the Republican from Illinois, who is going to speak to it also.
  I believe the best path forward is based on the framework and 
recommendations outlined in the Bowles-Simpson proposal. When those 
recommendations were laid out a year ago today--this is the anniversary 
today--I had been a Senator for less than a month--brand-new, less than 
1 month. What I saw in that report gave me great hope. It gave me hope 
that we could identify our problems, which we did--the fiscal 
responsibility that we had--and willingly tackle them together. So I 
was on a high for that one short period.
  As a brand-new Member, I was so encouraged that such a responsible, 
bipartisan group of people, put together by the President, offered a 
no-holds-barred report on our fiscal situation and some pathways to fix 
it. Then the proverbial air came out. Not only did the President and 
his administration walk away from these bipartisan proposals, but 
leadership in both Chambers of Congress failed to pick up this report 
and run with it.
  Here we are a year later. If anything, our problems are worse. We are 
going to be forced to make deeper cuts than we wanted to, all because 
our leadership would not confront the enormous problems we face with a 
comprehensive long-term solution. But the Bowles-Simpson plan is still 
the only proposal that enjoys strong bipartisan support. It started as 
a bipartisan commission. It grew in numbers and it is still growing. It 
has a responsible manner to balance this problem we have.
  It is not perfect; no plan is. I do not agree with everything it 
proposes. But no plan can be everything to everyone. With today being 
the 1-year anniversary of the unveiling of that proposal, I am urging, 
and will continue to urge, our President and the leadership of both 
Chambers to support any and all efforts--not only to pick up this 
report, but also to put the resources behind drafting and passing this 
legislation into law. I ask we all remember the great opportunity we 
have before us to do what is right.
  I do not want to be part of the first generation--and I know the 
Presiding Officer doesn't want to be part, and I know my good friend 
from Illinois doesn't want to be part of the first generation that 
leaves this Nation in worse shape for the next generation. I don't 
believe this President or any Member of Congress wants to fail the next 
generation either.
  With that, I want to turn over my time to my colleague from Illinois.
  Mr. KIRK. If I could engage the Senator in a colloquy, this is a 
chart that shows the legislation we are considering today. What it 
shows is the tremendous hit to the tax that supports Social Security. 
This is the Old Age Survivors Disability Act. It is a $240 billion hit 
to the funding to support Social Security. We both are going to vote no 
on both pieces of legislation today because we do not think seniors 
should take this level of hit.
  In the Casey-Reid legislation--this is where the so-called 
millionaires' tax comes in--it only refunds what Social Security needs 
to the level of 7 percent in 2013. In fact, according to one analysis, 
we may trigger the end of the debt limit before the election if we pass 
this because of the $246 billion we will have to borrow temporarily 
until the long stretch of this revenue comes in.
  We are about to do a chart with the Republican alternative. It has 
the same long payout there, and tremendous hit to Social Security. In 
this time of all these political bills, I think Senator Manchin and I 
are both saying let's not do the political thing anymore. We both voted 
for the payroll tax deduction legislation before because the country 
was in crisis, and we wanted to try this out. But this is revenue that 
supports the benefits that Social Security recipients depend on, and we 
cannot continue to try to run this program without that revenue. So I 
think this holiday should end. I think this revenue should not be 
foregone. I do not think seniors should be faced with a trust-us policy 
that will pay them back. I would actually say even the political vote 
is to vote against this so you are for Social Security and for making 
sure this payment is continued.
  I commend the Senator. I think we should exactly follow this policy 
of no on both of these because, if you vote no, you are supporting 
Social Security.
  One other thing: I ask AARP to speak more clearly on this issue. AARP 
currently told my staff that they are neutral on this. I urge AARP 
members to contact AARP and say: Defend Social Security revenues. Make 
sure there is enough in the kitty for our

[[Page 18609]]

benefits. We know that 10,000 Americans a day are now qualifying for 
Social Security. We know this is an age of no free lunch. We want to 
make sure the revenues are there not just today but tomorrow because 
seniors absolutely depend on that.
  With that, I yield back to my colleague.
  The PRESIDING OFFICER. Let the record show the Senator sought 
recognition, unanimous consent to proceed to a colloquy and did so 
without objection.
  Mr. KIRK. I thank the Chair.
  Mr. MANCHIN. I say to my friend from Illinois, what he says is 
absolutely correct. We have so many people, especially in West Virginia 
and Illinois, who depend on Social Security. In fact, in West Virginia, 
for 62 percent of the people who receive Social Security it is their 
major funding mechanism. It is how they live day to day. They have told 
me: Do not touch our Social Security Program, our core values of Social 
Security, what it does for us. If we pass this, not only do we touch 
it, we jeopardize its solvency in the long term.
  If you believe we are going to be responsible enough to pay for this 
in the 10 years outgoing, then we have some beach-front property in 
West Virginia we would love to interest you in.
  Mr. KIRK. I would say, this is a very long payout, both under the 
majority and minority piece of legislation. I am hoping enough Members 
say no to both pieces of legislation so we defend Social Security, and 
I commend the Senator.
  Mr. MANCHIN. I think we are very strong in support of the Bowles-
Simpson, basically, the template that it laid out. It is the only one 
that is bipartisan. As you can see, it stayed bipartisan with the 
Senator and I, and it will remain bipartisan. It has a tax reform, but 
everyone pays a fair share. The very wealthy who have escaped paying 
because of the flawed tax policies would now start paying if we had 
real tax reform--not increased rates but just their fair share. That is 
what we ask.
  Mr. KIRK. With that, I yield and commend the Senator. We are hoping 
for two ``no'' votes because we think those are the votes that support 
Social Security and its continued revenue.
  Mr. MANCHIN. I thank the Bowles-Simpson committee, Mr. Bowles and Mr. 
Simpson, for what they have done a year ago, bringing it to our 
attention, bringing a pathway to fixing the financial problems we are 
dealing with. We are concerned about the next generation more so than 
our next election. That is what we were sent here to do.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1414

  Mr. MENENDEZ. Mr. President, I rise to urge my colleagues to pass 
amendment No. 1414 that I have offered with my distinguished colleague 
from Illinois, Senator Kirk, to strengthen sanctions against Iran that 
go to the heart of the regime's ability to finance its nuclear 
ambitions. This is a broad-based effort, a bipartisan effort, and one 
that needs the Senate's attention and passage.
  In my view, we have to follow the money, and this amendment does 
exactly that. If we are serious about limiting Iran's ability to 
finance its nuclear ambitions, this amendment is essential to that 
effort. It is a serious attempt to sanction the Central Bank of Iran, 
which is known to be complicit in Iran's nuclear efforts.
  If we fail to close loopholes and sanction funding mechanisms for 
Iran's nuclear development programs, we would be like a rancher who 
left the barn open and wonders why the horses are gone. To not pass 
this amendment is leaving the door open to Iran's runaway nuclear 
ambitions. We cannot and we must not let that happen.
  I know the administration has expressed their concerns about this 
amendment--an amendment which, by the way, has come about as a result 
of the administration asking us to work with them, and a bipartisan 
effort has achieved a narrower, more defined, tailored effort to bring 
the maximum sanctions upon Iran with the minimum consequence to both 
the United States and our allies across the globe. But in the absence 
of congressional action over the last 15 years, starting with the Iran 
and Libya Sanctions Act and ending with CISADA, I have to wonder what 
we would be doing to stop Iran's drive to obtain nuclear weapons, if it 
were not for the Congress's intercession and actions.
  I recognize this administration has done more than any prior 
administration in terms of using those tools the Congress has given 
them, but in my view, we have not done enough.
  In a letter from Secretary Geithner today, the administration 
recognizes that ``Iran's greatest economic resource is its export of 
oil. Sales of crude oil line the regime's pockets, sustain its human 
rights abuses, and feed its nuclear ambitions like no other sector of 
the Iranian economy.'' That is what Secretary Geithner had to say in 
his letter. That is pretty compelling as to why this amendment needs to 
pass, that is why I have worked with Senator Kirk to pass this 
important amendment, and that is why we urge our colleagues to pass it.
  To those who have raised concerns about the impact of the amendment 
on our allies and our multilateral diplomacy efforts, I would note that 
the European nations and the French in particular are already 
considering their own Iranian oil embargo. This is not, by the way, an 
oil embargo, but they are considering something far more significant--
their own Iranian oil embargo. They recognize that the Iranian nuclear 
program has a short fuse. Published reports say it may be as short as 1 
year, and the time to act is now. They recognize that the Shahab 
missile would not only be capable of hitting the State of Israel but 
could easily hit a European nation--a European nation which obviously 
would be a NATO ally.
  As for other countries, frankly, I am not concerned with how the 
Chinese feel about our amendment given that they are currently one of 
greatest violators of our current sanctions regime already. The 
evidence is clear.
  I have been made aware that several major energy traders continue to 
make prohibited sales of refined petroleum to Iran. Yet our response 
has been to sanction the front companies rather than the major figures 
behind these sales.
  China also continues to be a major Iranian trading partner and has 
agreements with Iran for nearly $40 billion in investments to develop 
Iranian oil fields. China has reportedly directed the China National 
Offshore Oil Corporation and National Petroleum Corporation to slow 
their work in Iran, presumably to allow them to make the argument to 
Washington to hold off on sanctions.
  We must ask, why has the administration been reluctant to sanction 
Chinese companies when there is ample evidence that they are violating 
our own existing laws and there is precedent for us sanctioning Chinese 
companies for nuclear and weapons proliferation outcomes?
  Mr. McCAIN. Would the Senator yield for a question?
  Mr. MENENDEZ. I would be happy to yield.
  Mr. McCAIN. Is it the Senator's impression that action by the United 
Nations Security Council is pretty dim given the stated positions of 
Russia and China on this issue?
  Mr. MENENDEZ. The Senator, in my view, is right, considering that 
they both have veto power at the Security Council. It seems to me that 
they are not likely allies in helping us pursue this course.
  Mr. McCAIN. So then it really makes a more compelling argument to 
those who may be wavering on this amendment that there is a clear 
record on the part of China and Russia in the U.N. Security Council 
that we cannot expect a Security Council vote, but perhaps we could 
expect other nations to follow suit once the United States leads on 
this issue.
  Mr. MENENDEZ. I believe the Senator is right.

[[Page 18610]]


  Mr. McCAIN. I thank the Senator.
  Mr. MENENDEZ. The November 8 IAEA report underscores the need for 
this amendment. It undeniably confirms that there is a military 
component to Iran's nuclear program; that Iran has not suspended its 
Iranian enrichment and conversion activities at declared facilities and 
is seeking to develop as many as 10 new enrichment facilities; that 
there are undisclosed nuclear facilities in Iran; that Iran is seeking 
back channels to acquire dual-use technology and materials; that Iran 
is experimenting and testing detonators and initiation systems critical 
to creating a nuclear weapon; and that Iran may be working on an 
indigenous design for a nuclear weapon, including a nuclear payload 
small enough to fit on Iran's long-range Shahab missile, a missile 
capable of reaching Israel. These public revelations have led to an 
increase in multilateral sanctions on the Iranian regime, which I 
applaud, but given what appears to be a shortening timeline until Iran 
has a potential nuclear weapon, it would seem we are not doing enough 
fast enough.
  Iran has adapted to CISADA and has negotiated workarounds to 
constraints on its financial transactions and its ability to acquire 
requisite materials to advance its clandestine program. This amendment 
will prevent those workarounds. It will impose sanctions on those 
international financial institutions that engage in business activities 
with the Central Bank of Iran--particularly in the pursuit of petroleum 
products--with the exception of transactions that include medicine and 
medical devices.
  It is a timely amendment that follows the administration's decision 
last week designating the entire Iranian banking sector as a primary 
money laundering concern and a threat to government and financial 
institutions, noting Iran's illicit activities, including its pursuit 
of nuclear weapons, its support of terrorism, and its efforts to 
deceive responsible financial institutions and evade sanctions. In 
fact, the Financial Crimes Enforcement Network of the Department of the 
Treasury wrote:

       The Central Bank of Iran, which regulates Iranian banks, 
     has assisted designated Iranian banks by transferring 
     billions of dollars to those banks in 2011. In making these 
     transfers, the CBI attempted to evade sanctions by minimizing 
     the direct involvement of large international banks with both 
     CBI and designated Iranian banks.

  The Under Secretary of the Treasury for Terrorism and Financial 
Intelligence, David Cohen, wrote:

       Treasury is calling out the entire Iranian banking sector, 
     including the Central Bank of Iran, as posing terrorist 
     financing, proliferation financing, and money laundering 
     risks for the global financial system.

  I don't know how much more compelling even the administration's own 
arguments are. As I have said on this floor, Iran's conduct threatens 
the national security of the United States and its allies. The 
complicit action of the Central Bank of Iran, based on its facilitation 
of the activities of the government, its evasion of multilateral 
sanctions directed against the Government of Iran, its engagement in 
deceptive financial practices and illicit transactions, and, most 
important, its provision of financial services in support of Iran's 
effort to acquire the knowledge, materials, and facilities to enrich 
uranium and to ultimately develop weapons of mass destruction, 
threatens regional peace and global security.
  This amendment will starve the beast. It requires the President to 
prohibit transactions of Iranian financial institutions that touch U.S. 
financial institutions. To ensure that we don't spook the oil markets, 
transactions with Iran's Central Bank in petroleum and petroleum 
products would only be sanctioned if the President makes a 
determination that petroleum-producing countries other than Iran can 
provide sufficient alternative resources for the countries purchasing 
from Iran and that the country declines to make significant decreases 
in the purchases of Iranian oil.
  This bipartisan amendment has been carefully crafted to ensure the 
maximum impact on Iran's financial infrastructure and ability to 
finance terrorist activities and to minimize the impact on global 
economy. It has the best chance of helping us achieve a peaceful 
solution to this threat. I urge my colleagues to support this 
amendment.
  Mr. McCAIN. May I ask one additional question?
  Mr. MENENDEZ. I would be happy to do so. I know we have a vote in 5 
minutes, and I want the distinguished Senator from Illinois to have an 
opportunity to speak.
  Mr. McCAIN. These questions are for either Senator.
  Is it true that in this legislation, there is a national security 
waiver, that the President can waive the provisions of this bill if he 
feels it is in the national interest? Also, how do you respond to the 
argument being put forward that this could destroy the world's 
financial system if this legislation would be put into effect?
  Mr. MENENDEZ. The answer is, yes, there is a national security 
waiver, and, no, we do not believe the world's financial system will be 
destroyed. The fact is, as my distinguished colleague from Illinois has 
said, it is a choice between a $300 billion economy in Iran and a $14 
trillion economy in the United States. I think that choice would be 
very clear for countries as they choose to do so, and the Europeans are 
already on a march on their own because they understand the risk to 
them.
  I yield the floor, and I hope to hear from my colleague from 
Illinois.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. KIRK. I rise in very strong support of the Menendez-Kirk 
amendment.
  I wish to compliment the Senator from New Jersey for an outstanding 
performance in the Senate Foreign Relations Committee today in which he 
called on the representatives of our government to move quicker on 
this.
  We saw the Baha'is radicals of Iran overrun the embassy of our allies 
in the United Kingdom. We saw the British Prime Minister just announce 
that he was removing all Iranian diplomats from the United Kingdom. We 
saw the Government of Italy announcing that they were suspending some 
diplomatic activities. We have seen a whole number of actions by the EU 
now to join with us on sanctions.
  I will just say with regard to this amendment that it has now been 
cosponsored formally by 46 Senators: Menendez, Kirk, Barrasso, 
Blumenthal, Blunt, Boozman, Brown of Massachusetts, Brown of Ohio, 
Cardin, Casey, Collins, Coons, Crapo, Feinstein, Franken, Gillibrand, 
Graham, Hatch, Heller, Johanns, Klobuchar, Kyl, Lautenberg, Lee, 
Lieberman, Manchin, Merkley, Mikulski, Moran, Murkowski, Nelson of 
Florida, Nelson of Nebraska, Portman, Pryor, Risch, Roberts, Schumer, 
Snowe, Stabenow, Tester, Thune, Toomey, Vitter, Warner, Whitehouse, and 
Wyden. These 46 Members are on the shoulders of the 92 who signed the 
Kirk-Schumer letter in August. When in these partisan times do we have 
all but eight Senators agreeing on a policy?
  I will just note, as Senator Menendez and Senator McCain pointed out, 
the administration is somewhat worried about this amendment, but 
Senator Menendez correctly provided flexibility to the administration 
by saying, No. 1, if the energy information agency says oil markets are 
tight and issues a report on the affected oil markets, these sanctions 
could be suspended for a time. On top of that one waiver, there is a 
second waiver for the national security of the United States that the 
President could have that kind of flexibility.
  So with flexibility, with bipartisan support, with outrageous 
activity by Iran, in the face of the IAEA report, moving toward a 
nuclear weapon, with the danger we see from that government and 
Hezbollah and Hamas against our allies in Lebanon and Israel, with the 
plot announced by the Attorney General of the United States to blow up 
a Georgetown restaurant in an effort to kill the Saudi Arabian 
Ambassador, with the plight of 330,000 Baha'is oppressed by that 
country, with someone like Nasrin Sotoudeh, the lawyer for Shirin 
Ebadi--the Noble Prize laureate's lawyer was thrown in jail just

[[Page 18611]]

for representing that client--for all these reasons, this is the right 
amendment, at the right time, sending the right message in the face of 
a very irresponsible regime.
  I yield back and thank the Senator for offering this well-timed 
amendment.
  The PRESIDING OFFICER. The Senator from Arizona.


                      Amendment No. 1093 Withdrawn

  Mr. McCAIN. On behalf of Senator Inhofe, I ask to withdraw amendment 
No. 1093.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, very briefly I would like to thank the 
Senators for their leadership on this issue. There is a threat to the 
security of the world posed by the Islamic nation of Iran. This is much 
needed legislation.
  I think it is important to note, as they did, that there is a 
national security waiver given to the President of the United States, 
and also we cannot expect a lot of help considering the membership of 
the United Nations Security Council and Russia and China's 
unwillingness to act on behalf of reining in this path that Iran is on 
to the acquisition and the possibility and the capability for the use 
of nuclear weapons.
  I congratulate both sponsors of the amendment, and I hope we can get 
a recorded vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.


                           Amendment No. 1125

  Mr. UDALL of Colorado. Mr. President, I wanted to rise at this time 
in support of the Feinstein amendment No. 1125, which would modify the 
requirement that the Armed Forces detain suspected terrorists by adding 
the word ``abroad'' to ensure that we aren't disrupting domestic 
counterterrorism efforts. And I would like to correct the record 
because some of the opponents of the amendment have stated that by 
inserting the word ``abroad,'' we would be preventing the military from 
detaining al-Qaida terrorists on U.S. soil, and that is simply not 
true.
  The President knows and my colleagues know that I am not comfortable 
with the detention provisions in this bill because I think they will 
undermine our fight against terrorism. But this would be an important 
change, a narrowly focused change in the provisions that have already 
been put on the floor.
  Mr. President, is the vote imminent?
  The PRESIDING OFFICER (Mr. Sanders). It is.
  Mr. UDALL of Colorado. Mr. President, I rise in support of the 
Feinstein amendment No. 1125, which would modify the requirement that 
the Armed Forces detain suspected terrorists by adding the word 
``abroad'' to ensure we are not disrupting domestic counterterrorism 
efforts. I wish to correct the Record, because some of the opponents of 
this amendment have stated that by inserting the word ``abroad'' we 
would be ``preventing the military from detaining al Qaeda terrorists 
on U.S. soil.'' This is simply not true.
  I am not comfortable with the detention provisions in this bill 
because I think they will undermine our fight against terrorism. While 
section 1031 of this legislation will authorize the military to detain 
terrorists, section 1032 requires that the military detain certain 
terrorists even if the FBI or local law enforcement is in the middle of 
a larger investigation that would yield the capture of even more 
dangerous terrorists.
  This may disrupt the investigation, interrogation, and prosecution of 
terrorist suspects by forcing the military to interrupt FBI, CIA, or 
other counterterrorism agency operations--against each of these 
organizations' recommendations, including the military's. This would be 
an unworkable bureaucratic process that would take away the ability to 
make critical and split-second decisions about how best to save 
Americans' lives. That is why the director of the FBI and the director 
of National Intelligence have strongly opposed the underlying 
provisions.
  The Feinstein amendment would simply provide the needed flexibility 
for the FBI and other law enforcement agencies to work to fight and 
capture terrorists without having to stop and hand over suspects to the 
military. However, even with the Feinstein modification, with the 
authorization in section 1031 the military could still detain a 
suspected terrorist but would not have to step in and interrupt other 
domestic counterterrorism operations.
  In other words, the Feinstein amendment would do nothing to prevent 
the military from acting, it would simply take away the mandate that 
they interrupt other investigations. I still do not believe we should 
enshrine in law authorization for the military to act on U.S. soil, but 
to argue that adding ``abroad'' to section 1032 would take away from 
the authority given in this bill is just wrong.
  Clarifying that the military is only required to detain suspected 
terrorists abroad is the best approach to address the FBI's concerns 
about this legislation, and it is the best approach for our national 
security. What we are doing is working. We should not take away the 
flexibility that is necessary to keep us safe.
  Passing this amendment would be welcome news to Secretary of Defense 
Panetta, Director of National Intelligence Clapper, FBI Director 
Mueller, and CIA Director Petraeus--who oppose the intrusive 
restrictions on their counterterrorism operations that the underlying 
bill would create.
  The other side has argued that this is fundamentally about whether we 
are fighting a war or a crime. I think that is a false choice and it 
does a disservice to our integrated intelligence community that is 
fighting terrorism successfully using every tool it possibly can. We 
can debate this in theoretical, black-and-white terms about whether 
this is a war or a crime. Or we can get back to the business of taking 
on these terrorists in every way we know how, including by using our 
very effective criminal justice system. At the end of the day, it is 
about protecting Americans, protecting this country. Why on Earth would 
we want to tie our hands behind our back?
  Our national security leadership has said the detention provisions in 
this bill could make us less safe. We should listen to their concerns 
and pass this amendment to preserve the U.S. Government's current 
detention and prosecution flexibility that has allowed both the Bush 
and Obama Administrations to effectively combat those who seek to do us 
harm.
  Again, I encourage my colleagues to support the Feinstein amendment, 
to keep faith with the Directors of the FBI, the DNI, the Secretary of 
Defense, and our Attorney General, who say these provisions could 
create unwanted complications in our fight against terrorism.
  Let's adopt the Feinstein amendment. It will help us win the war 
against terror.
  Thank you, Mr. President.
  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to a vote on the Feinstein amendment No. 1125.
  Mr. BARRASSO. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The bill clerk called the roll.
  The result was announced--yeas 45, nays 55, as follows:

                      [Rollcall Vote No. 213 Leg.]

                                YEAS--45

     Akaka
     Baucus
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Johnson (SD)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Lee
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Paul
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--55

     Alexander
     Ayotte
     Barrasso
     Begich
     Blunt
     Boozman
     Brown (MA)
     Burr
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint

[[Page 18612]]


     Enzi
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (WI)
     Kyl
     Landrieu
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Moran
     Murkowski
     Nelson (NE)
     Portman
     Pryor
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Snowe
     Stabenow
     Thune
     Toomey
     Vitter
     Wicker
  The amendment (No. 1125) was rejected.
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mrs. BOXER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. SHAHEEN. Mr. President, I rise today in support of the 2012 
National Defense Authorization Act, the critical piece of legislation 
we are now working on that will strengthen our national security, 
provide for our troops and their families, and improve oversight of 
American taxpayer dollars.
  Over the last half century, the Senate has successfully passed a 
defense authorization bill without fail every year. This strong 
tradition of bipartisanship continues today under the joint leadership 
of Senators Levin and McCain.
  As a member of the Armed Services Committee, I thank the chairman and 
ranking member, as well as the majority and minority staff, for their 
dedicated and tireless effort as we work to bring this important 
legislation to the floor.
  Throughout this yearlong process, our committee takes on extremely 
difficult and contentious security issues, and at times we have our 
differences. However, we take on these disagreements in a respectful 
and openminded fashion, driven by a strong commitment to cooperation 
and compromise. Bipartisanship has never been easy, but it works, as 
the Armed Services Committee has proven year in and year out. I hope 
all of our committees in the Senate can work in this kind of 
cooperative fashion, especially these days when budget constraints are 
so difficult.
  No department of the Federal Government is immune from the severe 
fiscal challenges facing our Nation. That includes our Department of 
Defense. We are cutting $27 billion from the President's budget request 
in this bill, nearly $43 billion from the last year's authorization. We 
need to find ways to maximize our investments in defense by 
aggressively eliminating unneeded and underperforming programs and we 
need to streamline our business practices and invest strategically in 
future technology.
  The bill before us helps ensure that our troops, especially the 
96,000 serving in Afghanistan as well as their families, continue to 
receive the care and support they deserve. It provides hard-earned pay 
raises for all uniformed military personnel, funding for critical 
equipment, and training required for our men and women to succeed on 
the battlefield.
  The Defense authorization bill before us makes important investments 
in defense, science, and technology. As I know the Chair agrees, we 
need to do more to prepare the next generation of scientists and 
engineers who will be so important to maintaining our Nation's superior 
technological edge. The current bill makes a small downpayment on this 
important effort, and I intend to continue to fight for more investment 
as we move forward.
  The bill also includes a number of provisions that will enable the 
Defense Department to lead in the creation of a more secure energy 
future for our military and for our country. As the single largest 
consumer of energy in the world today, the U.S. military has taken some 
initial steps on energy efficiency, energy mitigation, and the use of 
renewable and clean energy alternatives. But we still have a very long 
way to go. I look forward to continuing to work with the Department of 
Defense to take advantage of more energy savings opportunities in the 
future.
  This year's Defense authorization bill also includes significant 
resources to fight nontraditional threats, including the proliferation 
of nuclear, chemical and biological weapons and the growing challenge 
posed by cyber warfare. In addition, I am pleased a number of 
provisions I have been working on are currently included in the bill.
  First, we are extending the Small Business Innovation Research 
Program for the next 8 years. This is critical to keep our defense 
manufacturing base and our small business innovators strong and 
competitive. This is a provision I have worked on. I commend Senators 
Landrieu and Snowe for their leadership in the Small Business Committee 
for working on this effort and for working so hard to get this 
extension, a long-term extension, into the Defense authorization bill.
  The bill also includes a version of the National Guard Citizen 
Soldiers Support Act, which will go far in providing our National Guard 
members with the unique services and support they need when they return 
home from the fight.
  We also have a Navy shipyard modernization provision that has been 
introduced by Senators Snowe and Collins and Senator Ayotte and I, from 
New Hampshire. It also includes a $400 million cut to an unnecessary 
and underperforming weapons program that I have worked closely with 
Senators McCain and Begich to include.
  In addition, I was pleased to cosponsor Senator Leahy's National 
Guard Empowerment Act, which gives a stronger voice to our 450,000 
citizen soldiers in our National Guard.
  Although we have a good bill before us, I believe it could be better, 
and I have introduced several additional amendments, two of which are 
designed to provide the nearly 214,000 women serving in our Armed 
Services with the reproductive health care they are currently denied 
under the law. Unfortunately, we were not able to get a vote on those 
amendments. But I hope to continue to work closely with the chairman 
and ranking member to address these important concerns.
  In addition, I have worked closely with Senators Collins and Casey on 
an amendment to address unsecured and looted stockpiles of tens of 
thousands of shoulder-fired missiles in Libya. If these weapons fall 
into the wrong hands, they pose a serious threat to civil aviation 
worldwide and to our deployed forces abroad.
  I wish to thank the committee for including this provision in the 
legislation. I also wish to address, briefly, some of the concerns that 
have been raised with respect to the detainee provisions in the bill. 
The underlying legislation which I supported is an attempt to provide a 
statutory basis for dealing with detained members of al-Qaida and its 
terrorist affiliates.
  In committee, we made some difficult choices on this extremely 
complex issue. But we did that in order to strike a bipartisan 
agreement to both protect our values and our security. I understand, 
similar to all the Members of this body, the concerns that have been 
raised on both sides of these issues.
  Again, as a general principle, I believe our national security 
officials should have the flexibility needed to deal with the 
constantly evolving threat. But I also believe that clear, transparent 
rules of procedure are a bedrock legal principle of our constitutional 
system. I believe the military detention language in this bill includes 
a significant amount of flexibility for the executive branch, including 
a national security waiver and broad authorities on implementation.
  Although I support the goals of the chairman and ranking member's 
underlying legislation, I also believe we can improve those provisions. 
I supported Senator Feinstein's amendment that we just voted on which 
would restrict required military custody to only those terrorist 
suspects captured abroad.

[[Page 18613]]

  I hope that despite the disagreements, we will continue to chart a 
bipartisan path forward with respect to these detainee provisions in 
the years ahead. We need to give our national security officials at 
home and abroad a clearly defined but yet flexible system which 
protects our constitutional rights and our national security.
  In conclusion, I believe the 2012 Defense authorization bill before 
us will strengthen our national security, maintain our military power, 
keep our defense businesses competitive, help cancel and roll back 
wasteful spending, and support the men and women who defend our Nation 
every day. I hope the full Senate will quickly come to an agreement on 
the pending amendments and pass this important piece of legislation so 
it can go to the President's desk as soon as possible.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I call for the regular order with respect 
to the Merkley amendment No. 1174.
  The PRESIDING OFFICER. The Senator has that right. That amendment is 
now the regular order.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Is it necessary to lay aside the pending amendment so I 
may engage in a colloquy?
  The PRESIDING OFFICER. There is no need to do that.


                           Amendment No. 1206

  Mrs. BOXER. Senator Levin and Senator McCain, I wish to thank you 
very much. Before we engage in a colloquy, I simply want to show one 
chart which tells a story as to why Senator Grassley and I are so 
pleased the Senators are willing to accept this by voice vote.
  If I could ask Senator Levin to take a peek at this because I think 
this tells the story. This is what our military leadership makes, about 
$200,000. This is what the President of the United States as the 
Commander in Chief makes every year. This is what we have limited, and 
that was a reform, the top five defense contractors to--almost 
$700,000. But all the rest of the contract employees have absolutely no 
limit and can make $1 million a year. This is from the taxpayers.
  Senator Grassley and I feel, particularly in these times, but just as 
a matter of equity, we can fix it. We are very grateful to the two 
Senators for their willingness. So I would like to enter into a 
colloquy with Chairman Levin and, of course through him, Ranking Member 
McCain.
  I greatly appreciate their willingness to accept the Boxer-Grassley 
amendment No. 1206 that limits contractor employees' salaries to no 
more than the salary of the Commander in Chief, who is, of course, the 
President of the United States.
  Mr. LEVIN. The Senator from California, my great friend, Mrs. Boxer, 
is correct. We are willing to accept the Boxer-Grassley amendment by 
voice vote.
  Mr. GRASSLEY. Mr. President, there currently is no cap at all on the 
amount taxpayers will reimburse contractor employees for compensation 
except for just a handful of executives, and that limit is already too 
high at $693,951. That is far above what the chief executive of the 
U.S. Government gets paid at $400,000 a year.
  So that is why we would cap it at no more than what the President can 
get. I presume the Senator from Michigan is aware of that and willing 
to help us on that process by adopting this amendment.
  Mr. McCAIN. Where would the congressional and staff salaries fit on 
that?
  Mrs. BOXER. That is a good question. We would be well below. We would 
be about here.
  Mr. McCAIN. I thank the Senator.
  Mr. LEVIN. In response to Senator Grassley's question, I am very much 
aware of what he referred to.
  Mr. GRASSLEY. I thank the Senator.
  Mrs. BOXER. Mr. President, just in conclusion, did the Senator from 
Iowa and I have word from the Senator from Michigan that during 
conference negotiations with the House of Representatives regarding 
this bill, he will work to ensure that contractor employees are covered 
by a reasonable limit so taxpayers are not on the hook for excessive 
salary reimbursements?
  Mr. LEVIN. You do, indeed.
  Mrs. BOXER. I thank the Chairman.
  Mr. GRASSLEY. I say thank you to the managers of the bill for helping 
us with this very important amendment.
  Mr. LEVIN. I thank the Senator from California and the Senator from 
Iowa for their efforts in this area.
  The PRESIDING OFFICER. The Senator from Montana.


                           Amendment No. 1145

  Mr. TESTER. Mr. President, first, I wish to start by thanking 
Chairman Levin and Senator McCain for their continued dialog on a 
matter of overseas basing priorities. I very much appreciate their 
efforts to work to get at least the first steps in place for a thorough 
review of our overseas basing needs and finally getting some answers on 
the costs of these bases.
  I also wish to especially thank my colleague from Texas, Senator 
Hutchison, for her continued leadership on this issue and for joining 
me on amendment 1145, a bipartisan effort to establish an overseas 
basing commission.
  I realize there are concerns that this is not the right time to 
establish such a commission. However, I think it is the perfect time. 
So let me reiterate one point I mentioned yesterday. The commission 
would be charged with saving taxpayers money by identifying potential 
savings from reevaluating and potentially realigning our overseas 
military base structure and investments.
  It is time we take some commonsense steps to identify and cut 
overseas military facilities and construction projects that have 
minimal negative impacts on our national security and military 
readiness. There is no better time than the present to begin this work. 
In a spirit of compromise and understanding that establishing a 
commission is not currently acceptable to some, I have worked with my 
colleagues to include an independent assessment of our overseas basing 
in this legislation.
  I ask unanimous consent to speak now as in morning business for 5 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Payroll Tax Holiday

  Mr. TESTER. What I would like to speak on now is regarding the 
payroll tax votes that we are going to be taking later today or 
possibly even this evening. I wish to tell you exactly why I am going 
to vote against both of these proposals. I believe they are gimmicks, 
designed more for political posturing than what Congress ought to be 
doing right now; that is, working together to create jobs on a long-
term basis; to create long-term certainty for businesses throughout 
this country, Montana included, while we work to cut our deficit.
  The Democrat's proposal is the same included in the President's 
American Jobs Act, which I voted against several weeks ago. My reasons 
for voting against that proposal have not changed. It would temporarily 
extend the Social Security payroll tax holiday through 2012 and pay for 
it by raising taxes on the wealthy. Although I support making sure 
millionaires and corporations pay their fair share in taxes, I do not 
believe this particular proposal will create jobs or give our economy 
the boost it needs right now.
  A small 1-year temporary tax cut will not give Main Street businesses 
the long-term certainty they need to grow and hire.
  The proposal by the Senate Republicans also temporarily extends the 
payroll tax holiday but only by cutting certain Medicare benefits and 
cutting jobs and extending a current pay freeze for our folks who serve 
in public service. Neither of these proposals is right for Montana and 
neither will earn my vote.
  I want to take you back to a few weeks ago, in November, when 
Congress unanimously passed my veterans jobs bill, called the VOW to 
Hire Heroes Act. The President has already signed it into law. I 
believe Congress has a responsibility to spend more time passing 
legislation such as that--real solutions that create real jobs, and not 
political theater.

[[Page 18614]]

  I know we can do it. It was appropriate for us to work together for 
the veterans. It is also appropriate for us to work together to create 
jobs for all Americans.
  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. CHAMBLISS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1126

  Mr. CHAMBLISS. Mr. President, I rise in opposition to the second 
Feinstein amendment, No. 1126, I believe. I have the privilege as 
serving as vice chairman on the Intelligence Committee with Chairman 
Feinstein. We have a good working relationship and agree on most every 
issue that comes before the committee. I know the diligence and 
seriousness with which she takes every issue but particularly this one.
  We have had a number of discussions about the fact that we have a 
lack of a detainee and interrogation policy in this country now, and I 
know she is concerned about that and is trying to make the situation 
better. I remain committed to work with her on a solution.
  Unfortunately, I am going to have to oppose her amendment today 
because of my concerns about the limitation it imposes on the authority 
to detain Americans who have chosen to wage war against America. My 
first concern is that it appears, from the debate yesterday, that there 
is confusion among some Members about what this amendment does. For 
example, my colleague and friend from Illinois, Senator Kirk, argued 
that he is in favor of robust and flexible U.S. military action 
overseas, including against American citizens such as Anwar al-Awlaqi. 
Senator Kirk said he supports the Feinstein amendment, however, because 
he believes in a zone of protection for citizens inside the United 
States.
  But the Feinstein amendment does not apply to only those American 
citizens who commit belligerent acts inside the United States; it would 
also prohibit the long-term military detention of American terrorists 
such as Anwar al-Awlaqi, who committed terrorist acts outside the 
United States. As a result, this amendment would have the perverse 
effect of allowing American belligerents overseas to be targeted in 
lethal strikes but not held in U.S. military detention until the end of 
hostilities. That makes no sense whatsoever.
  I am also concerned about the ambiguity in the amendment's language 
and the uncertainty it will cause our operators, especially those 
overseas. The amendment exempts American citizens from detention 
without trial until the end of hostilities. But short of the end of 
hostilities, the amendment appears to allow detention without trial. Is 
it the Senator's intent to allow for some long-term detention of 
Americans without trial?
  This is troubling because we don't know how the prohibition will be 
interpreted by our operators or the courts that will hear inevitable 
habeas challenges. Would the military be permitted to hold a captured 
belligerent for a month, a few months, or a few years, as long as it 
was not until the end of hostilities? Or would the military interpret 
the amendment as a blanket prohibition against military detention of 
Americans for any period of time? If the military rounded up American 
terrorists such as Adam Gadahn or Adnan Shukrijumah among a group of 
terrorists, would they have to let these Americans go because the 
military would not be permitted to detain them? Would more American 
belligerents be killed in strikes if capture-and-detain operations were 
perceived to be unlawful? I don't believe we can leave our operators 
with this kind of uncertainty.
  Finally, we should all remember the provisions of the National 
Defense Authorization Act do not provide for a new authority to hold 
U.S. citizens in military detention. American citizens can be held in 
military detention under current law. Contrary to some claims that were 
made yesterday and debated on this floor, these Americans would be 
given ample due process through their ability to bring habeas corpus 
challenges to their detention in Federal court. The Supreme Court has 
held in the Hamdi case that the detention of enemy combatants without 
the prospect of criminal charges or trial until the end of hostilities 
is proper under the AUMF and the Constitution. Hamdi is a U.S. citizen. 
This is not a new concept. In reaching its decision, the Hamdi Court 
cited the World War II case, Ex parte Quirin, in which the Supreme 
Court held:

       [C]itizenship in the United States as an enemy belligerent 
     does not relieve him from the consequences of a belligerency.

  In conclusion, I understand Senator Feinstein's motivation, but I 
just don't believe this amendment does what she wants it to do, and 
there will be unintended consequences that could seriously hamper 
overseas capture operations. Mr. President, I urge my colleagues to 
oppose the Feinstein amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     ATF Fast and Furious Operation

  Mr. GRASSLEY. For anybody interested in how long I might be, I would 
say roughly 10 minutes.
  Mr. President, for nearly a year, I have been investigating the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives' operation known 
as Operation Fast and Furious. I have followed up on questions from 
that investigation as the Senate Judiciary Committee held oversight 
hearings over the past few weeks with both Secretary Janet Napolitano 
and Attorney General Eric Holder. Each of them testified about the 
aftermath of the shooting of Border Patrol agent Brian Terry. I have 
sought to clarify with facts some of the half-truths that were said 
during these meetings.
  Each claimed they were ignorant of the connection between Agent 
Terry's death and Operation Fast and Furious until my letters with 
whistleblower allegations brought the connection to light. However, 
documents that have come to light in my investigation draw those claims 
into question. I would like to address a couple of those discrepancies.
  Secretary Napolitano went to Arizona a few days after Agent Terry's 
death. She said she met at that time with the FBI agents and the 
assistant U.S. attorneys looking for the shooters. She also said at 
that point in time that nobody knew about Fast and Furious. Yet 
documents show that many people knew about Fast and Furious on December 
15, the day Agent Terry died.
  Secretary Napolitano referenced the FBI agents looking for the 
shooters. The head of the FBI field division was present at the 
December 15 press conference about Agent Terry's murder. At that very 
press conference the FBI head told a chief assistant U.S. attorney 
about the connection to an ongoing ATF investigation. That same night, 
U.S. attorney Dennis Burke confirmed that the guns tied back to 
Operation Fast and Furious. These connections were made days before 
Secretary Napolitano's visit at that time. The very purpose of her 
visit was to find out more about the investigation.
  So a very important question comes up: The Department of Homeland 
Security oversees the Border Patrol. Why wouldn't the Phoenix FBI head 
have told Secretary Napolitano that the only guns found at the scene of 
Agent Terry's murder were tied to an ongoing ATF investigation?
  Let's not forget the U.S. Attorney's Office. Secretary Napolitano 
said she met with the assistant U.S. attorneys looking for the 
shooters. The chief assistant U.S. attorney for the Tucson office, 
which coordinated the Terry investigation, found out about the ATF 
connection directly from our Federal Bureau of Investigation.
  So a very important question comes up that needs to be answered: Why

[[Page 18615]]

would they conceal the Fast and Furious connection from Secretary 
Napolitano days later?
  The Tucson office is overseen by the U.S. attorney for the District 
of Arizona, Dennis Burke, who confirmed to Tucson that guns came from 
Operation Fast and Furious. When Ms. Napolitano served as Governor of 
Arizona, Mr. Burke served as her chief of staff for 5 years. Secretary 
Napolitano acknowledges that she had conversations with him about the 
murder of Agent Terry.
  So a very important question comes up: Why would Mr. Burke conceal 
the Fast and Furious connection from Secretary Napolitano?
  Even before Secretary Napolitano came to Arizona, e-mails indicate 
Mr. Burke spoke on December 15 with Attorney General Holder's deputy 
chief of Staff, Monte Wilkinson.
  So a very important question is unanswered: Before finding out about 
Agent Terry, Mr. Burke e-mailed Mr. Wilkinson that he wanted to 
``explain in detail'' about Fast and Furious when they talked. In that 
phone call--and this is a very important question--did U.S. attorney 
Burke tell Mr. Wilkinson about the case's connection to a Border Patrol 
agent's death that very day?
  The next day, the Deputy Director of the ATF made sure briefing 
papers were prepared about the Operation Fast and Furious connection to 
Agent Terry's death. He sent them to individuals in Washington, DC, in 
the Deputy Attorney General's Office at the Justice Department. Within 
24 hours, they were forwarded to the Deputy Attorney General. They were 
accompanied by personal e-mails from one of the Deputy Attorney General 
assistants explaining the situation.
  Two weeks later, that Deputy Attorney General, Gary Grindler, was 
named Attorney General Holder's chief of staff. Yet a month and a half 
after Agent Terry's death, Attorney General Holder was allegedly 
ignorant of the Operation Fast and Furious connection to the murder of 
Agent Terry.
  So a very important question is unanswered: Why wouldn't Mr. Grindler 
bring up these serious problems with Attorney General Holder, either as 
his Deputy Attorney General or as his chief of staff?
  It is clear that multiple highly placed officials in multiple 
agencies knew almost immediately of the connection between Operation 
Fast and Furious and Agent Terry's death.
  The Department of Justice and the Department of Homeland Security 
have failed to adequately explain why Attorney General Holder and 
Secretary Napolitano allegedly remained ignorant of that connection. 
Whether it is the Attorney General or the Secretary or members of their 
staff, somebody wasn't doing their job. Somebody wasn't serving their 
higher-ups as they should have been, as proper staff people.
  In the case of Secretary Napolitano, either she was not entirely 
candid with me and others or this was a gross breach on the part of 
those who kept her in the dark. The Border Patrol and the Department of 
Homeland Security lost a man--Agent Terry being murdered. It was their 
right to know the full circumstances surrounding that from people who 
served under them.
  No one likes the unpleasant business of having to fess up, but the 
FBI, ATF, and U.S. Attorney's Office owed it to Agent Brian Terry and 
his family to fully inform the leadership of the Department of Homeland 
Security. This was the death of a Federal agent involving weapons 
allowed to walk free by another agency in his own government.
  Let me explain ``walking guns.'' The Federal Government operates 
under the rule of law, just like all of us have to live under that rule 
of law. There are licensed Federal gun dealers, and Federal gun dealers 
were encouraged to sell guns illegally to straw buyers and, supposedly, 
follow those guns across the border to somehow arrest people who were 
involved with drug trafficking and other illegal things. Two of these 
guns showed up at the murder scene of Agent Terry. So it is a very 
serious situation that we need to get to the bottom of.
  If what I have just described, with all these unanswered questions, 
is not enough to brief up to the top of the Department, then I don't 
know what is. In other words, staff people ought to be doing their job 
or, if staff people were doing their job, then the Congress, in our 
constitutional job of oversight, is being misled.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. McCaskill). The Senator from Rhode 
Island.
  Mr. REED. Madam President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


             PAYROLL TAX CUT AND UNEMPLOYMENT COMPENSATION

  Mr. REED. Madam President, I rise today to urge my colleagues to 
extend and expand the payroll tax cut and to fully extend unemployment 
compensation insurance immediately. The payroll tax cut and full 
extension of unemployment insurance are two of our best tools for 
strengthening our economic recovery. We must work without let-up to 
pass this legislation before year's end.
  Democrats are doing everything we can to create jobs and solve our 
unemployment crisis. Millions of Americans are still out of work, 
however, and looking for a job in the toughest economy since the Great 
Depression. Jobless benefits, which have been essential to millions of 
Americans as they search for a job, are set to expire at the end of 
this year.
  Congress has never failed to extend benefits when unemployment is 
this high. Unfortunately, right now, Republicans are refusing to fully 
extend unemployment insurance, despite our Nation's 9 percent 
unemployment rate. In extending benefits, we should not do any less for 
the recently unemployed than we did for those who were unemployed in 
the last year or two. That is why I introduced the Emergency 
Unemployment Compensation Extension Act of 2011, which fully extends 
Federal support for unemployment insurance through 2012.
  Extending benefits doesn't just make sense for a person who has been 
laid off, it makes sense for the economy as a whole. In fact, during 
today's hearing in the Senate Banking Committee, a business operator 
recognized that failing to extend unemployment insurance would have a 
negative impact on their business. It was hard for him to quantify, but 
the sense he has, from operating a very dispersed convenience store 
operation throughout this country, is there would likely be a negative 
impact.
  Those impacts will be magnified and multiplied throughout our 
economy. It will, ironically, cause not just those without jobs to lose 
benefits, it will also probably lead to further reductions in jobs as 
demand falls off and the need for employees, particularly in retail 
establishments, might lessen.
  That is why, if Congress truly wishes to help strengthen our economy, 
we need to extend unemployment insurance now. The reason we must fully 
extend unemployment insurance is simple: If people don't have jobs, 
they can't spend money. If people can't spend money, businesses go 
under. If businesses fail, more people lose their jobs, and the 
downward spiral continues.
  Extending unemployment insurance is not just the right thing to do, 
it is a wise investment with a strong rate of return that will provide 
a much needed economic boost to every State across the country.
  Unemployment is, regrettably, a national crisis. This program will 
address a nationwide problem, and it will do it in an extraordinarily 
cost-effective way. The CBO has calculated that this has one of best 
returns on the dollar. The reason we must fully extend unemployment 
insurance is quite simple. People who are receiving unemployment 
benefits need that money to pay for groceries, to put some gas in the 
car, to take care of those immediate expenses. So, as the economists 
would say, their marginal propensity to consume--i.e., their 
willingness to take the dollar in and spend it out--is very high. As a 
result, this program not only helps families who are struggling,

[[Page 18616]]

it also immediately injects dollars and demand into the economy. These 
programs have a real benefit.
  We understand what we have to do to address our unemployment crisis 
and that is to grow the economy, and that means we must create jobs. 
Again, this program will help stimulate demand, will help keep people 
at work and perhaps even--we hope--put more people to work.
  When it comes to the efficacy of this program, the bang for the buck, 
it is among the most effective. I referred earlier to some economists--
in specific terms--Alan Blinder and Mark Zandi have estimated that for 
every dollar spent on extending unemployment benefits, the economy 
grows by $1.61. The Economic Policy Institute has estimated that 
failing to extend UI benefits for a year could result in the loss of 
$72 billion in economic activity for 2012, which impacts 560,000 jobs 
across the country. The country cannot afford this hit. We cannot 
afford to miss the opportunity to maintain or create over 500,000 jobs. 
We cannot ignore the fact that, in this very critical budget situation, 
this is one of the most cost-effective ways to continue to stimulate 
demand and grow jobs in our country.
  We also have to understand that we are dealing with a situation that 
is getting to be critical because we are running out of time. These 
benefits will expire at the end of the year, and we must move forward.
  I think we can also do something else, and that is to improve this 
program. One way to improve it is to adopt a program that is very 
effective in my State of Rhode Island and several other States across 
the country, and that is work sharing. Work sharing is a voluntary 
program that prevents layoffs, it keeps people on the job, it helps 
employers retain skilled workers, and it strengthens the unemployment 
insurance system.
  Over 20 States are utilizing this program. They estimate they saved 
100,000 jobs in 2010 alone. Essentially what it does is it allows an 
employer--for example--to keep people on the job for 3 out of 5 days of 
the week, and the other 2 days are compensated for by the Unemployment 
Insurance Fund. The fund saves money, and the employer keeps these 
people in the workplace with all their skills and all their 
contributions to the firm. It is a win-win, and it is something over 20 
States across this country have embraced. I think it should be 
national, and we have provisions in legislation I've introduced that 
would help extend it nationally.
  Again, we cannot delay. I urge all of my colleagues to join me in 
taking the needed steps to help our economic recovery and extend our 
unemployment compensation insurance program before the end of this 
year.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. HOEVEN. Madam President, I rise to speak in regard to several 
amendments to the Defense authorization bill. First is in regard to the 
nuclear triad and the important role it plays in defense of our Nation 
and security of the world and also in regard to the Global Hawk 
unmanned aerial systems program and the important role it has for our 
forces, both today in our efforts around the world and what it means to 
us in the future.
  First, in regard to amendment 1279 and the nuclear triad, this 
amendment was cosponsored by Senator Tester, Senator Enzi, Senator 
Blunt, Senator Vitter. Also, I ask unanimous consent that my colleague 
from North Dakota, Senator Conrad, be included as a cosponsor of the 
amendment, as well as Senator Baucus of Montana.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HOEVEN. The amendment declares that the United States should 
maintain a triad of strategic nuclear delivery systems which includes 
missiles, bombers, and submarines. It also declares that it is the 
sense of the Senate that the President should budget for the 
modernization of those systems and the weapons they deliver.
  Over the past couple of years, numerous statements have been made in 
support of the triad. The 2010 Nuclear Posture Review concluded that 
the United States needs the nuclear triad. The Senate, in its 
resolution of ratification for the New START treaty, declared that the 
United States needs the nuclear triad. And President Obama last 
February certified that he intends to modernize the nuclear triad. 
However, the administration is now currently conducting a further 
review of the role nuclear weapons play in defending U.S. national 
security--a miniature Nuclear Posture Review. It is important that the 
Senate reaffirm its commitment to the nuclear triad once again.
  I am particularly concerned by statements that we can reduce our 
nuclear arsenal significantly below the requirements laid out in the 
New START treaty. Given the threats we face and the responsibility we 
have to the American people and to our allies, I believe we must retain 
the nuclear triad. The reasons are clear and compelling. We need 
missiles to provide a persistent, dispersed, and cost-effective 
deterrent. We need submarines to provide an invisible, mobile, and 
survivable deterrent. And we need bombers to provide a visible, long-
range, recallable deterrent.
  The bottom line is that the triad provides us with a safe, credible, 
reliable nuclear deterrent that renders any effort to eliminate or 
sidestep our retaliatory capabilities completely meaningless. And those 
benefits accrue not only to the United States but to our allies as 
well. The Congressional Strategic Posture Commission, the resolution of 
the ratification to the New START agreement, and the 2010 Nuclear 
Posture Review all concluded that the United States needs to maintain 
the triad.
  The triad was developed out of a need to counter an immense threat 
from the Soviet Union, but it now gives us the flexibility to adapt to 
an ever-changing international security environment. And supporting a 
triad means supporting a program to maintain and enhance the weapons 
and a delivery system that make up the triad.
  It is very important to point out--particularly given our fiscal 
situation--that the costs of updating and maintaining the weapons in 
the triad will not take up a very big percentage of the defense budget, 
particularly relative to the tremendous security advantages it 
provides. In fact, General Kehler, the head of Strategic Command, 
recently indicated his strong support for efforts to preserve the triad 
and modernize each of the associated delivery systems.
  It is tempting to assume that because the Cold War is over, we don't 
need the nuclear arsenal anymore. In fact, people who defend the 
nuclear arsenal are often accused of being stuck in a cold war mindset. 
The truth is just the opposite. Only in a cold war mindset would we 
assume Russia is the sole reason we preserve our nuclear arsenal. 
Today, our nuclear deterrent counters a variety of threats that did not 
even exist during the Cold War, and it hedges against the emergence of 
new nuclear threats.
  The decades following the end of the Cold War have made nuclear 
deterrence far more complicated than the old superpower confrontation 
of last century. We must now counter nuclear threats from multiple 
actors around the world.
  First, consider China. China's military modernization program is 
built on a foundation of a large and growing nuclear arsenal. 
Intelligence estimates suggest that the number of warheads atop Chinese 
ICBMs capable of reaching the United States could more than double 
within the next 15 years. Recent reports indicate that China is 
fielding four different new nuclear-ready ballistic missiles. China is 
prioritizing the development of mobile land-based ICBMs and submarine-
launched ballistic missiles. China's nuclear posture is also troubling. 
China has not defined what it would consider a minimum nuclear 
deterrent, making it difficult to understand the motivations behind 
China's nuclear force expansion and their modernization efforts.
  Second, new nuclear powers such as North Korea and Pakistan further 
complicate how we calculate our need for deterrence. North Korea has 
pursued nuclear weapons using both plutonium and uranium and continues 
to develop long-range ballistic missiles that can threaten the United 
States. North Korea's nuclear arsenal forces our allies

[[Page 18617]]

in East Asia--especially South Korea and Japan--to put a premium on the 
U.S. nuclear deterrent. Pakistan's nuclear weapons greatly complicate 
the security situation in central Asia and create a serious risk of 
nuclear proliferation. The emergence of these two nuclear powers is a 
cautionary tale about the unpredictable ripple effects of new players 
in the nuclear game and a strong reason why reductions to U.S. 
strategic forces should only be made with the greatest caution.
  Third, nuclear proliferation will remain one of our foremost security 
challenges in the world. The IAEA reports that Iran has been 
researching and developing nuclear weapons, and it expressed serious 
concerns about the military dimensions of Iran's nuclear program. Syria 
was so serious about developing a nuclear weapon--probably with the 
help of North Korea and Iran--that in 2007 Israel had to destroy a 
Syrian nuclear site. Terrorist groups and other rogue actors also seek 
the development or the acquisition of nuclear arms.
  And, of course, fourth, we cannot yet forget about Russia. Under the 
provisions of the New START agreement, Russia can expand its nuclear 
force rather than pursue reductions. Russia intends to build a new 
heavy ICBM to be available by 2018. Russia expects to build eight new 
nuclear submarines, and it also plans on designing and building a new 
nuclear bomber.
  We cannot afford to let our nuclear deterrent atrophy in light of so 
many nuclear threats. Once we lose our nuclear capabilities, it will be 
extremely hard to reconstitute them.
  We need a reliable and credible nuclear arsenal. We need it to 
dissuade new nations from acquiring nuclear weapons. We need it to 
deter nuclear powers from using their weapons. And we need it to hold 
enemy arsenals at risk.
  People may not always stop and think about the demands placed on 
America's nuclear deterrent, but they are real and they are extensive. 
We have nuclear weapons as a guarantor of the security of the American 
homeland. Our nuclear arsenal renders any plan to strike the United 
States with nuclear weapons sheer folly. The investments made over the 
last several decades continue to pay dividends by creating the space 
within which America can address other security threats.
  Make no mistake, without a large nuclear arsenal other nations would 
move plans to strike the United States from the category of unthinkable 
to possibly thinkable.
  Second, and nearly as important, the United States nuclear deterrent 
replaces the need for our allies to develop or acquire nuclear weapons, 
keeping the peace in critical regions around the world. East Asia is a 
particularly good example. The status of U.S. nuclear posture is a 
major concern in Japan. Despite assurances from the United States that 
our nuclear umbrella will continue to protect Japan, Tokyo is worried 
about even the most subtle changes in U.S. policy. During his most 
recent trip, Secretary Panetta publicly reiterated the U.S. commitment 
to protect South Korea with our nuclear umbrella and our nuclear 
deterrent is probably the only reason South Korea has not developed a 
nuclear capability in response to North Korea's nuclear programs.
  I will conclude on the triad. Our nuclear deterrent has been the 
foundation of U.S. national security since World War II. The nuclear 
triad provides an incredible return on our investment and I urge the 
Senate to send a strong signal of support for the nuclear triad as laid 
out in amendment No. 1279.


                           Amendment No. 1358

  Madam President, if I may very briefly also address the importance of 
the Global Hawk with a brief overview of amendment No. 1358. This 
amendment simply states that it is the sense of Congress that the 
Secretary of the Air Force should continue to abide by the guidelines 
set forth in the acquisition decision memorandum issued June 14, 2011 
from the Office of the Secretary of Defense. That memorandum on Global 
Hawk, the RQ-4 Global Hawk, found that the Global Hawk UAS is essential 
to national security and that there is no other program that can 
provide the benefits to the warfighter that the Global Hawk can 
provide.
  The Global Hawk is a vital intelligence surveillance and 
reconnaissance asset. The Global Hawk flies at high altitude. It can 
fly at extended ranges and for long periods of time, and it can carry a 
wide array of sensors simultaneously.
  We have invested a lot of time and a lot of money in this platform 
and it is paying fast dividends. The Global Hawk is flown in a wide 
variety of missions all over the world in support for things such as 
CENTCOM operations, humanitarian relief efforts in Japan and Haiti, and 
extensively for operations in Libya. For these reasons and many more, 
my amendment stresses that the Air Force must continue to heed the 
conclusions of the June 14, 2011 acquisition decision memorandum on the 
RQ-4 Program. The RQ-4, which is Global Hawk, remains essential for 
United States national security and is irreplaceable.
  The bottom line is America needs to support and continue the Global 
Hawk. Our commanders require as much information about the battlefield 
as they can get. The RQ-4 represents a new generation of ISR aircraft 
with unprecedented capabilities.
  Finally, we must invest in this essential capacity precisely because 
budgets are tight. As the Pentagon concluded in June, the Global Hawk 
represents the most cost-effective way to meet the requirements of our 
warfighters now and in the future.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.


                           Amendment No. 1274

  Mr. SESSIONS. Madam President, I wish to address amendment 1274, 
which would clarify what I believe is existing law that the President 
has authority to continue to detain an enemy combatant under the law of 
war, following a trial before a military commission or an article III 
court, and regardless of the outcome of that trial. Let me explain what 
I mean.
  As I said yesterday, even under the law of war the President has the 
authority to detain an enemy combatant, a prisoner of war, a captured 
enemy soldier, a belligerent. The President can detain him through the 
duration of the hostilities. The President is not required--the 
Commander in Chief is not required to release an individual whose sworn 
duty it is to return to his military outfit and commence hostilities 
again against the United States. That individual could be killed on the 
battlefield, but if captured, you are not required, under all laws of 
war that I am aware of and certainly the Geneva Conventions--you can 
maintain that individual in custody to prevent him from attacking you. 
But you can also try an individual who has been captured if that 
individual violated the rules of war.
  For example, a decent soldier from Germany--many of them were held in 
my State of Alabama. They behaved well. They made paintings of American 
citizens, they did a lot of things, and did not cause a lot of trouble. 
They were in uniform and they complied with the rules of war and they 
were not tried as illegal enemy combatants.
  But many of the terrorists today do not wear uniforms, deliberately 
target innocent men, women, and children, and deliberately violate 
multiple rules of war. Those individuals are subject, in addition to 
being held as a combatant, as an unlawful combatant. They can be 
prosecuted and they should be prosecuted. In World War II a group of 
Nazi saboteurs in the Ex parte Quirin case were let out of a submarine 
off, I think, of Long Island. They came into the country with plans to 
sabotage the United States. They were captured and tried by military 
commissions. Several were American citizens. A number of them--most of 
them, frankly--after being tried and convicted, were executed. The 
Supreme Court of the United States approved that procedure.
  But recent cases demonstrate the potential problem we have today. One 
Guantanamo Bay detainee has already raised the question I have 
discussed before the military commission where he is being tried. Abd 
al-Rahim al-Nashiri, the alleged mastermind of the USS

[[Page 18618]]

Cole bombing, was arraigned before a military commission on November 9. 
He was held not only as an al-Qaida, or a belligerent against the 
United States, but he was charged with a violation of the rules of war.
  This was a group that sneaked into the harbor pretending to be 
innocent people and ran their boat against the Cole, killing a number 
of U.S. sailors.
  I remember being at a christening of one of the Navy ships at Norfolk 
not long after this. I walked out of that area and I heard one of the 
sailors cry out: Remember the Cole. The hair still stands up on my neck 
when I hear it.
  We have an obligation to defend our men and women in uniform. When 
they are out on the high sea or they are in a neutral port, they expect 
to be treated according to the laws of war and then they are murdered 
by an individual such as this.
  This individual's lawyers filed a motion asking the military judge to 
clarify the effect of an acquittal, should the commission acquit him. 
He argued that the members of the committee had a right to know what 
would happen if he were acquitted because they might object to taking 
part in what he called a show trial if it turned out that he would 
continue to be detained at Guantanamo Bay.
  There is another case in which the administration was almost 
confronted with the problem a year ago, in the case of a former 
Guantanamo detainee, an al-Qaida member named Ahmed Ghailani, who was 
responsible for the 1998 embassy bombings in Kenya and Tanzania. Most 
of us remember those early al-Qaida bombings against our embassies in 
Africa.
  After the Justice Department chose to prosecute Ghailani in an 
article III civilian court and directed the United States Attorney not 
to seek the death penalty--I am not sure why that ever happened; we 
don't know--but the jury acquitted him on 284 out of 285 counts. 
Luckily, he received a life sentence on the single count of conspiracy, 
for which he was convicted.
  But what if he had not been convicted? What if there was insufficient 
evidence to prove he committed a crime, but not insufficient evidence 
to prove he was a combatant against the United States? Al-Qaida has 
declared war against the United States, officially and openly. The U.S. 
Congress has authorized the use of military force against al-Qaida, 
which is the equivalent of a declaration of war.
  What if he had received a modest sentence after being convicted and 
had credit for time served? What if he had been acquitted on all 285 
counts? Would the President have been required to release him into the 
United States, if the government could not get some country to take 
him? That would be wrong. He was at war against the United States. He 
was a combatant against the United States. Like any other captured 
combatant, he can be held as long as the hostilities continue.
  By the way, let me note, military commissions are open. If they 
decide to try one of these individuals--not just hold him as a prisoner 
of war but hold him and try him for violation of the laws of war--they 
get lawyers, they get procedural rights. The Supreme Court has 
established what those rights are. Congress has passed laws 
effectuating what the Supreme Court said these trials should consist 
of, and a mechanism has been set up to fairly try them.
  But enemy combatants are not common criminals. If a bank robber is 
denied bail, he remains in jail awaiting a trial, a speedy public 
trial, with government-paid lawyers. Enemy combatants are not sitting 
in Guantanamo Bay awaiting trial by a military commission, or by an 
article III court. They are held in military custody precisely because 
they are enemies, combatants against the United States. They should 
continue to be held there as long as the war continues and as long as 
they do not remain a threat to return to the battlefield against the 
United States.
  This is an important point, considering that 27 percent of the former 
Guantanamo detainees who have been released--161 out of 600--have 
returned to the battlefield, attacked Americans. This Nation has no 
obligation to release captured enemy prisoners of war when we know for 
an absolute fact that 27 percent of them have returned to war against 
the United States. How many others have but we do not have proof of it? 
That is what the whole history of warfare is.
  Lincoln ceased exchanging prisoners with the South after he realized 
they had more soldiers in the South. It was not to his advantage to 
release captured southern soldiers who would return to the fighting, so 
he held them until the war was over. Under the laws of war, the 
President has the authority to prevent an enemy combatant from 
returning to the battlefield. That is consistent with all history.
  This amendment--please, Senators, I hope you would note--would make 
it clear that the President simply has authority to continue to detain 
enemy combatants held pursuant to the rules of war, even though they 
may have been tried, regardless of where that trial would be held and 
what the outcome was, as long as, of course, they could prove they were 
an enemy combatant and violating the rules of war.
  I would note one thing.
  I see my friend, the Senator from California, is here and probably is 
ready to speak.
  On the question of citizenship, can a citizen be held in this 
fashion? The Supreme Court has clearly held they may. But the Senator 
is offering legislation that might change that. My amendment does not 
answer that question. It simply says a combatant should be able to be 
held under the standard of a prisoner of war, a combatant, even if they 
had been prosecuted for violation of the laws of war and acquitted.
  It is common sense. I believe the courts will hold that, but it is an 
issue that is out there. I think Congress would do well to settle it 
today.
  I urge my colleagues to do so.
  I thank the Chair, and I yield the floor. I note the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. LEVIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Madam President, in a few moments, Senator McCain and I 
will be seeking unanimous consent that the following pending and 
germane amendments be considered en bloc, that the amendments be 
modified with the changes that are at the desk where applicable: Begich 
1114, as modified; McCain 1220; Reed of Rhode Island 1146, as modified; 
Levin 1293, as modified; Boxer 1206; Chambliss 1304, as modified; Pryor 
1151; Nelson of Florida 1236; Blunt 1133; Murkowski 1287.
  Further, that the amendments be agreed to en bloc--we are not making 
that request now. We will be making that request in a few minutes. This 
is not the so-called managers' package, by the way. These are the 
pending germane amendments which have been before us for some time but 
which we believe have now been cleared, and there is no opposition; 
however, if there is, there is an opportunity for people to come down.
  I would yield now to my friend from Arizona.
  Mr. McCAIN. Reserving the right to object, and I will not object, I 
thank my friend. I believe the Senator overlooked Brown of 
Massachusetts amendment No. 1090, I think, was agreed to be a part of 
that.
  Mr. LEVIN. That was not on my sheet, but that is fine, and that would 
be added.
  Mr. McCAIN. I note the presence of our friend from Texas, who would 
like to voice his objections to the package of amendments which is 
pending which have been agreed by both sides because of his concerns 
about a particular amendment he had. I would like to hear from him in a 
minute.
  I would like to say to my colleagues on this side of the aisle, if 
you have an objection, please come to the floor. We would intend to 
vote--or seek approval of what the distinguished chairman just 
proposed--at 5 after the hour. That gives them 15 minutes.
  I yield the floor.

[[Page 18619]]

  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Madam President, is there a unanimous consent request 
pending?
  The PRESIDING OFFICER. There is not.
  Mr. CORNYN. Thank you for clarification. I just wanted to make sure.
  Madam President, I discussed with the distinguished chairman of the 
Senate Armed Services Committee and the distinguished ranking member my 
concerns that earlier I attempted to gain unanimous consent to modify 
my amendment regarding the sale of F-16s to Taiwan in order to make it 
germane. I was happy to do that in order to get a vote, but the 
chairman tells me there is an objection to that.
  I wished to make clear that any amendment that is offered--whether 
now in this list or subsequently in the managers' package or 
otherwise--and is being treated differently than mine is, then I am 
going to object to unanimous consent.
  Through the Chair, I would ask the distinguished chairman of the 
Armed Services Committee are there any amendments on this list that 
were modified in order to make them germane?
  Mr. LEVIN. I doublechecked on this. The answer is no, and that is 
about as directly as I can say it. I checked with staff and the staff 
says they have been modified--in many cases as I indicated--but none in 
order to make them germane.
  Mr. CORNYN. Madam President, I appreciate the direct response from 
the chairman. I will have no objection to any amendment that is being 
offered that is not being offered as modified in order to make it 
germane. I hope my point is clear as mud.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. I just wish to say I strongly support the amendment by 
the Senator from Texas, and I will do everything I can to see that this 
issue is raised. I cannot comprehend why we would not want to provide 
one of our closest allies with the equipment they need to defend 
themselves with the growingly aggressive mainland China exhibiting the 
characteristics of intimidation and bullying and perhaps threatening 
Taiwan.
  I wished to state, first of all, my appreciation to both Senators 
from Texas, who have been very involved in this issue, and I wish to 
tell them I will do everything I can to make sure this amendment is 
adopted. We do need to send the signal that we support our friends.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I join with Senator McCain in support 
of Senator Cornyn's amendment. Taiwan has been a strong ally of the 
United States. Senator McCain said we would provide them military 
aircraft, but, in truth, they would buy it. They are our allies. They 
are friends. They are prepared to purchase from an American company 
legitimate military equipment that they could use to help maintain the 
freedom they have cherished on the island, and it is hard for me to 
understand how that would be objected to.
  I just wish to say, as someone who has looked at these issues for 
some time as a member of the Armed Services Committee, I do believe 
Senator Cornyn--also a member of that committee--is correct, and I 
strongly support the amendment and urge my colleagues to vote for it, 
if and when we can get a vote.
  I thank the Chair, yield the floor, and note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BROWN of Massachusetts. Madam President, I ask unanimous consent 
that the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1090

  Mr. BROWN of Massachusetts. I have an amendment that has been 
accepted--almost--sort of kind of accepted--amendment No. 1090, which I 
would like to discuss briefly.
  I thank Senators Wyden and Coons for their bipartisan leadership as 
cosponsors of this amendment. I believe we are going to vote on it 
shortly, and I ask that it be accepted, either by vote or by unanimous 
consent.
  It is a simple amendment that will make sure the National Guardsmen 
who get deployed will receive the housing allowances they need and 
deserve. This is a bipartisan amendment. The Defense Department has 
agreed that the situation needs to be fixed--something that recently 
was developed.
  There is a little bit of history behind this, but I don't think it is 
important because Senator Wyden and Senator Coons and I have taken the 
lead on this issue, which is critically important to providing the 
funds that have been taken merely by a change in the regulations. This 
has happened at a time, quite frankly, when our men and women who are 
fighting need that money.
  I am offering this amendment as a result of a bill I introduced last 
September, entitled the ``National Guard Basic Allowance for Housing 
Equity Act.'' I introduced this legislation to fix an inequity that 
hurts National Guardsmen who are deployed. Merely as a result of their 
deployment, they could lose upward of $1,000 per month in their monthly 
housing allowance.
  Basic Allowance for Housing, or BAH, is a benefit paid to members of 
the military to help offset the cost of local housing markets. When a 
servicemember is deployed, for example, BAH is necessary to help offset 
the cost of a mortgage or rent in a particular geographic area. 
Everyone in the military, especially families, rely on this benefit. 
This benefit is especially critical when servicemembers deploy because, 
as we know, the spouse is often at home and she or he is responsible 
for taking care of the bills.
  What would my colleagues say if I said that because you are ordered 
to deploy to Afghanistan, for example, the Department of Defense is 
going to withhold $1,000 or more from your monthly housing allowance, a 
huge piece of your total household income--upward of $12,000 or more 
per year--because of a new policy interpretation? That is right. It is 
merely a new policy interpretation.
  Because of a DOD oversight, over 800 Guardsmen--some even in the 
Presiding Officer's State and 40 in Massachusetts who are deployed to 
Afghanistan right now--are losing, in the middle of the battle, up to 
$1,000 per month in their housing allowance because they were ordered 
to deploy.
  Title X mandates that full-time Guardsmen, when ordered to Active 
Duty for a contingency operation, even if there is no break in their 
active Federal service, must revert back to their home-of-record status 
rather than their current duty station. Because of this change in 
status, it alters a guardsman's basic allowance for housing on their 
monthly pay stub. Basically, guardsmen are being punished for being 
deployed to a war zone.
  For example, take a full-time guardsman who is from Worcester. He 
calls Worcester, MA, home and probably votes there, but he is stationed 
in Washington, DC, let's say right down the street at the Pentagon. So 
he or she earns a housing allowance based on the cost of living in DC 
and, as we all know, it is higher than in Worcester, MA. Sounds pretty 
normal, pretty straightforward, right?
  This guardsman is then ordered to Active Duty--to Federal status--for 
the purpose of deploying overseas. A new housing allowance rate kicks 
in that is based on his home of record back in Worcester, not where he 
or she was actually stationed, here in D.C.
  As a result, the guardsman and his family immediately start losing up 
to $1,000 per month because of that deployment to serve their country. 
So full-time guardsmen are entitled to the BAH rate they are receiving 
at the duty station because it is where they and their dependents live, 
and that is often where the spouses will reside until that 
servicemember comes back. Obviously, family members are not going back 
to Worcester while the

[[Page 18620]]

guardsman is stationed at the Pentagon or here in D.C.
  This is not right. It is something DOD agrees with. Senator Wyden and 
Senator Coons concur, and I appreciate their bipartisanship in moving 
this forward. I am all about finding savings, but the good thing is 
that this is no cost to the government. It is already budgeted in the 
DOD budget. I am not into savings that treat our service men and women 
unfairly.
  So my amendment provides a simple, noncontroversial fix. It is 
germane. It is relevant. It helps people who are serving our country 
right now. It is bipartisan. It is how we should do things around here.
  I am glad the DOD has realized this is a problem, and I hope my 
colleagues will move forward in a manner to make our citizens proud.
  I wish to thank Senator McCain for his effort in getting this 
important matter to our guardsmen who are serving presently overseas. 
It is a testament to his diligence. I thank Chairman Levin for putting 
up with the problems over the last few days, but it is important to the 
people. It is not about politics; it is about serving our men and 
women.


                           Amendment No. 1206

  Mr. GRASSLEY. Madam President, at a time when the national security 
budget is under immense pressure, it is vitally important that we spend 
our defense dollars more wisely.
  The Boxer-Grassley amendment will contain runaway spending in 
contractor salary reimbursements. Notice that I said ``salary 
reimbursements,'' not salaries.
  Someone not familiar with government contracting might ask why it's 
any of our business what government contractors get paid, and I would 
agree if we're talking about what their company pays them out of its 
own pocket.
  When most people hire a contractor to renovate their bathroom or re-
shingle their roof, they find the one that does the best work for the 
least cost.
  Having done that, you are not likely to ask or care what their cut is 
or what they pay their crew.
  To the extent that government contracts work the same way, the same 
principle applies. Unfortunately, not all government contracts do work 
that way.
  A large proportion of government contracts actually reimburse the 
contractor directly for the costs they incur, including for the 
salaries of their employees. These types of contracts are risky because 
contractors lose the incentive to control costs. They are only supposed 
to be used when a fixed price contract is not possible for instance, if 
the scope or duration of the work is not possible to determine at the 
outset.
  Nevertheless, cost-reimbursement type contracts are used extensively 
by Federal departments and agencies.
  The Defense Department alone accounted for over $100 billion in cost 
reimbursement type contracts in fiscal year 2010.
  President Obama has criticized the widespread use of these types of 
contracts and has set a goal of slowing the growth and ultimately 
reducing their use.
  He has made a little progress. However, we are talking about a small 
dent in a large bucket.
  It's clear that cost type contracts are going to account for a major 
proportion of the dollars spent on federal contracting for the 
foreseeable future. As a result, we must take steps to limit 
unreasonable expenditures under these types of contracts.
  Senator Boxer and I worked together to try to head off this problem 
back in 1997.
  At that time, we proposed capping salary reimbursements at the salary 
level of the President of the United States.
  However, a compromise was ultimately enacted that capped how much the 
top 5 highest earning contractor executives could charge the federal 
government for their salaries.
  The cap was set at the median salary of the top five executives at 
companies with annual sales over $50 million, which must be 
recalculated annually.
  Since that time, the cap has more than doubled from $340,650 to 
$693,951. That's 53 percent faster than the rate of inflation.
  The House-passed version of the National Defense Authorization bill 
expands the current cap to all contractor employees, not merely the top 
five executives, closing a loophole that was being exploited.
  The version of the DoD Bill before the Senate extends the cap only to 
the top 10 to 15 executives.
  However, Senator Boxer and I think it's time to reconsider a fixed 
cap at the level of the President's salary, which I should add was 
doubled by Congress to $400,000 since our previous proposal.
  That is more than generous.
  Surely the taxpayers should not be asked to pay the salary of a 
contractor more than the President makes, which is twice what any 
cabinet secretary makes.
  Keep in mind that this cap just limits how much Uncle Sam can be 
billed for, which is on top of whatever the company chooses to pay its 
employees out of its own pocket.
  Not only would our straightforward cap save man-hours in the Office 
of Federal Procurement Policy, which has to gather the data every year 
to determine the current convoluted cap, but it would save millions of 
dollars that need not be spent.
  Again, we cannot afford to go on wasting our increasingly limited 
defense dollars.
  We have to be more aggressive in weeding out waste in defense 
spending and this is one unnecessary expenditure that we can easily 
eliminate in favor of higher priorities.
  I urge my colleagues to join us in this commonsense cost cutting 
measure.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Arizona.
  Mr. McCAIN. Madam President, I thank the Senator from Massachusetts 
for his amendment. He has spent a great deal of time in his life 
serving in the National Guard, including spending time in Afghanistan 
recently. He understands the burdens our National Guard men and women 
bear. I am very grateful for his careful attention to their needs. This 
is clearly an issue that needed to be addressed. We are proud to have 
it as part of our legislation.
  Again, my thanks to the Senator from Massachusetts as well as to my 
friend, Chairman Levin, for helping make this amendment possible.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEVIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


 Amendments Nos. 1114, as Modified; 1220; 1146, as Modified; 1293, as 
Modified; 1206; 1304, as Modified; 1151, 1236, 1133, as Modified; 1287, 
                   as Modified; and 1090, as Modified

  Mr. LEVIN. Madam President, I now ask unanimous consent that the 
following pending germane amendments be considered en bloc; that the 
amendments be modified with the changes that are at the desk, where 
applicable: Begich No. 1114, as modified; McCain No. 1220; Reed of 
Rhode Island No. 1146, as modified; Levin No. 1293, as modified; Boxer 
No. 1206; Chambliss No. 1304, as modified; Pryor No. 1151; Nelson of 
Florida No. 1236; Blunt No. 1133, as modified; Murkowski No. 1287, as 
modified; and Brown of Massachusetts No. 1090, as modified; further, 
that the amendments be agreed to en bloc.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendments (Nos. 1220, 1206, 1151, and 1236) were agreed to.
  The amendments (Nos. 1114, 1146, 1293, 1304, 1133, 1287, and 1090), 
as modified, were agreed to, as follows:


                    AMENDMENT NO. 1114, AS MODIFIED

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

     SEC. 346. ELIGIBILITY OF ACTIVE AND RESERVE MEMBERS, 
                   RETIREES, GRAY AREA RETIREES, AND DEPENDENTS 
                   FOR SPACE-AVAILABLE TRAVEL ON MILITARY 
                   AIRCRAFT.

       (a) In General.--Chapter 157 of title 10, United States 
     Code, is amended by inserting after section 2641b the 
     following new section:

[[Page 18621]]



     ``Sec. 2641c. Space-available travel on department of defense 
       aircraft: eligibility

       ``(a) Authority to Establish Benefit Program.--The 
     Secretary of Defense may establish a program to provide 
     transportation on Department of Defense aircraft on a space-
     available basis. The program shall be conducted in a budget 
     neutral manner.
       ``(b) Benefit.--If the Secretary establishes such a 
     program, the Secretary shall, subject to section (c), provide 
     the benefit equally to the following individuals:
       ``(1) Active duty members and members of the Selected 
     Reserve holding a valid Uniformed Services Identification and 
     Privilege Card.
       ``(2) A retired member of an active or reserve component, 
     including retired members of reserve components, who, but for 
     being under the eligibility age applicable to the member 
     under section 12731 of this title, would be eligible for 
     retired pay under chapter 1223 of this title.
       ``(3) An unremarried widow or widower of an active or 
     reserve component member of the armed forces.
       ``(4) A dependent that--
       ``(A)(i) is the child of an active or reserve component 
     member or former member described in paragraph (1) or (2); or
       ``(ii) is the child of a deceased member entitled to 
     retired pay holding a valid Uniformed Services Identification 
     and Privilege Card and a surviving unremarried spouse; and
       ``(B) is accompanying the member or, in the case of a 
     deceased member, is the surviving unremarried spouse of the 
     deceased member or is a dependent accompanying the surviving 
     unremarried spouse of the deceased member.
       ``(5) The surviving dependent of a deceased member or 
     former member described in paragraph (2) holding a valid 
     Uniformed Services Identification and Privilege Card, if the 
     dependent is accompanying the member or, in the case of a 
     deceased member, is the surviving unremarried spouse of the 
     deceased member or is a dependent accompanying the surviving 
     unremarried spouse of the deceased member.
       ``(6) Other such individuals as determined by the Secretary 
     in the Secretary's discretion.
       ``(c) Discretion to Establish Priority Order.--The 
     Secretary, in establishing a program under this section, may 
     establish an order of priority that is based on 
     considerations of military needs and military readiness.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of such chapter is amended by inserting after the 
     item relating to section 2641b the following new item:

``2641c. Space-available travel on Department of Defense aircraft: 
              eligibility.''.
       (c) Requirement for Comptroller General Review.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a review of the Department of Defense 
     system for space-available travel. The review shall determine 
     the capacity of the system presently and as projected in the 
     future and shall examine the efficiency and usage of space-
     available travel.
       (2) Elements.--The review required under paragraph (1) 
     shall include the following elements:
       (A) A discussion of the efficiency of the system and data 
     regarding usage of available space by category of passengers 
     under existing regulations.
       (B) Estimates of the effect on availability based on future 
     projections.
       (C) A discussion of the logistical and managements 
     problems, including congestion at terminals, waiting times, 
     lodging availability, and personal hardships currently 
     experienced by travelers.
       (D) An evaluation of the cost of the system and whether 
     space-available travel is and can remain cost-neutral.
       (E) Other factors relating to the efficiency and cost 
     effectiveness of space available travel.


                    AMENDMENT NO. 1146, AS MODIFIED

       On page 114, strike line 2 and insert the following:
     the study; and
       (8) ensure the involvement and input of military 
     technicians (dual status).


                    AMENDMENT NO. 1293, AS MODIFIED

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

     SEC. 1024. TRANSFER OF CERTAIN HIGH-SPEED FERRIES TO THE 
                   NAVY.

       (a) Transfer From MARAD Authorized.--The Secretary of the 
     Navy may, subject to appropriations, from funds available for 
     the Department of Defense for fiscal year 2012, provide to 
     the Maritime Administration of the Department of 
     Transportation an amount not to exceed $35,000,000 for the 
     transfer by the Maritime Administration to the Department of 
     the Navy of jurisdiction and control over the vessels as 
     follows:
       (1) M/V HUAKAI.
       (2) M/V ALAKAI.
       (b) Use as Department of Defense Sealift Vessels.--Each 
     vessel transferred to the Department of the Navy under 
     subsection (a) shall be administered as a Department of 
     Defense sealift vessel (as such term is defined in section 
     2218(k)(2) of title 10, United States Code).


                    AMENDMENT NO. 1304, AS MODIFIED

       Strike section 324 and insert the following:

     SEC. 324. REPORTS ON DEPOT-RELATED ACTIVITIES.

       (a) Report on Depot-level Maintenance and Recapitalization 
     of Certain Parts and Equipment.--
       (1) In general.--Not later than 90 days after the date of 
     the enactment of this Act, the Secretary of Defense in 
     consultation with the military departments, shall submit to 
     the congressional defense committees a report on the status 
     of the Drawdown, Retrograde and Reset Program for the 
     equipment used in support of operations in Iraq and 
     Afghanistan and the status of the overall supply chain 
     management for depot-level activities.
       (2) Elements.--The report required under paragraph (1) 
     shall include the following elements:
       (A) An assessment of the number of backlogged parts for 
     critical warfighter needs, an explanation of why those parts 
     became backlogged, and an estimate of when the backlog is 
     likely to be fully addressed.
       (B) A review of critical warfighter requirements that are 
     being impacted by a lack of supplies and parts and an 
     explanation of steps that the Director plans to take to meet 
     the demand requirements of the military departments.
       (C) An assessment of the feasibility and advisability of 
     working with outside commercial partners to utilize flexible 
     and efficient turn-key rapid production systems to meet 
     rapidly emerging warfighter requirements.
       (D) A review of plans to further consolidate the ordering 
     and stocking of parts and supplies from the military 
     departments at depots under the control of the Defense 
     Logistics Agency.
       (3) Flexible and efficient turn-key rapid production 
     systems defined.--For the purposes of this subsection, 
     flexible and efficient turn-key rapid production systems are 
     systems that have demonstrated the capability to reduce the 
     costs of parts, improve manufacturing efficiency, and have 
     the following unique features:
       (A) Virtual and flexible.--Systems that provide for 
     flexibility to rapidly respond to requests for low-volume or 
     high-volume machined parts and surge demand by accessing the 
     full capacity of small- and medium-sized manufacturing 
     communities in the United States.
       (B) Speed to market.--Systems that provide for flexibility 
     that allows rapid introduction of subassemblies for new parts 
     and weapons systems to the warfighter.
       (C) Risk management.--Systems that provide for the 
     electronic archiving and updating of turn-key rapid 
     production packages to provide insurance to the Department of 
     Defense that parts will be available if there is a supply 
     chain disruption.
       (b) Report on the Alignment, Organizational Reporting, and 
     Performance Rating of Air Force System Program Managers, 
     Sustainment Program Managers, and Product Support Managers at 
     Air Logistics Centers or Air Logistics Complexes.--
       (1) Report required.--The Secretary of the Air Force shall 
     enter into an agreement with a federally funded research and 
     development center to submit to the congressional defense 
     committees, not later than 180 days after the date of the 
     enactment of this Act, a report on the alignment, 
     organizational reporting, and performance rating of Air Force 
     system program managers, sustainment program managers, and 
     product support managers at Air Logistics Centers or Air 
     Logistics Complexes.
       (2) Elements.--The report required under paragraph (1) 
     shall include the following elements:
       (A) Consideration of the proposed reorganization of Air 
     Force Materiel Command announced on November 2, 2011.
       (B) An assessment of how various alternatives for aligning 
     the managers described in subsection (a) within Air Force 
     Materiel Command would likely support and impact life cycle 
     management, weapon system sustainment, and overall support to 
     the warfighter.
       (C) With respect to the alignment of the managers described 
     in subsection (A), An examination of how the Air Force should 
     be organized to best conduct life cycle management and weapon 
     system sustainment, with any analysis of cost and savings 
     factors subject to the consideration of overall readiness.
       (D) Recommended alternatives for meeting these objectives.
       (3) Cooperation of secretary of air force.--The Secretary 
     of the Air Force shall provide any necessary information and 
     background materials necessary for completion of the report 
     required under paragraph (1).


                    AMENDMENT NO. 1133, AS MODIFIED

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

     SEC. ___. REEMPLOYMENT RIGHTS FOLLOWING CERTAIN NATIONAL 
                   GUARD DUTY.

       Section 4312(c)(4) of title 38, United States Code, is 
     amended--
       (1) in subparagraph (D), by striking ``or'' at the end;

[[Page 18622]]

       (2) in subparagraph (E), by striking the period at the end 
     and inserting ``; or''; and
       (3) by adding at the end the following new subparagraph:
       ``(F) ordered to full-time National Guard duty (other than 
     for training) under section 502(f) of title 32 when 
     authorized by the President or the Secretary of Defense for 
     the purpose of responding to a national emergency declared by 
     the President and supported by Federal funds, as determined 
     by the Secretary concerned.''.


                    AMENDMENT NO. 1287, AS MODIFIED

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

     SEC. 136. LIMITATION ON RETIREMENT OF C-23 AIRCRAFT.

       (a) In General.--Upon determining to retire a C-23 
     aircraft, the Secretary of the Army shall first offer title 
     to such aircraft to the chief executive officer of the State 
     in which such aircraft is based.
       (b) Transfer Upon Acceptance of Offer.--If the chief 
     executive officer of a State accepts title of an aircraft 
     under subsection (a), the Secretary shall transfer title of 
     the aircraft to the State without charge to the State. The 
     Secretary shall provide a reasonable amount of time for 
     acceptance of the offer.
       (c) Use.--Notwithstanding the transfer of title to an 
     aircraft to a State under this section, the aircraft may 
     continue to be utilized by the National Guard of the State in 
     State status using National Guard crews in that status.
       (D) Sustainment.--Immediately upon transfer of title to an 
     aircraft to the State under this section, the State shall 
     assume all costs associated with operating, maintaining, 
     sustaining, and modernizing the aircraft.


                    AMENDMENT NO. 1090, AS MODIFIED

       At the end of title VI, add the following:

                     Subtitle D--Pay and Allowances

     SEC. 641. NO REDUCTION IN BASIC ALLOWANCE FOR HOUSING FOR 
                   NATIONAL GUARD MEMBERS WHO TRANSITION BETWEEN 
                   ACTIVE DUTY AND FULL-TIME NATIONAL GUARD DUTY 
                   WITHOUT A BREAK IN ACTIVE SERVICE.

       Section 403(g) of title 37, United States Code, is amended 
     by adding at the end the following new paragraph:
       ``(6) The rate of basic allowance for housing to be paid a 
     member of the Army National Guard of the United States or the 
     Air National Guard of the United States shall not be reduced 
     upon the transition of the member from active duty under 
     Title 10, United States Code, to full-time National Guard 
     duty under Title 32, United States Code, or from full-time 
     National Guard duty under Title 32, United States Code, to 
     active duty under Title 10, United States Code, when the 
     transition occurs without a break in active service of at 
     least one calendar day.''


                Amendments Nos. 1105 and 1158 Withdrawn

  Mr. LEVIN. I ask unanimous consent now that the following two 
amendments be withdrawn: Collins No. 1105 and Collins No. 1158.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered. The amendments are withdrawn.
  Mr. LEVIN. I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. VITTER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. VITTER. Madam President, I ask unanimous consent to speak for up 
to 10 minutes on a different topic than the Defense authorization bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    National Flood Insurance Program

  Mr. VITTER. Madam President, I come to the Senate floor to discuss 
another very important issue for our economy, which is the National 
Flood Insurance Program.
  The National Flood Insurance Program is a vital Federal program that 
helps provide flood insurance for properties all across the country. It 
is absolutely vital to citizens and to our economy, to the real estate 
market, to closings which cannot happen without this type of insurance 
in many instances. It is important all across the country. It is 
nowhere more important than in Louisiana, which, unfortunately, has 
pretty severe flooding risks.
  In the last few years, we have extended this necessary and important 
program but sometimes with real fits and starts and even lapses of the 
program. As you know, Madam President, in 2010, it got worse than ever. 
Congress allowed the National Flood Insurance Program to lapse four 
times--for a total of 53 days--for no good reason. It was not a money 
issue; it was not a cost issue; it was not a deficit issue because 
continuation of the program along the current structure does not raise 
deficit and debt. But we had these deadlines that kept approaching, and 
we let, in many instances--in four instances--the deadline actually 
come and the program to lapse--four times in 2010, for a total of 53 
days.
  That had enormous negative consequences. Real estate closings that 
were scheduled to happen had to be canceled. Here we are in the middle 
of a horrendous recession--clearly the worst since World War II--led by 
problems in the real estate market, and we had good, solid real estate 
closings which had to be put off and canceled for no good reason. 
Really crazy.
  We learned a little bit from that experience, and this year, in 2011, 
we have done better. We have continued the program without lapse. But I 
am afraid we are getting back into this habit of extremely short-term 
extensions, which brings with it the threat of lapses. We extended the 
program a few weeks ago, but we only extended it for the duration of 
the current CR, until this December 16. So, again, the program is set 
to completely expire nationwide this December 16.
  The ultimate solution is a long-term, full reauthorization of the 
flood insurance program. I support that full 6-year bill, and we have 
voted out of the Senate Banking Committee a full, long-term, 6-year 
reauthorization bill. However, that is not going to pass into law 
between now and December 16, and it is pretty clear it is not going to 
pass into law for several months.
  That is why I am urging all of us to come together in a bipartisan 
fashion in the meantime to pass a clean extension of the program for 
the remainder of this fiscal year, through September 30, 2012, or for 
some significantly long time within that year. I think that is needed 
right now to assure the real estate market there will not be 
disruptions, to take that threat and that uncertainty out of the market 
and out of the line of closings, that we want to encourage, we want to 
build, as we try to build up the real estate market and the economy in 
general.
  Because I believe this is clearly the right path, I have done two 
things. First, I have filed that extension, that clean extension--a 
bill under my name--through September 30, 2012. This is very similar to 
the extension we passed in late 2010 to get us through that fiscal year 
to September 30, 2011. That was my bill. We passed it unanimously here 
in the Senate, again, to avoid these deadlines and disruptions, which 
hamper economic recovery. So I filed that bill. That would be a clean 
extension of the program through September 30, 2012.
  The second thing I did today is write Senator Reid, the majority 
leader, and ask him to focus on this important program and the need for 
this extension as soon as possible, and to hotline it through the 
Senate, to ask for unanimous consent from both sides, all Members, as 
we did about a year ago, pass this so we extend this important, vital 
program through September 30, 2012, or some similar, significant 
timeframe.
  Again, I wrote Senator Reid today to highlight this need. I will be 
following up with him. I have already followed up and talked to many 
other interested Members, starting with those leaders on the Banking 
Committee under whose jurisdiction this falls.
  This should be a no-brainer. This should be a completely nonpartisan 
or bipartisan exercise. This is not some big ideological dispute. This 
is simply extending, continuing a vital, necessary program without in 
any way increasing deficit and debt, in a way that we take out 
uncertainty, take out the specter of this necessary program lapsing yet 
again, as it did four times in 2010, for a total of 53 days.
  We cannot let this lapse. And, quite frankly, we should not even go 
near the deadline before we extend it because that in and of itself--
even if we do not technically allow it to lapse--creates uncertainty 
and chaos in the real estate market and disrupts real estate closings.

[[Page 18623]]

  We need every good real estate transaction we can get. We need every 
bit of additional economic activity we can get in this horrible 
economy, this recession that was led by a bad real estate market. We 
need to lead recovery with a recovering real estate market. So let's do 
this in a simple, straightforward, commonsense, bipartisan way in that 
effort. We did it around my bill in that nearly full-year extension 
about a year ago. Let's do it again.
  In closing, I want to underscore I am fully committed to the full, 
detailed 6-year reauthorization bill. It has come out of the Senate 
Banking Committee. It needs to pass through the Senate. We need to 
resolve differences with the House. We need to pass that into law. But 
that is not going to happen between now and December 16, and it is not 
going to happen for several months. So, in the meantime, let's remove 
the threat of disruption, of lapses in the program, of uncertainty. All 
of that is extremely harmful in this very fragile economy.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. THUNE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THUNE. Madam President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Keystone XL Pipeline

  Mr. THUNE. Madam President, yesterday a number of us--I think the 
number now is somewhere in the 37-to-38 ballpark of Senators--
introduced legislation to expedite consideration of the Keystone XL 
Pipeline. What is interesting to me about all of this is that this is a 
project that has been literally reviewed and analyzed and studied and 
scrutinized now for the better part of 3 years.
  In fact, they have had two comprehensive environmental evaluations 
and 3 years of study and review. Then, just recently, the Obama 
administration deferred a decision on the permit until after the 2012 
elections, essentially putting off the decision for about 18 months.
  Well, what is ironic and sort of interesting about that is this is a 
project which--after having been carefully vetted for the past 3 years, 
carefully reviewed, carefully studied, all of the environmental impact 
analysis done--would lead to all kinds of economic development for this 
country and job creation in many of the States that are impacted.
  Our State of South Dakota happens to be one of those. The pipeline 
traverses South Dakota as it heads down to refineries in other places 
in the country. But it would benefit my State by generating significant 
amounts of State and local tax revenue, revenue that is much needed by 
many of the local jurisdictions: school districts, counties, 
municipalities in the State of South Dakota.
  So there is a tremendous benefit to the construction of this pipeline 
to the various States that are impacted simply as a result of the 
additional tax revenue that would be raised by it. Add to that, in my 
State of South Dakota, the hundreds of jobs that would be created, the 
half billion dollars of economic activity that it would generate--and 
this is very clear, from the State of South Dakota's standpoint, which 
is why I believe our Governor has weighed in behind this project, that 
this is something that ought to at least be decided. There is no reason 
why, no rational reason why, no logical reason why this project would 
be delayed for 18 months simply to get past the next election.
  All of the work has been done. It seems to me at least there ought to 
be a decision made. We are talking about a $7 billion investment in 
this country and partly in Canada to get from where the oil sands are 
to get the oil to the refineries in the United States. If we look at 
the overall, as I said, economic impact, number of jobs created, it is 
pretty impressive--20,000 jobs, I think, is the estimate that it would 
create in this country.
  Those are jobs that, frankly, many of these States could certainly 
benefit from. Not to mention the fact that we are doing business with 
someone who is favorable and friendly to us. Canada is our biggest 
trading partner. I think we do about $640 billion annually in bilateral 
trade with Canada. Canada is a country with which we have a very good, 
strong trading relationship. It strikes me at least that if we are 
going to get oil from somewhere, it makes sense to get it from a 
country such as Canada as opposed to some of the other countries around 
the world that are much less friendly to the United States.
  In fact, the Keystone XL Pipeline would transport daily about 700,000 
barrels of oil that would come through that pipeline. That is the 
equivalent of the amount that we get on a daily basis from Venezuela.
  So if you are thinking about getting 700,000 barrels of oil from 
somewhere in the world, would it not make more sense to get it from 
Canada as opposed to Venezuela? I think in terms of what it does for 
our energy independence, for our energy security, dealing with a 
friendly nation, and making it more possible for our country to become 
less dependent upon foreign countries for this energy we need, it 
strikes me that at least this particular project makes a lot of sense.
  You have not only the economic impact, in terms of the activity it 
would create in the various States that would be impacted by it, the 
number of jobs created--as I said, 20,000 jobs is the estimate, with a 
$7 billion initial investment--and all the tax revenue generated for 
State and local government along the way, but wouldn't it be nice if 
the United States got into the situation where we were actually an 
energy exporter?
  Believe it or not, this is the first year in the last 62 years--and 
this is according to a story that ran in the Wall Street Journal 
yesterday--according to data released by the U.S. Energy Information 
Administration on Tuesday, the United States has sent abroad 753.4 
million barrels of everything from gasoline to jet fuel in the first 9 
months of this year, while it imported 689.4 million barrels. That 
means that, for the first time in 62 years, in 2011--if this trend 
continues--and it looks as though it will--we will have exported more 
energy than we imported. We are still a net importer of petroleum, or 
oil. Hopefully, we can change that in the future by developing these 
resources we have in this country, one of which is the Bakken Reserve 
in North Dakota, which is generating enormous amounts of oil for this 
country. So we are still a net oil importer.
  In terms of refined gasoline and other products--refined energy--for 
the first time in 62 years, in 2011, we may be a net exporter of 
energy. I think that is an amazing data point, and it suggests this is 
something that could benefit enormously the American economy. Well, in 
order for that to happen, we have to have those resources we can get 
from the oil sands in Canada and bring them into the United States, 
where they are refined here and then either used here or sent abroad. 
But it is a way we can generate additional economic activity and jobs 
for our economy.
  This is a quote from the Global Director of Oil, which tracks energy 
markets. He said this trend we are going to see this year, 2011--again, 
first time in 62 years we will be a net exporter of energy--he says it 
looks like a trend that could stay in place for the rest of the decade. 
That is a remarkable change in terms of the flow of energy from this 
country. The last time we were a net exporter of energy was during 
World War II and shortly thereafter. It has been over 60 years.
  That is what a project such as this could do for our country--not 
just the immediate impact on those States through which this pipeline 
would traverse, in terms of the tax revenue that would be generated for 
State and local governments, but you also have the economic activity it 
creates in those States, the jobs it creates in those States, and what 
it does in order to move us increasingly away from dependence upon 
other countries in the

[[Page 18624]]

world with whom we have, at best, shaky relationships to start with.
  Doing business with our largest trading partner--a country with which 
we do enormous amounts of trade every single year--seems to me at least 
to be a much better solution to this country's energy needs than is 
getting that same amount of energy from other countries around the 
world.
  Madam President, 700,000 barrels a day is what the pipeline would 
transport into this country. That is the equivalent that we get on a 
daily basis from Venezuela. This is a project that ought to be decided. 
Whether it is decided affirmatively--obviously, as you can tell, I 
believe it should be. There are people in South Dakota who are opposed 
to this. There have been ample opportunities for public forums and 
hearings for people to comment on it. There have been lots of 
opportunities for those opposed to it to weigh in.
  Notwithstanding that, again, all the analyses have been done, the 
review done, and the studies are now completed, and they have indicated 
there is no reason for this not to move forward--particularly given the 
fact that the State of Nebraska has negotiated with TransCanada, the 
builder of the pipeline, an agreement that would take it in a different 
direction through that State. All those hoops have been gone through, 
and the hurdles have been cleared. There isn't a reason why this should 
be delayed another 18 months until after the next Presidential 
election--other than, purely and simply, for political reasons.
  I hope we will be able to get good, strong support in the Senate for 
this legislation that would allow this to be decided in a more 
immediate timeframe. As I said, right now, the administration has 
punted until after the next election, 18 months down the road. This 
legislation would enable this to be decided in the next couple of 
months--the next 60 days or so--subject, obviously, to some 
requirements that are in there--obviously, the strongest environmental 
requirements. But all that having been reviewed and having been 
accomplished, it is time for a decision on this important project.
  I hope we can get strong support in the Senate for this legislation. 
It has been introduced by a number of my colleagues, including the 
Senator from North Dakota, Senator Hoeven, Senator Johanns from 
Nebraska, Senator Murkowski from Alaska, and a number of others. I am a 
cosponsor. At last count, I think it has somewhere along the lines of 
37 or 38 cosponsors. Incidentally, it passed in the House of 
Representatives already. So there is a vehicle out there that has 
passed one body of Congress. It is my hope we will be able to get 
action here in the Senate, and that it might be something we can do 
that would have an immediate impact on jobs.
  We always talk about shovel-ready projects. This is a shovel-ready 
project. This is ready to go. They are ready to start construction of 
this project. It has been through in the last 3 years all of the 
process this government can require it to go through in order to make 
sure this project should move forward.
  I think it is important for this body to act on this legislation and 
allow us to get to where we can get a decision on this project that 
will lead to more economic activity, more economic impact, more jobs 
for Americans, more energy security for this country, and hopefully, at 
the end of the day, a lessening of the dangerous dependence we have on 
foreign sources of energy, which we want to get away from. I think it 
is a win-win. I congratulate the sponsors of the legislation for the 
thoughtful way they have considered this and put this legislation 
together. I hope it gets consideration in the Senate.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Franken). Without objection, it is so 
ordered.


                              The Economy

  Mr. NELSON of Florida. Mr. President, here we are, stuck again, and I 
want to speak just a little bit about getting this country moving again 
and getting Americans earning again.
  This great country of ours has endured a lot. We have endured despite 
the Civil War, the Great Depression, the two World Wars we have been 
in, the assassination of leaders, and the slaughter of innocents by 
terrorists. This great Nation of ours has confronted racism and civil 
unrest and political scandal at all levels, and always we have endured.
  In the throes of the Great Depression, the words of President 
Roosevelt reassured most Americans when he said:

       This great Nation will endure as it has endured. It will 
     revive and it will prosper.

  Today, we are once again walking a rugged path, and the most recent 
example of the failure of the supercommittee has been the latest crash 
caused by super-rigid ideology and hyperpolitical partisanship. Truth 
be told, we are in a most difficult time in our Nation's economic 
life--still facing a decision of how to pay for an enormous debt. We 
owe this money mostly due to the misconduct of the money changers, the 
misuse of the Tax Code that favors special interests, and years of 
excessive spending. Yet there are Members of this Congress who propose 
we should first not address those underlying causes, and that those 
most responsible should not even have to pay their fair share toward 
reducing the debt.
  Instead, they propose we first take away from Social Security savings 
and Medicare health coverage for the elderly, and that we pull back the 
hand this Nation compassionately extends to those among us who are less 
fortunate. That would seem somewhat to erase all the progress we have 
made since those words of President Roosevelt by declaring war not on 
poverty but on the poor, the middle class, and the elderly.
  Because a host of our citizens face the grim problems of 
unemployment, the loss of their homes, and depletion of their savings, 
this Congress should fight any measure that unfairly inflicts pain on 
those least responsible for our present economic condition. The 
American people deserve a lot from their Congress. They deserve 
honesty. They expect us to work together, and they want action that is 
evenhanded.
  So as we move forward, I hope all my colleagues in the Senate and in 
the House will be guided by the words of a young President Kennedy, who 
said:

       Let us not seek the Republican answer nor the Democratic 
     answer--but the right answer.

  In this spirit, can't we work to pull our Nation out of its financial 
doldrums? Can't we just ask: What is the right thing to do?
  Is it right that household income for the average American is 
actually in decline? Is it right that a hedge fund manager pays a lower 
tax rate than the person who cleans his office? Is it right that an oil 
company gets to write off $11 billion on its tax return because it 
polluted the Gulf of Mexico? Is it right that the Congress cannot agree 
on a deficit reduction plan because of partisan politics?
  The American people know what is right and they know what is not 
right. If we could just for 1 minute put all this partisanship aside 
and do what is right, then we might be able to balance our Nation's 
books to get this country moving again and to get Americans employed 
and earning again. While we are at it, we might just restore the 
American public's confidence in our government.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. I ask that I be allowed to speak as if in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page 18625]]




                            Financial Crisis

  Mr. SESSIONS. Mr. President, our country is facing a very serious 
financial crisis.
  We have seen what happened in Europe. We had some numbers on the 
stock market for a while. But if I understand what happened, there was 
a very real crisis facing the Europeans, and at the very last moment 
they took some action that was received positively.
  But they are not out of the woods yet and neither are we. Our debt is 
surging. We have gone from 5 years ago a $161 billion deficit to a $450 
billion deficit in President Bush's last year to $1.2 trillion in 
President Obama's first year, $1.3 trillion in President Obama's second 
year, $1.2 trillion this year, and over $1 trillion predicted in 
deficits next year.
  We are going to have a proposal that comes before us to provide a 
payroll holiday, and it is sold as avoiding a tax increase. That is 
what the President says it is; we are avoiding a tax increase. So we 
ought to ask ourselves exactly how that is so and if it is so. Let me 
just say, I don't think that is accurate.
  Two years ago, there was an employer payroll tax holiday that went 
only to the employer. It cost the Treasury $7.6 billion. Last year, as 
part of the final compromise, a bipartisan compromise, it was agreed 
that there would be a 2-percent tax holiday for working persons. So 
instead of paying 6-plus percent on your withholding tax, you would pay 
4. That cost $111 billion for that year.
  So the President said: If we don't extend that, we are going to have 
a tax increase. But is he accurate? No, not really. This year's 
proposal would be to reduce not the 4 percent but the 3.1 percent, 
cutting the 6.2 withholding to 3.1 for the employer and for the 
employee, and it would cost in 1 year $265 billion--$265 billion that 
would not be going into the Social Security trust fund so that those 
who retire would have the retirement funds they have been promised. It 
would not go there. It weakens Social Security, the integrity of the 
system, in my opinion.
  But we are told not to worry, the U.S. Treasury will replace this 
$265 billion with Treasury money. But the problem is, the Treasury 
doesn't have any money. The Treasury is already in debt. The Treasury 
is going to add another $1 trillion to the deficit this year. So now it 
is going to be added to--$265 billion more in one fell swoop, in one 
bill, right here at the end of the session. If you don't vote for it, 
the President says, you are raising taxes on the American people. That 
is not an accurate statement.
  In an economic sense, in my opinion, the real essence of this is the 
U.S. Treasury will borrow $265 billion. Then, it will direct the Social 
Security Administration to send that money out in the form of a reduced 
withholding amount to be paid by workers. It is a direct borrow and it 
is a direct delivery of money and it uses Social Security trust fund 
moneys as a vehicle to transfer the money. In an economic sense, it 
borrows $265 billion to spend.
  How much is $265 billion? The supercommittee, the committee of 12, 
was trying to find $1,200 billion in savings over 10 years--not 1 year, 
10 years. This one bill, this one proposal of $265 billion would be 
spent this 1 year.
  To achieve the committee of 12's goal, they would simply have needed 
to have cut $120 billion a year for 10 years out of the entire Federal 
Government. They failed. Immediately now, the President and our 
majority leader are demanding this Congress pass an expenditure--
unexpected, not before done; nothing like such a large expenditure ever 
has come out of Social Security--to spend another $265 billion. How 
will we ever get our house in order? I wish I could figure out a way to 
be supportive. I don't see how I can be.
  I am pleased the Republicans are trying to work up a bill that would 
not cost as much as $265 billion and some way to pay for it. But, in 
truth, if we are going to be able to cut spending to pay for any kind 
of new expenditure, wouldn't we be better to do what the committee of 
12 tried to do: cut spending to reduce the debt? Shouldn't we be 
seeking ways, if we are going to raise taxes, to use those taxes to pay 
down the debt, instead of taking 10 years under the President's plan in 
a new tax that takes 10 years of that tax to pay for this 1 year's 
expenditure? That is what the proposal is.
  I would say to my colleagues, this goes beyond partisan politics. 
This gets to the point: Are we in control of the Treasury and the 
spending of the United States of America? Can we defend what we are 
doing?
  Don't think that is the only thing that is going to come up. I am the 
ranking Republican on the Budget Committee. We look at these numbers. 
This also will be taken care of in December, count on it: We are going 
to deal with the alternative minimum tax. That is going to cost $50 
billion. We are going to deal with unemployment insurance, an 
additional $70 billion to extend those payments beyond 90-some-odd 
weeks. We are going to fix the doctors payment, because we have to. We 
can't cut the doctors that much, $21 billion. We are going to extend 
most, if not all, of the tax extenders we call them, $90 billion. The 
total is $500 billion.
  Some of this we have been expecting to take care of. But we weren't 
expecting or planning in any way to have a continuation of the payroll 
holiday that is going to cost $265 billion. I just would say to my 
colleagues, when are we going to think more rationally about it?
  I just heard: How are we going to pay for the AMT, unemployment 
insurance, doctors payments, and the tax extenders? Somebody said: We 
are going to count the savings from the war. The Congressional Budget 
Office will show a decline in expenses for the Iraq and Afghanistan war 
will be a savings. We can spend that. That is fraudulent, that is a 
gimmick, and it should not be acceptable.
  Everybody knows the war costs are going to be coming down and we have 
been planning for that. We can't assume that money is available to 
spend willy-nilly. We were bringing the war costs down to bring the 
debt down, not to fund new spending. We need to bring the war costs 
down to try to reduce our debt and our deficit, not to fund new 
spending. But that is how they are going to do this, I have been told. 
I am not surprised because there is no other way they are going to do 
it.
  I just would share that. We will be voting in a little bit on this 
issue. I don't know what the answer is. I don't know how to fix our 
problems, but I know one thing. We remain in denial. Our country is in 
greater debt crisis than we realize. Mr. Erskine Bowles and Alan 
Simpson of President Obama's debt commission say we are facing the most 
predictable financial crisis in our Nation's history as a result of our 
debt, and we need to get serious about how to fix it.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. I ask unanimous consent to speak as if in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Freeing Alan Gross

  Mr. CARDIN. Mr. President, I rise to address the human rights issue 
of deep concern.
  For 2 years, since December 3, 2009, an American citizen and a 
Marylander, Alan Gross, has been imprisoned by the Cuban Government. 
For 2 years, he has been held by the Cuban authorities.
  Alan was in Cuba to help the country's small Jewish community 
establish an Internet and improve its access to the Internet, which 
would allow the community to go online without fear of censorship or 
monitoring.
  After being held for 14 months without charge and then a cursory 2-
day trial, he was convicted and sentenced to 15 years in prison. His 
appeal to the Cuban supreme court was denied in August of this year.
  Alan Gross is a caring husband and a father, a devoted man who has 
dutifully promoted U.S. foreign policy interests while serving the 
needs of thousands of foreign citizens, from Afghanistan to Haiti, over 
a career that has spanned more than 25 years of public service.

[[Page 18626]]

  Unfortunately, Alan has been caught in the middle of a conflict 
between two nations with a long and difficult relationship. But it is 
entirely unacceptable that his personal freedoms have been violated 
every day he continues to be incarcerated.
  Alan's health has deteriorated during his imprisonment. He has lost 
100 pounds and suffers from a multitude of medical conditions, 
including gout, ulcers, and arthritis, that have worsened without 
adequate treatment.
  Last night, I had a chance to talk to his wife Judy, who had a chance 
to visit with her husband in Cuba earlier last month. Judy informs me 
that Alan Gross's health conditions are deteriorating and that he is in 
need of adequate health care. In addition, his mother and daughter are 
both struggling with serious health care issues, and his wife is 
struggling to make ends meet.
  The Gross family should not have to suffer through such a trying 
period of time without Alan for support. Sentencing Alan Gross to 15 
years behind bars also sentences his family to 15 years without a 
husband, father, and son. There is no reason for the Gross family to 
continue to suffer the consequences of political gamesmanship any 
longer. I urge the Cuban Government to remember that this is a real man 
and a family who are suffering.
  I have already written the Cuban Government urging them, in the 
strongest possible manner, to immediately and unconditionally release 
Alan Gross. His continued imprisonment is a major setback in our 
bilateral relations, and it is unlikely any positive steps to improve 
that relationship can or will happen while he remains in prison.
  As a Senator and as a Marylander and as a fellow human being, I urge 
the Cuban Government to see Alan Gross, who has dedicated his life to 
serving others, for who he is--a man who believed he was helping others 
by stepping in when he saw a need. Enough is enough. I call on the 
Cuban Government to release Alan Gross immediately and to allow him to 
return to his family.
  Ms. MIKULSKI. Mr. President, Mr. Gross has worked with Cuban 
communities for many years. In 2009, he was working with USAID to 
assist Cuba's Jewish community by improving their access to the 
Internet. As a former social worker who has worked for 25 years in 
international development, he has a long record of helping people 
around the world to improve their lives.
  He was arrested and held without charge for 14 months and later 
sentenced to 15 years for crimes against the state.
  Mr. Gross is in failing health. He has lost 100 pounds and suffers 
from arthritis. He is being held in harsh conditions on trumped-up 
charges.
  His family in Maryland has had very limited contact with him. They, 
too, have faced health challenges and are facing significant financial 
hardships.
  I was hopeful that America and Cuba could move closer together--in 
trade, in community connections, and for individual families who have 
been separated. I thought these links would help open up Cuba, improve 
human rights, and enable their country to move toward democracy. Yet 
the case of Mr. Gross shows that Cuba is not serious about moving 
forward--for its own people or for its relations with the United 
States.
  If Cuba wants to improve relations with the United States, they need 
to release Mr. Gross now. I will not support easing restrictions or 
sanctions on Cuba until Mr. Gross is allowed to come home to Maryland. 
I thank my colleagues for joining me in standing up for Alan Gross and 
urge the Government of Cuba to release him immediately.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, I ask unanimous consent that upon the 
conclusion of the postcloture time, the pending germane Feinstein 
amendment, No. 1126, be the pending business; that the Senate proceed 
to vote in relation to the following Feinstein amendments in the order 
listed: Feinstein amendment No. 1126, Feinstein amendment No. 1456; 
that there be 2 minutes equally divided in the usual form prior to the 
second vote--there will be more time than that prior to the first vote; 
that no amendment be in order to either amendment prior to the votes, 
and that all postcloture time be considered expired at 6 p.m.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCAIN. Reserving the right to object, and I will not object, for 
the benefit of our colleagues, after spirited discussions for a long 
period of time we have reached a compromise with the Senator from 
California on language concerning detainees and there are certain 
Members on my side who wanted a vote on the original amendment as 
written. We modified it, so that there will be a vote on the original 
Feinstein amendment and then on the one which is modified by agreement 
among most of the people involved. There may be some who will still 
oppose it, but we have reached an agreement among the Senator from 
California, the chairman, myself, the Senator from Idaho, the Senator 
from South Carolina and others, that I think will be agreeable to the 
majority of the Members.
  I suggest to my friend, the chairman, that when the vote starts at 6, 
perhaps we can line up the other remaining amendments, on some of which 
we hope to get voice votes, some of which will require recorded votes, 
as is the procedure under postcloture.
  Mr. LEVIN. Mr. President, this has not yet been ruled on. I want to 
modify very slightly what I said in the unanimous consent request. I 
said that the Senate proceed to votes in relation to the following 
Feinstein amendments. I should have said the Senate proceed to votes on 
the Feinstein amendments in the order listed.
  The PRESIDING OFFICER. Is there objection to the request, as 
modified?
  Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, I have two other unanimous consent requests 
before we turn this over to the Senator from California. I ask 
unanimous consent that it be in order to make a point of order en bloc 
against the list of amendments in violation of rule XXII that is at the 
desk.
  The PRESIDING OFFICER. Is there objection?
  Without objection, the points of order are sustained and the 
amendments fall.
  The nongermane amendments are as follows:

       Amendments Nos. 1255, 1286, 1294, 1259, 1261, 1263, 1296, 
     1152, 1182, 1184, 1147, 1148, 1204, 1179, 1137, 1138, 1247, 
     1249, 1248, 1118, 1117, 1187, 1211, 1239, 1258, 1186, 1160, 
     1253, 1068, 1119, 1089, 1153, 1154, 1171, 1173, 1099, 1100, 
     1139, 1200, 1120, 1155, 1097, 1197; as being dilatory: No. 
     1174: as being drafted in improperly: No. 1291

  Mr. McCAIN. Mr. President, in the minutes remaining between now and 6 
p.m. I hope we could roughly divide time on the amendment between the 
two sides.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I would hope and I ask the time between now and 6 o'clock 
be divided between the two sides. We will yield immediately to Senator 
Feinstein.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, I have one more unanimous consent.
  The PRESIDING OFFICER. The Senator from Michigan.


                Amendments Nos. 1290 and 1256 Withdrawn

  Mr. LEVIN. I ask unanimous consent that the following amendments be 
withdrawn: Rubio amendment No. 1290 and Merkley amendment No. 1256.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendments are withdrawn.


                           Amendment No. 1126

  Mr. LEVIN. I thank the Presiding Officer and all those who have been 
involved in working out this approach that allows us now to vote on two

[[Page 18627]]

amendments, the original Feinstein amendment that is pending, plus an 
alternative which I think, hopefully, will command great support.
  Mr. McCAIN. I ask how much time is remaining?
  The PRESIDING OFFICER. Eight minutes on each side.
  Mr. McCAIN. I wish to give 3 minutes to the Senator from South 
Carolina, preceded by 2 minutes from the Senator from Idaho, and 2 
minutes for the Senator from New Hampshire if she arrives.
  Mrs. FEINSTEIN. Shall I go first?
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I wish to explain what has happened 
this long afternoon. Originally some of us, namely Senators Leahy, 
Durbin, Udall of Colorado, Kirk, Lee, Harkin, Webb, Wyden, Merkley, and 
myself, realized that there was a fundamental flaw in section 1031 of 
the bill. There is a difference of opinion as to whether there is this 
a fundamental flaw. We believe the current bill essentially updates and 
restates the authorization for use of military force that was passed on 
September 18, 2001. Despite my support for a general detention 
authority, the provision in the original bill, in our view, went too 
far. The bill before us would allow the government to detain U.S. 
citizens without charge until the end of hostilities. We have had long 
discussions on this.
  The disagreement arises from different interpretations of what the 
current law is. The sponsors of the bill believe that current law 
authorizes the detention of U.S. citizens arrested within the United 
States, without trial, until ``the end of the hostilities'' which, in 
my view, is indefinitely.
  Others of us believe that current law, including the Non-Detention 
Act that was enacted in 1971, does not authorize such indefinite 
detention of U.S. citizens arrested domestically. The sponsors believe 
that the Supreme Court's Hamdi case supports their position, while 
others of us believe that Hamdi, by the plurality opinion's express 
terms, was limited to the circumstance of U.S. citizens arrested on the 
battlefield in Afghanistan, and does not extend to U.S. citizens 
arrested domestically. And our concern was that section 1031 of the 
bill as originally drafted could be interpreted as endorsing the 
broader interpretation of Hamdi and other authorities.
  So our purpose in the second amendment, number 1456, is essentially 
to declare a truce, to provide that section 1031 of this bill does not 
change existing law, whichever side's view is the correct one. So the 
sponsors can read Hamdi and other authorities broadly, and opponents 
can read it more narrowly, and this bill does not endorse either side's 
interpretation, but leaves it to the courts to decide.
  Because the distinguished chairman, the distinguished ranking member, 
and the Senator from South Carolina assert that it is not their intent 
in section 1031 to change current law, these discussions went on and on 
and they resulted in two amendments: our original amendment, which 
covers only U.S. citizens, which says they cannot be held without 
charge or trial, and a compromise amendment to preserve current law, 
which I shall read:

       On page 360, between lines 21 and 22, insert the following:
       Nothing in this section shall be construed to affect 
     existing law or authorities relating to the detention of 
     United States citizens or lawful resident aliens of the 
     United States or any other persons who are captured or 
     arrested in the United States.

  I believe this meets the concerns of the leadership of the committee 
and this is presented as an alternative. There are those of us who 
would like to vote for the original amendment, which I intend to do, as 
well as for this modifying amendment. They will appear before you as a 
side-by-side, so everyone will have the chance to vote yea or nay on 
the original or yea or nay on the compromise. As I said, I would urge 
that we vote yes on both.
  This is not going to be the world as we see it postvote, but I will 
tell you this, the chairman and the ranking member have agreed that the 
modified language presented in the second vote will be contained in the 
conference; that they will do everything they can to contain this 
language in the conference.
  In the original amendment--my original amendment--which affects only 
U.S. citizens, that is not the case. They are likely to drop that 
amendment. So I wish to make the point by voting for both, and I would 
hope others would do the same. I think a lot has been gained. I think a 
clear understanding has been gained of the problems inherent in the 
original bill. I think Members came to the conclusion that they did not 
want to change present law and they wanted to extend this preservation 
of current law not only to citizens but to legal resident aliens as 
well as any other persons arrested in the United States. That would 
mean they could not be held without charge and without trial. So the 
law would remain the same as it is today and has been practiced for the 
last 10 years.
  I actually believe it is easy to say either my way or the highway. I 
want to get something done. I want to be able to assure people in the 
United States that their rights under American law are protected. The 
compromise amendment, which is the second amendment we will be voting 
on, does that. It provides the assurance that the law will remain the 
same and will not affect the right of charge and the right of trial of 
any U.S. citizen, any lawful legal alien or any other person in the 
United States. We have the commitment by both the chairman and the 
ranking member that they will defend that in conference.
  There are those who say I wish to just vote for the original 
amendment. That is fine. I am not sure it will pass. I don't know 
whether it will pass, but in my judgment, the modification is eminently 
suitable to accomplish the task at hand and has the added guarantee of 
the support of the chairman, the ranking member in a conference 
committee with the House, which I think is worth a great deal. They 
have given their word, and I believe they will keep it. This Record 
will reflect that word.


                           Amendment No. 1456

  I call up my amendment No. 1456, which is the modification.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from California [Mrs. Feinstein] proposes an 
     amendment numbered 1456.

  Mrs. FEINSTEIN. I ask unanimous consent that the reading of the 
amendment be dispensed with.
  There are others who wish to speak.
  The amendment is as follows:

       On p 360, between lines 21 and 22, insert the following:
       (e) Nothing in this section shall be construed to affect 
     existing law or authorities, relating to the detention of 
     United States citizens, lawful resident aliens of the United 
     States or any other persons who are captured or arrested in 
     the United States.

  I will yield the floor.
  Mr. LEVIN. How much time is there on our side?
  The PRESIDING OFFICER. One minute.
  Mr. LEVIN. I wanted to have a couple minutes. I wonder if Senator 
McCain is here, if there is an objection to extending this by 10 
minutes. Is there objection? I am not going to do that without him 
here.
  Madam President, if the other side is ready to go, they can start 
using the time on their side.
  Mr. GRAHAM. How much time do we have?
  The PRESIDING OFFICER. Eight minutes. You were allotted 3 minutes.
  Mr. GRAHAM. Will the Chair warn me when I use 2 minutes.
  The PRESIDING OFFICER. Yes.
  Mr. GRAHAM. To Senator Feinstein, I do believe the second provision 
is where we want to be, at least from my point of view. To my 
colleagues, I never intended by 1031 to change the law imposing a 
greater burden on American citizens or more exposure to military 
detention, nor did I wish to have additional rights beyond what exist 
today. The problem I have with Senator Feinstein's amendment is it says 
the authority in this section for the Armed Forces of the United States 
to detain a person does not include the

[[Page 18628]]

authority to detain a citizen of the United States without trial until 
the end of hostilities.
  Here is my concern. When you tell a judge, as a defense attorney: I 
want my client's rights preserved regarding a civilian trial guaranteed 
in this section--and the end of hostilities could be 30 years from 
now--Your Honor, if these rights mean anything, they need to attach 
now--if the civilian rights attach immediately upon detention, what I 
think would be a problem is that the military interrogation is lost. 
American citizens are not subject to a military commission trial. A lot 
of people on my side didn't like that.
  I do want to make sure American citizens go into article III courts, 
but the law has been since World War II, if a person joins the enemy, 
even as an American citizen, they are subject to being detained for 
interrogation purposes. That is my goal and that has always been my 
goal. We can detain an American who has sided with al-Qaida, if they 
are involved with hostile acts, to gather intelligence, and that is a 
proper thing to have been doing. It was done in World War II when 
American citizens helped the Nazis. If an American citizen wants to 
help al-Qaida involved in a hostile act, then they become an enemy of 
this Nation. They can be humanely detained, and that is my concern 
about the Senator's amendment; that it would take that away.
  We have common ground on the second amendment, and at the end of the 
day, the Senate has talked a lot about different things. This has been 
a discussion about something important and I, quite frankly, enjoyed 
it.
  I yield my time.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. RISCH. First of all, let me say I think there has been an 
adequate compromise that has been reached, and we are to have a side-
by-side to vote on which will give everybody the opportunity to express 
themselves. Let me say that every single one of us on this floor has a 
goal to protect the rights of U.S. citizens.
  This country was founded by people who had just gone through some 
very difficult times with a government that was very oppressive on 
them, and they wrote the Constitution specifically to protect 
themselves and to protect individuals from the government. Those 
constitutional provisions today are as good as they were then. Every 
single one of us wants to see that American citizens are protected; 
that is, protections that take place in the case of criminal cases.
  In the case of a war, in the case where a U.S. citizen joins enemy 
combatants and fights against the United States, there is a different 
standard--although a delicate division--that exists. If we look at the 
provisions of section 1031, where covered persons are defined, it is 
very clear it applies only to people who participated in the September 
11, 2001, attack on the United States, and it applies to people who are 
part of it or who have substantially supported al-Qaida and the Taliban 
or its associated forces and have actually committed a belligerent act 
or have directly participated in the hostilities.
  This is drawn very carefully and very narrowly so a U.S. citizen 
can--as my good friend from Kentucky always says--be able to file a 
writ of habeas corpus in the U.S. district court and have the U.S. 
district judge determine whether a person is actually an enemy 
combatant. If that U.S. district judge turns it down, that person does 
not necessarily go free. The U.S. Government can then charge them with 
treason or any one of a number of crimes, but they will be tried in the 
U.S. district court.
  On the other hand, if they are found to be an enemy combatant by a 
U.S. district judge whose decision is reviewable by the circuit court 
and if the Supreme Court chooses--by the Supreme Court, if they are 
found to be the enemy combatant, then they will, indeed, be subject to 
this.
  So this has been very narrow. People who are watching this and who 
are concerned about the civil liberties of U.S. citizens, as I am, as 
people in Idaho are, as people in every State in America are, under 
those circumstances, those people will be well protected. We will have 
the amendment here that everybody will have the opportunity to express 
themselves on.
  I will yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEVIN. Mr. President, I would ask that there be 5 additional 
minutes, evenly divided, so we could have 3 minutes left on our side. I 
would split that with the Senator from Illinois.
  The PRESIDING OFFICER. Is there objection?
  Mr. RISCH. We have no objection.
  Mr. LEVIN. Mr. President, we are soon going to be voting on two 
amendments. The first amendment that is proposed, the first Feinstein 
amendment restricts the authority that was available and is available 
currently to the President of the United States under the laws of war. 
That authority is if an American citizen joins a hostile Army against 
us, takes up arms against us, that person can be determined to be an 
enemy combatant. That is not me saying that; that is the Constitution. 
That is the Supreme Court of the United States in the Hamdi case: 
``There is no bar to this Nation's holding one of its own citizens as 
an enemy combatant.''
  The problem with the Feinstein amendment is that current authority of 
the President to find and designate an American citizen who attacks us, 
who comes to our land and attacks us as an enemy combatant would be 
restricted. We should not restrict the availability of that power in 
the President. Now we have an alternative. In the second Feinstein 
amendment, which I ask unanimous consent to be a cosponsor of--
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. In the second amendment, we have an alternative because 
now it would provide the assurance that we are not adversely affecting 
the rights of the U.S. citizens in this language. Senator McCain, 
Senator Graham, and I have argued on this floor that there is nothing 
in our bill--nothing which changes the rights of the U.S. citizens. 
There was no intent to do it, and we did not do it.
  What the second Feinstein amendment provides is that nothing in this 
section of our bill shall be construed to affect existing law or 
authorities relating to the detention of the U.S. citizens or lawful 
resident aliens of the United States or any other persons who are 
captured or arrested in the United States. It makes clear what we have 
been saying this language already does, which is that it does not 
affect existing law relative to the right of the executive branch to 
capture and detain a citizen. If that law is there allowing it, it 
remains. If, as some argue, the law does not allow that, then it 
continues that way. We think the law is clear in Hamdi that there is no 
bar to this Nation holding one of its own citizens as an enemy 
combatant, and we make clear whatever the law is. It is unaffected by 
this language in our bill.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I wish to thank my colleagues, Senators 
Graham and Levin, and particularly Senator Feinstein for working so 
hard to come to an agreement on section 1031. I was concerned that the 
United States would, for the first time in the history of this country, 
with the original language, authorize indefinite detention in the 
United States. But we have agreed to include language in this bill with 
the latter amendment that makes it clear that this bill does not change 
existing detention authority in any way.
  It means the Supreme Court will ultimately decide who can and cannot 
be detained indefinitely without a trial. To this day, the Supreme 
Court has never ruled on the question of whether it is constitutional 
to indefinitely detain a U.S. citizen captured in the United States. 
Some of my colleagues see this differently, but the language we have 
agreed on makes it clear that section 1031 will not change that law in 
any way. The Supreme Court will decide who will be detained; the Senate 
will not.

[[Page 18629]]

  I ask unanimous consent to be added as a cosponsor to the second 
pending amendment by Senator Feinstein.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  All time has expired on the majority side.
  Mr. GRAHAM. How much time do we have remaining?
  The PRESIDING OFFICER. There is 4\1/2\ minutes remaining.
  Mr. GRAHAM. Mr. President, I would like to take the opportunity to 
end what I think has been a very good debate. Senator Feinstein--and I 
know she is busy--said something on the floor that I wish to reiterate: 
that the second amendment which Senator Durbin just suggested we have 
reached a compromise on, I am fully committed to making sure it stays 
in the conference report. Some folks in the House may have a problem, 
but I think it is good, sound law.
  The goal for me has never been to change the law, to put an American 
citizen more at risk than they are today. It is just to keep the status 
quo and acknowledge from the point of view of the Congress that the 
Obama administration's decision to detain people as enemy combatants 
lies within the President's power to do so. The Court has said in In re 
Quirin and in the Hamdi case that at a time of war the executive branch 
can detain an American citizen who decides to collaborate with the 
Nazis, as well as al-Qaida, as an enemy combatant. They can hold them 
for interrogation purposes to collect intelligence. We don't have to 
take anybody into court and put them on trial because the goal is to 
protect the Nation from another attack.
  The law also says no one, including an American citizen, can be held 
indefinitely without going to an article III court. Every person 
determined to be an enemy combatant by the executive branch has to have 
their case presented to an independent judiciary, and the government 
has to prove to a Federal judge by a preponderance of the evidence that 
they fall within this narrow exception. The government has lost about 
half the cases and won about half the cases.
  My concern with Feinstein 1 is that it would change the law; that the 
law would be changed for the first time ever, saying we cannot hold an 
American citizen who has collaborated with the enemy for intelligence 
gathering purposes. I think homegrown terrorism is growing. If an 
American citizen left this country and went to Pakistan, got 
radicalized in a madrasah, came back and started trying to kill 
Americans, I think we should have the authority to detain them as with 
any belligerent, just like in World War II, and gather intelligence as 
to whether somebody else may be coming.
  So that is what I want to preserve. With all due respect to Senator 
Feinstein, I think her first amendment very much puts that in jeopardy. 
It is going to be confusing, litigation friendly, so let's just stay 
with what we believe the law is.
  As to Senator Durbin, he has one view, I have another, but we have a 
common view; that is, not to do anything to 1031 that would change the 
law. The ultimate authority on the law is not Lindsey Graham or Dick 
Durbin, it is the Supreme Court of the United States. That is the way 
it should be, and that is exactly what we say here. We are doing 
nothing to change the law when it comes to American citizen detention 
to enhance it or to restrict whatever rights the government has or the 
citizen has. I think that is what we need to say as a nation.
  One last word of warning to my colleagues, the threats we face as a 
nation are growing. Homegrown terrorism is going to become a greater 
reality, and we need to have tools. Law enforcement is one tool, but in 
some cases holding people who have decided to help al-Qaida and turn on 
the rest of us and try to kill us so we can hold them long enough to 
interrogate them to find out what they are up to makes sense. When we 
hold somebody under the criminal justice system, we have to read them 
their rights right off the bat under the law or we don't because the 
purpose is to gather intelligence. We need that tool now as much as at 
any other time, including World War II.
  Thank you all for a great debate. I hope we can vote no on Feinstein 
1 and have a strong bipartisan vote on Feinstein 2.
  With that, I yield the floor.
  The PRESIDING OFFICER. Is all time yielded back?
  Mr. GRAHAM. If anybody wishes to speak, speak now.
  All time is yielded back.
  The PRESIDING OFFICER. Under the previous order, the question is on 
amendment No. 1126 offered by the Senator from California.
  Mr. LEVIN. Could I just interrupt with a unanimous consent request 
that prior to each vote there be 2 minutes of debate equally divided in 
the usual form and that it start with the vote after this one.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. McCAIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The question is on agreeing to amendment No. 1126.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 45, nays 55, as follows:

                      [Rollcall Vote No. 214 Leg.]

                                YEAS--45

     Akaka
     Baucus
     Bennet
     Bingaman
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Johnson (SD)
     Kerry
     Kirk
     Kohl
     Lautenberg
     Leahy
     Lee
     McCaskill
     Menendez
     Merkley
     Mikulski
     Moran
     Murray
     Nelson (FL)
     Paul
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Wyden

                                NAYS--55

     Alexander
     Ayotte
     Barrasso
     Begich
     Blumenthal
     Blunt
     Boozman
     Brown (MA)
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (WI)
     Klobuchar
     Kyl
     Landrieu
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Portman
     Pryor
     Reed
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Snowe
     Stabenow
     Thune
     Toomey
     Vitter
     Whitehouse
     Wicker
  The amendment (No. 1126) was rejected.
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mr. MENENDEZ. I move to lay that motion on the table.
  The motion to lay upon the table was agreed to.


                           Amendment No. 1456

  The PRESIDING OFFICER (Mr. UDALL of Mexico). Under the previous 
order, there will be now be 2 minutes of debate equally divided prior 
to a vote on amendment No. 1456 offered by the Senator from California, 
Mrs. Feinstein.
  The majority leader is recognized.
  Mr. REID. I ask unanimous consent that all votes relating to the 
Defense authorization bill be 10 minutes in duration, including final 
passage.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, a number of my colleagues have asked where 
we are. We are going to have probably three or four more rollcall 
votes, hopefully including final passage. There is also a package--and 
everyone should listen to this because at least 70 of us are affected. 
There is a package of about 70 amendments which have been cleared. 
However, as of the moment, there is an objection to that package being 
adopted.
  When I say the package has been cleared, what I am saying is there 
has been no objection to the substance of any of those 70 amendments. 
If there was an objection to the substance, they would not be cleared. 
So there is no objection to the substance of those approximately 70 
amendments, but you

[[Page 18630]]

should be aware, because most of us have amendments in that cleared 
managers' package, that unless that objection is removed, we cannot get 
that package adopted tonight.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I wonder if I might be able to make a 
few comments.
  This amendment is a compromise amendment. I think it is actually a 
very good amendment. I want to thank the chairman of the committee, the 
ranking member, and Senator Graham, who participated in a rather 
lengthy discussion, and this is the result.
  The amendment--I will read it. It says:

       Nothing in this section shall be construed to affect 
     existing law or authority relating to the detention of United 
     States citizens or lawful resident aliens of the United 
     States or any other persons who are captured or arrested in 
     the United States.

  There is a commitment from both the chairman and the ranking member 
and Senator Graham that they will defend this amendment in conference. 
So I hope everyone will vote for it because essentially it just 
supports present law, whether one supports the broad interpretation of 
present law, or one supports a more narrow interpretation of present 
law. There is no change in law.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, I very much support this amendment, I am a 
cosponsor, and I hope we can all vote for it. This does what we said--
those of us who wrote this bill--the bill does and does not do all 
along. It does not change current law. This amendment reinforces the 
point that this bill does not change current law relative to this 
section of this bill. The section of this bill does not change current 
law relative to the detention of people in the United States.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I will not repeat what the chairman said 
except that I would like to thank Senator Feinstein for her willingness 
to sit down and negotiate with us, and Senator Durbin, who has been a 
passionate advocate. I would also like to thank all of the people who 
came to the floor so often. I think the Senate is a better institution 
as a result of the debate, and I am sure the Senate and the American 
people are much better informed on this very important national 
security aspect of this bill.
  I thank my colleagues. I urge an aye vote.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  Mrs. FEINSTEIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 99, nays 1, as follows:

                      [Rollcall Vote No. 215 Leg.]

                                YEAS--99

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--1

       
     Kyl
       
  The amendment (No. 1456) was agreed to.


                           Amendment No. 1414

  The PRESIDING OFFICER. Under the previous order, there will be 2 
minutes of debate, equally divided, prior to a vote on amendment No. 
1414, offered by the Senator from New Jersey, Mr. Menendez, and the 
Senator from Illinois, Mr. Kirk.
  The Senator from New Jersey.
  Mr. MENENDEZ. Mr. President, the Menendez-Kirk bipartisan amendment 
is sponsored by over half of the Members of the Senate. It makes it 
very clear that the Treasury Department's own determination under the 
PATRIOT Act that the Iranian Central Bank is the central source for 
money for Iran's nuclear march toward a nuclear weapon needs to be 
addressed. That is exactly what we do in this amendment. It creates the 
maximum effort against the Iranians, and it ensures that we do not have 
any oil disruption as a result of those sanctions by giving the 
President the opportunity to make a determination that there are 
sufficient oil supplies so as not to create a disruption, and it gives 
him in addition a national security waiver.
  This is the maximum opportunity to have a peaceful diplomacy tool to 
stop Iran's march to nuclear weapons.
  I urge my colleagues to give it a strong bipartisan vote.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. I support the amendment. I think this amendment is vital 
at this time to send a strong signal to Iran, which recently tried to 
pull off the assassination of the Saudi Ambassador here in Washington, 
DC. It is long overdue, and it is too bad that the United States has to 
do it by ourselves rather than having the U.N. Security Council act. 
This is a strong amendment. I think it is very important and, again, I 
strongly support it.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. KIRK. Mr. President, this Menendez-Kirk amendment is a strong, 
bipartisan amendment. Over half of the Senate has formally cosponsored 
it. I urge its adoption, especially after the bomb plot in Washington, 
DC, the IAEA report on nuclear development in Iran, and the overrunning 
of our British ally's embassy site by Iran 2 days ago.
  I yield the floor.
  The PRESIDING OFFICER. Is all time yielded back?
  Mr. McCAIN. Yes.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  Mr. MENENDEZ. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 100, nays 0, as follows:

                      [Rollcall Vote No. 216 Leg.]

                               YEAS--100

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden
  The amendment (No. 1414) was agreed to.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, if we have this consent agreement that I am 
going

[[Page 18631]]

to ask in just a second, we will have four votes remaining for the 
evening, and that would be all. We will be in session tomorrow. We have 
some things we need to do procedurally, but there shouldn't be any 
votes tomorrow.
  Mr. President, I ask unanimous consent that upon disposition of S. 
1867, the Defense authorization bill, the Senate proceed to vote on the 
Reid of Nevada motion to proceed to Calendar No. 238, S. 1917; that 
there be 2 minutes equally divided between the two leaders or their 
designees prior to the vote; that upon disposition of the Reid motion 
to proceed, it be in order for the Republican leader or his designee to 
move to proceed to Calendar No. 244, S. 1931; that there be 2 minutes 
of debate equally divided between the two leaders or their designees 
prior to the vote; that both motions to proceed be subject to a 60 
affirmative-vote threshold; finally, that the cloture motion relative 
to the motion to proceed to S. 1917 be vitiated.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.


                           Amendment No. 1209

  The PRESIDING OFFICER. Under the previous order, there will be 2 
minutes of debate equally divided prior to a vote on amendment No. 1209 
offered by the Senator from Florida, Mr. Nelson.
  The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, it is my understanding that 
both leaders have decided to accept this. So I don't see any need for a 
rollcall vote.
  Mr. McCAIN. I thank the Senator.
  The PRESIDING OFFICER. Is all time yielded back?
  Mr. LEVIN. Our time is yielded back.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 1209) was agreed to.
  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.


                      Amendment No. 1080 Withdrawn

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided prior to a vote on amendment No. 
1080, offered by the Senator from Vermont, Mr. Leahy.
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, Senator Leahy authorized me and told me he 
was withdrawing this amendment relative to military custody because of 
all of the actions which have been previously taken. I am very 
confident that is what he told me, so I am going to withdraw that 
amendment on his behalf.
  The PRESIDING OFFICER. Without objection, the amendment is withdrawn.


                           Amendment No. 1274

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided prior to a vote on amendment No. 
1274, offered by the Senator from Alabama, Mr. Sessions.
  The Senator from Alabama.
  Mr. SESSIONS. Mr. President, this amendment is crafted to simply 
clarify and affirm what appears to be the law, and logic tells us 
should be the law today.
  If an individual is apprehended as a prisoner of war, they are 
detained under the laws of war until the conflict ends. But if, after 
being detained or when they are detained, it is determined they have 
committed crimes against the laws of war, they can be tried for those 
crimes.
  There is a slight ambiguity. I think it is pretty clear the military 
would have a right to continue to detain them as a prisoner of war if 
they were not convicted of the much higher burden crime against the 
laws of war.
  So the essence of this is simply to say what the judge said in the 
case involving the African Embassy bombing, the Ghailani case. The guy 
was acquitted of 284 out of 285 counts, and the judge said: You 
probably would be detained under the laws of war. So this would clarify 
that.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, I think this can be accepted on a voice 
vote. I have great problems with it, but I think there is probably a 
majority here that will favor it and a distinct minority perhaps that 
would not. But it is something which basically doesn't add to the 
existing law, which says this is theoretically possible, and all this 
does is say it is possible one could be acquitted of a criminal case 
and still be held as an enemy combatant.
  Mr. PAUL. I object. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 41, nays 59, as follows:

                      [Rollcall Vote No. 217 Leg.]

                                YEAS--41

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hatch
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kyl
     Lieberman
     Lugar
     Manchin
     McConnell
     Moran
     Murkowski
     Portman
     Pryor
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                                NAYS--59

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Corker
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heller
     Inouye
     Johnson (SD)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden
  The amendment (No. 1274) was rejected.
  The PRESIDING OFFICER. The majority leader is recognized.


              The 9,000th Vote of Senator Frank Lautenberg

  Mr. REID. Mr. President, the next rollcall vote will be the 9,000th 
vote cast by Senator Frank Lautenberg. Senator Lautenberg, the senior 
Senator from New Jersey, has always been a fighter for his State, for 
progressive causes.
  Before coming to the Senate, Senator Lautenberg served his country 
admirably in World War II, graduated from Colombia Business School, and 
became--and this is an understatement--a successful businessman.
  The determination that made him successful in the private sector 
served him well in the Senate, where he worked tirelessly on behalf of 
the State of New Jersey. Frank tried to retire once--in 2000--but he 
just couldn't stay away from serving the State and the Nation and 
returned to the Senate a little over a year after he had retired.
  As the top Democrat on the Senate Budget Committee, Senator 
Lautenberg negotiated the balanced budget amendment of 1997, which 
restored fiscal discipline while cutting taxes for students and 
families with children.
  He has been at the cutting edge of environmental issues in this 
country since he came to the Senate. He has worked as a member of the 
Environment and Public Works Committee, doing a good job with highways, 
railways, and runways in New Jersey, and has done that in conjunction 
with being a member of the Environment and Public Works Committee but 
also the Appropriations Committee.
  During his time in the Senate, he has done things that will be a 
lasting mark on his career, his legacy, forever. Our Nation's roads are 
safer because he was responsible for our passing the 21-year-old 
drinking age. He established a national drunk driving standard, a 
standard throughout the country. He banned triple-trailer trucks--so-
called killer trucks--from the roads of New Jersey and many other 
States. He dedicated his time in the Senate to holding terrorists 
accountable and protecting New

[[Page 18632]]

Jersey's ports, which are important to all of us, not only to New 
Jersey.
  Senator Lautenberg has done many things. He authored the domestic 
violence gun ban--the only significant gun legislation to become law 
since the Brady bill--which prevents convicted abusers from buying 
guns.
  The thing I recognize as very important--one of my boys couldn't 
stand the cigarette smoke in airplanes. Even though the airlines tried 
to set up a standard for smoking, you know that if there was smoking in 
the airplane, the fact that you were someplace else in the airplane 
didn't matter; everybody got the secondhand smoke. He fought this and 
banned smoking on airplanes, which I will always remember, and 
certainly my boy Key will always remember that.
  For three decades, Frank Lautenberg has left a mark that is very 
impressive, and his 9,000 votes will be something people will look back 
on and determine that Frank Lautenberg is one of the most productive 
Senators in the history of our country.
  Congratulations, Frank.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. McCONNELL. Mr. President, I would like to associate myself with 
the remarks of the majority leader and congratulate the Senator from 
New Jersey on this milestone in his long and very distinguished career 
here in the Senate.
  (Applause.)
  The PRESIDING OFFICER (Mr. Udall of Colorado). The Senator from New 
Jersey.
  Mr. MENENDEZ. Mr. President, I know we want to hear from our 
colleague shortly. I wish to join in recognizing over a quarter of a 
century of distinguished service from the senior Senator from New 
Jersey on this 9,000th vote, which is only emblematic of the type of 
work he has done, which is with a view toward not the next election but 
the next generation, whether it is saving lives by raising the drinking 
age; whether it is allowing workers to understand and have the right to 
know the toxic chemicals they were working with and the community in 
which those toxic chemicals were located; whether it is making sure all 
of us don't have to breathe secondhand smoke on an airplane; whether it 
is making sure that those who pilfer the land and contaminated it were 
held responsible to clean it up in the Superfund or to have cleaner air 
to breathe, Frank Lautenberg's legislation has touched millions of 
lives not only in New Jersey but across the Nation, and we salute him 
for his tremendous service.
  The PRESIDING OFFICER. The senior Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I thank the leader for his kind words 
and the help he has given me to make some of the decisions we labored 
with. I thank my colleague, the Senator from New Jersey, Bob Menendez, 
who has worked very hard to do his share in moving legislation and 
doing the right thing by the people in our State and our country.
  One of the things that is, to me, pretty important is when I said to 
my mother in 1982: Mom, I am going to run for the U.S. Senate; I think 
there is an opportunity there. I was running ADP and in quite good 
company at the time. So she said: Frank, what do you need it for? I 
said: Mom, I don't need it. On the night of the election, we were 
gathered at my house in New Jersey--and my mother was then committed to 
a wheelchair--and she had tears running down her face. I said: Mom, you 
asked me why I needed it. I said: Why are you crying? She said: Because 
I always wanted you to win.
  The people in New Jersey were very kind over these years, electing me 
five times to the Senate and giving me the honor and the opportunity to 
give something back to this country of ours.
  I came from a family that was a poor family, immigrant family. My 
parents were young when they were brought by their parents to America. 
They were hoping that maybe good things could happen as a result of 
their becoming Americans. So I stand here and I am glad we are not 
taking a vote on whether I should be commended for this. I might not 
get all the votes you gave me because you didn't ask for unanimous 
consent, but nevertheless, it passed, and so I thank all of you, even 
those with whom I might occasionally disagree. It is shocking, but it 
does happen here. But I have respect for everybody who is sent here by 
their constituents from every State in the country and for their point 
of view. It doesn't mean I agree, but I have respect for the fact that 
we can say what we want in this free country of ours, say things that 
sometimes maybe we wish we had not said, but we have a chance to speak 
out on the things we believe in.
  I thank all of my colleagues for their service and for the accolades 
given to me this night.
  With that, I yield the floor.


                           Amendment No. 1087

  The PRESIDING OFFICER. There will now be 2 minutes of debate on the 
Leahy amendment No. 1087.
  Who yields time?
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the germane 
Leahy amendment No. 1087 be modified with the changes at the desk; 
further, that the amendment, as modified, be agreed to.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Reserving the right to object, could the manager clarify 
exactly what that is?
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. There was a provision in the bill relative to the Freedom 
of Information Act which, by agreement, was modified.
  Mr. THUNE. This doesn't have anything to do with the managers' 
package.
  Mr. McCAIN. It is agreeable on both sides.
  The PRESIDING OFFICER. Is there objection?
  Without objection, the amendment, as modified, is agreed to.
  The amendment (No. 1087), as modified, is as follows:

       Strike section 1044 and insert the following:

     SEC. 1044. TREATMENT UNDER FREEDOM OF INFORMATION ACT OF 
                   CERTAIN SENSITIVE NATIONAL SECURITY 
                   INFORMATION.

       (a) Critical Infrastructure Security Information.--
       (1) In general.--The Secretary of Defense may exempt 
     certain Department of Defense information from disclosure 
     under section 552 of title 5, United States Code, upon a 
     written determination that--
       (A) the information is Department of Defense critical 
     infrastructure security information; and
       (B) the public interest in the disclosure of such 
     information does not outweigh the Government's interest in 
     withholding such information from the public.
       (2) Information provided to state or local first 
     responders.--Critical infrastructure security information 
     covered by a written determination under this subsection that 
     is provided to a State or local government to assist first 
     responders in the event that emergency assistance should be 
     required shall be deemed to remain under the control of the 
     Department of Defense.
       (b) Military Flight Operations Quality Assurance System.--
     The Secretary of Defense may exempt information contained in 
     any data file of the Military Flight Operations Quality 
     Assurance system of a military department from disclosure 
     under section 552 of title 5, United States Code, upon a 
     written determination that the disclosure of such information 
     in the aggregate (and when combined with other information 
     already in the public domain) would reveal sensitive 
     information regarding the tactics, techniques, procedures, 
     processes, or operational and maintenance capabilities of 
     military combat aircraft, units, or aircrews. Information 
     covered by a written determination under this subsection 
     shall be exempt from disclosure under such section 552 even 
     when such information is contained in a data file that is not 
     exempt in its entirety from such disclosure.
       (c) Delegation.--The Secretary of Defense may delegate the 
     authority to make a determination under subsection (a) or (b) 
     to any civilian official in the Department of Defense or a 
     military department who is appointed by the President, by and 
     with the advice and consent of the Senate.
       (d) Transparency.--Each determination of the Secretary, or 
     the Secretary's designee, under subsection (a) or (b) shall 
     be made in writing and accompanied by a statement of the 
     basis for the determination. All such determinations and 
     statements of basis shall be available to the public, upon 
     request, through the office of the Assistant Secretary of 
     Defense for Public Affairs.

[[Page 18633]]

       (e) Definitions.--In this section:
       (1) The term ``Department of Defense critical 
     infrastructure security information'' means sensitive but 
     unclassified information that, if disclosed, would reveal 
     vulnerabilities in Department of Defense critical 
     infrastructure that, if exploited, would likely result in the 
     significant disruption, destruction, or damage of or to 
     Department of Defense operations, property, or facilities, 
     including information regarding the securing and safeguarding 
     of explosives, hazardous chemicals, or pipelines, related to 
     critical infrastructure or protected systems owned or 
     operated by or on behalf of the Department of Defense, 
     including vulnerability assessments prepared by or on behalf 
     of the Department, explosives safety information (including 
     storage and handling), and other site-specific information on 
     or relating to installation security.
       (2) The term ``data file'' means a file of the Military 
     Flight Operations Quality Assurance system that contains 
     information acquired or generated by the Military Flight 
     Operations Quality Assurance system, including the following:
       (A) Any data base containing raw Military Flight Operations 
     Quality Assurance data.
       (B) Any analysis or report generated by the Military Flight 
     Operations Quality Assurance system or which is derived from 
     Military Flight Operations Quality Assurance data.

  Mr. LEAHY. Mr. President, I am pleased that the Senate has 
unanimously adopted my Freedom of Information Act, FOIA, amendment to 
the National Defense Authorization Act. This measure appropriately 
narrows the overbroad exemptions to FOIA contained in the bill and will 
help ensure that the American public has access to important 
information about potential threats to their health and safety at or 
near Department of Defense facilities.
  I thank Senator Levin and Senator McCain for working with me on this 
issue and including this language, with our agreed-to modifications, in 
the managers' package for this bill. I also thank the many open 
government groups from across the political spectrum that support this 
amendment, including OpentheGovernment.org, the Liberty Coalition, the 
Sunlight Foundation and the American Library Association.
  For more than 45 years, the Freedom of Information Act has been a 
cornerstone of open government and a hallmark of our democracy, 
ensuring that the American people have access to their Government's 
records. The addition of this measure to the National Defense 
Authorization Act will help ensure that FOIA remains a viable tool for 
access to Department of Defense information that impacts the health and 
safety of the American public.
  I am particularly pleased that the language adopted by the Senate 
includes a public interest balancing test that requires the Secretary 
of Defense to consider whether the Government's interests in 
withholding critical infrastructure information are outweighed by other 
public interests. This improvement to the bill will help ensure that 
truly sensitive information is protected, while allowing the public to 
obtain important information about potential health and safety 
concerns.
  This language adopted by the Senate strikes an appropriate balance 
between safeguarding the ability of the Department of Defense to 
perform its vital mission and the public's right to know. I am pleased 
that this measure has been included in this important legislation with 
the unanimous support of the Senate.
  Mr. LEVIN. Mr. President, I move to reconsider the vote on the Leahy 
amendment.
  Mr. McCAIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                    Amendment No. 1202, As Modified

  The PRESIDING OFFICER. There will now be 2 minutes of debate on the 
Udall amendment.
  Mr. LEVIN. Mr. President, there is a pending amendment which 
apparently the clerk will need to report at this point.
  The PRESIDING OFFICER. The Udall amendment is pending.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the pending 
germane Udall of New Mexico amendment No. 1202 be modified with the 
changes at the desk; further, that the amendment, as modified, be 
agreed to.
  The PRESIDING OFFICER. Is there objection?
  Without objection, the amendment, as modified, is agreed to.
  The amendment (No. 1202), as modified, is as follows:

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

     SEC. 827. APPLICABILITY OF BUY AMERICAN ACT TO PROCUREMENT OF 
                   PHOTOVOLTAIC DEVICES BY DEPARTMENT OF DEFENSE.

       (a) In General.--Section 2534 of title 10, United States 
     Code, is amended by adding at the end the following new 
     subsection:
       ``(k) Procurement of Photovoltaic Devices.--
       ``(1) Contract requirement.--The Secretary of Defense shall 
     ensure that each contract described in paragraph (2) awarded 
     by the Department of Defense includes a provision requiring 
     any photovoltaic devices installed pursuant to the contract, 
     or pursuant to a subcontract under the contract, to comply 
     with the provisions of chapter 83 of title 41 (commonly known 
     as the `Buy American Act'), without regard to whether the 
     contract results in ownership of the photovoltaic devices by 
     the Department.
       ``(2) Contracts described.--The contracts described in this 
     paragraph include energy savings performance contracts, 
     utility service contracts, power purchase agreements, land 
     leases, and private housing contracts pursuant to which any 
     photovoltaic devices are
       (A) installed on property or in a facility--owned by the 
     Department of Defense;
       ``(B) generate power consumed by the Dept of Defense and 
     counted toward Federal renewable energy purchase requirements
       ``(3) Consistency with international obligations.--
     Paragraph (1) shall be applied in a manner consistent with 
     the obligations of the United States under international 
     agreements.
       ``(4) Definition of photovoltaic devices.--In this 
     subsection, the term `photovoltaic devices' means devices 
     that convert light directly into electricity.
       ``(5) Effective date.--This subsection applies to 
     photovoltaic devices procured or installed on or after the 
     date that is 30 days after the date of the enactment of the 
     National Defense Authorization Act for Fiscal Year 2012 
     pursuant to contracts entered into after such date of 
     enactment.''.
       (b) Conforming Repeal.--Section 846 of the Ike Skelton 
     National Defense Authorization Act for Fiscal Year 2011 (10 
     U.S.C. 2534 note) is repealed.

  Mr. UDALL of New Mexico. Mr. President, I thank the chairman for 
working with me on this amendment. I think he gave us a modification 
that is a good one. This amendment I offer with Senator Schumer and 
Senator Sanders closes the Buy American loopholes, and applies Buy 
American requirements to solar projects that are funded by the 
Department of Defense to meet energy goals in this bill. If American 
taxpayer funds are used to improve our military bases' energy security, 
then American solar firms should have the ability to compete.
  I ask unanimous consent that my full statement be printed in the 
Record.
  Mr. UDALL of New Mexico. Mr. President, solar power increases energy 
security for American military installations and our troops in the 
field. With solar power, our military is less dependent on the 
surrounding electricity grid or fuel supplies for generators. As a 
result, the Department of Defense is a leader on utilizing solar 
power--not for environmental reasons, but for energy security reasons.
  However, if we are going to use taxpayer funds to support military 
solar power--which also qualifies for federal solar tax incentives--we 
must provide a level playing field for U.S. solar manufacturers in the 
contracting process. Last year's Defense Authorization bill took an 
important step, by clarifying that DOD's Buy American Act requirements 
apply to solar.
  Previously, when solar was installed on DOD property, Buy American 
would not apply because DOD purchases the power, not the panels. DOD 
uses that arrangement for two reasons--first, it spreads the cost out 
through long term power purchase agreements instead of up-front costs; 
second, it allows the project to use tax credits DOD cannot use.
  While last year's bill attempted to fix this situation, it left two 
loopholes. First, the Buy American requirements from last year's bill 
are limited ``to the extent that such contracts result in ownership of 
[solar] devices by DOD.'' The nature of power purchase agreements means 
that often this requirement is not fulfilled, thus allowing Chinese 
solar makers to undercut bids for DOD funded solar projects.

[[Page 18634]]

  Second, last year's provision also only applied when ``reserved for 
the exclusive use'' of DOD for the ``full economic life'' of the 
device. Solar power projects may sometimes sell back to the grid, and 
DOD may use them for 20 years, when they are warranted for 25. The 
combined effect of these loopholes is that Buy American does not 
currently apply to DOD-funded solar.
  The amendment I am offering with Senator Schumer and Sanders closes 
these loopholes and applies Buy American requirements to solar projects 
that are funded by DOD to meet the energy goals in this bill.
  If American taxpayer funds are used to improve our military bases' 
energy security, American solar firms should have an ability to 
compete. We know that other nations like China are spending vast 
resources to become leaders in the solar power market. They do not play 
by our trade rules, and they are taking advantage of our taxpayer 
funds.
  Think about it this way: China does not spend its tax dollars on U.S. 
solar panels at Chinese military bases. Why should Congress provide 
market access that is not extended to U.S. manufacturers?
  This amendment halts that practice, while maintaining all existing 
provisions of the Buy American Act: Nations who are in the WTO are not 
discriminated against--``Buy American'' does not bar nations that allow 
reciprocal access to U.S. firms to their government procurement. 
Existing exemptions such as availability and cost still apply, so we do 
not expect this to harm DOD's procurement in any way.
  Our amendment is supported by a strong coalition of U.S. solar 
manufacturers and U.S. workers.
  I thank Senator Schumer and his staff for working with us, along with 
Chairman Levin and his staff, and I urge the Senate's support.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. UDALL of New Mexico. I thank Senator McCain, I thank Senator 
Levin, and I appreciate their help on this amendment.


      Foreign Subsidiaries of U.S. Parent Companies Active in Iran

  Mr. LAUTENBERG. Mr. President, I wish to engage in a colloquy with my 
friend, the distinguished chairman of the Senate Banking Committee, 
regarding U.S. companies that continue to do business with Iran. I know 
the chairman shares my concern about Iran's continued violations of 
international norms. As the International Atomic Energy Agency's recent 
report starkly highlights, Iran continues to work to build a nuclear 
weapon despite the current sanctions in place. While we have made great 
strides in strengthening sanctions on Iran, more work clearly needs to 
be done to place pressure on Iran to change its behavior. For the past 
7 years, I have been working to close a loophole in current law that 
allows foreign subsidiaries of U.S. companies to continue doing 
business with Iran without facing the same penalties that would be 
placed on the parent company. I have now filed an amendment to the 
National Defense Authorization Act for Fiscal Year 2012 currently under 
consideration to try and close this loophole once again. Although I am 
not going to call for a vote on this amendment at this time, it is time 
we work to close this loophole once and for all.
  Mr. JOHNSON. I thank Senator Lautenberg for his longstanding 
leadership on this issue. It is timely for him to raise it again now in 
the wake of the IAEA's recent report on Iran's illicit nuclear 
activities and in the midst of our efforts in the Banking Committee to 
ratchet up the pressure on Iran's leaders through additional sanctions. 
As President Obama noted last week when he imposed a new round of 
sanctions using the tools Congress gave him, Iran's government has 
persistently refused to abide by its international obligations, and it 
is time to turn up the heat in an effort to persuade its leaders to 
come clean on their nuclear program. While U.S. sanctions enacted last 
year, multilateral sanctions, and other efforts have slowed Iran's 
nuclear program and damaged its key revenue-generating energy sector, 
it remains my urgent priority to strengthen sanctions further to ensure 
that Iran effectively has no choice but to change its current path. 
That is why we are acting to sanction Iran's Central Bank today as 
well. On the issue you have raised, I think it is long past time for 
U.S. subsidiaries to withdraw from doing business in Iran. That is 
already happening due to U.S. and other international pressure on the 
business and financial sectors. Firms realize the huge risks this 
activity poses, reputationally and otherwise, to their companies. I 
note that it is already a violation for American subsidiaries to engage 
in sanctionable activity in Iran's energy sector and certain other 
activities under U.S. sanctions laws. It is also a violation of U.S. 
trade law for a U.S. firm to do business of any kind in Iran via a 
subsidiary. What that means is that if a U.S. parent is acting through 
its subsidiary, directing its activity, that violates U.S. law. The 
balance that has been struck so far is that we have directed our law, 
including our trade embargo, to U.S. companies and what U.S. companies 
do. Foreign subsidiaries are not, by definition, U.S. persons. But I 
agree with you that we can and should do more to stop the foreign 
subsidiaries of American companies from doing business with Iran, and I 
intend to address this problem in our upcoming legislation to expand 
Iran sanctions.
  Mr. LAUTENBERG. My amendment would have applied the same penalties 
that can be imposed on U.S. companies that violate the U.S. trade ban 
with Iran to foreign subsidiaries of U.S. companies. Does the chairman 
agree that this loophole remains an issue that must be addressed?
  Mr. JOHNSON. I agree that we must address the problem of foreign 
subsidiaries of U.S. companies doing business in Iran not being 
penalized for it under U.S. law. I know that, as in the past, there 
will be opposition from some in the business community, and elsewhere 
including European and other foreign governments who have long objected 
to the extraterritorial application of U.S. laws to reach companies 
organized under their jurisdiction. They will argue that the activities 
of U.S. subsidiaries are not legally U.S. persons, but are rather 
foreign persons organized under other countries' laws, and so should 
not be reached by U.S. law. But I am committed to working with my 
friend and with my committee members to address this issue.
  Mr. LAUTENBERG. I thank the chairman. As we know, Iran funds Hamas, 
Hezbollah, and other terrorist organizations. We should not allow 
American-controlled companies to provide cash to Iran so that they can 
convert these funds into bullets and bombs to be used against us and 
our allies. It is inexcusable for American companies to engage in any 
business practice that provides revenues to terrorists, and we have to 
stop it. I look forward to working with Chairman Johnson to close this 
loophole.
  Mrs. FEINSTEIN. Mr. President, I rise to respond to a colloquy 
yesterday that occurred between Senators Ayotte, Lieberman, and Graham 
regarding amendment No. 1068 offered by Senator Ayotte to the Defense 
authorization bill.
  Senator Ayotte's amendment would eliminate measures that provide our 
interrogators with the guidance and clarity they need to effectively 
solicit actionable intelligence while upholding American values. In 
doing so, the amendment would override the better judgment of our 
military and intelligence professionals in a manner that will harm, not 
improve, our short- and long-term security.
  Yesterday, Senator Lieberman said on the Senate floor that he wants 
prisoners taken captive by the United States to be ``terrified about 
what is going to happen to them while in American custody.'' He also 
said he wants ``the terror they inflict on others to be felt by them.'' 
I believe that such statements are antithetical to fundamental American 
values. I firmly believe that America will not and cannot lower itself 
to the level of terrorists. To do so would be to abandon our most 
cherished principles and what our country stands for.
  There was also discussion of abuses at Abu Ghraib, which diminished

[[Page 18635]]

America's standing and outraged the American public.
  As chairman of the Select Committee on Intelligence, I can say that 
we are nearing the completion a comprehensive review of the CIA's 
former interrogation and detention program, and I can assure the Senate 
and the Nation that coercive and abusive treatment of detainees in U.S. 
custody went beyond a few isolated incidents at Abu Ghraib.
  Moreover, the abuse stemmed not from the isolated acts of a few bad 
apples but from fact that the line was blurred between what is 
permissible and impermissible conduct, putting U.S. personnel in an 
untenable position with their superiors and the law.
  That is why Congress and the executive branch subsequently acted to 
provide our intelligence and military professionals with the clarity 
and guidance they need to effectively carry out their missions. And 
that is where the September 2006 Army Field Manual comes in.
  However, Senator Ayotte's amendment would require the executive 
branch to adopt a classified interrogation annex to the Army Field 
Manual, a concept that even the Bush administration rejected outright 
in 2006.
  Senator Ayotte argued that the United States needs secret and 
undisclosed interrogation measures to successfully interrogate 
terrorists and gain actionable intelligence. However, our intelligence, 
military, and law enforcement professionals, who actually interrogate 
terrorists as part of their jobs, universally disagree. They believe 
that with the Army Field Manual as it currently is written, they have 
the tools needed to obtain actionable intelligence from U.S. detainees.
  Further, in 2009, after an extensive review, the intelligence 
community unanimously asserted that it had all the guidance and tools 
it needed to conduct effective interrogations. The Special Task Force 
on Interrogations--which included representatives from the CIA, Defense 
Department, the Office of the Director of Intelligence, and others--
concluded that ``no additional or different guidance was necessary.''
  Since 2009, the interagency High Value Detainee Interrogation Group 
has assured the Senate Intelligence Committee that it has all the 
authority it needs to effectively gain actionable intelligence.
  Unfortunately, amendment No. 1068 would overrule the judgments of 
these professionals--who have served under both the Bush and Obama 
administrations--and impede their important work.
  If our intelligence community is telling us that the current 
guidelines and interrogation techniques are effective, why would we add 
secret interrogation methods?
  Senator Ayotte's amendment would muddy the waters on what is and 
isn't permissible in interrogating U.S. detainees. Her amendment would 
overturn not only the Executive order on lawful interrogations but also 
roll back the McCain amendment passed in 2005--which the Senate 
approved in a 90-to-9 vote--by allowing some interrogators, including 
some military interrogators, to evade established interrogation 
protocols.
  In creating unnecessary exceptions to existing interrogation 
guidance, Senator Ayotte's amendment would deprive our military and 
intelligence professionals of the clarity they deserve and threaten to 
reopen the door to secret techniques and other abuses of U.S. 
detainees.
  While Senator Ayotte has insisted that her amendment would continue 
to prohibit cruelty, the colloquy on the floor suggests otherwise. When 
Senator Graham asked her if the amendment was needed to bring back 
enhanced interrogation techniques--techniques we now know included 
induced hypothermia, slapping, sleep deprivation, and forced stressed 
positions she responded in the affirmative.
  We cannot have it both ways. Either we make clear to the world that 
the United States will honor our values and treat prisoners humanely or 
we let the world believe that we have secret interrogation methods to 
terrorize and torture our prisoners.
  The Ayotte proposal also ignores the dangerous practical implications 
for our intelligence and military partners overseas.
  The colloquy between the Senators yesterday suggests they believe the 
United States will have some advantage by having a secret list of 
interrogation techniques and that this will have no negative 
implications, aside from giving interrogators more options.
  Last year, GEN David Petraeus said it best when he unequivocally 
asserted that we should not return to so-called ``enhanced'' techniques 
because they ``undermine your cause'' and ``bite you in the backside in 
the long run.''
  Current U.S. law and policy makes clear that America is committed to 
fundamental humane treatment standards. By overturning the status quo, 
the Ayotte amendment would create dangerous pockets of uncertainty to 
the detriment of our international standing, our intelligence 
collectors, and our national security.
  Should this amendment ever come to the floor of the Senate, I urge my 
fellow Senators to oppose it.
  Mr. AKAKA. Mr. President, I rise to express my deep concerns with the 
payroll tax alternative that our colleagues have proposed. Their 
alternative would be paid for by extending the current pay freeze for 
Federal employees through 2015 and requiring each agency to cut its 
workforce by 10 percent.
  I strongly oppose putting the entire cost on the backs of two million 
middle class Federal employees, who already have contributed to deficit 
reduction through a 2-year pay freeze. These men and women are working 
harder than ever with tighter budgets and, in many agencies, continued 
staffing shortages. If adopted, these provisions would hamper 
investments in national defense, homeland security, veterans' services, 
food safety inspection, and other critical areas for a short-sighted 
approach that does little to address our current fiscal challenges and 
does nothing to create jobs. In the end, these policies would cost the 
government more, by harming the Federal Government's ability to recruit 
and retain highly-skilled workers and increasing our reliance on high-
cost contractors.
  Arbitrary caps on Federal employees often lead to waste, fraud, and 
abuse as contracting expands without investment in oversight. Already, 
over the past decade, Federal contracts have nearly doubled in size, 
but the acquisition workforce charged with overseeing our Federal 
contracts has remained constant. We should not be adding to this trend, 
but working to reverse it.
  While I agree it is important that all Americans share the sacrifice 
in these challenging economic times, I believe Federal workers have 
already done so. The 2-year Federal pay freeze enacted as part of the 
Budget Control Act of 2011 will save approximately $60 billion over the 
next 10 years. It is important to remember that a pay freeze affects 
employees much longer than just the years it is in place; future 
salaries will build from a lower base throughout employees' careers. 
The pay freeze will also reduce future retirement benefits, because 
they are calculated using the high three years' of earnings.
  Nearly two thirds of our 2 million Federal employees are employed by 
the Departments of Defense, Veterans Affairs, or Homeland Security--and 
according to the Office of Personnel Management, 4 out of 5 jobs filled 
since President Obama took office have been to these same agencies. 
These employees do critical work to keep our Nation safe and care for 
our veterans.
  Approximately 85 percent of Federal employees work outside of the 
Washington, DC area, and they are our neighbors and constituents in 
each of our States. Like the rest of our constituents, they are 
struggling with the deepest recession since the Great Depression. 
Although fortunate to have more job security than most workers, many 
have unemployed spouses and adult children, their home values and 
retirement savings have fallen dramatically, and like everyone else 
they face high health care, college, and other costs. Contrary to what 
you might hear from our colleagues, Federal employees are not overpaid. 
Those guarding our airports and borders, and working at our naval 
shipyards, may start at less than $30,000 per year.

[[Page 18636]]

Many make less than what they could in the private sector, but they 
work for the American people because they love their country and they 
are committed to service. Further cuts to Federal pay and benefits will 
not only hurt these individual families, but will hinder the larger 
economic recovery.
  At a time when close to half our Federal workforce will soon be 
eligible to retire, I worry that extending the pay freeze could further 
harm our ability to recruit the best and brightest to government 
service. As chairman of the Federal workforce subcommittee, I have been 
working with my colleagues to adopt policies to ensure that the Federal 
Government is viewed as the employer of choice in this country. 
Guaranteeing fair and competitive pay for its civilian workforce should 
be part of our commitment to the American people that the Federal 
Government has the right people, with the right skills to run their 
government in an effective and efficient manner.
  Our Federal civil service is made up of hard working, talented people 
who have dedicated their lives to serving this country. These honorable 
men and women provide many essential services to the American people, 
including keeping our Nation safe, caring for our wounded warriors, 
ensuring our food and drugs are safe, and responding to natural 
disasters. America's public servants deserve our gratitude and respect. 
I thank them for their dedication, and I urge my colleagues to support 
them by opposing these efforts to freeze Federal pay and hiring.
  Mr. COONS. Mr. President, earlier this week, the Senate adopted an 
amendment to the bill we now consider that would, among other things, 
give the Chief of the National Guard Bureau a seat on the Joint Chiefs 
of Staff. I was a strong supporter of this amendment, as I was its two 
legislative predecessors, the Guardians of Freedom Act and the National 
Guard Empowerment and State-National Defense Integration Act.
  Since then, I have actively lobbied my colleagues to support the 
measures, and I am glad that this week, so many of them came together 
to support it. With more than 70 cosponsors from across the political 
spectrum and ultimately, the unanimous consent of this body, the deep 
bipartisan support shown for the National Guard this week is not only 
indicative of the immense respect the brave citizen soldiers of this 
Nation have earned, but of the extraordinary potential they have for 
enhancing our national security.
  A National Guard in one form or another has served our Nation bravely 
and honorably for 375 years. Their courage is no less respected, their 
families no less concerned for their well-being. They have done 
extraordinary work these last 10 years in in Operation Enduring 
Freedom, Operation Iraqi Freedom, and in Operation New Dawn. But that 
is not what this amendment was about. This amendment was not about 
rewarding what has been done in the past.
  Rather, it was about recognizing what we need to do for our future in 
order to keep our country safe. That is the key here: bringing to bear 
every resource we have for the defense of this Nation.
  The Joint Chiefs of Staff are the top military advisers to the 
President and to the Secretary of Defense. They are responsible for 
making sure our military is prepared for every threat to our national 
security, but as those threats tilt toward the asymmetric, so must our 
military planning.
  The wars in Afghanistan and Iraq have begun a fundamental 
transformation of our military, shifting away from a posture designed 
to counter Soviet aggression in Europe toward a posture that confronts 
asymmetric threats to American lives and interests.
  Writing in a report for the Center for New American Security last 
year, retired General Gordon Sullivan described the National Guard as 
at a crossroads: ``Down one path lies continued transformation into a 
21st-century operational force and progress on the planning, budgetary 
and management reforms still required to make that aspiration a 
reality. Down the other path lies regression to a Cold War-style 
strategic force meant only to be used as a last resort in the event of 
major war.''
  There was a clear choice, and this week the Senate made it, taking 
what I believe is a significant step toward strengthening our national 
security.
  When national defense solely meant fighting our enemies abroad, the 
current organizational strategy made sense. But now that we are more 
likely to have to defend against threats to America's national security 
here on American shores at the same time, we need the National Guard to 
have a seat at the table. We need the National Guard's resources and 
capabilities to be a first-line consideration that matches their first-
line mandate.
  In my home State of Delaware, the 31st Civil Support Team is the tip 
of the spear of the military response to a chemical, biological, 
radiological, or nuclear attack by terrorists. Following closely behind 
police, fire, and EMS services, our CST would diagnose the threat, 
inform and update the chain of command, and prepare the affected area 
to receive a response by larger units, coordinating as far up the chain 
as U.S. Northern Command.
  When the Joint Chiefs sit down to plan for a biological attack on 
this country, they need someone at the table who fully understands the 
mission of units like the 31st Civil Support Team, whose members are 
full-time Guard, but not Active Duty military.
  One area that needs more thought by the Joint Chiefs, and that I hope 
General McKinley and his successors will help them focus on, is the 
important role the Guard can play in cyber security, an area where most 
threats are decidedly asymmetric.
  The Delaware Air National Guard's 166th Network Warfare Squadron is 
already playing a key role in our nation's defensive and offensive 
cyber capability working with U.S. Cyber Command, but its potential as 
a bridge between the Departments of Defense and Homeland Security, 
between Federal and State governments, and between the public and 
private sectors has barely been considered outside of a few circles. 
Determining what unique role the Guard can play in cyber security to 
create a more robust, more flexible defense-in-depth is just one of the 
new ideas I believe the Chief of the National Guard Bureau can bring to 
the planning process.
  The men and women of the National Guard bring extraordinary 
capabilities to our Armed Forces, and because of the action we have 
taken here this week, I know that our military will be better prepared 
for new and emerging threats to our Nation.
  Mrs. MURRAY. Mr. President, I rise today to reiterate my support for 
section 526 of the Energy Independence and Security Act of 2007. 
Section 526 prohibits Federal agencies including the Department of 
Defense--from contracting for fuels that have higher emissions than 
conventional petroleum.
  This is not only an issue of clean energy and a better environment 
but, more importantly, our Nation's security and ability to fight. The 
Department of Defense is the world's biggest energy consumer, using 
300,000 barrels of oil every day. Given our reliance on foreign sources 
of oil, this is a formidable security challenge for our country.
  The efforts underway at the Department to increase efficiency and 
expand the use of renewable energy and alternative fuel sources are 
critical to both the bottom line of Pentagon and to increase the safety 
of our warfighters. As you know, a record number of casualties in Iraq 
and Afghanistan have occurred while units transport fuel and supplies 
in military convoys. Increasing our energy and fuel efficiency not only 
reduces the overhead costs of the military, but it will also decrease 
the need to move as much fuel and supplies, lessening the risks posed 
by these convoys to our troops.
  This is an important and timely issue because while the National 
Defense Authorization Act we are considering on the Senate floor does 
nothing to affect section 526, the House version of NDAA repeals this 
important law.
  The Department of Defense supports this existing law and has said 
that it

[[Page 18637]]

does not prevent them from purchasing the fuel it needs to meet its 
current mission needs. Hundreds of veterans who served in the Armed 
Forces from World War II through the Iraq and Afghanistan wars have 
asked the Senate to oppose repeal of section 526.
  I urge my colleagues to join with the Department and our veterans to 
support this law.
  I also applaud the work the DOD has done to date to move toward 
homegrown, renewable fuel sources, including the Navy's commitment to 
reduce petroleum use in its fleet by 50 percent through programs such 
as the Green Fleet.
  To help the DOD realize its goals and to increase the security of our 
troops, we must dramatically scale up advanced biofuels production in 
the United States. Companies here in the United States have already 
developed technologies to produce ``drop-in'' ready fuels, so no new 
infrastructure or engine modifications are needed. These fuels are 
based on plants like camelina, jatropha, and algae--plants that can be 
grown all over the country in a variety of climates.
  I believe section 526 has laid the foundation for this needed scale 
up of advanced biofuels, and it is time to take the next step toward 
ensuring that the DOD has access to a greater range of energy options 
than foreign sources of fossil fuels. That is why I have been working 
with my colleagues, Senator Cantwell, Congressman Inslee, and others, 
to put in place multiyear contracting authority for the purchase of 
biofuels.
  We have introduced legislation in both the Senate and the House to do 
just that, and while that legislation in not included in this bill, I 
am pleased that we were able to include language that will require the 
Department to clarify its existing authorities for multiyear contracts 
for the purchase of advance biofuels and what additional authorities 
are needed for the Department to enter into such contracts going 
forward.
  Mr. President, I look forward to working with my colleagues to ensure 
the final NDAA bill keeps the Department moving forward on securing and 
supporting renewable energy and fuel alternatives.
  Mr. BAUCUS. Mr. President, I rise in support of Senator Merkley's 
calling for the withdrawal of American troops from Afghanistan. I 
support bringing our troops home for two reasons: First, we can't 
afford what we are spending today in Afghanistan. Second, we need to 
focus on nation building here at home.
  We are spending $10 billion per month in Afghanistan. Every dime of 
it is deficit spending. We should listen to the former Chairman of the 
Joint Chiefs of Staff, Admiral Mullen. He said our debt is the top 
security threat facing the United States. We can't continue down this 
path.
  Our troops continue to serve heroically on some of the toughest 
missions imaginable. They have done everything we have asked of them--
and we have asked a lot through weekends and holidays, over frigid 
mountains and hot deserts. The service of the men and women of the 
military has been nothing short of remarkable.
  It is now time to hand over the responsibility of this war to the 
Afghans. Afghan President Hamid Karzai recently held a Loya Jirga, or 
grand assembly, among leaders and elders from across Afghanistan.
  The assembly approved a resolution calling for the Afghans to take 
the lead role of the war effort. Let's take them up on their offer. 
Let's not have American men and women doing the work that Afghans want 
to do for themselves.
  For years we have been putting war spending on our national credit 
card. In 2003, I joined Senators Biden and Conrad in offering an 
amendment to the Iraq supplemental appropriations bill that would have 
offset the war spending.
  Instead of adopting the amendment, Congress elected to pay for the 
war with deficit spending. Over the past decade, we have grown our debt 
by $1.3 trillion due to war spending alone. The President's budget 
projects $500 billion dollars in war spending in the coming decade. 
This spending is in addition to the trillions we will spend on the 
defense base budget. This endless deficit spending is simply not 
sustainable.
  During our work on the Joint Select Committee on Deficit Reduction, 
every member of the panel came to a better appreciation of the 
difficult financial decisions we face as a nation. There is no choice: 
we have to balance our books.
  But how we balance our books will reflect who we are as a nation, 
what our values are, what our goals are. Most important, these choices 
will determine whether the 21st century will be the American century or 
whether we will cede our leadership to countries such as China.
  In the year ahead, Congress will make a number of hard choices, and 
we must be strategic about these choices. We will choose among 
essential investments in education, infrastructure, health care for our 
veterans and seniors, and maintaining the best military in the world.
  And every month we spend $10 billion dollars in Afghanistan will 
limit what we can do at home. Every dollar we send to Afghanistan is 
one less dollar we have for health care for our seniors or education 
benefits for our veterans.
  The tough choices must be made at a time when the world is changing 
rapidly. During his final press conference as the U.S. Ambassador to 
Japan on November 14, 1988, Mike Mansfield said:

       [Japan and the United States] will work together in the 
     next century which will be the Century of the Pacific.
       Our two nations working together will be able to compliment 
     and guide the rest of the world as it moves into this area, 
     into the [Pacific] basin, because we both realize that it is 
     in that Basin where it all is, where it is all about, and 
     where our joint future lies.

  Looking back 23 years later, his remarks seem prescient. According to 
the World Bank, China's average annual GDP growth rate since 2001 has 
been 10.4 percent. Asian developing nations collectively had an average 
growth rate of 9.1 percent. The United States has seen an average 
growth of just 1.7 percent.
  The 21st century will not be the American century if we don't change 
course. During the first decade of this century, we spent $5.9 trillion 
dollars on defense spending, much of it in Iraq and Afghanistan. During 
that same decade, China spent $1.1 trillion. Now, which nation's power 
increased more during that period?
  China is flexing muscles abroad not with shiny new weapon systems but 
with their growing financial power. China is now the second-largest 
economy in the world, and it continues to grow.
  We are seeing our influence wane around the world not because we are 
short an aircraft carrier but because some have begun to question 
American resolve, the ability of American political process to solve 
basic problems and to govern.
  Meanwhile, millions of Americans are out of work and struggling to 
make ends meet. Last year, I asked the Congressional Budget Office to 
prepare a report on income inequality in this country. The statistics 
are sobering. The top 1 percent of earners in the United States more 
than doubled their share of income in the past 30 years. The wealthiest 
fifth of the country earned more than the other four-fifths combined.
  These are only but a few of the great challenges we face at home, and 
to overcome these challenges we have to work together. To compete and 
win in today's world, we need to balance our budget, grow our economy, 
and invest in education and infrastructure. We can't afford another 
year of spending tens of billions of dollars on nation building 
overseas.
  For the 21st century to be the American century, we are going to have 
to make some changes. We need to bring our troops home from Afghanistan 
and focus on nation building here at home. I urge my colleagues to 
support Senator Merkley's amendment.
  Mr. COONS. Mr. President, another amendment that I filed to S. 1867, 
the Senate's Fiscal Year 2012 National Defense Authorization bill, 
would have advanced new clean energy opportunities and enjoyed 
bipartisan support. The amendment's cosponsors included

[[Page 18638]]

Senators Shaheen, Portman, Gillibrand, Merkley, and Kerry. 
Unfortunately, we were not able to offer it this week because of a 
disagreement over scoring. It was an important opportunity missed so I 
wanted to take a moment to note what this amendment entailed.
  Amendment No. 1265 would have confronted a critical long-term 
challenge facing our Nation's military: the spiraling cost of its 
reliance on petroleum. As we look for ways to save taxpayer dollars and 
reduce our Nation's dependence on foreign oil, utilizing more electric 
vehicles should become a priority for the Defense Department and the 
entire Federal Government.
  Investment in clean energy technology is an investment in America's 
energy security. Liquid petroleum accounts for three-quarters of our 
Armed Forces' energy consumption, and approximately 60 percent of that 
comes from abroad. The Defense Department has explicitly cited the 
operational risk inherent to our dependence on foreign oil and has 
committed itself to aggressively reducing energy consumption.
  Senate Amendment No. 1265 would allow the Defense Department and 
other Federal agencies to purchase electric vehicles and charging 
infrastructure under Energy Savings Performance Contracts, ESPC. ESPCs 
themselves aren't new: the government has used ESPCs for years to pay 
for energy efficiency upgrades. It has been enormously successful and 
costs the government nothing up front. That's right, ESPCs are paid 
for, financed, performed and guaranteed by the private sector with the 
government paying back the private sector through guaranteed energy 
savings over time. Our amendment would have made electric vehicles and 
charging infrastructure eligible for the program.
  Energy efficiency is about more than turning the lights off when you 
leave a building. It is about the appliances you buy, the tools you 
use, and the vehicles you drive.
  The Federal Government is America's largest energy consumer and 
within the government, the Defense Department is the biggest energy 
consumer. One out of every three vehicles owned by the Federal 
Government is owned by the Pentagon, which is why we raised this 
amendment this week.
  Amendment No. 1265 would have helped increase the share of the 
government-owned fleet that is cost-efficient, energy-efficient 
electric vehicles. On top of that, it would not add a dime to the 
Federal deficit. By buying these vehicles in through ESPCs, the 
government does not put up any money up front. Rather, it enters an 
agreement with a private-sector contractor--a job-creating private-
sector contractor--where the agency pays the contractor over an agreed-
upon period of time--as many as 25 years.
  What they are paying each month, though, is the net savings achieved 
by using the electric vehicle instead of a conventional vehicle. This 
is an unconventional, but creative and cost-efficient way to save 
money, reduce our dependence on foreign oil, and even to help support a 
growing private industry.
  This amendment would have simply provided the Defense Department with 
a new tool for acquiring cost-efficient electric vehicles, which is 
what they are asking us to do. They want to add electric vehicles to 
their fleets. The Defense Department has already done extraordinary 
work in leveraging energy efficiency to reduce its costs and reduce its 
dependence on foreign oil. We want to help them do more.
  This is a challenging economic time for our country, and our military 
needs every advantage it can get as it confronts dangerous threats to 
our national and energy security. By empowering the Pentagon to buy 
more of these energy-efficient, cost-efficient electric vehicles, we 
are saving taxpayer dollars and reducing our dependence on foreign oil. 
Investment in clean energy technology is an investment in America's 
energy security, and energy security is, without a doubt, an 
increasingly important, and increasingly fragile, aspect of America's 
national security.
  This is a common-sense policy that unfortunately cannot be considered 
at this point because of a technicality in how the Congressional Budget 
Office scores ESPCs. It has been going on for 10 years and, as I 
understand, it has provided endless frustration to my colleagues on the 
Senate Energy and Natural Resources Committee and several other 
congressional committees, and this problem reaches beyond the electric 
vehicle option alone.
  A key point to make here is that whenever Congress tells the Federal 
Government to become more efficient but does not provide appropriated 
funding for the purpose, a score is triggered because the government 
might use ESPCs to meet the mandate. Effectively, Congress cannot tell 
the Federal Government to save money through efficiency. Further, while 
ESPCs are scored by the CBO rules, OMB does not score them because the 
government does not incur any costs through their use. This specious 
score has essentially limited our ability to reduce appropriated 
dollars and achieve energy efficient simultaneously using private 
sector expertise and funding.
  This amendment is something that is important to me. I am hopeful it 
is something that we will be able to pass down the road. In the 
meantime, it is an opportunity lost, to help our military prepare for 
the threats facing our nation.
  Mrs. SHAHEEN. Mr. President, I rise today to express my 
disappointment that the Senate was not able to reach agreement to 
consider an important amendment on the Defense authorization bill that 
would allow women in the military access to the same health care 
coverage as civilian women.
  There are almost 214,000 women currently serving in our Armed Forces. 
Many of these brave women are risking their lives for our national 
security. Despite the sacrifices these women make to protect our 
freedom, they are not given the same rights as civilian women when it 
comes to their reproductive health care.
  If a service woman becomes pregnant as a result of rape or incest, 
her insurance will not cover an abortion if she decides to seek one; 
the law as currently written expressly prohibits it. This is 
unconscionable. To correct this injustice, I offered an amendment to 
the bill that we are currently debating that would allow a service 
woman the ability to receive insurance coverage for an abortion if her 
pregnancy is the result of rape or incest. Unfortunately, because there 
are some in this body who do not want this unfair law changed, we were 
not able to bring this amendment to the floor for a vote.
  Women currently serving in the armed services are victims of 
discrimination. They do not have access to the same critical--and 
legal--reproductive health care as the civilians they protect.
  Bans on abortion coverage exist for millions of women who receive 
their health care through government programs, but in most cases these 
bans allow for coverage of such care if the pregnancy is the result of 
rape or incest. Women receiving their health care through Medicaid, 
Medicare, the Federal Employees Health Benefits Program, and the Indian 
Health Services all have access to the care they need if the pregnancy 
is a result of rape or incest. Even women serving time in our Federal 
prisons can get abortions covered in the case of rape. Sadly, this is 
not the case for our Nation's women in uniform.
  I believe that every woman should have the reproductive health care 
coverage she needs wherever she is and whenever she needs it. I do not 
think that any ban on abortion is appropriate. However if Federal bans 
do exist, they should at least be consistent.
  My amendment is simple. It would permit a service woman to have an 
abortion covered by her military health insurance if the pregnancy is 
the result of rape or incest. Repealing the current ban on such 
coverage will simply bring the Department of Defense in line with most 
other federal policies.
  I recently met a woman who was a victim of rape during her military 
service. She was stationed in Korea and was unable to receive the 
health care

[[Page 18639]]

she needed and deserved. Her story was heartbreaking. Because of her 
unwanted pregnancy, she had to leave the service and return home.
  The reality is that women in the military, especially those posted 
overseas, have few safe or legal reproductive health care options when 
they cannot rely on the military. Without access to these services, 
some women will be forced to resort to unsafe care or delay the health 
services they need. Women who give their lives for our country deserve 
better.
  While the bill we are considering today will move forward without 
this important change, I pledge to all the women in our military who 
are victims of this law that I will continue my fight to bring the 
Department of Defense in line with other Federal agencies to allow 
coverage for critical reproductive health care.
  Mr. LUGAR. Mr. President, I commend Chairman Levin and Ranking Member 
McCain, our distinguished Armed Services Committee leaders, for their 
amendment regarding the problem of counterfeit parts, Senate amendment 
1092, which was agreed to, as modified, last Tuesday. The amendment 
establishes a prudent framework for countering the dangerous 
infiltration of counterfeit parts into our defense supply chain. I also 
want to commend Senator Whitehouse for his work on this important 
issue.
  The amendment would create criminal penalties for those trafficking 
in counterfeit parts so as to ensure that our Armed Forces have the 
best equipment from trusted suppliers in order to carry out their 
critical roles and missions. It would also significantly strengthen our 
supply-chain management to detect and prevent surreptitious attempts to 
supply our Armed Forces with counterfeit parts and components.
  I have followed the hearings in the Senate Armed Services Committee 
regarding these matters. I wanted to take time today to raise in 
relation to the amendment a problem that I believe could complicate its 
enforcement. If we truly intend to grow our economy through exports, 
then we ought to pay attention to any risks that may stem from 
liberalizing our present export controls so as to ensure that our 
industrial base benefits--and not those who deal in counterfeit parts 
and components in other nations.
  A person who commits an offense under this amendment may be punished 
if that person ``had knowledge that the good or service is falsely 
identified as meeting military standards or is intended for use in a 
military or national security application.''
  I am concerned that the amendment may be undermined by the export 
control initiatives of the administration. The administration is 
engaged in an effort to remove most, if not all, of the military-grade 
parts and components controlled on the U.S. Munitions List. Many of 
these will be decontrolled altogether for export and import purposes. 
Others will be placed under the Commerce Department's Export 
Administration Regulations. Hundreds of thousands of military-grade 
parts, components and systems are involved.
  The reasons why this agenda presents significant challenges to 
dealing with counterfeit parts center on the relatively liberal legal 
and policy considerations that govern our commercial trade with China. 
Senators Levin and Whitehouse pointed to the many problems emanating 
from counterfeit Chinese parts in their remarks on the floor. As we 
know from the hearings and studies to date, Chinese suppliers play the 
major role in the unauthorized supply of counterfeit parts.
  We also know from the Commerce Department's January 2010 report on 
counterfeit electronics, which was commissioned by the Navy Department, 
that the counterfeit electronics infiltrating the Defense Department 
supply chain and affecting weapon system reliability are predominantly 
commercial and industrial grade parts--so-called commercial off-the-
shelf, COTS, technology.
  The drawings and specifications needed to produce those parts can 
be--and are--freely exported to China under the Commerce Department's 
Export Administration Regulations, EAR. There is no legal bar to 
exports of such drawings and parts to China and, in all but rare cases, 
they may be sent to China without an export license. The same holds 
true for the import of such parts into the United States after they are 
produced in China.
  In contrast, there has been a much lower incidence to date of 
counterfeit parts specifically designed for military use. Such parts 
are currently controlled on the U.S. Munitions List. Maintenance of the 
U.S. Munitions List is authorized by the Arms Export Control Act, AECA, 
and it is administered by the State Department in consultation with the 
Defense Department. The Foreign Relations Committee has unique 
jurisdiction over these matters in the Senate.
  The reasons for the lower incidence of counterfeit military-grade 
parts are threefold: One, it is illegal to export any drawings or 
specifications to China that are controlled on the U.S. Munitions List, 
due to the statutory arms embargo imposed on China following the 
Tiananmen Square massacre; two, it is illegal under the International 
Traffic in Arms Regulations, ITAR--the State Department's regulations 
which contain the U.S. Munitions List--to import any defense article 
into the United States from China; and three, willful violations of the 
ITAR and the AECA are vigorously enforced by U.S. courts, with the 
majority of convictions resulting in prison sentences, while the 
majority of willful violations involving illegal exports of industrial 
or commercial products result in probation. The latter are currently 
enforced under the International Emergency Economic Powers Act because 
the Export Administration Act has lapsed.
  Unfortunately, all of the deterrents inherent in control on the U.S. 
Munitions List could go away if and when the administration's export 
control reform initiatives are implemented.
  I congratulate and welcome the efforts of Senator Levin, Senator 
McCain and other Senators to close down the infiltration of counterfeit 
parts into our defense supply chain, but I remain concerned that the 
administration's agenda for export control reform will increase these 
problems in the future and frustrate enforcement of this amendment.
  In addition, it is my understanding that the administration not only 
plans to remove nearly all the military-grade parts and components from 
the U.S. Munitions List, but also to redefine those few categories of 
high-end parts and components remaining on the Munitions List in a way 
that would seriously complicate enforcement of the amendment.
  We will continue to consult with the administration on its reform 
agenda in the Foreign Relations Committee.
  Mr. WARNER. Mr. President, I would like to ask for the attention of 
my colleagues on two amendments that I have filed to S. 1867, the 
National Defense Authorization Act of 2012.
  Each of these amendments relates to the Navy's proposal to build a 
new nuclear pier facility to support East Coast aircraft carriers. With 
annual recurring costs, this new project would likely cost just shy of 
a billion dollars.
  At a time when our Nation is in a severe fiscal crisis the Navy 
cannot pay to maintain the infrastructure it currently owns. As Admiral 
Mullen has said, the greatest challenge to our national security is our 
mounting debt.
  Together, these amendments would save nearly $30 million for an 
unnecessary Navy military construction project at Naval Station 
Mayport, Florida. We are awaiting completion of an independent GAO 
assessment of the strategic risks to our carrier fleet which include 
manmade and natural disasters. The study would also consider the cost 
and benefits of what other measures we can take to mitigate risk.
  This is not a small project. The Navy estimates its homeporting plan 
will cost nearly $600 million, but those costs could rise to up to $1 
billion over the next eight years. Tack on to that more than $25 
million in annual maintenance costs currently estimated for an 
additional homeport and we are signing the taxpayer up for a big bill,

[[Page 18640]]

much of which is not funded. It's in the ``out years'' as they say.
  The justification for a new homeport is the mitigation of the risk of 
a terrorist attack, accident, or natural disaster occurring at the 
nuclear handling facility at the existing carrier homeport at Norfolk, 
VA.
  However, the current Navy plan fails to take into account the two 
additional East Coast carrier capabilities facilities at Newport News, 
VA, and the Naval Shipyard. Each of these facilities maintains separate 
nuclear handling sites located many miles apart. If there were damage 
to the existing Naval base, the Navy could simply disperse the carriers 
to other piers. That is a lot cheaper and more efficient than building 
a new, duplicative facility.
  Additionally, recent Navy briefings indicate there is a 50 percent 
greater chance of a major hurricane hitting Mayport than Norfolk. Why 
would we want to build a new facility at a higher risk location?
  The Navy has also identified unfunded priorities totaling $11.8 
billion dollars. These priorities are in critical areas including 
shipbuilding, military construction, maintenance, and acquisition 
programs--programs which are critical to both our current and future 
readiness.
  We must maintain our existing infrastructure properly before pursuing 
a duplicative homeporting project. It is more fiscally responsible for 
the Navy to reduce its current unfunded requirements, which total tens 
of billions of dollars.
  We have had some recent developments that I want to highlight that 
cast more doubt on the wisdom of embarking on this enormous 
expenditure. Responding to a letter I wrote, along with other 
colleagues in the Virginia delegation, the Navy's new CNO, Admiral 
Greenert has said that it is time to take a fresh look at the costs of 
this project, given the current fiscal constraints. Admiral Greenert 
wrote the Navy will be making a ``comprehensive strategic review, 
examining every program element, including the funding required to 
homeport a CVN in Mayport.'' I agree with Admiral Greenert. With the 
serious fiscal issues facing our Nation, the prudent course of action 
is to focus on taking care of the infrastructure we already have 
instead of buying new infrastructure which we do not need and cannot 
afford.
  Mr. JOHNSON of South Dakota. Mr. President, I want to discuss the 
amendment to the pending Defense authorization bill negotiated between 
my two Banking Committee colleagues, Senators Menendez and Kirk, 
designed to address the deceptive and fraudulent practices, sanctions 
evasion, facilitation of proliferation, and other illicit behavior of 
Iran's Central Bank.
  Ten days ago, President Obama issued an Executive order designed to 
further isolate and penalize Iran for its refusal to live up to its 
international obligations regarding its nuclear program. As he noted, 
for years the Iranian Government has failed to abide by its obligations 
under the Nuclear Non-Proliferation Treaty, violated repeated U.N. 
Security Council resolutions, and ignored its legal commitments to the 
International Atomic Energy Agency. In the face of this intransigence, 
the world has spoken with one voice--at the IAEA, at the U.N., and in 
capitals around the world--making it clear that Iranian actions are a 
threat to international peace and stability and will only further 
isolate the Iranian regime.
  The President targeted, for the first time, Iran's petrochemical 
sector, prohibiting the provision of goods, services, and technology to 
this sector and authorizing penalties against any person or entity that 
engages in such activity. He also designated for sanction a group of 
individuals and entities for assisting Iran's prohibited nuclear 
programs, including its enrichment and heavy water programs. And he 
escalated the financial and economic pressure by using provisions of 
the USA PATRIOT Act to identify the entire Iranian banking sector--
including Iran's Central Bank--as a threat to governments and financial 
institutions that do business with Iran.
  I strongly support enhanced sanctions on Iran, including its Central 
Bank, and have been working with my ranking member, Senator Shelby, on 
another sanctions measure to expand and reinforce the Comprehensive 
Iran Sanctions and Accountability Act, CISADA, enacted last year. That 
legislation will be marked up soon in our committee. But as in all 
areas of complex sanctions law, it is important to craft these 
provisions with an eye to ensuring that they do not have negative 
unintended consequences for the United States and American consumers in 
terms of substantially increased oil and gas prices; for our allies, 
whose cooperation is crucial in further isolating Iran; for central 
banks around the world. We also want to avoid the result--if this 
measure is not further refined and then implemented by the White House 
in close consultation with our allies--that Iran itself could benefit 
from an oil price premium we in the West would pay if notoriously 
volatile world oil markets respond negatively and if non-Iranian oil 
supplies are not sufficient to fill the gap caused by countries that 
seek their oil elsewhere than from Iran.
  The amendment seeks to address that concern by providing for a lag 
time of 6 months for oil markets to prepare and providing for a 
Presidential certification on oil price and supply availability before 
the petroleum sanctions would become effective. But that may not be 
sufficient, given the complexity of oil markets, which I am told by the 
Energy Department tend to pull such dates forward, anticipating oil 
price supply shortfalls--and oil price increases--and building them 
into oil traders' assumptions well before sanctions actually take 
effect.
  I have heard a number of concerns about this amendment in its current 
form from senior officials at the Treasury Department charged with 
implementing it. First, Treasury officials have indicated that they 
have concerns about how this amendment could affect our close allies, 
including foreign central banks of those governments that have worked 
with us in recent years to sanction Iran and that hold large reserves 
in the United States but who have thus far decided they cannot, because 
of their current dependence on Iranian oil, completely and relatively 
quickly withdraw from purchasing its oil. We must avoid having these 
central banks begin to pull their reserves from the United States out 
of fear that enforcement of this amendment might limit their access to 
the U.S. financial system. That is why the signals sent by the Treasury 
Secretary and the President about implementing this provision are so 
important.
  The administration also has concerns regarding effective 
implementation of this amendment, especially its requirement that the 
President prohibit accounts outright instead of, as elsewhere in U.S. 
law, allowing discretion to impose strict conditions on accounts--on 
trade finance limits, on the nature or size of transactions, on 
preapproval of transactions and about the timelines it presents, the 
confusing and seemingly conflicting interaction of some of its 
provisions, its lack of an exception for countries that are closely 
cooperating with the United States on sanctions enforcement, and 
others. I ask consent to print in the Record following my statement a 
copy of a letter from Secretary Geithner indicating his strong 
opposition to the amendment.
  The PRESIDING OFFICER. Without objection, so ordered (see Exhibit 1).
  Mr. JOHNSON. We all agree that interactions by the international 
financial community with Iran's financial system should be severely 
reduced, not least because such interactions pose serious risks for the 
international banking system. But we do not want to do it in a way that 
could have negative consequences for some of our closest allies or for 
ourselves. We want to be careful that we don't end up shooting 
ourselves in the head and Iran in the foot.
  I know my colleagues have worked in the last week, including over the 
Thanksgiving holidays, to make the provision more effective and to 
provide for additional targeting by the President, building in a 
national security waiver, a lag period for implementation of the crude 
oil sanctions, and other measures. But I think the provision could use 
further refinement. That

[[Page 18641]]

is why I had hoped to be able to address this issue through the more 
deliberative committee process.
  Even though I have concerns about some of the effects of this 
amendment in its current form, I will support it as a signal of my 
support for tightening the financial and economic noose around Tehran 
and for further isolating its government as a means of prompting it to 
turn aside from its current path and come clean on its nuclear program. 
Even so, these implementation issues should be addressed in conference 
prior to the legislation being finalized.
  Finally, I want to remind my colleagues that the Banking Committee is 
working expeditiously to adopt new comprehensive sanctions legislation 
and I hope will be ready to bring that legislation to the full Senate 
soon. It will complement and reinforce the Comprehensive Iran Sanctions 
and Accountability Act, CISADA, enacted a little over a year ago, and 
international diplomatic efforts led by the President to further 
isolate Iran and ratchet up the pressure on its leaders. I think all of 
us would agree that the most effective sanctions are those that are 
imposed and enforced by a coalition of nations, and the 
administration's success in building and sustaining a coalition to do 
precisely that is to be commended. I look forward to working with my 
colleagues on that effort.

                               Exhibit 1


                                   Department of the Treasury,

                                 Washington, DC, December 1, 2011.
     Hon. Carl Levin
     Chairman, Committee on Armed Services, U.S. Senate, 
         Washington, DC.
       Dear Chairman Levin: I am writing to address amendment 1414 
     to S. 1867, the National Defense Authorization Act for Fiscal 
     Year 2012, regarding the imposition of sanctions on foreign 
     financial institutions that conduct business with the Central 
     Bank of Iran (CBI).
       The Obama Administration's determination to prevent Iran 
     from acquiring nuclear weapons is unwavering. We are resolved 
     to build and sustain as much pressure as necessary to bring 
     Iran to meet its international obligations and address the 
     international community's grave concerns with its nuclear 
     program. I know that you and your colleagues in the Senate 
     share this commitment.
       We understand that this amendment was offered in this 
     spirit. However, I am writing to express the Administration's 
     strong opposition to this amendment because, in its current 
     form, it threatens to undermine the effective, carefully 
     phased, and sustainable approach we have undertaken to build 
     strong international pressure against Iran. In addition, the 
     amendment would potentially yield a net economic benefit to 
     the Iranian regime.
       We have steadily increased the pressure on Iran by 
     tightening sanctions, closing loopholes, and encouraging 
     other countries to do the same. Congress has been absolutely 
     critical in providing some of the tools that we have used to 
     accomplish that goal, and we are seeing genuine results. The 
     collaborative approach the U.S. has taken with our 
     international partners has led many to impose sanctions on 
     Iran that were not even contemplated three years ago, 
     including on Iran's energy sector.
       Iran's greatest economic resource is its oil exports. Sales 
     of crude oil line the regime's pockets, sustain its human 
     rights abuses, and feed its nuclear ambitions like no other 
     sector of the Iranian economy. We are committed to doing as 
     much as possible to reduce Iran's oil revenue while 
     concurrently working to stabilize global oil markets. Today, 
     the United States does not permit the import of Iranian 
     crude. Other countries have already begun to reduce their 
     consumption of Iranian crude and the Administration is 
     working hard to discourage anyone from taking advantage of 
     the responsible policies of these countries. Our closest 
     allies are seriously considering curtailing their own crude 
     purchases altogether in the near future and we are doing 
     everything possible to encourage them to make the right 
     decision.
       However, as currently conceived, this amendment threatens 
     severe sanctions against any commercial bank or central bank 
     if they engage in certain transactions with the CBI. This 
     could negatively affect many of our closest allies and 
     largest trading partners. Rather than motivating these 
     countries to join us in increasing pressure on Iran, they are 
     more likely to resent our actions and resist following our 
     lead--a consequence that would serve the Iranians more than 
     it harms them. Further, there is a substantial likelihood 
     that this amendment, particularly if passed into law at this 
     time and in its current form, could have the opposite effect 
     from what is intended and increase the Iranian regime's 
     revenue, literally fueling their suspect nuclear ambitions. 
     The Administration is prepared at your convenience to share 
     the details of our analysis on this point, in a classified 
     briefing.
       The Obama Administration strongly supports increasing the 
     pressure on Iran significantly, including through properly 
     designed and well-targeted sanctions against the CBI. The 
     Administration has several legislative proposals to both 
     enhance and expand the Comprehensive Iran Sanctions, 
     Accountability, and Divestment Act (CISADA) and to strike at 
     the CBI that we would like to discuss with you and your 
     colleagues. We intend to work with our partners to achieve 
     the objectives of this amendment, but in a fashion that we 
     believe will have a greater and more sustainable impact on 
     Iran. We ask that you continue to work with us on ways to 
     improve this amendment and to consider other, more immediate 
     and more effective steps that we can take to accomplish our 
     shared goals while we work with our partners to bring about 
     the effects this amendment is intended to achieve.
           Sincerely,
                                              Timothy F. Geithner.

  Mr. BROWN of Massachusetts. Mr. President, I rise today to protect 
the families of our men and women in uniform. While these brave members 
of our community put their lives on the line to protect our freedoms 
abroad, courts here are using their service against them when making 
child custody determinations.
  Although I did not submit my amendment due to concern expressed by 
the Senate Veterans Affairs Committee, it is important that the 
committee take up this issue to ensure that servicemembers have a 
uniform standard of protection when determining the best interests of 
their children.
  Servicemembers risk their lives in support of the contingency 
operations that keep our Nation safe. The amendment prohibits courts 
from permanently altering custody orders during a parent's deployment, 
and requires pre-deployment custody to be reinstated unless that is not 
in the best interest of the child.
  This language of my amendment has enjoyed widespread support in the 
House for the past five years and was recently endorsed by the 
Department of Defense. Earlier this year Secretary Gates stated that he 
wanted to work with Congress to pursue the creation of a Federal 
uniform standard. In his letter of support dated February 15th, 2011, 
Secretary dates stated: ``I have been giving this matter a lot of 
thought and believe we should change our position to one where we are 
willing to consider whether appropriate legislation can be crafted that 
provides servicemembers with a federal uniform standard of 
protection.''
  Our men and women in uniform sacrifice a great deal to serve our 
country. We owe it to them to provide uniform legal standards regarding 
child custody. Servicemembers should never be in the position of having 
to choose between their country and their family.
  Mr. REID. Mr. President, tonight the Senate will vote overwhelmingly 
to support our men and women in uniform, including the more than 1,100 
Nevadans serving overseas, as they continue to put their lives on the 
line. I congratulate Senators Levin and McCain for their stewardship of 
this bill and for working through several difficult issues.
  There is still work to be done in conference to perfect parts of this 
bill, including the provisions dealing with military detainees and 
efforts to improve key elements of TRICARE.
  I am pleased that today an overwhelming, bipartisan majority agreed 
that protecting our national security is more important than partisan 
politics. Today we came together to support our troops, and ensured 
that this Nation does everything in its power to keep America safe from 
those who would do us harm.
  Mr. McCAIN. I yield back the 1 minute of time remaining.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER. There will now be 2 minutes of debate equally 
divided on the bill, as amended.
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, we are going to be making a unanimous 
consent request. I am not even going to

[[Page 18642]]

use my 1 minute on this other than to say thanks to everybody who has 
been so heavily involved, which is just about everybody in this Senate.
  I want to particularly thank Senator McCain. His staff and my staff 
have been utterly incredible. We have had hundreds of amendments we had 
to get through. We have done the best we can, and I want to tell my 
friends this so we can prepare a path for a unanimous consent 
agreement. It is not prepared yet, so I cannot read it, but it is going 
to be something like this. For those amendments which were germane, not 
because of modification, but were germane--
  Mr. UDALL of New Mexico. Will the Senator from Michigan yield? I 
don't think we disposed of the Udall amendment.
  Mr. LEVIN. I believe we did.
  The PRESIDING OFFICER. The Udall amendment was agreed to.
  Mr. McCAIN. Reluctantly.
  Mr. LEVIN. Let me describe what this is about so we can be thinking 
about it before it is offered. There were 71 amendments, approximately, 
which were cleared. We spoke about those before. If anyone had an 
objection, they were not cleared. So by definition there is no 
objection on the substance of these amendments. However, there is 
objection for other reasons, one of them being that if an amendment was 
modified to make it germane, there would be an objection on that basis.
  So what Senator McCain and I are talking about--and we will put it in 
a unanimous consent proposal and then you all can decide if you want to 
agree to this--is that we would work--we pass a bill tonight and do all 
the other things we need to do because that has to be done. We have to 
get to conference.
  In the next couple of days Senator McCain and I, working with the 
Parliamentarian, would go through the 71 amendments, or whatever the 
number is. The Parliamentarian would then advise us as to which of 
those amendments is germane and were germane--and these are all cleared 
amendments. And for that group, whatever the number is, that we are 
informed by the Parliamentarian is germane and were germane, we would 
then put in a bill which would be introduced next week. If we can get 
that done, then the unanimous consent request would have that bill 
introduced, read a third time, and passed. That would be the most we 
could ask for.
  It would seem to me if we could pass this tonight, we could do the 
same thing with a bill--providing Senator McCain and I agree after 
talking to the Parliamentarian--that the only amendments that would be 
in that bill would be amendments which were germane.
  How do we get that bill into the conference report? We have not 
figured that out yet, but we are working on that piece as well. At 
least we can get the bill passed so we can go to conference and show 
the Senate passed these X number of amendments. This is the best we 
could do. It is the cleanest we could do. The Parliamentarian did not 
like the different idea that we proposed, and I don't blame him and 
her, but that is what we are going to be offering in a few minutes.
  Mr. McCAIN. I have nothing more to add. I wish to vote.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. If I may be permitted to thank the distinguished chairman 
for that offer. It is unclear to me how it will actually be executed--
and all of this could have been avoided, from my perspective, if a 
simple unanimous consent request had been allowed to modify an 
amendment that I had that was not germane to make it germane so we 
could have a simple up-or-down vote, something that was in the nature 
of a technical correction, which I would think as a matter of custom 
and courtesy would be allowed. But apparently that is not the way 
things are operating.
  All of these convulsions are being engaged in simply to avoid an 
objection to a unanimous consent request to modify an amendment to make 
it germane. It could all be avoided and we could have taken care of 
this in 10 or 15 minutes. I don't understand if the distinguished 
chairman is actually making that unanimous consent request at this time 
or is merely explaining what his intentions are. I will try to work 
with him, but I am not yet sure this is going to work as he hopes it 
will. My objection will remain that any amendment that was not germane 
when filed but could be made germane by modification, as mine could, 
would not be permitted to be in this managers' package or passed by 
unanimous consent.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. It sounds simplistic, and the hour is late and we need to 
vote, but the fact is there were 382 amendments that were submitted. 
There were hundreds of amendments that were waiting, and the fact is 
that initially the Cornyn amendment was not agreed to, so it is a 
little more complicated than that. There were literally 400 or 500 
amendments that were filed, and we had to at some point cut off the 
process. For next year's bill we will try to get a situation where it 
is far more inclusive and far more informative. When you are dealing 
with 500 amendments, I know that each is important, but there is no way 
you are going to be able to get through the authorization bill with 
that many amendments that are filed, and that is just a fact. We are 
doing the best we can to accommodate the Senator from Texas and the 
Senator from Oklahoma and every other Senator who didn't get their 
amendment voted on.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask unanimous consent that upon passage 
of S. 1867, the Armed Services Committee be discharged from further 
consideration of H.R. 1540 and the Senate proceed to its consideration; 
that all after the enacting clause be stricken and the text of S. 1867, 
as amended, and passed by the Senate, be inserted in lieu thereof; that 
H.R. 1540, as amended, be read a third time, passed, and the motion to 
reconsider be laid upon the table; that the Senate insist on its 
amendment, request a conference with the House on the disagreeing votes 
of the two Houses; and the Chair be authorized to appoint conferees on 
the part of the Senate, with the Armed Services Committee appointed as 
conferees; that no points of order be considered waived by virtue of 
this agreement; and all with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LEVIN. I thank everybody and I thank the Chair.
  The PRESIDING OFFICER. The bill having been read the third time, the 
question is, Shall the bill, as amended, pass?
  Mr. McCAIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 93, nays 7, as follows:

                      [Rollcall Vote No. 218 Leg.]

                                YEAS--93

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker

[[Page 18643]]



                                NAYS--7

     Coburn
     Harkin
     Lee
     Merkley
     Paul
     Sanders
     Wyden
  The bill (S. 1867), as amended, was passed.
  (The text of the bill will be printed in a future edition of the 
Record.)
  Mr. HARKIN. Mr. President, as a Senator, I have no greater 
responsibility than to work to ensure the security of the United 
States, and I believe the military should have all the tools they need 
to keep our Nation safe. I support the vast majority of the Defense 
authorization bill. However, because I believe we can protect our 
national security without infringing on critical constitutional values, 
I could not support this bill. The bill fails to clarify that under no 
circumstance can an American citizen be detained indefinitely without 
trial. And it mandates for the first time that suspects arrested in the 
United States will be detained by the military rather than domestic and 
civilian law enforcement, who since 9/11 have successfully convicted in 
civilian courts over 400 terrorists. Finally, the bill would make it 
more difficult to close the detention center at Guantanamo Bay, for 
which I have long fought because the detention facility is a stain on 
our honor and a recruiting tool for terrorists around the world.
  Not only do these provisions violate the core values upon which our 
freedom rests, but they won't make us safer. The Pentagon, CIA Director 
Petraeus, Intelligence Director Clapper, and FBI Director Mueller all 
said these provisions will needlessly hurt, rather than help, our 
national security.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from 
Michigan.
  Mr. LEVIN. Mr. President, I will be very brief for obvious reasons. 
But this is a golden moment for us. The proud tradition of the Senate 
Armed Services Committee has been maintained every year since 1961 and 
continues with the Senate's passage of the 50th consecutive national 
defense authorization bill. It always takes a huge amount of work to 
get a bill of this magnitude done. It could not happen without the 
support of all the Senators on the committee. I will not thank each and 
every one--the subcommittee chairs, the ranking members, our staff, the 
floor staff here, who do extraordinary work. But the bipartisanship of 
this committee dominates again, and we hope that flavor will continue 
to dominate forever in the committee and hope it will permeate this 
Senate.
  We always have to work long and hard to pass this bill and no two of 
these bills are alike. But it's worth every bit of effort we put into 
it because it is for our security, for our troops, and for their 
families. I thank all Senators for their roles in keeping our tradition 
going.
  Our committee's bipartisanship also makes this moment possible. I am 
proud to serve with Senator McCain and grateful for his partnership and 
friendship. I also want to thank our very dedicated and capable Senate 
floor staff on both sides of the aisle--Gary Myrick, Trish Engle, Tim 
Mitchell, and Meredith Mellody on the Democratic side and David 
Schiappa, Laura Dove, Ashley Messick, and Patrick Kilcur on the 
Republican side. They have all helped us get this bill across the 
finish line and we are very grateful to them and all others here on the 
floor and in both cloakrooms.
  Finally, I thank all our committee staff members for their 
extraordinary drive and many personal sacrifices to get this bill done. 
Led by Rick DeBobes, our committee's staff director; Peter Levine, our 
general counsel; and Dave Morriss, our minority staff director, our 
staff really has given their all to get this bill passed. So to all of 
you and to all your families, thank you for your hard work. Take a few 
minutes to celebrate this moment and then put all your talents to work 
in conference with the House so we can bring a conference report back 
to the Senate before the holidays.
  Mr. President, they all deserve recognition and, as a tribute to 
their professionalism and as a further expression of our gratitude, I 
ask unanimous consent that all staff members' names be printed in the 
Record.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

       Richard D. DeBobes, Staff Director; David M. Morriss, 
     Minority Staff Director; Adam J. Barker, Professional Staff 
     Member; June M. Borawski, Printing and Documents Clerk; Leah 
     C. Brewer, Nominations and Hearings Clerk; Christian D. 
     Brose, Professional Staff Member; Joseph M. Bryan, 
     Professional Staff Member; Pablo E. Carrillo, Minority 
     Investigative Counsel; Jonathan D. Clark, Counsel; Ilona R. 
     Cohen, Counsel; Christine E. Cowart, Chief Clerk; Jonathan S. 
     Epstein, Counsel; Gabriella E. Fahrer, Counsel; Richard W. 
     Fieldhouse, Professional Staff Member; Creighton Greene, 
     Professional Staff Member.
       Ozge Guzelsu, Counsel; John W. Heath, Jr., Minority 
     Investigative Counsel; Gary J. Howard, Systems Administrator; 
     Paul C. Hutton IV, Professional Staff Member; Jessica L. 
     Kingston, Research Assistant; Jennifer R. Knowles, Staff 
     Assistant; Michael J. Kuiken, Professional Staff Member; 
     Kathleen A. Kulenkampff, Staff Assistant; Mary J. Kyle, 
     Legislative Clerk; Gerald J. Leeling, Counsel; Daniel A. 
     Lerner, Professional Staff Member; Peter K. Levine, General 
     Counsel; Gregory R. Lilly, Executive Assistant for the 
     Minority; Hannah I. Lloyd, Staff Assistant; Mariah K. 
     McNamara, Staff Assistant.
       Jason W. Maroney, Counsel; Thomas K. McConnell, 
     Professional Staff Member; William G. P. Monahan, Counsel; 
     Lucian L. Niemeyer, Professional Staff Member; Michael J. 
     Noblet, Professional Staff Member; Bryan D. Parker, Minority 
     Investigative Counsel; Christopher J. Paul, Professional 
     Staff Member; Cindy Pearson, Assistant Chief Clerk and 
     Security Manager; Roy F. Phillips, Professional Staff Member; 
     John H. Quirk V, Professional Staff Member; Robie I. Samanta 
     Roy, Professional Staff Member; Brian F. Sebold, Staff 
     Assistant; Russell L. Shaffer, Counsel; Michael J. Sistak, 
     Research Assistant; Travis E. Smith, Special Assistant; 
     William K. Sutey, Professional Staff Member; Diana G. Tabler, 
     Professional Staff Member; Mary Louise Wagner, Professional 
     Staff Member; Barry C. Walker, Security Officer; Richard F. 
     Walsh, Minority Counsel; Bradley S. Watson, Staff Assistant; 
     Breon N. Wells, Staff Assistant.

  Mr. LEVIN. To end my thanks--I do not see Senator McCain here. I 
think he had to leave for a few minutes.
  He is here. Let me personally thank him. I thought Senator McCain had 
to leave.
  I put in some thank-yous here on behalf of the committee, and I just 
want to tell the Senator how tremendous it is to work with him and how 
this tradition of bipartisanship in our committee has been maintained. 
The Senator is a very major part of the reason for that happening, and 
I thank him.
  Mr. McCAIN. I thank the chairman. One of the things I look back on 
with great nostalgia and appreciation is the relationship we have 
developed over many years. I must say that we have had spirited 
discussions from time to time, but they have been educational, 
enlightening, and entertaining. I thank the Senator for his leadership.
  The PRESIDING OFFICER. The majority leader.
       Mr. REID. Mr. President, I ask unanimous consent that the 
     next two votes be 10 minutes in duration.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. As the order that is now before the Senate indicates, I 
have the ability to designate who will be the speakers. We have 1 
minute on one and 1 minute on the other. Those 2 minutes will be used 
by the senior Senator from Pennsylvania, Mr. Casey.
  The PRESIDING OFFICER. Under the previous order, the Armed Services 
Committee is discharged from further consideration of H.R. 1540 and the 
Senate will proceed to its consideration; all after the enacting clause 
is stricken and the text of S. 1867, as amended, is inserted in lieu 
thereof; the bill, as amended, is considered read a third time and 
passed, and the motion to reconsider is made and laid upon the table.
  The Senate insists on its amendment, requests a conference with the 
House on the disagreeing votes of the two Houses, and the Chair 
appoints Mr. Levin, Mr. Lieberman, Mr. Reed, Mr. Akaka, Mr. Nelson of 
Nebraska, Mr. Webb, Mrs. McCaskill, Mr. Udall of Colorado, Mrs. Hagan, 
Mr. Begich, Mr. Manchin, Mrs. Shaheen, Mrs. Gillibrand, Mr. Blumenthal, 
Mr. McCain, Mr. Inhofe, Mr. Sessions, Mr. Chambliss, Mr. Wicker, Mr. 
Brown of Massachusetts, Mr. Portman, Ms. Ayotte, Ms. Collins, Mr. 
Graham, Mr. Cornyn,

[[Page 18644]]

and Mr. Vitter conferees on the part of the Senate.

                          ____________________