[Congressional Record (Bound Edition), Volume 158 (2012), Part 13]
[Senate]
[Pages 18121-18125]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          AIR FORCE STRUCTURE

  Mr. CASEY. Mr. President, I rise to discuss the National Defense 
Authorization bill and how it will impact the structure of the Air 
Force moving forward.
  Of particular concern to me and my constituents is the Pittsburgh Air 
Reserve Station, home of the 911th Airlift Wing located outside 
Pittsburgh. In its FY13 request, the Air Force proposed the retirement 
of the installation's C-130 fleet and, by connection, the closure of 
911th. I have worked closely with the Pennsylvania delegation to fight 
against this proposed closure and I would in particular like to thank 
Senator Toomey and Congressmen Murphy, Doyle and Critz for all of their 
work on this critical issue.
  We all fought so hard against this proposed closure because we 
believe that the Air Force proposal did not reflect a thorough analysis 
of the merits of the 911th Airlift Wing, nor its associated cost 
savings. In its FY13 Force Structure proposal, the Air Force did not 
provide any analysis on how the closure of the 911th would impact the 
local community. The lack of transparency associated with the Air 
Force's initial proposal and infrastructure changes around the country 
is extremely troubling. This is why I supported the freeze and the 
establishment of the National Commission on the Structure of the Air 
Force as mandated by the FY13 NDAA reported out of the Senate Armed 
Services Committee.
  The 911th is a very efficient and cost effective unit installation 
that is truly part of the proudly patriotic community in the Pittsburgh 
area. Its aircraft maintenance program has resulted in an increase of 
aircraft availability days while saving the Pentagon more than $42 
million over the last five years. Additionally, the Pentagon pays only 
$20,000 to lease more than 100 acres for the Wing, which is a small sum 
when compared to the parallel costs at other bases and installations. 
Finally and perhaps most importantly, an incredibly skilled and 
experienced workforce is employed at the 911th installation, a 
significant and irreplaceable resource for the Air Force. It would be a 
terrible waste of taxpayer dollars if this installation were to close 
at this critical time.
  I am disappointed in the conferees for removing language that we 
voted on here in the Senate which would have frozen any infrastructure 
changes within the Air Force in FY13. I think that this decision was 
misguided and wrong.
  But I understand that the bill also requires the Air Force to 
maintain an additional combination of 32 C-130s and C-27s. I strongly 
believe that the 911th is a prime candidate for a new mission that is 
commensurate with the decades long experience of its workforce and 
support from the community. On its merits and in the interests of the 
taxpayer, a sustainable mission should be instituted at the 911th. I 
think we are in a very strong position to make that case and I look 
forward to working closely with the Air Force to protect this critical 
installation.
  It is in our National interests that our best citizens are able to 
continue serving their country. In Pittsburgh, some of these citizens 
have served our country proudly for generations. We should do all we 
can to support this tradition of service because it makes economic 
sense and is in our best national security interests.
  Mrs. FEINSTEIN. Mr. President, I rise to address the conference 
report for the National Defense Authorization Act for Fiscal Year 2013 
which we will vote on later today.
  I will vote yes on this bill as I did on last year's bill even though 
nothing in it effectively addresses indefinite military detention, 
which 67 Members of this body are now on record opposing.
  My colleagues will recall that I introduced, with a large bipartisan 
group of cosponsors, an amendment that provided that U.S. citizens and 
lawful permanent residents who are apprehended on U.S. soil cannot be 
detained indefinitely, without charge or trial. The Senate passed this 
amendment by an overwhelming bipartisan vote, 67 to 29. I am saddened 
and disappointed that this detention amendment was dropped in 
conference. I don't understand why we could not ensure that, at the 
very least, American citizens and green card holders cannot be held 
indefinitely without charge or trial. As I have said over the past few 
days, to me this is a no-brainer and is a real missed opportunity.
  The main reason I support this bill is because it authorizes $640.7 
billion for fiscal year 2013 for the Department of Defense.
  This funding ensures our troops deployed around the world--especially 
those in Afghanistan--have the equipment, resources, and training they 
need to defend this Nation. For example, the Defense bill fully funds 
the President's budget request of $5.7 billion to build the capacity of 
the Afghan National Security Forces so those forces can take over for 
U.S. forces and take the security lead throughout Afghanistan by 2014.
  The Defense authorization bill will also provide the resources 
necessary to support our defense strategies and allow our military to 
modernize equipment worn out after 11 years of war in the difficult 
battlefield environments of Afghanistan and Iraq.
  Such resources include investments in our Global Hawk unmanned 
aircraft,

[[Page 18122]]

which provide critical intelligence, surveillance and reconnaissance 
information. These aircraft have also provided crucial support for 
disaster response efforts, including for rescue workers in the wake of 
the earthquake, tsunami, and nuclear disaster in Japan.
  To increase diplomatic security around the world and so that we learn 
from the mistakes that took the lives of four Americans in Benghazi, 
this bill requires the Secretary of Defense to develop a plan to 
increase--by up to 1,000--the number of marines in the Marine Corps 
security guard program to be able to deploy them to troubled facilities 
to protect our personnel abroad.
  As I mentioned, the Senate overwhelmingly passed, on a 67 to 29 vote, 
the amendment to ban the indefinite detention of U.S. persons--citizens 
and green card holders--without charge or trial.
  The amendment would have updated the Non-Detention Act of 1971, which 
clearly states:

       No citizen shall be imprisoned or otherwise detained by the 
     United States except pursuant to an act of Congress.

  The amendment would have built on the Non-Detention Act of 1971 so 
that it applies to not just U.S. citizens but also to green card 
holders. It would have provided that no military authorization allows 
indefinite detention of U.S. citizens and green card holders 
apprehended inside the United States.
  The detention amendment stated:

       An authorization to use military force, a declaration of 
     war, or any similar authority shall not authorize the 
     detention without charge or trial of a citizen or lawful 
     permanent resident of the United States apprehended in the 
     United States unless an Act of Congress expressly authorizes 
     such detention.

  Unfortunately, as soon as the amendment passed, the language was 
misrepresented by critics on the left as well as proponents of 
indefinite military detention on the right, particularly after a 
handful of Senators who previously opposed this effort switched their 
vote at the last minute.
  Make no mistake, the amendment is not a Trojan horse designed to 
surreptitiously authorize indefinite detention in the United States. 
The text of the amendment is clear, and the legal experts I consulted 
on the amendment agree.
  For example, Stephen Vladeck of American University, a law professor 
who has litigated military detention issues in the Supreme Court and an 
expert on national security law, testified this year before the Senate 
Judiciary Committee on S. 2003, the Due Process Guarantee Act, which is 
almost identical to the detention amendment to the Defense 
authorization bill. Professor Vladeck reviewed the statements of 
support for the amendment by Senators Carl Levin and Lindsey Graham--
both of whom advocated indefinite military detention powers in the 
past.
  Professor Vladeck wrote:

       The Graham/Levin colloquy sought to cast [the Feinstein] 
     language as doing exactly the opposite of what it says, i.e., 
     as confirming that U.S. citizens can be detained even within 
     the territorial United States pursuant to the logic of the 
     Supreme Court's opinion in Hamdi [v. Rumsfeld].

  Professor Vladeck concluded that Senators Levin and Graham were 
``exactly wrong'' because ``the plain text of the bill is simply 
irreconcilable with that understanding.''
  In another article, Vladeck and Georgetown Law Professor Marty 
Lederman, another expert on military detention and national security, 
wrote:

       If it were to be enacted, the amendment would ensure that a 
     future president could not construe the September 18, 2001 
     Authorization for Use of Force (AUMF), the FY2012 NDAA, or 
     any comparable statute to authorize the military detention of 
     citizens and LPRs [lawful permanent residents] apprehended 
     within the United States.

  I agree with these law professors--with whom I worked, in fact, on 
the drafting of my bill and amendment. It is true the courts have 
previously reached ambiguous and conflicting decisions regarding 
whether U.S. persons apprehended on American soil may be subject to 
indefinite detention under the laws of war. However, far from adding to 
this ambiguity, I am confident this amendment would bring much-needed 
clarification to this area of the law.
  The Feinstein detention amendment would have updated the Non-
Detention Act of 1971 which Congress passed to repudiate the shameful 
Japanese-American internment experience during World War II. That 1971 
landmark legislation, which liberal critics of the detention amendment 
have made no effort to overturn, protected only U.S. citizens from 
detention. In contrast, the amendment broadens protections from 
indefinite detention, protecting both green card holders, called 
``lawful permanent residents'', as well as citizens.
  At a time when civil liberties are under attack, we should not let 
the perfect be the enemy of the good. As Professors Lederman and 
Vladeck note, ``The new Feinstein amendment . . . does protect the vast 
majority of persons in the United States from noncriminal detention 
without express statutory authorization. . . .''
  As I said during the floor debate on the amendment, I would support 
extending the protections in the amendment to all persons in the United 
States, whether lawfully or unlawfully present, but so far we have 
lacked sufficient support in the Senate to do this. Most Republican 
cosponsors of the bill said they would not support the legislation if 
it went that far.
  Other critics misrepresent the language of the amendment by charging 
that it could be read to imply there is an authorization to 
indefinitely detain illegal immigrants and legal visitors in the United 
States. In doing this, they ignore the language in paragraph 3 that 
explicitly prevents such an interpretation. Paragraph 3 of the 
amendment clarifies that the text to be added to the Non-Detention Act 
of 1971 ``shall not be construed to authorize the detention of a 
citizen of the United States, a lawful permanent resident of the United 
States, or any other person who is apprehended in the United States.'' 
Again, don't take my word for it. Professors Lederman and Vladeck say 
that the amendment ``would do nothing of the sort.''
  The bottom line: Indefinite military detention is incompatible with 
our values, and this amendment would have been a major step forward to 
make sure we never return to the dark chapter of American history when 
we detained Japanese-American citizens out of fear during World War II.
  Mr. President, some have pointed to section 1029 of the conference 
report and said that it accomplishes what the Feinstein amendment would 
have done. That is not true.
  The amendment offered by Congressman Gohmert regarding habeas corpus, 
which is now section 1029 of the underlying conference report, does 
nothing except restate that constitutional rights to file a habeas 
claim can't be denied.
  Consider the exact text of this section, which reads:

       SEC. 1029. RIGHTS UNAFFECTED.
       Nothing in the Authorization for Use of Military Force or 
     the National Defense Authorization Act for Fiscal Year 2012 
     shall be construed to deny the availability of the writ of 
     habeas corpus or to deny any Constitutional rights in a court 
     ordained or established by or under Article III of the 
     Constitution to any person inside the United States who would 
     be entitled to the availability of such writ or to such 
     rights in the absence of such laws.

  This provision doesn't do anything to add to the rights of 
individuals inside the United States, such as citizens, because the 
writ of habeas corpus is a constitutional right to appear before a 
judge to challenge the legality of an individual's incarceration.
  During the colonial period, habeas corpus was understood as a writ 
available to a prisoner, ordering his jailer to appear with the 
prisoner before a court of general jurisdiction and to justify the 
confinement.
  In the Constitution, after enumerating the powers of Congress, the 
drafters inserted language guaranteeing the right to habeas when they 
stated, ``The privilege of the Writ of Habeas Corpus shall not be 
suspended, unless when in Cases of Rebellion or Invasion the public 
Safety may require it.''
  So habeas is a constitutional right that already applies to all 
individuals found in the United States, and habeas

[[Page 18123]]

rights even extend to noncitizen detainees held in Guantanamo, who have 
never even set foot in the United States.
  This was the issue before the Supreme Court in the case of Rasul v. 
Bush, 2004 where, in a 6-to-3 opinion written by Justice John Paul 
Stevens, the Court found that noncitizen detainees at Guantanamo had 
habeas corpus rights. Justice Stevens also wrote that the right to 
habeas corpus is not dependent on citizenship status. The detainees 
were therefore free to bring a habeas claim challenging their detention 
as unconstitutional.
  Because the Constitution already grants this right explicitly--
legislation purporting to grant this right is ineffective and simply 
empty words, meant to make lawmakers feel good but not actually adding 
anything to the rights of the American people.
  The question is not whether Americans still have constitutional 
rights to habeas. Of course that right and others that are guaranteed 
by the Constitution remain in place. Rather, the question is, Should 
the military be allowed to indefinitely detain U.S. citizens in the 
first place? Should we allow the military to patrol our streets and 
pick up citizens? I believe the answer to that question--both here in 
the Senate and across the Nation--is a resounding no.
  So I will continue to work to correct the flaws of the Fiscal Year 
2012 National Defense Authorization Act, and I look forward to the 
continued support of the 67 of my colleagues who voted for the 
Feinstein amendment this year.
  I am confident that eventually we will build the support for this 
amendment that we need on the House side too. Therefore, it is only a 
matter of time before we prevail. The Feinstein detention amendment is 
what the American people want, and it would guarantee the fundamental 
liberty that they deserve.
  Mr. JOHNSON of South Dakota. Mr. President, last August Congress 
enacted, with broad bipartisan support, the Iran Threat Reduction and 
Syria Human Rights Act of 2012, a comprehensive sanctions bill I 
coauthored. That legislation, blending various measures introduced by 
my colleagues with new ideas developed by the Banking Committee, 
imposed a range of tough new sanctions on the Government of Iran and 
those who do business with it. This was done to tighten further the 
squeeze on Iran's major revenue sources, and force its leaders finally 
to come clean on Iran's illicit nuclear program. The third major piece 
of Iran sanctions legislation to be enacted in the last 2 years, it 
followed the Banking Committee's Comprehensive Iran Sanctions and 
Divestment Act in July of 2010, and the sanctions imposed on Iran's oil 
purchases 1 year ago. Those combined sanctions have had a powerful 
effect on Iran's economy, reducing its oil revenues by up to $5 billion 
per month, and causing the value of its currency to plummet.
  The Defense Authorization conference report being considered today 
includes a set of additional measures aimed at Iran which broaden and 
deepen U.S. sanctions against its shipping, energy, shipbuilding and 
military sectors, and those who deal with entities in these sectors. 
They also require new sanctions against those supplying Iran certain 
strategic materials, and expand the sanctions net to those who provide 
Iran certain financial or insurance services.
  All of these new sanctions, and those provided for in our legislation 
in August which will come online soon, will be implemented at a 
sensitive time, as the U.S. and our P5+1 allies prepare for what 
President Obama has described as a renewed push to develop a negotiated 
solution to this problem. The prospect of a nuclear-armed Iran is the 
most pressing foreign policy challenge we face, and we must continue to 
do all we can--politically, economically, and diplomatically--to avoid 
that result. In the coming months, it will become clear whether Iran 
will be willing finally to change course, and agree to the terms of the 
international community to bring an end to its illicit nuclear program, 
allow for intrusive international inspections of its nuclear sites and 
activities, and stop its continued support for terrorism and abuses of 
human rights. Given Iran's track record, there is considerable reason 
to be skeptical. But the President continues to press to resolve these 
issues diplomatically if possible, and if that can be done it is 
obviously preferable to any military alternative. Isolated 
diplomatically, economically, and otherwise, Iran must understand that 
the patience of the international community is fast running out. Iran's 
leaders can end the repression against their people, come clean on 
their nuclear program, suspend enrichment, and stop supporting 
terrorists around the globe, or they can continue to face sustained 
multilateral economic and diplomatic pressure and deepen their 
international isolation.
  Let me say a final word about the process. The new measures contained 
in this bill were offered as a Senate floor amendment, and did not come 
through the Banking Committee. My view has always been that any 
innovative legislative ideas that may help force Iran to engage in 
successful negotiations are worthy of serious consideration. Even so, 
in negotiating these provisions in a hurried conference committee 
process, procedural objections raised by House Ways and Means Committee 
majority staff because of the way the new provisions were offered 
prompted them to insist on inserting certain exceptions related to 
import restrictions on certain goods. While I regret that these 
exceptions were added by the conferees, and think they may need to be 
addressed in future legislation, they cannot be allowed to weaken or 
undermine implementation of these sanctions or of the broader sanctions 
regime already in place. Our staff worked hard, on a bipartisan basis, 
to ensure that the final version preserves all of the President's very 
powerful sanctions tools provided for under the International Emergency 
Economic Powers Act, and does not undermine that authority in any way. 
I am concerned that as we forward on sanctions an approach which is 
inattentive to these existing authorities might actually 
unintentionally undermine them.
  As we all recognize, economic sanctions are not an end--they are a 
means to an end--to apply enough pressure to secure agreement from 
Iran's leaders to fully, completely and verifiably abandon their 
illicit nuclear activities. The Banking Committee will continue to 
assertively oversee the President's implementation of the comprehensive 
sanctions regime, and do all we can to provide all the tools he needs 
to resolve these issues with Iran.
  Mr. McCAIN. Mr. President, I yield the remainder of our time.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, let me thank Senator Pryor for his 
tremendous contribution to this bill and to this body. The fight he is 
waging here is the correct fight. This was not done well by the Air 
Force, to put it mildly. We froze it. They amended it. We have some 
problems with the amendment, but we had to reach a compromise with the 
House, which favored their modified bill, and there are some rough 
edges to it.
  The Senator from Arkansas has very eloquently pointed out one of 
those rough edges. We put in this place in this bill a commission to 
try to avoid these kinds of problems in the future. That does not help 
this year. I wish it could. But, nonetheless, it is because of the 
efforts of the Senator from Arkansas and others, who pointed out the 
defects in the process this year, that we have been able to, hopefully, 
avoid a repetition of this in the future. I thank him for the many 
contributions he has made to this bill. His fight for his home State is 
passionate and effective, and I commend him for it.
  Mr. President, I yield back our time, if we have any remaining.
  The PRESIDING OFFICER. All time is yielded back.
  The question is on the adoption of the conference report.
  Mr. McCAIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.

[[Page 18124]]

  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Massachusetts (Mr. Brown), the Senator from South Carolina (Mr. 
DeMint), the Senator from Illinois (Mr. Kirk), and the Senator from 
Kansas (Mr. Moran).
  The PRESIDING OFFICER (Mr. Franken). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 81, nays 14, as follows:

                      [Rollcall Vote No. 229 Leg.]

                                YEAS--81

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

                                NAYS--14

     Barrasso
     Crapo
     Durbin
     Enzi
     Franken
     Grassley
     Harkin
     Leahy
     Lee
     Merkley
     Paul
     Risch
     Sanders
     Wyden

                             NOT VOTING--4

     Brown (MA)
     DeMint
     Kirk
     Moran
  The conference report was agreed to.
  Mr. HARKIN. Mr. President, as a Senator, I have no greater 
responsibility than to work to ensure our Nation's security. Our Armed 
Forces must have the tools they need to keep our country safe. That is 
why I support the vast majority of the provisions in the National 
Defense Authorization Act and why I supported the bill that passed the 
Senate. I particularly note provisions that increase pay and benefits 
for our servicemembers and retirees, ensure a drawdown of our troops in 
Afghanistan, allow female servicemembers access to basic health 
services if they are victims of sexual assault, and limit the annual 
increases in TRICARE prescription drug premiums. All of these 
provisions I support and believe are important.
  I oppose this bill because I do not believe it adequately reflects 
our principles. I believe we can do a better job of protecting our 
national security without compromising important values than what is 
contained in this legislation.
  This Nation has long been a beacon of liberty and a champion of 
rights throughout the world. Yet since 9/11, in the name of security, 
we have repeatedly betrayed our highest values. The past administration 
believed it could eavesdrop on Americans without a warrant or court 
order. It utilized interrogation techniques long considered immoral, 
ineffective, and illegal, regardless of laws and treaties. And, it 
intentionally sought to put detainees beyond the rule of law. 
Thankfully, the current administration has ended the worst abuses of 
these practices, despite the efforts of some of my colleagues to stymie 
these efforts.
  However, I am deeply concerned that the conference report continues 
us on a dangerous path of sacrificing long-held principles.
  To begin, this bill fails to make clear that under no circumstance 
can an American citizen be detained indefinitely without trial. When 
the bill was considered in the Senate, I was proud to join 66 of my 
colleagues in supporting an amendment, authored by Senator Feinstein, 
which sought to clarify that the law does not authorize the President 
to indefinitely detain an American seized in the United States and 
indefinitely detain them without charges and without due process. I am 
heartened that President Obama has made clear he will not attempt to 
exercise such power, but I am greatly disappointed that the conference 
report omitted this language.
  Moreover, the bill would make it much more difficult to close the 
detention center at Guantanamo Bay. There simply is no compelling 
reason to keep the facility open and not to bring these detainees to 
maximum security facilities within the United States. The detention 
center has been, and continues to be, a stain on our Nation's honor. I 
agree with former Secretary of State Colin Powell who said ``we have 
shaken the belief that the world had in America's justice system by 
keeping [the detention center at Guantanamo Bay] open. We don't need it 
and it's causing us far more damage than any good we get for it.''
  In the immediate aftermath of 9/11, the Bush administration declared 
a broad and open-ended ``war on terror.'' I have always considered this 
a flawed description of the challenge that confronted us after the 9/11 
attacks. After all, ``terror'' is an endlessly broad and vague term. 
And a ``war on terror'' is a war that can never end, because terrorism 
and terrorists will always be with us. Because of the never-ending 
nature of this so-called ``war on terror,'' it offers a rationale for 
restricting civil liberties indefinitely. This is not healthy for our 
democracy or for our ability to inspire other countries to abide by 
democratic principles.
  We will not overcome terrorism with secret prisons, with torture, 
with degrading treatment, with individuals denied basic rights. Rather, 
we shall overcome it by staying true to our highest values and by 
insisting on legal safeguards that are the very basis of our system of 
government and freedom.
  Mr. LEAHY. Mr. President, today, the Senate voted, by voice vote, to 
approve the conference report to accompany H.R. 4310, the National 
Defense Authorization Act (NDAA) for Fiscal Year 2013. As it always 
does, the NDAA included a number of important provisions, including 
critical authorizations for our troops in uniform, for essential 
defense programs to promote and protect our national security both at 
home and abroad, and for important programs that keep ours the greatest 
military in the world.
  The conference report approved today also includes two important 
provisions which I was proud to support. The Dale Long Public Safety 
Officers Benefits Improvements Act will fill a gap in existing law and 
extend the Federal Public Safety Officers/Benefits program to 
paramedics and emergency medical technicians who work or volunteer for 
nonprofit ambulance services, and their families, when they are 
disabled or killed in the line of duty. And important measures relating 
to Department of Defense law enforcement officers are also included.
  While I am pleased this conference report includes important elements 
such as these, I remain deeply concerned about several troubling 
provisions that remain in the law relating to the indefinite detention 
of individuals without charge or trial and the conference report drops 
the Senate amendment we adopted to protect against abuses. The 
indefinite detention and mandatory detention provisions that were 
enacted in last year's defense authorization bill undermine our 
Nation's fundamental principles of due process and civil liberties, and 
I have worked to eliminate or fix these flawed provisions.
  Earlier this month, during debate on the Senate bill, we took a 
positive step toward fixing these flawed provisions by adopting an 
amendment offered by Senator Feinstein that I supported to clarify that 
our government cannot detain indefinitely any citizen or legal 
permanent resident apprehended in the United States. More than two-
thirds of the Senate voted in favor of this amendment, and I viewed 
this as a constructive part of our efforts to undo some of the damage 
from last year's NDAA. During the Senate debate on the detention 
provisions this year, I stated again my belief that the vital 
protections of our Constitution extend to all persons here in the 
United States, regardless of citizenship or immigration status. 
Nonetheless, I voted for this amendment to affirm that indefinite 
detention has no place in our justice system.

[[Page 18125]]

  Inexplicably, however, the Feinstein amendment was stripped from the 
final bill during conference negotiations between the House and Senate. 
Despite such broad Senate support for the Feinstein amendment, the 
conference report no longer expressly reaffirms that U.S. citizens and 
legal permanent residents in America cannot be detained indefinitely 
without charge or trial. Instead, we are left with the status quo of 
restrictions and prohibitions on the transfer of detainees that leaves 
us no closer to closing the detention facility at Guantanamo once and 
for all.
  I have repeatedly said that I am fundamentally opposed to indefinite 
detention without charge or trial. I fought against the Bush 
administration policies that led to the current situation, with 
indefinite detention as the de facto policy. I opposed President 
Obama's executive order in March 2011 that contemplated indefinite 
detention, and I helped lead the efforts against the detention-related 
provisions in last year's NDAA. A policy of indefinite detention has no 
place in the justice system of any democracy--let alone the greatest 
democracy in the world.
  The American justice system is the envy of the world, and a regime of 
indefinite detention diminishes the credibility of this great Nation 
around the globe, particularly when we criticize other governments for 
engaging in such conduct, and as new governments in the midst of 
establishing legal systems look to us as a model of justice. Indefinite 
detention contradicts the most basic principles of law that I have 
pledged to uphold since my years as a prosecutor and in our senatorial 
oath to defend the Constitution. That is why I have opposed and will 
continue to oppose indefinite detention.
  In addition to failing to rectify the indefinite detention provisions 
from last year's NDAA in the conference report, I also continue to be 
deeply disturbed by the mandatory military detention provisions that 
were included in last year's NDAA through Section 1022. In the fight 
against al Qaida and other terrorist threats, we should give our 
intelligence, military, and law enforcement professionals all the tools 
they need. These limitations abandon our full arsenal of powers. I 
remain concerned that the mandatory military detention requirements are 
overly broad and threaten core constitutional principles. Once 
sacrificed, our treasured constitutional protections are not easily 
restored. After all, the policy directive of this President can be 
undone by a future administration.
  I find the detention provisions enacted through last year's NDAA and 
the failure to fix them this year deeply troublesome. I am also 
concerned about the extension of overly burdensome restrictions and 
conditions on the transfer of detainees from Guantanamo, even those who 
have already been found to have had no connection to terrorism. These 
provisions do not represent Vermont values, they do not represent 
American values, and they have no place in this world. As a result of 
the failure of the conferees to seriously address these fundamental 
wrongdoings and support the principles of our Constitution, I am unable 
to support final passage of this year's NDAA. Moving forward, as I did 
last year, I hope to foster a broader discussion about these issues and 
work to make concrete changes to protect American values and champion 
the rule of law. We need a bipartisan effort to guarantee that the 
United States remains the model for the rule of law to the world.
  There is one additional provision that has been excluded from this 
conference report that is of concern to me and a number of Senators and 
Congressmen. Both the House and Senate approved in their defense 
authorization bills language to freeze Air National Guard and Air Force 
Reserve manpower and force structure in the wake of the Air Force's 
announced intention to disproportionately target the National Guard as 
it prepared for Budget Control Act cuts. I joined Senator Graham, 
Representative Hunter and Representative Walz in leading a letter to 
the conferees signed by 87 members of Congress in support of continuing 
the freeze and preserving the National Commission on the Structure of 
the Air Force which was included in the Senate-passed Defense 
Authorization Act.
  I was surprised to see that the conferees rewrote these provisions, 
instead adopting in this conference report an Air Force proposal that 
had been neither reviewed nor debated by either chamber. While the 
final conference report does preserve the National Commission on the 
Structure of the Air Force, I believe it does not go far enough to 
protect the fundamental needs and strength of our Air National Guard.
  I will continue to work with others here in Congress who believe, as 
I do, that the Guard represents much of what is best about our 
country's military.

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