[Congressional Record (Bound Edition), Volume 162 (2016), Part 6]
[Senate]
[Pages 8658-8659]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  NATIONAL DEFENSE AUTHORIZATION BILL

  Mr. DURBIN. Mr. President, 2 and a half years ago, I chaired a 
hearing of the Defense Appropriations Subcommittee in which the chief 
executives of the two top rocket makers, the United Launch Alliance and 
SpaceX, testified on the need for competition in launching government 
satellites.
  Not long after that hearing, Russia began its aggression against 
Ukraine. These two issues--the threat against Ukraine and the launch of 
U.S. satellites--intersected because one company is reliant on rocket 
engines made in Russia.
  Defense appropriations bills since then have included nearly half a 
billion dollars to build a new, American-made engine to end this 
reliance on Russian engines as quickly as a replacement can be built 
and tested.
  Defense authorization bills have taken a different approach, by 
putting strict limits on the number of Russian engines that can be 
purchased before the new, American-made rocket will be ready.
  Our top national security leaders, including the Secretary of 
Defense, the Director of National Intelligence, and the Secretary of 
the Air Force, have warned that laws that halt access to Russian 
engines will endanger our ability to launch important defense and 
intelligence satellites.
  To cut-off access to Russian engines would force the Defense 
Department to buy rockets that are not cost-competitive with SpaceX 
because SpaceX's rockets cannot launch our largest satellites. The cost 
to the American taxpayer would be more than $1.5 billion, and it would 
be a risk to our national security.
  As vice chairman of the Defense Appropriations Subcommittee, I 
believe these costs and risks are too high. Many of my colleagues agree 
with this view. The chairman of the Armed Services Committee, Senator 
McCain, has a different view. He argued forcefully that we should pass 
strong laws restricting the use of these engines. We crossed swords 
many times on the floor of the Senate on this issue. Even though we 
still do not see eye-to-eye on this issue, the product of this debate 
is better because of it.
  The Nelson-Gardner amendment provides the Department of Defense with 
sufficient time to develop and test a replacement for the Russian 
rocket engine. The amendment limits the use of Russian engines for 
competitive launches to a maximum of 18, allows for a responsible 
transition to an American-made engine, and, consistent with existing 
law, does not impact the use of Russian engines purchased to support 
the EELV block buy.
  These provisions increase the pressure on DOD and the United Launch 
Alliance to keep its new rocket R&D program on-track and push them to 
use only those Russian engines that are needed to support our national 
security.
  This amendment protects the American taxpayer by avoiding billions in 
additional spending on sole-source contracts for more expensive 
rockets. It protects our national security by guaranteeing that there 
will not be a gap in our ability to launch satellites. And it protects 
our national interests by increasing the pressure to have an American-
made replacement engine ready as soon as possible.
  I would like to thank the Senators who worked tirelessly to see that 
this amendment was adopted with a strong vote in the U.S. Senate: 
Senators Nelson, Gardner, Bennet, Shelby, Cochran, Donnelly, Sessions, 
and Inhofe deserve great credit for their efforts.
  I am proud to have worked with them on this issue, and I am pleased 
that we were able to find a responsible solution that protects our 
national security and the American taxpayer.
  Mr. LEAHY. Mr. President, today the Senate approved a Defense 
authorization bill of tremendous scope and containing a number of 
harmful provisions. I was against the decision by the majority leader 
to end debate on this bill after a period of consideration that 
resulted in consideration of only a handful of the over 600 amendments 
filed. Now, I am disappointed by its passage in the Senate. A bill this 
big deserves substantial, open, public debate.
  With less than 2 weeks of debate on legislation that authorizes 
nearly $600 billion, I continue to believe that the Senate was unable 
to properly consider the bill. Not only was more time needed to explore 
and debate this lengthy bill, during the brief period of consideration 
it was given, many on both sides of the aisle, myself included, 
determined that the Defense authorization contains an assortment of 
harmful language.
  This is unfortunate, because the Defense authorization also contains 
provisions that I support. It authorizes spending to promote our 
national interests, provides vital resources to our military personnel, 
and reaffirms our commitment to partners abroad. It also furthers our 
military readiness through investment in next-generation technology. It 
is this kind of reasonable content that should be the universal rule 
for a defense authorization. Regrettably, that is only a portion of 
this bill.
  This year's Defense authorization will once again prevent the 
President from closing the detention facility at Guantanamo Bay. The 
bill would extend the unnecessary prohibition on constructing 
facilities within the United States to house Guantanamo detainees, 
continue the counterproductive ban on transferring detainees to the 
United States for detention and trial, and maintain the onerous 
certification requirements to transfer detainees to foreign countries. 
Regrettably, the bill also adds several new restrictions, including a 
provision to bar detainee transfers to any country subject to a travel 
warning by the State Department. This sweeping prohibition is 
unnecessary and would even include some of America's allies. While this 
year's bill does contain some modest improvements to current law, the 
Defense authorization once again fails to provide the Obama 
administration with the flexibility it needs to finally close the 
detention facility at Guantanamo. With the costs of more than $4 
million per year per detainee to keep the detention facility at 
Guantanamo open, I agree with our retired military leaders who tell us 
that it is in our national security interest to close the detention 
facility. Doing so is the morally and fiscally responsible thing to do, 
and I strongly oppose the needless barriers to closing Guantanamo 
contained in this bill.
  Also unfortunately, the Freedom of Information Act, FOIA, our 
Nation's premier transparency law, is directly undermined by the 
Defense authorization. Just yesterday, the House of Representatives 
passed the Senate's FOIA Improvement Act, reaffirming our commitment to 
the principle that a government of, by, and for the people cannot be 
one that is hidden from them. However, just as we are about to bring 
more sunshine into the halls of power on FOIA's 50th anniversary, this 
Defense authorization bill threatens to cast a long and dangerous 
shadow over our efforts.
  Without ever consulting the Senate Judiciary Committee, which has 
exclusive jurisdiction over FOIA, the Armed Services Committee included 
provisions in this bill that cut at the heart of FOIA. One particularly 
egregious provision would allow the Department of Defense to withhold 
from the public

[[Page 8659]]

anything ``related to'' military ``tactics, techniques, or 
procedures.'' The terms ``tactic,'' ``technique,'' and ``procedure'' 
are either defined very broadly or not at all. The provision further 
states that this information can only be withheld if its disclosure 
would ``risk impairment'' to the Department of Defense's ``effective 
operation'' by ``providing an advantage to an adversary or potential 
adversary.'' But it is entirely unclear what if any limitation this 
language would impose, given that none of the operative terms--
impairment, effective operation, advantage, or adversary--are anywhere 
defined. While the Department of Defense might call those ``terms of 
art,'' it is law and not art that the Congress passes.
  Given the breadth of this language, this provision amounts to what 
could be a wholesale carveout for the Department of Defense from our 
Nation's transparency and accountability regime. If enacted, this bill 
would empower the Pentagon to withhold a wealth of information from the 
American public. For example, the Pentagon could withhold the legal 
justifications for drone strikes against U.S. citizens, preventing the 
American people from knowing the legal basis upon which their 
government can employ lethal force against them. It could withhold from 
disclosure documents memorializing civilian killings by U.S. forces, 
depriving the American people of knowledge about the human cost of wars 
fought in their name. And if enacted, the Pentagon could withhold 
information about sexual assaults in the military, masking the true 
extent of sexual violence against servicemembers who risk their lives 
defending our country.
  In short, this bill could effectively drape a shroud of secrecy over 
all five corners of the Pentagon. It would unravel decades of work we 
have done to make our government more transparent to the American 
people and threaten the progress we have just made with the FOIA 
Improvement Act. This unprecedented disappearing act from our Nation's 
premier transparency law should have never been considered without a 
full consultation of the Senate Judiciary Committee. On the eve of 
FOIA's 50th anniversary, I urge all Senators to stand on the side of 
sunshine, not shadows, and oppose these provisions within the Defense 
authorization.
  My concerns are not limited to Guantanamo Bay and FOIA. The bill also 
includes massive changes to our military's procurement and management 
systems, rolling back reforms that have been in place since Goldwater-
Nichols and putting at risk Federal employees and businesses that sell 
to the Department. These specific sections include the elimination of 
the office that coordinates major acquisitions, separating development 
of new technology and plans for its long-term sustainment. The changes 
have been promoted under the guise of saving money and reducing bloated 
command structures, when they in fact only confuse an already complex 
process and will likely result in needless future waste.
  I also remain deeply concerned about the impact of the caps on 
general officers to the National Guard. While I was grateful to see 
that adjutants general and assistant adjutants were exempted, there are 
other joint general officers within the Guard, and I am worried hard 
caps on the number of general officers will mean that the best man or 
woman for the job becomes less important than whether the Army or the 
Air Force has space under its respective cap. I am likewise concerned 
that decoupling the statutory requirement that the Vice Chief of the 
National Guard Bureau be a lieutenant general--a decoupling that did 
not occur for the vice of any other member of the Joint Chiefs of 
Staff--will force the Army or Air Force to give up a three-star 
position to someone who statutorily does not report to their service 
secretary. I am also concerned that by removing the statutory 
requirement that the commander or deputy commander of U.S. Northern 
Command be a member of the National Guard, we run the risk of entering 
a major national disaster without a leader of the principal Federal 
response force having any experience with how the States deal with 
disasters individually and together.
  The bill includes a provision, section 1204, which would prohibit 
joint or multilateral exercises and conferences between the Department 
of Defense and the Government of Cuba, even though the Department and 
the Cubans have worked together on issues related to the security of 
Guantanamo for many years. Senator Flake and I, along with Senators 
Cardin and Durbin, proposed some exceptions to this provision in order 
to permit the Department to continue to engage with the Cubans on 
Guantanamo and to cooperate on other security matters, including search 
and rescue and counternarcotics. Unfortunately, Senator Cruz, the 
author of section 1204, was unwilling to compromise, and we were not 
able to obtain a vote on our amendment.
  Perhaps the most predictable flaw of this bill is that it continues 
the reliance on overseas contingency operations funds to operate the 
Department. The original intention of this fund has been routinely 
ignored, and it continues be used as a free-for-all spending pool. 
Borrowing to sustain our national defense objectives only increases the 
already significant burden placed on the working families who are most 
impacted by this irresponsible practice. We must put in place 
mechanisms to begin responsibly ridding ourselves of the growing debt, 
rather than continuing to employ irresponsible practices that only take 
us farther away from anything resembling a solution.
  The National Defense Authorization Act provides the Senate with a 
yearly opportunity to responsibly address our security priorities and 
to take care of our men and women in uniform, while bolstering our 
overall military capabilities. However, this year's bill proposes too 
many damaging provisions far beyond the scope of the Department of 
Defense. Despite the agreeable content found within the bill, the 
damage that will be caused by many of these measures far outweighs the 
benefits of approving this authorization. For that reason, I cannot 
give it my support.

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