[Congressional Record Volume 157, Number 181 (Tuesday, November 29, 2011)]
[Senate]
[Pages S7943-S7956]



        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 1867, which the clerk will 
report.
  The legislative 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:

       Levin/McCain amendment No. 1092, to bolster the detection 
     and avoidance of counterfeit electronic parts.
       Paul/Gillibrand amendment No. 1064, to repeal the 
     Authorization for Use of Military Force Against Iraq 
     Resolution of 2002.
       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 
     Armed Forces to detain citizens of the United States under 
     section 1031.
       Udall (CO) amendment No. 1107, to revise the provisions 
     relating to detainee matters.
       Landrieu/Snowe amendment No. 1115, to reauthorize and 
     improve the SBIR and STTR programs, and for other purposes.
       Franken amendment No. 1197, to require contractors to make 
     timely payments to subcontractors that are small business 
     concerns.
       Cardin/Mikulski amendment No. 1073, to prohibit expansion 
     or operation of the District of Columbia National Guard Youth 
     Challenge Program in Anne Arundel County, MD.
       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.
       Begich amendment No. 1149, to authorize a land conveyance 
     and exchange at Joint Base Elmendorf-Richardson, Alaska.
       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.
       Collins/Shaheen amendment No. 1180, relating to man-
     portable air-defense systems originating from Libya.
       Inhofe amendment No. 1094, to include the Department of 
     Commerce in contract authority using competitive procedures 
     but excluding particular sources for establishing certain 
     research and development capabilities.
       Inhofe amendment No. 1095, to express the sense of the 
     Senate on the importance of addressing deficiencies in mental 
     health counseling.
       Inhofe amendment No. 1096, to express the sense of the 
     Senate on treatment options for members of the Armed Forces 
     and veterans for traumatic brain injury and post-traumatic 
     stress disorder.
       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. 1098, to require a report on the 
     impact of foreign boycotts on the defense industrial base.
       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. 1101, to strike section 156, relating 
     to a transfer of Air Force C-12 aircraft to the Army.
       Inhofe amendment No. 1102, to require a report on the 
     feasibility of using unmanned aerial systems to perform 
     airborne inspection of navigational aids in foreign airspace.
       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. 1215, to require a certification on 
     efforts by the Government of Pakistan to implement a strategy 
     to counterimprovised explosive devices.
       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. 1066, to modify the 
     Financial Improvement and Audit Readiness Plan to provide 
     that a complete and validated full statement of budget 
     resources is ready by not later than September 30, 2014.
       McCain (for Ayotte) modified amendment No. 1067, to require 
     notification of Congress with respect to the initial custody 
     and further disposition of members of al-Qaida and affiliated 
     entities.
       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.
       McCain (for Wicker) amendment No. 1056, to provide for the 
     freedom of conscience of military chaplains with respect to 
     the performance of marriages.
       McCain (for Wicker) amendment No. 1116, to improve the 
     transition of members of the Armed Forces with experience in 
     the operation of certain motor vehicles into careers 
     operating commercial motor vehicles in the private sector.
       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. 1172, to require a report 
     outlining a plan to end reimbursements from the Coalition 
     Support Fund to the Government of Pakistan for operations 
     conducted in support of Operation Enduring Freedom.
       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

[[Page S7944]]

     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. 1257, 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 McCain) modified amendment No. 1230, to modify 
     the annual adjustment in enrollment fees for TRICARE Prime.
       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) amendment No. 1246, to establish a 
     commission to study the U.S. force posture in East Asia and 
     the Pacific region.
       Ayotte (for McCain) amendment No. 1229, to provide for 
     greater cyber security collaboration between the Department 
     of Defense and the Department of Homeland Security.
       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/Ayotte) amendment No. 1132, to require a 
     plan to ensure audit readiness of statements of budgetary 
     resources.
       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. 1250, to require the 
     Secretary of Defense to submit a report on the probationary 
     period in the development of the short takeoff, vertical 
     landing variant of the Joint Strike Fighter.
       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. 1183, to require the maintenance of 
     a triad of strategic nuclear delivery systems.
       Sessions amendment No. 1184, to limit any reduction in the 
     number of surface combatants of the Navy below 313 vessels.
       Sessions amendment No. 1185, to require a report on a 
     missile defense site on the east coast of the United States.
       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.
       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. 1260, to strike 846, 
     relating to a waiver of ``Buy American'' requirements for 
     procurement of components otherwise producible overseas with 
     specialty metal not produced in the United States.
       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. 1262, to clarify the 
     meaning of ``produced'' for purposes of limitations on the 
     procurement by the Department of Defense of specialty metals 
     within the United States.
       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. 1210, to require an 
     assessment of the advisability of stationing additional DDG-
     51 class destroyers at Naval Station Mayport, Florida.
       Levin (for Nelson (FL)) amendment No. 1236, to require a 
     report on the effects of changing flag officer positions 
     within the Air Force Materiel 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 McCain) amendment No. 1281, to require a plan 
     for normalizing defense cooperation with the Republic of 
     Georgia.
       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 Blunt) amendment No. 1134, to require a report 
     on the policies and practices of the Navy for naming vessels 
     of the Navy.
       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.

  The ACTING PRESIDENT pro tempore. The Senator from Michigan is 
recognized.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the time 
between now and 12:15 be equally divided between myself, working with 
Senator McCain in opposition to the Udall amendment, and controlled by 
Senator Udall.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LEVIN. I understand there is a pending UC that Senator Udall is 
to be recognized.
  The ACTING PRESIDENT pro tempore. Yes. Under the previous order, the 
Senator from Colorado is recognized.


                           Amendment No. 1107

  Mr. UDALL of Colorado. Mr. President, I rise this morning to speak in

[[Page S7945]]

favor of amendment 1107. First, let me say that I know how hard 
Chairman Levin and Ranking Member McCain have worked to craft a Defense 
Authorization Act to provide our Armed Forces with the equipment, 
services, and support they need to keep us safe. I also thank my 
colleagues from the Armed Services Committee, a number of whom I see on 
the floor this morning, for their diligence and dedication to this 
important work.
  With that, let me turn to the amendment itself. I want to start by 
thanking the cosponsors of the amendment. They include the chairwoman 
of the Intelligence Committee, Senator Feinstein; the chairman of the 
Judiciary Committee, Senator Leahy; and Senator Webb, a former 
Secretary of the Navy, someone whom I think we all respect when it 
comes to national security issues.
  I also point out that this amendment is bipartisan. Senator Rand Paul 
joined as a cosponsor this morning and gave a very compelling floor 
speech a few minutes ago. Senators Wyden and Durbin have also recently 
cosponsored it. I recognize their leadership as well.
  Let me turn to the amendment itself. A growing number of our 
colleagues have strong concerns about the detainee provisions in this 
bill. At the heart of our concern is the concern that we have not taken 
enough time to listen to our counterterrorism community and have not 
heeded the warnings of the Secretary of Defense, Director of National 
Intelligence, and the Director of the FBI, who all oppose these 
provisions. Equally concerning, we have not had a single hearing on the 
detainee matters to fully understand the implications of our actions.
  My amendment would take out these provisions and give us in the 
Congress an opportunity to take a hard look at the needs of our 
counterterrorism professionals and respond in a measured way that 
reflects the input of those who are actually fighting our 
enemies. Specifically, the amendment would require that our Defense 
intelligence and law enforcement agencies report to Congress with 
recommendations for any additional authorities or flexibility they need 
in order to detain and prosecute terrorists. My amendment would then 
ask for hearings to be held so we can fully understand the views of 
relevant national security experts.

  In other words, I am saying let's ask our dedicated men and women who 
are actually fighting to protect Americans what they actually need to 
keep us safe. This is a marked departure, in my opinion, from the 
current language in the bill, which was developed without hearings, and 
seeks to make changes to the law that our national security 
professionals do not want and even oppose, as I pointed out.
  Like other challenging issues we face here in the Senate, we should 
identify the problem, hold hearings, gather input from those affected 
by our actions, and then seek to find the most prudent solution. 
Instead, we have language in the bill, which, while well intended--of 
that there is no doubt--was developed behind closed doors and is being 
moved rather quickly through our Congress. The Secretary of Defense is 
warning us we may be making mistakes that will hurt our capacity to 
fight terrorism at home and abroad. The Director of National 
Intelligence is telling us this language will create more problems than 
it solves. The Director of the FBI is telling Congress these provisions 
will erect hurdles that will make it more difficult for our law 
enforcement officials to collaborate in their effort to protect 
American citizens. And the President's national security staff is 
recommending a veto of the entire Defense authorization bill if these 
provisions remain in the bill.
  With this full spectrum of highly respected officials and top 
counterterrorism professionals warning Congress not to pass these 
provisions, we are being asked to reject their advice and pass them 
anyway--again, without any hearings or further deliberation. I don't 
know what others think, but I don't think this is what the people of 
Colorado expect us to do, and it is not how I envision the Senate 
operating.
  The provisions would dramatically change broad counterterrorism 
efforts by requiring law enforcement officials to step aside and ask 
the Department of Defense to take on a new role they are not fully 
equipped for and do not want. And by taking away the flexible 
decisionmaking capacity of our national security team, by forcing the 
military to now act as police, judge, and jailer, these provisions 
could effectively rebuild walls between our military law enforcement 
and intelligence communities that we have spent a decade tearing down.
  The provisions that are in the bill--to me and many others--appear to 
require the DOD to shift significant resources away from their mission 
to serve on all fronts all over the world. This has real consequences, 
because we have limited resources and limited manpower. Again, I want 
to say that I don't think we would lose anything by taking a little 
more time to discuss and debate these provisions, but we could do real 
harm to our national security efforts by allowing this language to 
pass, and that is exactly what our highest ranking national security 
officers are warning us against doing.
  You will note I am speaking in the broadest terms here, but I did 
want to speak to one particular area of concern, to give viewers and my 
colleagues a sense of what we face.
  The provisions authorize the indefinite military detention of 
American citizens who are suspected of involvement in terrorism--even 
those captured here in our own country, in the United States--which I 
think should concern each and every one of us. These provisions could 
well represent an unprecedented threat to our constitutional liberties. 
Let me explain why I think that is the case.
  Look, I agree if an American citizen joins al-Qaida and takes up arms 
against the United States that person should be subject to the same 
process as any other enemy combatant. But what is not clear is what we 
do with someone arrested in his home because of suspected terrorist 
ties. These detainee provisions would authorize that person's 
indefinite detention, but it misses a critical point. How do we know a 
citizen has committed these crimes unless they are tried and convicted? 
Do we want to open the door to domestic military police powers and 
possibly deny U.S. citizens their due process rights? If we do, I think 
that is at least something that is worthy of a hearing, and the 
American people should be made aware of the changes that will be 
forthcoming in the way we approach civil liberties. But since our 
counterterrorism officials are telling us these provisions are a 
mistake, I am not willing to both potentially limit our fight against 
terrorism and simultaneously threaten the constitutional freedoms 
Americans hold dear.
  As I begin my remarks, I hope I have projected my belief we have a 
solemn obligation to pass the National Defense Authorization Act, but 
we also have a solemn obligation to make sure those who are fighting 
the war on terror have the best, most flexible, most powerful tools 
possible. To be perfectly frank, I am worried these provisions will 
disrupt our ability to combat terrorism and inject untested legal 
ambiguity into our military's operations and detention practices.
  We will hear some of our colleagues tell us not to worry because the 
detainee provisions are designed not to hurt our counterterrorism 
efforts. We all know the best laid plans can have unintended 
consequences. While I am sure the drafters of this language intended 
the provisions to be interpreted in a way that does not cause problems, 
the counterterrorism community disagrees and has outlined some very 
serious real world concerns. Stating in the language there will not be 
any adverse effects on national security doesn't make it so. These are 
not just words in a proposed law. And those who will be chartered to 
actually carry out these provisions are urging us to reject them. 
Shouldn't we listen to their serious concerns? Shouldn't we think twice 
about passing these provisions?
  I have not received a single phone call from a counterterrorism 
expert, a professional in the field, or a senior military official 
urging us to pass these provisions. We have heard a wide range of 
concerns expressed about the unintended consequences of enacting these 
detainee provisions but not a single voice outside of Congress telling 
us this will help us protect Americans or make us safer.
  In addition to our national security team, which is urging us to 
oppose these provisions, other important voices are also asking us to 
stop, to slow down, and to consider them more

[[Page S7946]]

thoroughly. The American Bar Association, the ACLU, the International 
Red Cross, the American Legion, and a number of other groups have also 
expressed a wide range of serious concerns.
  Again, I want to underline, although the language was crafted with 
the best of intentions, there are simply too many questions about the 
unintended consequences of these provisions to allow them to move 
forward without further input from national security experts through 
holding hearings and engaging in further debate.
  I am privileged to be a member of the Armed Services Committee. I am 
truly honored. As I have implied, and I want to be explicit, I 
understand the importance of this bill. I understand what it does for 
our military, which is why, in sum, what I am going to propose with my 
amendment is that we pass the NDAA without these troubling provisions 
but with a mechanism by which we can consider in depth what is proposed 
and, at a later date, include any applicable changes in the law. It is 
not only the right thing to do policywise, it may very well protect 
this bill from a veto. The clearest path toward giving our men and 
women in uniform the tools they need is to pass this amendment and then 
send a clean National Defense Authorization Act to the President.
  In the Statement of Administration Policy, the President says the 
following--and I should again mention in the Statement of 
Administration Policy there is a recommendation the President veto the 
bill.

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

  These are striking words. They should give us all pause as we face 
what seems to be a bit of a rush to pass these untested and legally 
controversial restrictions on our ability to prosecute terrorists.

  I want to begin to close, and in so doing I urge my colleagues to 
think about the precedent we would set by passing these provisions. We 
are being told these detainee provisions are so important we must pass 
them right away, without a hearing or further deliberation. However, 
the Secretary of Defense, at the same time, along with the Director of 
National Intelligence and the Director of the FBI, are all urging us to 
reject the provisions and take a closer look. Do we want to neglect the 
advice of our trusted national security professionals? I can't think of 
another instance where we would rebuff those who are chartered with 
keeping us safe.
  If we in the Congress want to constrain the military and give our 
servicemembers new responsibilities, as these provisions would do, I 
believe we should listen to what the Secretary of Defense has had to 
say about it. Secretary Panetta is strongly opposed to these changes, 
and I think we all know before he held the job he has now, Secretary of 
Defense Panetta was the Director of the CIA. He knows very well the 
threats facing our country, and he knows we cannot afford to make any 
mistakes when it comes to keeping our citizens safe. We have to be 
right every time. The bad guys only have to be right once.
  This is a debate we need to have. It is a healthy debate. But we 
ought to be armed with all the facts and expertise before we move 
forward. The least we can do is take our time, be diligent, and hear 
from those who will be affected by these new and significant changes in 
how we interrogate and prosecute terrorists. As I have said before, it 
concerns me we would tell our national security leadership--a 
bipartisan national security leadership, by the way--that we will not 
listen to them and that Congress knows better than they do. It doesn't 
strike me that is the best way to secure and protect the American 
people.
  That is why I filed amendment No. 1107. I think my amendment is a 
commonsense alternative that will protect our constitutional principles 
and beliefs while continuing to keep our Nation safe. The amendment has 
a clear aim, which is to ensure we follow a thorough process and hear 
all views before rushing forward with new laws that could be harmful to 
our national security. It is straightforward, it is common sense, and I 
urge my colleagues to support the amendment.
  Mr. President, I thank you for your attention, and I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, we have approximately a half hour on each 
side. I am wondering how much time Senator Graham needs?
  Mr. GRAHAM. Ten minutes. Is that too much? Five minutes.
  Mr. LEVIN. Could you do 5 minutes?
  Mr. GRAHAM. Seven?
  Mr. LEVIN. We have, I think, seven speakers on this side.
  Mr. GRAHAM. I will try to be quick.
  Mr. LEVIN. Can you try to do 8 minutes?
  Mr. GRAHAM. I will try to do it as quickly as I can.
  Mr. LEVIN. I yield 8 minutes.
  Mr. McCAIN. I object. We have had a long time from the sponsor of the 
amendment, the chief proponent; we are going to have 10 minutes from 
the Senator of Illinois. So I yield to the Senator from South Carolina 
10 minutes.
  Mr. LEVIN. The Senator from Arizona will control, if this is all 
right with the Senator, half of our time. Will that be all right?
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. GRAHAM. If the Chair will let me know when 5 minutes has passed, 
because there are a lot of voices to be heard on this issue, and I want 
them to be heard. I am just one.
  The ACTING PRESIDENT pro tempore. The Chair will so advise.
  Mr. GRAHAM. Let me start with my good friend from Colorado. I respect 
the Senator; I know his concerns. I don't agree.
  I can remember being told by the Bush administration: We don't need 
the Detainee Treatment Act. Everybody said we didn't need it, but they 
were wrong. I remember being told by the Vice President's office during 
the Bush administration: It is OK to take classified evidence, show it 
to the jury, the finder of fact, and not share it with the accused, but 
you can share it with his lawyer.
  How would you like an American soldier tried in a foreign land, where 
they are sitting there in the chair wondering what the jury is talking 
about and can't even comment to their own lawyer about the allegations 
against them?
  I have been down this road with administrations and we worked in a 
bipartisan fashion to change some things the Bush administration wanted 
to do and I am glad we did it. We are working in a bipartisan fashion 
to change some things this administration is doing, and I hope we are 
successful, because if we fail, we are all going to be worse for it.
  Here are the facts: Under this provision of mandatory military 
custody, for someone captured in the United States, if they are an 
American citizen, that provision does not apply to them. But here is 
the law of the land right now: If they are an American citizen 
suspected of joining al-Qaida, being a member of al-Qaida, they can be 
held as an enemy combatant.
  The Padilla case in South Carolina, where the man was held 5 years as 
an enemy combatant, went to the Fourth Circuit Court of Appeals, and 
here is what that court said: You can interrogate that person in an 
intelligence-gathering situation. The only thing you have to do is 
provide them a lawyer for their habeas appeal review.
  So here are the due process rights: If our intelligence community or 
military believe an American citizen is suspected of being a member of 
al-Qaida, the law of the land the way it is today, an American citizen 
can be held as an enemy combatant and questioned about what role they 
play in helping al-Qaida, and they do get due process. Everybody held 
as an enemy here, at Guantanamo Bay, captured in the United States, 
goes before the Federal judge, and the government has to prove, by a 
preponderance of the evidence, that the person is, in fact, an enemy 
combatant. There is due process. We don't hold someone and say: Good 
luck. They have to go before a judge--a Federal court--and prove their 
case as the government.

[[Page S7947]]

  Here is the question for the country. Is it OK to hold, under 
military control, an American citizen who is suspected of helping al-
Qaida? You had better believe it is OK.
  My good friend from Colorado said this repeals the Posse Comitatus 
Act. The Posse Comitatus Act is a prohibition on our military being 
used for law enforcement functions, and it goes back to reconstruction.
  This is the central difference between us. I don't believe fighting 
al-Qaida is a law enforcement function. I believe our military should 
be deeply involved in fighting these guys at home and abroad. The idea 
of somehow allowing our military to hold someone captured in the United 
States is a repeal of the Posse Comitatus Act, you would have to 
conclude that you view that as a law enforcement function, where the 
military has no reason or right to be there. That is the big difference 
between us. I don't want to criminalize the war.
  To Senator Levin, thank you for helping us this time around craft a 
bipartisan solution to a very real problem. The enemy is all over the 
world and here at home. When people take up arms against the United 
States and are captured within the United States, why should we not be 
able to use our military and intelligence community to question that 
person as to what they know about enemy activity? The only way we can 
do that is hold them in military custody, and this provision can be 
waived. It doesn't apply to American citizens. But the idea that an 
American citizen helping al-Qaida doesn't get due process is a lie. 
They go before a Federal court and the government has to prove they are 
part of al-Qaida.
  Let me ask this to my colleagues on the other side. What if the judge 
agrees with the military or the intelligence community making the case? 
Are you going to require us to shut down the intelligence-gathering 
process, read them their rights, and put them in Federal court? That is 
exactly what you want, and that will destroy our ability to make us 
safe. If an American citizen is held by the intelligence community or 
the military and a Federal judge agrees they were, in fact, a part of 
the enemy force, that American citizen should be interrogated to find 
out what they know about the enemy, in a lawful way, and you should not 
require this country to criminalize what is an act of war against the 
people of the United States. They should not be read their Miranda 
rights. They should not be given a lawyer. They should be held humanely 
in military custody and interrogated about why they joined al-Qaida and 
what they were going to do to all of us. So this provision not only is 
necessary to deal with real-world events; it is written in the most 
flexible way possible.
  To this administration, the reason we are on the floor today is it 
was your idea to take Khalid Shaikh Mohammed and put him in New York 
City and give him the rights of an American citizen and criminalize the 
war by taking the mastermind of 9/11 and making it a crime and not an 
act of war.
  The ACTING PRESIDENT pro tempore. The Senator has spoken for 5 
minutes.
  Mr. GRAHAM. Thank you. I will wrap up.
  To Senator Levin and Senator McCain, what they are accusing the 
Senators of doing is not true. They are codifying a process that will 
allow us to intelligently and rationally deal with people who are part 
of al-Qaida, not political dissidents.
  If someone doesn't like President Obama, we are not going to arrest 
them. I am getting phone calls about that. That is a bunch of garbage. 
A person can say anything they want about the President or me, they 
just can't join al-Qaida and expect to be treated as if it were a 
common crime. When someone joins al-Qaida, they haven't joined the 
Mafia. They are not joining a gang. They are joining people who are 
bent on our destruction, and they are a military threat. If you don't 
believe they are a military threat, vote for Senator Udall. If you 
believe al-Qaida represents a threat to us at home and abroad, give our 
intelligence and military agencies statutory guidance and authority to 
do things that need to be clear rather than uncertain.
  We are 10 years into this war. Congress needs to speak. This is your 
chance to speak. I am speaking today. Here is what I am saying to my 
colleagues on the other side and to the world at large: If you join al-
Qaida, you suffer the consequences of being killed or captured. If you 
are an American citizen and you betray your country, you are going to 
be held in military custody and you are going to be questioned about 
what you know. You are not going to be given a lawyer if our national 
security interests dictate that you not be given a lawyer and go into 
the criminal justice system because we are not fighting a crime, we are 
fighting a war.
  There is more due process in this bill than at any other time in any 
other war. I am proud of the work product. There are checks and 
balances in this bill that we have been working on for 10 years. The 
mandatory provisions do not apply to American citizens. They can be 
waived if they impede in an investigation. We are trying to provide 
tools and clarity that have been missing for 10 years. This is your 
chance to speak on the central issue 10 years after the attacks of 9/
11. Are we at war or are we fighting a crime? I believe we are at war, 
and the due process rights associated with war are in abundance and 
beyond anything ever known in any other war.
  What this amendment does is it destroys the central concept that we 
are trying to present to the body and to the country; that we are 
facing an enemy--and not a common criminal organization--that will do 
anything and everything possible to destroy our way of life. Let's give 
our law enforcement and military community the clarity they have been 
seeking and I think now they will have.

  To the administration, with all due respect, you have engaged in one 
episode after another to run away from the fact that we are fighting a 
war and not a crime. When the Bush administration tried to pass 
policies that undercut our ability to fight this war and maintain our 
values, I pushed back. I am not asking any more of the people on the 
other side than I ask of myself. When the Bush administration asked me, 
and others, to do things that I thought undercut our values, I said no. 
Now we have an opportunity to tell this administration we respect their 
input, but what we are trying to do needs to be done, not for just this 
time but for the future.
  Ladies and gentlemen, either we are going to fight this war to win it 
and to keep us safe or we are going to lose the concept that there is a 
difference between taking up arms against the United States and being a 
common criminal.
  In conclusion, Khalid Shaikh Mohammed and all those who buy into what 
he is selling present a threat to us far different than any common 
criminal, and our laws should reflect that.
  Senators Levin and McCain have created a legal system for the first 
time in 10 years that recognizes we are fighting a war within our 
values. I hope we get a strong bipartisan vote for the tools in this 
bill.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, how much time do we have 
remaining?
  The ACTING PRESIDENT pro tempore. The Senator has 15\1/2\ minutes.
  Mr. UDALL of Colorado. Before I recognize Senator Durbin for 8 
minutes, I just wish to respond to my friend, the Senator from South 
Carolina.
  Mr. McCAIN. Mr. President, how much time is on this side?
  The ACTING PRESIDENT pro tempore. There is 5 minutes remaining.
  Mr. UDALL of Colorado. The Senator from South Carolina is broadly 
admired in the Senate. If I am ever in court, I want him to be my 
lawyer.
  I would point out, however, that what I am proposing wouldn't destroy 
the system we have in place--a system, by the way, that has resulted in 
the convictions of numerous terrorists with life sentences. What I am 
asking is to listen to those who are on the frontlines who are fighting 
against terrorists and terrorism who have said they have concerns about 
this new proposal and would like a greater amount of time to vet it and 
consider it.
  I yield 8 minutes to the Senator from Illinois.
  The ACTING PRESIDENT pro tempore. The Senator from Illinois.

[[Page S7948]]

  Mr. DURBIN. Mr. President, I have the greatest respect for Senator 
Carl Levin and Senator John McCain. They have done an extraordinary job 
on the Defense authorization bill. I would say, by and large, this bill 
would not have engendered the controversy that brings us to the floor 
today but for this provision, because it is a critically important 
provision which has drawn the attention not just of those in the 
military community--which they, of course, would expect in a Defense 
authorization bill--but also the attention of those in the intelligence 
community and the law enforcement community across the United States, 
as well as the President of the United States.
  The provision which they include in this bill is a substantial and 
dramatic departure in American law when it comes to fighting terrorism. 
I salute Senator Udall for bringing it to the attention of the 
committee and now to the floor; that before we take this step forward, 
we should reflect and pass the Udall amendment which calls for the 
necessary agencies of government--law enforcement, intelligence, and 
military--to reflect on the impact of this decision, not just on the 
impact of America's security but on America's commitment to 
constitutional principles. This is a fundamental issue which is being 
raised, and it should be considered ever so seriously. We need to ask 
ourselves, 10 years after 9/11, why are we prepared to engage in a 
rewrite of the laws on fighting terrorism?
  Thank God we meet in this Chamber today with no repeat of 9/11. 
Through President George Bush and President Barack Obama, America has 
been safe. Yes, there are people who threaten us, and they always will, 
but we have risen to that challenge with the best military in the 
world, with effective law enforcement, and without giving away our 
basic values and principles as Americans.
  Take a look at the provision in this bill which Senator Udall is 
addressing. Who opposes this provision? I will tell you who opposes it. 
Secretary of Defense Leon Panetta, who passed out of this Chamber with 
a 100-to-0 vote of confidence in his leadership, has told us don't do 
this; this is a mistake in this provision.
  Secondly, the law enforcement community, from Attorney General Eric 
Holder to the Director of the Federal Bureau of Investigation, has told 
us it is a mistake to pass this measure, to limit our ability to fight 
terrorism. And the intelligence community as well; the Director of 
National Intelligence tells us this is a mistake.
  Is it any wonder Senator Udall comes to the floor and others join him 
from both sides of the aisle saying, before we make this serious change 
in policy in America, ask ourselves: Have we considered the impact this 
will have on our Nation's security, our ability to interrogate 
witnesses, and our commitment to constitutional principles?
  When I take a look at the letter that was sent to us by the Director 
of the Federal Bureau of Investigation, Robert Mueller, I have to 
reflect on the fact that Director Mueller was appointed by President 
George W. Bush and reappointed by President Barack Obama. I respect him 
very much. He has warned this Senate: Do not pass this provision in the 
Defense authorization bill. It may adversely impact ``our ability to 
continue ongoing international terrorism investigation.''
  If this provision had been offered by a Democrat under Republican 
George W. Bush, the critics would have come to the floor and said: How 
could you possibly tie the hands of the President when he is trying to 
keep America safe?
  The Director of the Federal Bureau of Investigation has made it clear 
the passage of this provision in this bill will limit the flexibility 
of the administration to combat terrorism. It will create uncertainty 
for law enforcement, intelligence, and defense officials regarding how 
they handle suspected terrorists and raise serious constitutional 
concerns. Listen, all those things are worthy of debate were it not for 
the record that for 10 years America has been safe. It has been safe 
because of a Republican President and a Democratic President using the 
forces at hand to keep us safe. If we were coming here with some record 
of failure when it comes to keeping America safe, it is one thing, but 
we have a record of positive success. This notion that there is no way 
to keep America safe without military tribunals and commissions defies 
logic and defies experience.
  Since 9/11, over 300 suspected terrorists have been successfully 
prosecuted in article III criminal courts in America. Yes, they have 
been read the Miranda rights, and, yes, they have been prosecuted and 
sent to prison, the most recent being the Underwear Bomber, who pled 
guilty just weeks ago in the article III criminal courts. During this 
same period of time, when it comes to military commissions and 
tribunals, how many alleged terrorists have been convicted? Six. The 
score, my friends, if you are paying attention, is 300 to 6. President 
Bush and President Obama used our article III criminal courts 
effectively to keep America safe, and in those instances where they 
felt military tribunals could do it best, they turned to them with some 
success.

  I might add, to those who want to just change the law again when it 
comes to military tribunals, this is the third try. Twice we have tried 
to write the language on military tribunals and commissions. It has 
been sent ultimately across the street to the Supreme Court and 
rejected. They told us to start over. Do we want to risk that again? Do 
we want to jeopardize the prosecution of an alleged terrorist because 
we want to test out a new legal and constitutional theory? I hope not.
  I ask unanimous consent to have printed in the Record the letter from 
the Director of the FBI.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                              Federal Bureau of Investigation,

                                Washington, DC, November 28, 2011.
     Hon. Carl Levin,
     Chairman, Committee on Armed Services,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: I am writing to express concerns 
     regarding the impact of certain aspects of the current 
     version of Section 1032 of the National Defense Authorization 
     Act for Fiscal Year 2012. Because the proposed legislation 
     applies to certain persons detained in the United States, the 
     legislation may adversely impact our ability to continue 
     ongoing international terrorism investigations before or 
     after arrest, derive intelligence from those investigations, 
     and may raise extraneous issues in any future prosecution of 
     a person covered by Section 1032.
       The legislation as currently proposed raises two principal 
     concerns. First, by establishing a presumption of military 
     detention for covered individuals within the United States, 
     the legislation introduces a substantial element of 
     uncertainty as to what procedures are to be followed in the 
     course of a terrorism investigation in the United States. 
     Even before the decision to arrest is made, the question of 
     whether a Secretary of Defense waiver is necessary for the 
     investigation to proceed will inject uncertainty as to the 
     appropriate course for further investigation up to and beyond 
     the moment when the determination is made that there is 
     probable cause for an arrest.
       Section 1032 may be read to divest the FBI and other 
     domestic law enforcement agencies of jurisdiction to continue 
     to investigate those persons who are known to fall within the 
     mandatory strictures of section 1032, absent the Secretary's 
     waiver. The legislation may call into question the FBI's 
     continued use or scope of its criminal investigative or 
     national security authorities in further investigation of the 
     subject. The legislation may restrict the FBI from using the 
     grand jury to gather records relating to the covered person's 
     communication or financial records, or to subpoena witnesses 
     having information on the matter. Absent a statutory basis 
     for further domestic investigation, Section 1032 may be 
     interpreted by the courts as foreclosing the FBI from 
     conducting any further investigation of the covered 
     individual or his associates.
       Second, the legislation as currently drafted will inhibit 
     our ability to convince covered arrestees to cooperate 
     immediately, and provide critical intelligence. The 
     legislation introduces a substantial element of uncertainty 
     as to what procedures are to be followed at perhaps the most 
     critical time in the development of an investigation against 
     a covered person. Over the past decade we have had numerous 
     arrestees, several of whom would arguably have been covered 
     by the statute, who have provided important intelligence 
     immediately after they have been arrested, and in some 
     instances for days and weeks thereafter. In the context of 
     the arrest, they have been persuaded that it was in their 
     best interests to provide essential information while the 
     information was current and useful to the arresting 
     authorities.
       Nonetheless, at this crucial juncture, in order for the 
     arresting agents to proceed to obtain the desired 
     cooperation, the statute requires that a waiver be obtained 
     from the Secretary of Defense, in consultation with the 
     Secretary of State and the Director of National Intelligence, 
     with certification by the Secretary to Congress that the 
     waiver was in the national security interests of the United 
     States. The proposed statute acknowledges that this is a 
     significant point in

[[Page S7949]]

     an ongoing investigation. It provides that surveillance and 
     intelligence gathering on the arrestee's associates should 
     not be interrupted. Likewise, the statute provides that an 
     ongoing interrogation session should not be interrupted.
       These limited exceptions, however, fail to recognize the 
     reality of a counterterrorism investigation. Building rapport 
     with, and convincing a covered individual to cooperate once 
     arrested, is a delicate and time sensitive skill that 
     transcends any one interrogation session. It requires 
     coordination with other aspects of the investigation. 
     Coordination with the prosecutor's office is also often an 
     essential component of obtaining a defendant's cooperation. 
     To halt this process while the Secretary of Defense 
     undertakes the mandated consultation, and the required. 
     certification is drafted and provided to Congress, would set 
     back our efforts to develop intelligence from the subject.
       We appreciate that Congress has sought to address our 
     concerns in the latest version of the bill, but believe that 
     the legislation as currently drafted remains problematic for 
     the reasons set forth above. We respectfully ask that you 
     take into account these concerns as Congress continues to 
     consider Section 1032.
           Sincerely,
                                            Robert S. Mueller III,
                                                         Director.

  Mr. DURBIN. Let me also say that section 1031 of this bill is one 
that definitely needs to be changed, if not eliminated. It will, for 
the first time in the history of the United States of America, 
authorize the indefinite detention of American citizens in the United 
States. I have spoken to the chairman of the committee, who said he is 
open to language that would try to protect us from that outcome. But 
the language as written in the bill, unfortunately, will allow for the 
indefinite detention of American citizens for the first time. The 
administration takes this seriously. We should too. They have said they 
will veto the bill without changes in this particular provision.
  I hope we will step back and look at a record of success in keeping 
America safe and not try to reinvent our Constitution on the floor of 
the Senate. I believe we ought to give to every President, Democratic 
and Republican, all of the tools and all of the weapons they need to 
keep America safe. Tying their hands may give us some satisfaction on 
the floor of the Senate for a moment, but it won't keep America safe.
  I reserve the remainder of my time.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Merkley). The Senator from Michigan.
  Mr. LEVIN. Mr. President, I yield myself 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. There have been so many misstatements and facts that have 
been made, it is hard to keep up with them. Let me just take the last 
statement the Senator from Illinois made about changing military 
tribunal law. There is no change in military tribunal law whatsoever 
made in this bill. I am going to address the other misstatements that 
have been made by my friends and colleagues, but that was the most 
recent, so I just want to take on that one first.
  In terms of constitutional provisions, the ultimate authority on the 
Constitution of the United States is the Supreme Court of the United 
States. Here is what they have said in the Hamdi case about the issue 
both of our friends have raised about American citizens being subject 
to the law of war.
  A citizen--the Supreme Court said this in 2004--no less than an alien 
can be part of supporting forces hostile to the United States and 
engaged in armed conflict against the United States. Such a citizen--
referring to an American citizen--if released, would pose the same 
threat of returning to the front during the ongoing conflict. And here 
is the bottom line for the Supreme Court. If we just take this one line 
out of this whole debate, it would be a breath of fresh air to cut 
through some of the words that have been used here this morning--one 
line. ``There is no bar to this Nation's holding one of its own 
citizens as an enemy combatant.'' That is not me, that is not Senator 
Graham, and that is not Senator McCain. That is the Supreme Court of 
the United States recently. ``There is no bar to this Nation's holding 
one of its own citizens as an enemy combatant.''
  Mr. GRAHAM. Would the Senator yield for a question?
  Mr. LEVIN. I would rather not at this point.
  There are a number of sections in this bill. My dear friend Senator 
Udall says ``these sections'' as though there are a whole bunch of 
sections that are at issue. There is really only one section that is at 
issue here, and that is section 1032, and that is the so-called 
mandatory detention section which has a waiver in it.
  Section 1031 was written and approved by the administration. Section 
1031, which my friend from Illinois has just said is an abomination, 
was written and approved by the administration. Now, section 1031 is 
the authority section. This authorizes. It doesn't mandate anything 
with the waiver; section 1032 does. Section 1031--and now I am going to 
use the words in the administration's own so-called SAP, or Statement 
of Administration Policy. This is what the administration says about 
section 1031: The authorities codified in this section already exist. 
So they don't think it is necessary--1031--but they don't object to it. 
Those are their words--the authorities in 1031 already exist. They do. 
What this does is incorporate already existing authorities from section 
1031--unnecessary in the view of the administration, yes, but they 
helped write it and they approved it. We made changes in it.
  We have made so many changes in this language to satisfy the 
administration, I think it all comes down to one section: 1032. Section 
1032 is the issue, not all of the sections, by the way, that would be 
stricken by the Udall amendment. The Udall amendment would strike all 
the sections, but it really comes down to section 1032.
  In 1032 is the so-called mandatory provision, which, by the way, does 
not apply to American citizens. I better say that again. Senator Graham 
said it, but let me say it again. The most controversial provision--
probably the only one in this bill--is section 1032. Section 1032 says: 
The requirement to detain a person in military custody under this 
section does not extend to the citizens of the United States. I guess 
that is the second thing I would like for colleagues to take away from 
what I say, is that section--and Senator Graham said the same thing. 
Section 1032--the mandatory section that has the waiver in it--does 
not, by its own words, apply to citizens of the United States. It has a 
waiver provision in it to make this flexible.
  The way in which 1032 operates is it says that if it is determined 
that a person is a member of al-Qaida, then that person will be held in 
military detention. They are at war with us, folks. Al-Qaida is at war 
with us. They brought that war to our shores. This is not just a 
foreign war. They brought that war to our shores on 9/11. They are at 
war with us. The Supreme Court said--and I will read these words 
again--that there is no bar to this Nation holding one of its own 
citizens as an enemy combatant. They brought this war to us, and if it 
is determined that even an American citizen is a member of al-Qaida, 
then you can apply the law of war, according to the Supreme Court. That 
is not according to the Armed Services Committee, our bill, or any one 
of us; that is the Supreme Court speaking.
  Who determines it? We say, to give the administration the flexibility 
that they want, the administration makes that determination. The 
procedures to make that determination--who writes those procedures? We 
don't write them. Explicitly, the executive branch writes those 
procedures. Can those procedures interfere with an ongoing 
interrogation or investigation? No. By our own language, it says they 
shall not interfere with interrogation or intelligence gathering. That 
is all in here. The only way this could interfere with an operation of 
the executive branch is if they themselves decided to interfere in 
their own operation. They are explicitly given the authority to write 
the procedures.
  I think we ought to debate about what is in the bill, and what is in 
the bill is very different from what our colleagues who support the 
Udall amendment have described. Yes, we are at war, and, yes, we should 
codify how we handle detention, and this is an effort to do that. And 
as the administration itself says, we are not changing anything here in 
terms of section 1031. We are simply codifying existing law.
  The issue really relates to 1032, and that is what we ought to 
debate.

[[Page S7950]]

Should somebody--when it has been determined by procedures adopted by 
the executive branch--who has been determined to be a member of an 
enemy force who has come to this Nation or is in this Nation to attack 
us as a member of a foreign enemy, should that person be treated 
according to the laws of war? The answer is yes. But should flexibility 
be in here so the administration can provide a waiver even in that 
case? Yes.
  Finally, as far as civilian trials, I happen to agree with my friend 
from Illinois, and he is a dear friend of mine. Civilian trials work. 
There is nothing in this provision that says civilian trials won't be 
used even if it is determined that somebody is a member of al-Qaida. 
Not only doesn't it prevent civilian trials from being used, we 
explicitly provide that civilian trials are available in all cases. It 
is written right in here. I happen to like civilian trials a lot. I 
participated in a lot of them, and they are very appropriate, and we 
have a good record. In the case the Senator from Illinois mentioned, 
that case was a Michigan case. I know a lot about that case. It was the 
right way to go. I prefer civilian trials in many, many cases. This 
bill does not say we are going to be using military commissions in lieu 
of civilian trials. That is a decision we leave where it belongs--in 
the executive branch.
  But we do one thing in this bill in section 1031 that needs to be 
said. We are at war with al-Qaida, and people determined to be part of 
al-Qaida should be treated as people who are at war with us. But even 
with that statement, we give the administration a waiver. That is how 
much flexibility we give to the executive branch.
  Mr. President, how much time have I used?
  The PRESIDING OFFICER. The Senator has 3\1/2\ minutes remaining.
  Mr. LEVIN. I yield the floor.
  Mr. McCAIN. Mr. President, how much time remains on both sides?
  The PRESIDING OFFICER. The Senator from Arizona has just over 5 
minutes. The Senator from Colorado has 8 minutes.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, I want to clarify for the 
record before I recognize Senator Webb for 5 minutes that some here 
have claimed that the Supreme Court's Hamdi decision upheld the 
indefinite detention of U.S. citizens captured in the United States.
  It did no such thing. Hamdi was captured in Afghanistan, not the 
United States. Justice O'Connor, the author of the opinion, was very 
careful to say that the Hamdi decision was limited to ``individuals who 
fought against the United States in Afghanistan as part of the 
Taliban.'' I think that is important to be included in the Record.
  I yield to Senator Webb for 5 minutes.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WEBB. Mr. President, I would like to say that I believe the 
Senator from Colorado has a good point. I say that as someone who is a 
strong supporter of military commissions, who in many cases has aligned 
himself with my good friend the Senator from South Carolina and Senator 
McCain as well on these issues. To me, this is not a jurisdictional 
issue, and it is not an issue about whether we should be holding people 
under military commissions under the right cases or under military 
detention under the right cases.
  My difficulty and the reason I support what Senator Udall is doing is 
in the statutory language itself. I say this as someone who spent a 
number of years drafting this kind of legislation as a committee 
counsel. I have gone back over the last 2 days again and again, reading 
these sections against each other--1031 and 1032 particularly--and I am 
very concerned about how this language would be interpreted, not in the 
here and now, as we see the stability we have brought to our country 
since 9/11, but what if something were to happen and we would be under 
more of a sense of national emergency and this language would be 
interpreted for broader action.

  The reason I have this concern is we are talking here about the 
conditions under which our military would be sent into action inside 
our own borders. In that type of situation, we need to be very clear 
and we must very narrowly define how they would be used and, quite 
frankly, if they should be used at all inside our borders. I think that 
is the concern we are hearing from people such as the Director of the 
FBI and the Secretary of Defense.
  I am also very concerned about the notion of the protection of our 
own citizens and our legal residents from military action inside our 
own country. I think these protections should be very clearly stated. 
There is a lot of vagueness in this language.
  What the Senator from Colorado is proposing is that we clarify these 
concepts--that we take this provision out and clarify the concepts. 
Protections are in place in our country. We are not leaving our country 
vulnerable. In fact, I think we are going to make it a much more 
healthy legal system if we do clarify these provisions.
  That is the reason I am here on the floor to support what Senator 
Udall is saying. I know the emotion and the energy Senator Levin has 
put into this, and I respect him greatly. I happen to believe we need 
to do a better job of clarifying our language.
  I spent 16 years, on and off, writing in Hollywood. One of the things 
that came to me when I was comparing these sections is that this is 
kind of the danger we get in when we get to the fourth or the fifth 
screenwriter involved in a story. We want to fix one thing and we are 
not fixing the whole thing.
  I greatly respect the legitimacy of the effort that is put into this. 
But when we read section 1031 against section 1032, there are questions 
about what would happen to American citizens under an emergency. Let's 
take, for instance, what happened in this country after Hurricane 
Katrina. It is not a direct parallel, but we can see the extremes 
people went to under a feeling of emergency and vulnerability. We had 
people who were deputized as U.S. marshals in New Orleans, and we could 
see them on CNN putting rifles inside people's cars, stopping them on 
the street, going into people's houses, making a decision--which later 
was rescinded--that they were going to take people's guns away from 
them. The vagueness in a lot of this language will not guarantee 
against these types of conduct on a larger scale if a situation were 
more difficult and dangerous than it is today.
  Section 1031, which Senator Levin mentioned, may be clear to the 
administration but it is not that clear to me, when they talk about a 
covered person. This isn't simply al-Qaida, depending on how one wants 
to interpret it, in a time of national emergency. It is a person who is 
a part of or who substantially supported al-Qaida, the Taliban, or 
associated forces that are engaged in hostilities against the United 
States or its coalition partners, including any person who has 
committed a belligerent act. We might be able to agree to what that 
means here on the Senate floor today, but we don't know how that might 
be interpreted in a time of national emergency. I am not predicting 
that it will; I am saying we should have the certainty that it will 
not.
  The PRESIDING OFFICER. The Senator has consumed 5 minutes.
  Mr. WEBB. OK. Similar concerns also revolve around the definitions in 
terms of the applicability of U.S. citizens and lawful resident aliens 
when we go to the words ``requirement does not extend.'' What about an 
option? These are the types of concerns I have. We should have language 
that very clearly makes everyone understand the conditions under which 
we would be using the U.S. military inside the borders of the United 
States.
  I yield the floor.
  Mr. LEAHY. Mr. President, the Udall-Webb-Leahy-Feinstein-Durbin-Paul-
Wyden amendment would remove the very troubling detention subtitle from 
the National Defense Authorization Act for Fiscal Year 2012. I am a 
cosponsor of this amendment because I believe the detention subtitle is 
deeply flawed. We should hear from the Pentagon and other agencies 
about what they believe to be the appropriate role of the Armed Forces 
in detaining and prosecuting terrorism suspects. Unfortunately, the 
language in the bill before us blatantly disregards the concerns of 
these agencies.
  Contrary to statements by the bill's authors, the current version of 
the detention subtitle, considered by the Senate Armed Services 
Committee, SASC

[[Page S7951]]

on November 15, contains virtually all of the same concerns as the 
earlier version of the bill. The changes made by SASC do not correct 
the problems that have been raised by the administration.
  Since the SASC marked up the new version, we have received several 
letters from the administration in opposition to the new language. 
Secretary Panetta, Director of National Intelligence Clapper, and FBI 
Director Mueller, have all written to Senate leaders in opposition of 
the language. That means this language is opposed by each of the 
agencies whose officers in the field will be directly affected by it.
  Just yesterday, Director Mueller wrote that the ``legislation 
introduces a substantial element of uncertainty'' into terrorism 
investigations. Secretary Panetta wrote that the legislation ``may 
needlessly complicate efforts by frontline law enforcement 
professionals to collect critical intelligence.'' Director Clapper 
wrote that ``the various detention provisions . . . would introduce 
unnecessary rigidity'' into investigations. And we have a Statement of 
Administration Policy raising very strong objections to some of these 
provisions. I ask unanimous consent to place these letters and the 
Statement of Administration Policy in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         The Secretary of Defense,


                                             Defense Pentagon,

                                    Washington, DC, Nov. 15, 2011.
     The Hon. Carl Levin,
     Chairman, Committee on Armed Services, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: I write to express the Department of 
     Defense's principal concerns with the latest version of 
     detainee-related language you are considering including in 
     the National Defense Authorization Act (NDAA) for Fiscal Year 
     2012. We understand the Senate Armed Services Committee is 
     planning to consider this language later today.
       We greatly appreciate your willingness to listen to the 
     concerns expressed by our national security professionals on 
     the version of the NDAA bill reported by the Senate Armed 
     Services Committee in June. I am convinced we all want the 
     same result--flexibility for our national security 
     professionals in the field to detain, interrogate, and 
     prosecute suspected terrorists. The Department has 
     substantial concerns, however, about the revised text, which 
     my staff has just received within the last few hours.
       Section 1032. We recognize your efforts to address some of 
     our objections to section 1032. However, it continues to be 
     the case that any advantages to the Department of Defense in 
     particular and our national security in general in section 
     1032 of requiring that certain individuals be held by the 
     military are, at best, unclear. This provision restrains the 
     Executive Branch's options to utilize, in a swift and 
     flexible fashion, all the counterterrorism tools that are now 
     legally available.
       Moreover, the failure of the revised text to clarify that 
     section 1032 applies to individuals captured abroad, as we 
     have urged, may needlessly complicate efforts by frontline 
     law enforcement professionals to collect critical 
     intelligence concerning operations and activities within the 
     United States.
       Next, the revised language adds a new qualifier to 
     ``associated force''--``that acts in coordination with or 
     pursuant to the direction of al-Qaeda.'' In our view, this 
     new language unnecessarily complicates our ability to 
     interpret and implement this section.
       Further, the new version of section 1032 makes it more 
     apparent that there is an intent to extend the certification 
     requirements of section 1033 to those covered by section 1032 
     that we may want to transfer to a third country. In other 
     words, the certification requirement that currently applies 
     only to Guantanamo detainees would permanently extend to a 
     whole new category of future captures. This imposes a whole 
     new restraint on the flexibility we need to continue to 
     pursue our counterterrorism efforts.
       Section 1033. We are troubled that section 1033 remains 
     essentially unchanged from the prior draft, and that none of 
     the Administration's concerns or suggestions for this 
     provision have been adopted. We appreciate that revised 
     section 1033 removes language that would have made these 
     restrictions permanent, and instead extended them through 
     Fiscal Year 2012 only. As a practical matter, however, 
     limiting the duration of the restrictions to the next fiscal 
     year only will have little impact if Congress simply 
     continues to insert these restrictions into legislation on an 
     annual basis without ever revisiting the substance of the 
     legislation. As national security officials in this 
     Department and elsewhere have explained, transfer 
     restrictions such as those outlined in section 1033 are 
     largely unworkable and pose unnecessary obstacles to 
     transfers that would advance our national security interests.
       Section 1035. Finally, section 1035 shifts to the 
     Department of Defense responsibility for what has previously 
     been a consensus-driven interagency process that was informed 
     by the advice and views of counterterrorism professionals 
     from across the Government. We see no compelling reason--and 
     certainly none has been expressed in our discussions to 
     date--to upset a collaborative, interagency approach that has 
     served our national security so well over the past few years.
       I hope we can reach agreement on these important national 
     security issues, and, as always, my staff is available to 
     work with the Committee on these and other matters.
           Sincerely,
     Leon E. Panetta.
                                  ____

                                                       Director of


                                        National Intelligence,

                                                   Washington, DC.
     Hon. Dianne Feinstein,
     Chairman, Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
       Dear Madam Chairman: I am writing in response to your 
     letter requesting my views on the effect that the detention 
     provisions in the National Defense Authorization Act for 
     Fiscal Year 2012 could have on the ability of the 
     Intelligence Community to gather counterterrorism 
     information. In my view, some of these provisions could limit 
     the effectiveness of our intelligence and law enforcement 
     professionals at a time when we need the utmost flexibility 
     to defend the nation from terrorist threats. The Executive 
     Branch should have maximum flexibility in these areas, 
     consistent with our law and values, rather than face 
     limitations on our options to acquire intelligence 
     information. As stated in the November 17, 2011, Statement of 
     Administration Policy for S. 1867, ``[a]ny bill that 
     challenges or constrains the President's critical authorities 
     to collect intelligence, incapacitate dangerous terrorists, 
     and protect the nation would prompt the President's senior 
     advisers to recommend a veto.''
       Our principal objective upon the capture of a potential 
     terrorist is to obtain intelligence information and to 
     prevent future attacks, yet the provision that mandates 
     military custody for a certain class of terrorism suspects 
     could restrict the ability of our nation's intelligence 
     professionals to acquire valuable intelligence and prevent 
     future terrorist attacks. The best method for securing vital 
     intelligence from suspected terrorists varies depending on 
     the facts and circumstances of each case. In the years since 
     September 11, 2001, the Intelligence Community has worked 
     successfully with our military and law enforcement partners 
     to gather vital intelligence in a wide variety of 
     circumstances at home and abroad and I am concerned that some 
     of these provisions will make it more difficult to continue 
     to have these successes in the future.
       Taken together, the various detention provisions, even with 
     the proposed waivers, would introduce unnecessary rigidity at 
     a time when our intelligence, military, and law enforcement 
     professionals are working more closely than ever to defend 
     our nation effectively and quickly from terrorist attacks. 
     These limitations could deny our nation the ability to 
     respond flexibly and appropriately to unfolding events--
     including the capture of terrorism suspects--and restrict a 
     process that currently encourages intelligence collection 
     through the preservation of all lawful avenues of detention 
     and interrogation.
       Our intelligence professionals are best served when they 
     have the greatest flexibility to collect intelligence from 
     suspected terrorists. I am concerned that the detention 
     provisions in the National Defense Authorization Act could 
     reduce this flexibility.
           Sincerely,
     James R. Clapper.
                                  ____

                                       U.S. Department of Justice,


                              Federal Bureau of Investigation,

                                Washington, DC, November 28, 2011.
     Hon. Carl Levin,
     Chairman, Committee on Armed Services, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: I am writing to express concerns 
     regarding the impact of certain aspects of the current 
     version of Section 1032 of the National Defense Authorization 
     Act for Fiscal Year 2012. Because the proposed legislation 
     applies to certain persons detained in the United States, the 
     legislation may adversely impact our ability to continue 
     ongoing international terrorism investigations before or 
     after arrest, derive intelligence from those investigations, 
     and may raise extraneous issues in any future prosecution of 
     a person covered by Section 1032.
       The legislation as currently proposed raises two principal 
     concerns. First, by establishing a presumption of military 
     detention for covered individuals within the United States, 
     the legislation introduces a substantial element of 
     uncertainty as to what procedures are to be followed in the 
     course of a terrorism investigation in the United States. 
     Even before the decision to arrest is made, the question of 
     whether a Secretary of Defense waiver is necessary for the 
     investigation to proceed will inject uncertainty as to the 
     appropriate course for further investigation up to and beyond 
     the moment when the determination is made that there is 
     probable cause for an arrest.
       Section 1032 may be read to divest the FBI and other 
     domestic law enforcement agencies of jurisdiction to continue 
     to investigate those persons who are known to fall within the 
     mandatory strictures of section 1032, absent the Secretary's 
     waiver. The legislation may call into question the FBI's 
     continued use or scope of its criminal investigative or 
     national security authorities in

[[Page S7952]]

     further investigation of the subject. The legislation may 
     restrict the FBI from using the grand jury to gather records 
     relating to the covered person's communication or financial 
     records, or to subpoena witnesses having information on the 
     matter. Absent a statutory basis for further domestic 
     investigation, Section 1032 may be interpreted by the courts 
     as foreclosing the FBI from conducting any further 
     investigation of the covered individual or his associates.
       Second, the legislation as currently drafted will inhibit 
     our ability to convince covered arrestees to cooperate 
     immediately, and provide critical intelligence. The 
     legislation introduces a substantial element of uncertainty 
     as to what procedures are to be followed at perhaps the most 
     critical time in the development of an investigation against 
     a covered person. Over the past decade we have had numerous 
     arrestees, several of whom would arguably have been covered 
     by the statute, who have provided important intelligence 
     immediately after they have been arrested, and in some 
     instances for days and weeks thereafter. In the context of 
     the arrest, they have been persuaded that it was in their 
     best interests to provide essential information while the 
     information was current and useful to the arresting 
     authorities.
       Nonetheless, at this crucial juncture, in order for the 
     arresting agents to proceed to obtain the desired 
     cooperation, the statute requires that a waiver be obtained 
     from the Secretary of Defense, in consultation with the 
     Secretary of State and the Director of National Intelligence, 
     with certification by the Secretary to Congress that the 
     waiver was in the national security interests of the United 
     States. The proposed statute acknowledges that this is a 
     significant point in an ongoing investigation. It provides 
     that surveillance and intelligence gathering on the 
     arrestee's associates should not be interrupted. Likewise, 
     the statute provides that an ongoing interrogation session 
     should not be interrupted.
       These limited exceptions, however, fail to recognize the 
     reality of a counterterrorism investigation. Building rapport 
     with, and convincing a covered individual to cooperate once 
     arrested, is a delicate and time sensitive skill that 
     transcends any one interrogation session. It requires 
     coordination with other aspects of the investigation. 
     Coordination with the prosecutor's office is also often an 
     essential component of obtaining a defendant's cooperation. 
     To halt this process while the Secretary of Defense 
     undertakes the mandated consultation, and the required. 
     certification is drafted and provided to Congress, would set 
     back our efforts to develop intelligence from the subject.
       We appreciate that Congress has sought to address our 
     concerns in the latest version of the bill, but believe that 
     the legislation as currently drafted remains problematic for 
     the reasons set forth above. We respectfully ask that you 
     take into account these concerns as Congress continues to 
     consider Section 1032.
           Sincerely,
                                            Robert S. Mueller III,
     Director.
                                  ____


                   Statement of Administration Policy


        S. 1867--National Defense Authorization Act for FY 2012

                   (Sen. Levin, D-MI, Nov. 17, 2011)

       The Administration supports Senate passage of S. 1867, the 
     National Defense Authorization Act for Fiscal Year (FY) 2012. 
     The Administration appreciates the Senate Armed Services 
     Committee's continued support of our national defense, 
     including its support for both the base budget and for 
     overseas contingency operations and for most of the 
     Administration's initiatives to control spiraling health 
     costs of the Department of Defense (DoD).
       The Administration appreciates the support of the Committee 
     for authorities that assist the ability of the warfighter to 
     operate in unconventional and irregular warfare, authorities 
     that are important to field commanders, such as the 
     Commanders' Emergency Response Program, Global Train and 
     Equip Authority, and other programs that provide commanders 
     with the resources and flexibility to counter unconventional 
     threats or support contingency or stability operations. The 
     Administration looks forward to reviewing a classified annex 
     and working with the Congress to address any concerns on 
     classified programs as the legislative process moves forward.
       While there are many areas of agreement with the Committee, 
     the Administration would have serious concerns with 
     provisions that would: (1) constrain the ability of the Armed 
     Forces to carry out their missions; (2) impede the Secretary 
     of Defense's ability to make and implement decisions that 
     eliminate unnecessary overhead or programs to ensure scarce 
     resources are directed to the highest priorities for the 
     warfighter; or (3) depart from the decisions reflected in the 
     President's FY 2012 Budget Request. The Administration looks 
     forward to working with the Congress to address these and 
     other concerns, a number of which are outlined in more detail 
     below.
       Detainee Matters: The Administration objects to and has 
     serious legal and policy concerns about many of the detainee 
     provisions in the bill. In their current form, some of these 
     provisions disrupt the Executive branch's ability to enforce 
     the law and impose unwise and unwarranted restrictions on the 
     U.S. Government's ability to aggressively combat 
     international terrorism; other provisions inject legal 
     uncertainty and ambiguity that may only complicate the 
     military's operations and detention practices.
       Section 1031 attempts to expressly codify the detention 
     authority that exists under the Authorization for Use of 
     Military Force (Public Law 107-40) (the ``AUMF''). The 
     authorities granted by the AUMF, including the detention 
     authority, are essential to our ability to protect the 
     American people from the threat posed by al-Qa'ida and its 
     associated forces, and have enabled us to confront the full 
     range of threats this country faces from those organizations 
     and individuals. Because the authorities codified in this 
     section already exist, the Administration does not believe 
     codification is necessary and poses some risk. After a decade 
     of settled jurisprudence on detention authority, Congress 
     must be careful not to open a whole new series of legal 
     questions that will distract from our efforts to protect the 
     country. While the current language minimizes many of those 
     risks, future legislative action must ensure that the 
     codification in statute of express military detention 
     authority does not carry unintended consequences that could 
     compromise our ability to protect the American people.
       The Administration strongly objects to the military custody 
     provision of section 1032, which would appear to mandate 
     military custody for a certain class of terrorism suspects. 
     This unnecessary, untested, and legally controversial 
     restriction of the President's authority to defend the Nation 
     from terrorist threats would tie the hands of our 
     intelligence and law enforcement professionals. Moreover, 
     applying this military custody requirement to individuals 
     inside the United States, as some Members of Congress have 
     suggested is their intention, would raise serious and 
     unsettled legal questions and would be inconsistent with the 
     fundamental American principle that our military does not 
     patrol our streets. We have spent ten years since September 
     11, 2001, breaking down the walls between intelligence, 
     military, and law enforcement professionals; Congress should 
     not now rebuild those walls and unnecessarily make the job of 
     preventing terrorist attacks more difficult. Specifically, 
     the provision would limit the flexibility of our national 
     security professionals to choose, based on the evidence and 
     the facts and circumstances of each case, which tool for 
     incapacitating dangerous terrorists best serves our national 
     security interests. The waiver provision fails to address 
     these concerns, particularly in time-sensitive operations in 
     which law enforcement personnel have traditionally played the 
     leading role. These problems are all the more acute because 
     the section defines the category of individuals who would be 
     subject to mandatory military custody by substituting new and 
     untested legislative criteria for the criteria the Executive 
     and Judicial branches are currently using for detention under 
     the AUMF in both habeas litigation and military operations. 
     Such confusion threatens our ability to act swiftly and 
     decisively to capture, detain, and interrogate terrorism 
     suspects, and could disrupt the collection of vital 
     intelligence about threats to the American people.
       Rather than fix the fundamental defects of section 1032 or 
     remove it entirely, as the Administration and the chairs of 
     several congressional committees with jurisdiction over these 
     matters have advocated, the revised text merely directs the 
     President to develop procedures to ensure the myriad problems 
     that would result from such a requirement do not come to 
     fruition. Requiring the President to devise such procedures 
     concedes the substantial risks created by mandating military 
     custody, without providing an adequate solution. As a result, 
     it is likely that implementing such procedures would inject 
     significant confusion into counterterrorism operations.
       The certification and waiver, required by section 1033 
     before a detainee may be transferred from Guantanamo Bay to a 
     foreign country, continue to hinder the Executive branch's 
     ability to exercise its military, national security, and 
     foreign relations activities. While these provisions may be 
     intended to be somewhat less restrictive than the analogous 
     provisions in current law, they continue to pose unnecessary 
     obstacles, effectively blocking transfers that would advance 
     our national security interests, and would, in certain 
     circumstances, violate constitutional separation of powers 
     principles. The Executive branch must have the flexibility to 
     act swiftly in conducting negotiations with foreign countries 
     regarding the circumstances of detainee transfers. Section 
     1034's ban on the use of funds to construct or modify a 
     detention facility in the United States is an unwise 
     intrusion on the military's ability to transfer its detainees 
     as operational needs dictate. Section 1035 conflicts with the 
     consensus-based interagency approach to detainee reviews 
     required under Executive Order No. 13567, which establishes 
     procedures to ensure that periodic review decisions are 
     informed by the most comprehensive information and the 
     considered views of all relevant agencies. Section 1036, 
     in addition to imposing onerous requirements, conflicts 
     with procedures for detainee reviews in the field that 
     have been developed based on many years of experience by 
     military officers and the Department of Defense. In short, 
     the matters addressed in these provisions are already well 
     regulated by existing procedures and have traditionally 
     been left to the discretion of the Executive branch.

[[Page S7953]]

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

  Mr. LEAHY. So, contrary to what the bill sponsors claim, they have 
not incorporated the administration's requests, and the current 
language does not remove the risk of impeding intelligence 
investigations or prosecutions of terrorist suspects.
  As currently written, the language in this bill would authorize the 
military to indefinitely detain individuals--including U.S. citizens--
without charge or trial. I am fundamentally opposed to indefinite 
detention, and certainly when the detainee is a U.S. citizen held 
without charge. It contradicts the most basic principles of law that I 
subscribed to when I was a prosecutor, and it severely weakens our 
credibility when we criticize other governments for engaging in similar 
conduct.
  I fought against the Bush administration policies that left us in the 
situation we face now, with indefinite detention being the de facto 
administration policy, and I strongly opposed President Obama's 
Executive order on detention when it was announced last March because 
it contemplated, if not outright endorsed, indefinite detention.
  I am also deeply troubled by the mandatory military detention 
requirements included in this bill, which I believe dangerously 
undermine our national security. In the fight against al-Qaida and 
other terrorist threats, we should be giving our intelligence, 
military, and law enforcement professionals all the tools they need--
not limiting those tools. But limiting them is exactly what this bill 
does. Secretary Panetta has stated unequivocally that ``[t]his 
provision restrains the Executive Branch's options to utilize, in a 
swift and flexible fashion, all the counterterrorism tools that are now 
legally available.'' Requiring terrorism suspects to be held only in 
military custody, and limiting the available options in the field, is 
unwise and unnecessary.
  The language in the detention subtitle of this bill is the product of 
a process that has lacked transparency from the start. These measures 
directly affect law enforcement, detention, and terrorism matters that 
have traditionally been subject to the jurisdiction of the Senate 
Judiciary Committee and the Senate Select Committee on Intelligence, 
but neither committee was consulted about these provisions in July when 
the bill was first marked up, or earlier this month when it was 
modified.
  The administration proposed revisions to significantly improve the 
detention provisions. However, rather than negotiate with the 
administration in good faith, the Armed Services Committee drafted a 
new version of the language behind closed doors and claimed that it had 
solved all of the issues raised by the administration. It is obvious 
from the letters we have received that this is not the case.
  I can see no reason why these provisions were rushed through the 
Committee without the input of the Defense Department and Federal 
intelligence and law enforcement agencies that will be directly 
affected if this language is enacted.
  We must allow a thorough review to determine the legal and practical 
consequences that these changes will have

[[Page S7954]]

on future counterterrorism and national security operations to ensure 
they are not hindered. That is what the Udall amendment does. I urge 
all Senators to support this amendment.
  Ms. COLLINS. Mr. President, it is imperative that American citizens 
detained on U.S. soil be entitled to every protection guaranteed by the 
Constitution. I am concerned, therefore, that not all of the detainee 
provisions in the bill provide explicit exemptions for U.S. citizens 
who might be detained in the United States.
  Had the amendment been more narrowly tailored to address that 
concern, I would support it. However, I unfortunately cannot support 
the amendment as a whole because it is too sweeping and would eliminate 
provisions that are important to preserve because they undoubtedly make 
our country safer. For instance, if this amendment were to pass, the 
Administration would be free to transfer detainees to countries where 
there are confirmed cases of detainees who have been released returning 
to fight against the United States. In addition, the amendment would 
eliminate a provision that would prevent foreign fighters captured 
overseas from taking advantage of the very constitutional rights I want 
to ensure for American citizens.
  Mr. LEVIN. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. The Senator from Michigan has 4 minutes 
remaining.
  The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask unanimous consent to yield 2 minutes 
to the Senator from New Hampshire, followed by time from Senator Levin 
for the Senator from Connecticut, and then what time I have remaining 
for the Senator from Georgia.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Hampshire.
  Ms. AYOTTE. Mr. President, first of all, I wish to thank Chairman 
Levin and Ranking Member McCain and remind everyone that this 
particular amendment addressing detainee provisions passed 
overwhelmingly on a bipartisan basis in the Armed Services Committee.
  The reason we addressed this issue was because we heard witness after 
witness in a series of months before the Armed Services Committee from 
our Department of Defense tell us--for example, when I asked the 
commander of Africa Command, saying he needs some lawyerly help on how 
to answer what to do with a member of al-Qaida who is captured in 
Africa. This is an area that cried out for clarification, and that is 
the genesis of this amendment, which is a very important amendment.
  Briefly, two issues. No. 1, the arguments that have been raised about 
section 1031, including the statement of authority, this is a red 
herring. This provision was drafted, as Senator Levin said very 
clearly, based upon what the administration wanted, and also codifies 
existing law on what the statement authority is in terms of the fact 
that we are at war with al-Qaida. If people want to disagree with that, 
that is certainly a policy discussion we can have. But we were attacked 
on our soil on 9/11, and this codifies the fact that we are at war with 
members of al-Qaida.
  Section 1032 is the military custody provision. Let's be clear on 
what it does and what it does not do. No. 1, it is very clear on who it 
applies to. It only applies to members of al-Qaida or an associated 
force who are planning or carrying out an attack or attempted attack 
against the United States or its coalition partners. It does not apply 
to American citizens. We are only saying that if a person is a member 
of al-Qaida and they want to attack the United States, we are going to 
hold them in military custody. Why? I prosecuted cases in the criminal 
system. We don't want to have to----
  The PRESIDING OFFICER. The Senator's time has expired.
  Ms. AYOTTE. We don't ever want to have to read a terrorist their 
right to remain silent. That is the issue here.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I yield 3 minutes to the Senator from Connecticut.
  Mr. LIEBERMAN. I thank the Chair, and I thank my friend, the chairman 
of the Armed Services Committee. I rise respectfully to oppose the 
amendment the Senator from Colorado has offered, though in some measure 
I thank him for offering it because this has been an important and good 
debate.
  My own position, stated briefly, is this: As Senator Levin has said, 
we are a nation at war. As such we were attacked on 9/11. We adopted in 
this Chamber the authorization for military force. That is about as 
close to a declaration of war as we have done since the Second World 
War. The comparison is exact because what happened to us on 9/11 was in 
some ways even worse than what happened in December of 1941 when we 
were attacked at Pearl Harbor.
  A nation at war that seizes those who have declared themselves to be 
part of enemy forces and have attempted to attack the American people, 
or America, should be treated as enemy combatants, as prisoners of war, 
according to the law of war. To me, that is a matter of principle. 
Regardless of what statistics one can cite about how well prosecutions 
have gone in article III courts, that is, to me, not ultimately the 
point. If we are at war, the people who are fighting against us ought 
to be treated as prisoners of war.
  In fact, we are without a policy now, as Senator Ayotte said. The 
main reason I oppose what Senator Udall is proposing is that he would 
remove the sections of the current bill that create a policy and send 
us back to where we are now, where our forces in the field don't know 
what to do if they capture a member of al-Qaida.
  If I had my way, the provisions in this proposal on detainees would 
not have the waivers the President has. It would simply say, if you are 
apprehended--if you are a foreign member of al-Qaida, and you are 
captured planning or executing attacks against Americans or our allies 
in this war, you are put in military custody and you are tried in a 
military tribunal. This is not the law of the jungle; this is according 
to American law. These are the same courts in which American soldiers 
are tried when charges are brought against them, and, of course, we 
accept and abide by all of the provisions of the Geneva Conventions.
  But that was not the will of the Armed Services Committee. The Armed 
Services Committee, in a good, reasonable, bipartisan compromise, has 
created a system here where the default position--the initial position 
is to transfer these enemy combatants to military custody. It is a good 
compromise. It is the kind of compromise that----
  The PRESIDING OFFICER. The Senator's 3 minutes has expired.
  Mr. LIEBERMAN.--doesn't happen around here enough. I didn't get 
everything I wanted out of it, but it is a lot better than the status 
quo. Therefore, I support the language in the bill and oppose the Udall 
amendment.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I rise to urge my colleagues to oppose 
the Udall amendment, which would eliminate the bipartisan detainee 
provision that the chairman, the ranking member, and committee members 
worked so hard to craft. These provisions are necessary to provide some 
certainty for our intelligence professionals in how our government will 
handle terrorist detainees and how long detainees can be questioned for 
intelligence-gathering purposes.
  We have heard quite a lot over the past few days from administration 
officials about how our intelligence and law enforcement professionals 
need flexibility. In fact, Director of National Intelligence Clapper 
wrote to the Intelligence Committee arguing for flexibility and 
stressing the need for a process that, as he said, ``encourages 
intelligence collection through the preservation of all lawful avenues 
of detention and interrogation.'' With that, I agree wholeheartedly. 
The problem with the status quo, however, is that the administration 
refuses to use all of its lawful avenues of detention and interrogation 
available to it, choosing instead only to use one, and that is article 
III courts.
  For nearly 3 years, Members of Congress have pressed the 
administration to establish an effective and unambiguous long-term 
detention policy, but they have refused. The intent behind these 
bipartisan provisions is simple:

[[Page S7955]]

We must hold detainees for as long as it takes to gather information 
our intelligence and law enforcement professionals need to take down 
terror networks and to stop attacks.
  Frankly, the best place, in my opinion, for this is Guantanamo Bay, 
But when it comes to Gitmo, the administration is no longer concerned 
about ``flexibility.'' Instead, we hear that Guantanamo is ``off the 
table.''

  In fact, in a hearing, when I asked the current Secretary of Defense, 
prior to the SEAL Team 6 takedown of Osama bin Laden: If you captured 
him, what would you do with him, he quizzically looked back and said: 
Well, I guess we would send him to Guantanamo. Well, we know that would 
not have happened had we not taken him down.
  This is unfortunate because intelligence and law enforcement 
professionals, including some at high levels in the administration, 
acknowledge privately that what hampers intelligence collection from 
detainees is the administration's unwillingness to take new detainees 
to Guantanamo for questioning. When our operators overseas are unsure 
about where they would hold captured detainees, it causes delay, 
sometimes missed opportunities, and sometimes capture operations become 
kill operations.
  We cannot afford this kind of uncertainty and the Udall amendment 
simply kicks the can down the road with a report about a problem we 
already understand. The time to act is now.
  Without Guantanamo, long-term military detention elsewhere is the 
next best option and is the appropriate option for terrorists with whom 
we are at war. The detainee provisions in the Defense Authorization Act 
will ensure that the administration uses all of the detention options 
it says it wants, not just article III courts, and offer the 
flexibility the administration says it needs. I urge my colleagues to 
oppose the Udall amendment and give our intelligence professionals and 
military operators some certainty as they fight the war on terror.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. CHAMBLISS. Mr. President, I urge a ``no'' vote on the Udall 
amendment.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I would like to thank all of my colleagues 
who have engaged in a very important debate.
  I would also like to say to my friend from Michigan, the chairman, I 
have observed him for many years debate various issues on the floor of 
the Senate and in the Armed Services Committee. I have never seen him 
more eloquent than I have observed in his statements today and 
throughout this debate. I also appreciate the fact that there are many 
in his conference who do not agree with the position taken by the 
chairman, and I especially am admiring of that.
  I yield.
  Mr. LEVIN. How much time is remaining, Mr. President?
  The PRESIDING OFFICER. The Senator from Michigan has 45 seconds. The 
Senator from Colorado has 1 minute.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator 
from Colorado be allowed----
  Mr. LEVIN. He only needs 2 minutes.
  Mr. McCAIN. Two minutes, at least.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Such time as he may need.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, I thank, again, the ranking 
member and the chairman of the Armed Services Committee for their hard 
work.
  I want to close with a couple points. I want to, in the interest of 
clarifying the record, point out, on the heels of the chairman's 
comments about the Statement of Administration Policy, when it comes to 
section 1031, the full statement reads:

       Because the authorities codified in this section already 
     exist, the Administration does not believe codification is 
     necessary and poses some risk. After a decade of settled 
     jurisprudence on detention authority, Congress must be 
     careful not to open a whole new series of legal questions 
     that will distract from our efforts to protect the country.

  Second, there are questions that continue to be raised. I want to 
mention section 1033. The chairman said it is only section 1032 that is 
the focus of our attention, but there have been questions raised about 
section 1033. There is language in section 1033 that makes it clear 
that--we think it makes it clear that there is a provision that 
requires any receiving country is taking actions ``to ensure that the 
[detainee] cannot engage . . . in any terrorist activity.'' This is if 
we are releasing or transferring somebody who is detained.
  I was in Afghanistan recently, at Bagram prison. We have 20,000 
detainees there. There are some who believe section 1033 would restrict 
us from releasing those prisoners at Bagram as we begin to draw down 
our efforts in Afghanistan. That is just one of the many questions that 
are asked.
  Finally, I listened to the passion that my friend from South Carolina 
Senator Graham exhibited on the Senate floor. We are all in this 
together. We are going to prevail. The bad guys in the world are not 
going to win. We do have, however--and this is what makes our country 
strong--different points of view on how we prosecute this war. I 
believe the intent of what is being suggested in these provisions is 
well and good and at the highest level. But there are many people we 
trust and respect--including the FBI Director, the Secretary of 
Defense, the Secretary of Homeland Security--who believe what will 
happen, if we interpret the language, will not actually reflect our 
intent.
  Therefore, let's set this aside, pass the NDA, send it to the 
President, and take the next 90 days to hold hearings and thoroughly 
vet what is in this set of provisions. I will be the first person to 
come to the floor if all of those individuals and our own experts tell 
us this is the right way to proceed, to say: Let's put this into the 
law.
  But let's not rush to take these steps. We have something that is 
working. We have over 300 terrorists who have been prosecuted through 
our civil system who are in jail, many of them for life sentences, 
sentences that will outlast their lifespans. Let's not fix something 
that is not broken until we really understand what the consequences 
are.
  I thank, again, my colleagues on the Senate Armed Services Committee. 
This has been a helpful and important debate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, let me also thank our friend from Colorado 
for his contributions to the committee. He is a valuable member of our 
committee, and he is no less valuable because he is offering an 
amendment with which I happen to disagree.
  Two quick factual points. One is, the language the Senator mentioned 
from section 1033 is exactly the same language as was in last year's 
bill and is in current law. The only difference is we have given 
greater flexibility this year to the President by making it waiveable. 
So our language is more flexible than the current law.
  Finally, in terms of the Hamdi case, the Senator is correct. I 
believe it was Senator Udall who said this was an American citizen who 
was captured in Afghanistan. That is true. But the Supreme Court, in 
Hamdi, relied on the Quirin case--which was an American citizen 
captured on Long Island and--quoted that case with approval when 
saying:

       There is no bar to this Nation's holding one of its own 
     citizens as an enemy combatant.

  That was the Quirin language--an American citizen captured on Long 
Island.
  Mr. President, if I have any time left, I will yield it and yield the 
floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, the pending amendment is the Udall 
amendment.
  Am I correct, I ask the chairman, in that we would intend, depending 
on--there are several things that have to be resolved--but we would 
intend to have this vote at around 2:15 p.m., if things work out? Is 
that correct?
  Mr. LEVIN. I wonder if Senator Udall also heard that. I believe, and 
I think it is the intention of all of us, that we vote on this as soon 
as possible after 2:15.
  I yield the floor.
  Mr. McCAIN. I suggest the absence of a quorum.

[[Page S7956]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCAIN. Mr. 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. 1230 and 1281, as Modified

  Mr. McCAIN. Mr. President, I ask unanimous consent that the pending 
McCain amendments Nos. 1230 and 1281 be modified with the changes at 
the desk.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments, as modified, are as follows:


                    AMENDMENT NO. 1230, AS MODIFIED

       On page 220, strike line 13 and all that follows through 
     page 221, line 6, and insert the following:
       ``(c) Annual Adjustment in Enrollment Fee.--(1) Whenever 
     after September 30, 2012, and before October 1, 2013, the 
     Secretary of Defense increases the retired pay of members and 
     former members of the armed forces pursuant to section 1401a 
     of this title, the Secretary shall increase the amount of the 
     fee payable for enrollment in TRICARE Prime by an amount 
     equal to the percentage of such fee payable on the day before 
     the date of the increase of such fee that is equal to the 
     percentage increase in such retired pay. In determining the 
     amount of the increase in such retired pay for purposes of 
     this subparagraph, the Secretary shall use the amount 
     computed pursuant to section 1401a(b)(2) of this title.
       ``(2) Effective as of October 1, 2013, the Secretary shall 
     increase the amount of the fee payable for enrollment in 
     TRICARE Prime on an annual basis by a percentage equal to the 
     percentage of the most recent annual increase in the National 
     Health Expenditures per capita, as published by the Secretary 
     of Health and Human Services.
       ``(3) Any increase under this subsection in the fee payable 
     for enrollment shall be effective as of January 1 following 
     the date on which such increase is made.
       ``(4) The Secretary shall publish in the Federal Register 
     the amount of the fee payable for enrollment in TRICARE Prime 
     whenever increased pursuant to this subsection.''.
       (b) Clarification of Application for 2013.--For purposes of 
     determining the enrollment fees for TRICARE Prime for 2013 
     under subsection (c)(1) of section 1097a of title 10, United 
     States Code (as added by subsection (a)), the amount of the 
     enrollment fee in effect during 2012 shall be deemed to be 
     the following:
       (1) $260 for individual enrollment.
       (2) $520 for family enrollment.


                    AMENDMENT NO. 1281, AS MODIFIED

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

     SEC. 1243. DEFENSE COOPERATION WITH REPUBLIC OF GEORGIA.

       (a) Plan for Normalization.--Not later than 90 days after 
     the date of the enactment of this Act, the President shall 
     develop and submit to the congressional defense committees 
     and the Committee on Foreign Relations of the Senate and the 
     Committee on Foreign Affairs of the House of Representatives 
     a plan for the normalization of United States defense 
     cooperation with the Republic of Georgia, including the sale 
     of defensive arms.
       (b) Objectives.--The plan required under subsection (a) 
     shall address the following objectives:
       (1) To establish a normalized defense cooperation 
     relationship between the United States and the Republic of 
     Georgia, taking into consideration the progress of the 
     Government of the Republic of Georgia on democratic and 
     economic reforms and the capacity of the Georgian armed 
     forces.
       (2) To support the Government of the Republic of Georgia in 
     providing for the defense of its government, people, and 
     sovereign territory, consistent with the continuing 
     commitment of the Government of the Republic of Georgia to 
     its nonuse-of-force pledge and consistent with Article 51 of 
     the Charter of the United Nations.
       (3) To provide for the sale by the United States of defense 
     articles and services in support of the efforts of the 
     Government of the Republic of Georgia to provide for its own 
     self-defense consistent with paragraphs (1) and (2).
       (4) To continue to enhance the ability of the Government of 
     the Republic of Georgia to participate in coalition 
     operations and meet NATO partnership goals.
       (5) To encourage NATO member and candidate countries to 
     restore and enhance their sales of defensive articles and 
     services to the Republic of Georgia as part of a broader NATO 
     effort to deepen its defense relationship and cooperation 
     with the Republic of Georgia.
       (6) To ensure maximum transparency in the United States-
     Georgia defense relationship.
       (c) Included Information.--The plan required under 
     subsection (a) shall include the following information:
       (1) A needs-based assessment, or an update to an existing 
     needs-based assessment, of the defense requirements of the 
     Republic of Georgia, which shall be prepared by the 
     Department of Defense.
       (2) A description of each of the requests by the Government 
     of the Republic of Georgia for purchase of defense articles 
     and services during the two-year period ending on the date of 
     the report.
       (3) A summary of the defense needs asserted by the 
     Government of the Republic of Georgia as justification for 
     its requests for defensive arms purchases.
       (4) A description of the action taken on any defensive arms 
     sale request by the Government of the Republic of Georgia and 
     an explanation for such action.
       (d) Form.--The plan required under subsection (a) shall be 
     submitted in unclassified form, but may contain a classified 
     annex.

                          ____________________






[Congressional Record Volume 157, Number 181 (Tuesday, November 29, 2011)]
[Senate]
[Pages S7956-S7987]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]




   NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012--Continued

  The PRESIDING OFFICER. In my capacity as a Senator from Virginia, I 
suggest the absence of a quorum.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEVIN. 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. LEVIN. I ask unanimous consent there be 2 minutes of debate, 
equally divided, prior to a vote in relation to the Udall of Colorado 
amendment No. 1107; that upon the use or yielding back of time, the 
Senate proceed to vote in relation to the amendment, with no amendments 
in order prior to the vote.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Colorado.


                           Amendment No. 1107

  Mr. UDALL of Colorado. Mr. President, this amendment strikes 
controversial detainee provisions that have been inserted in the 
National Defense Authorization Act. It would require that the Defense 
intelligence and law enforcement agencies report to Congress with 
recommendations for any additional authorities they need in order to 
detain and prosecute terrorists. The amendment would then ask for 
hearings to be held so we can fully understand the opposition to these 
provisions by our national security experts--bipartisan opposition, I 
might add--and hopefully avoid a veto of the Defense authorization 
bill.
  In short, we are ignoring the advice and the input of the Director of 
the FBI, the Director of our intelligence community, the Attorney 
General of the United States, the Secretary of Defense, and the White 
House, who are all saying there are significant concerns with these 
provisions; that we ought to move slowly.
  We have been successful in prosecuting over 300 terrorists through 
our civil justice system. Let's not fix what isn't broken until we 
fully understand the ramifications.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I yield 30 seconds to Senator Graham.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, section 1031 is a congressional statement 
of authority of already existing law. It reaffirms the fact this body 
believes al-Qaida and affiliated groups are a military threat to the 
United States and they can be held under the law of war indefinitely to 
make sure we find out what they are up to; and they can be questioned 
in a humane manner consistent with the law of war.
  Section 1032 says if you are captured on the homeland, you will be 
held in military custody so we can gather intelligence. That provision 
can be waived if it interferes with the investigation.
  These are needed changes. These are changes that reaffirm what is 
already in law.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, the Supreme Court has recently ruled--this 
is the Supreme Court talking:

       There is no bar to this Nation's holding one of its own 
     citizens as an enemy combatant. A citizen, no less than an 
     alien, can be

[[Page S7957]]

     part of the supporting forces hostile to the United States, 
     and such a citizen, if released, would pose the same threat 
     of returning to the front during the ongoing conflict.

  That is the Supreme Court's statement. We can and must deal with an 
al-Qaida threat. We can do it properly. The administration helped to 
draft almost all of this bill. The provisions which would be struck----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LEVIN. Are provisions which even the administration has helped to 
draft. So I would hope we would deal with the al-Qaida threat in an 
appropriate way, in a bipartisan way. The committee voted 
overwhelmingly for this language.
  I yield the remainder of my time.
  Mr. McCAIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. How much time do I have remaining?
  The PRESIDING OFFICER. Three seconds.
  Mr. UDALL of Colorado. The Director of the FBI, the Secretary of 
Defense, the Attorney General, and the Director of Intelligence have 
all said let's go slow.
  Pass the Udall amendment.
  The PRESIDING OFFICER. All time has expired.
  The question is on agreeing to the amendment.
  Is there a sufficient second? There appears to be a sufficient 
second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) is 
necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Alaska (Ms. Murkowski).
  The PRESIDING OFFICER. (Mr. Franken). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 38, nays 60, as follows:

                      [Rollcall Vote No. 210 Leg.]

                                YEAS--38

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

                                NAYS--60

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Brown (MA)
     Burr
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hagan
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (WI)
     Kohl
     Kyl
     Landrieu
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Moran
     Nelson (NE)
     Portman
     Pryor
     Reed
     Risch
     Roberts
     Rubio
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Thune
     Toomey
     Vitter
     Whitehouse
     Wicker

                             NOT VOTING--2

     Begich
     Murkowski
       
  The amendment (No. 1107) was rejected.


                             change of vote

  Mr. MENENDEZ. Mr. President, on rollcall vote 210, I voted ``nay.'' 
It was my intention to vote ``yea.'' Therefore, I ask unanimous consent 
that I be permitted to change my vote since it will not affect the 
outcome.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  (The foregoing tally has been changed to reflect the above order.)
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mr. McCAIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, if I could have Senator McCain's attention 
as well, what we are trying to do next is to move to two amendments, if 
we can. Both are next on the pending list. One is the Paul amendment 
No. 1064, repeal the authorization for use of military force against 
Iraq. The second one is not directly after his but follows after two 
Feinstein amendments. Senator Feinstein told me she could not be here 
early this afternoon. I told her if hers could be made part of a 
unanimous consent agreement, that could come later because this 
afternoon we have other things we can do. So the second amendment on 
this list is another nongermane amendment by Senator Landrieu, No. 
1115, relative to small business research grants.
  What we are trying to do is work out a unanimous consent agreement. 
There will be 60-vote thresholds on those two amendments. Neither one 
of them, I believe, is germane. As part of that agreement, we would 
also next move to approximately 40 cleared amendments which we would 
then ask be passed as cleared. That would all be part of a unanimous 
consent agreement we are currently drafting.
  So I want to alert our colleagues----
  Mr. McCAIN. For the benefit of our colleagues, could I add also the 
agreement of a half hour time limit on the Paul amendment? He would 
agree to that. I am sure Senator Landrieu would agree to a short time 
agreement on her amendment.
  Mr. LEVIN. I am sure she told me that would be OK. When we prepare 
our unanimous consent agreement, we will doublecheck that.
  So that is where we stand. We hope in the next few minutes to be able 
to bring to the body a unanimous consent agreement. In the meantime, 
unless there is someone else who seeks recognition, I would note the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. 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. COBURN. I have cleared with Senator Levin to be able to speak 
about a topic but not offer an amendment. I understand we are working 
on a unanimous consent agreement. I do have an amendment that at the 
appropriate time hopefully will be able to be brought up, but I wish to 
discuss it now. I think it is a way for us to save $1.1 billion over 
the next 5 years in the Defense Department, give children of on-base 
military schools a better education, help the local school districts 
through Impact Aid by $12,000 per student per year, and actually do 
what we are intending to do in terms of education.
  We have 64 schools right now on 18 military bases within the United 
States. There are 26,000 students taught by 2,300 teachers. That is 1 
teacher for every 11 students. The average cost per student per year is 
$51,000 in a military school--$51,000. That is 250 percent higher than 
the highest cost district anywhere in the United States--2\1/2\ times.
  This amendment says let's use local schools, let's help local schools 
through these military bases, and let's give an exemption if we need 
to, if it is not available. If we were to do that, three positive 
things would happen. The first one is probably a better education. 
According to the teachers, conditions are so bad that some of the 
educators at base schools envy the civilian public schools off base, 
which admittedly have their own challenges. ``Some of the new schools 
in town make our schools look like a prison,'' said David Primer, who 
uses a trailer as a classroom to teach students German at Marine Corps 
headquarters in Quantico, VA. In other words, what they are looking at, 
what they are doing, and for the cost of it, the value can be higher. 
That is No. 1.
  Second, it will help the local school districts because they will not 
only get Impact Aid, but they will be given up to $12,000 per year per 
student off a military base.
  Then, finally, third, it will, over the next 5 years, save $220 
million a year out of the military's budget that they would not be 
spending. That is after the $12,000 and the Impact Aid. So it is a way 
to save $1.1 billion and give a better education with better facilities 
to the children of our military service bases, these 26,000 students at 
16 military installations. It is a win-win-win.
  My hope is we will be able to call up this amendment and make it 
pending in the future.

[[Page S7958]]

  I thank the Chair.
  I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. 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. INHOFE. Mr. President, I had a number of amendments that I was 
just going to discuss, unless the chairman is planning to speak.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. It is fine, if my colleague wishes to discuss amendments 
without attempting to offer any amendments.
  Mr. INHOFE. No, that is not my intention. I just want the chance to 
talk about them.
  Mr. LEVIN. I appreciate that. If I could ask my friend about how long 
he needs?
  Mr. INHOFE. Until the chairman is ready to speak.
  Mr. LEVIN. That sounds good.
  Mr. INHOFE. Mr. President, there are a number of amendments I think 
will probably not come up, but they should. We talked about this some 
time ago.
  The Federal Aviation Administration has come up with a change for 
their SUB-S nonscheduled carriers that is going to make them comply 
with certain of the wage and hour--the crew rest requirements. Here is 
the problem we have. About 95 percent of the passengers who go into--
this is our troops--Afghanistan today are carried by nonscheduled 
airlines as opposed to military and about 40 percent of the cargo that 
is going in.
  Now, the problem we have is, with the 15-hour restriction on crew 
rest, they are unable to bring them in, leave them there, and then go 
back to their point of origin--someplace in Germany--without exceeding 
that 15-hour limitation. The only choice they would have is to leave 
them in Afghanistan, which they cannot do because that is a war zone.
  So I want to have a way of working this out. We want to pursue this 
because the carriers understand what the problem is. These are the 
nonscheduled carriers. So it is something I think is very significant, 
and we need to be addressing it.
  Another issue is, JIEDDO is the group that is the Joint Improvised 
Explosive Device Defeat Organization. They have done great work in 
their technology in stopping the various technologies over there, the 
IEDs that have been killing and causing damage to our troops and to our 
allies. The problem we have is it is set up just for Iraq and 
Afghanistan. When everything is through in Iraq and Afghanistan, that 
might put them in a position where they would cease to exist, and yet 
the technology and what they are doing right now is useful in the 
United States even though it is not designed by the legislation to do 
that. I believe this is something that can be corrected.
  Another area that needs to be addressed--and I have some ideas, and 
this is one I would like to get in the queue; it is not pending at this 
time, so there is a little bit of a problem there, but it might be 
something that could be addressed in conference--is the military bases 
should be able to benefit from the production of domestic energy and 
resources on those bases.
  In the case of the McAlester depot, they could horizontally drill and 
come out with some pretty good royalties that would otherwise go to the 
general fund or go to the State of Oklahoma. It is kind of divided in 
that way. Well, the problem is there is a cost that is incurred by the 
military operation. We need to have something that is going to allow 
them to receive the benefits of the production that takes place under 
the military installations through horizontal drilling.
  I think everyone is for doing this. But the problem is, it could be 
scored in that if we took all of the existing production, then that 
would be money that would not otherwise go to our general fund. So what 
I would propose is to have this in the form of an amendment, and then 
change it to say: Any operation from this point forward--that money, 
those royalties, could go back to the military base because what we all 
agree on is we do not want our bases to have to foot the bill for these 
things that are taking place.
  I have an amendment, No. 1101, that would stop the transfer of the 
MC-12W ISR aircraft from the Air Force to the Army. I think it is 
something that is pretty significant. We are talking about intelligence 
and reconnaissance. The MC-12W is a King Air or a C-12. Right now it is 
under the jurisdiction of the Air Force, and this bill would change it 
from the Air Force to the Army. Well, neither the Air Force nor the 
Army wants to make that change, and there ought to be a way to support 
that.
  There are several other amendments that will be coming forward that 
will be offered. One I feel very strongly about has to do with the sale 
of the F-16C/D models to Taiwan.
  Then, lastly--and I feel very strongly about this--back in 2007, we 
changed the commands to create AFRICOM. AFRICOM, prior to this time, 
was part of three commands: Central Command, Pacific Command, and 
European Command. Well, it is so significant in terms of national 
security, in terms of our economy and the activity that is going on 
there right now.
  For example, ever since 9/11, we have been working with the Africans 
to help develop in Africa our programs--our 1206 programs, our train-
and-equip programs. More recently, we have been involved in the LRA 
issue in poor countries in Africa.
  Well, there is an effort now--almost any Member I guess would feel 
the same way--to take that command that is now in Stuttgart, Germany, 
and put it in Texas or Florida or someplace in the United States. I 
think that would be something that would inure to the benefit maybe of 
a Member, a Senator, but, on the other hand, it creates certain 
problems.
  When the African Command came into effect--and I think that is one of 
the few issues that I, probably, am more familiar with than most other 
Members--the obvious place would have been to have that command located 
in Africa itself. My choice at that time was Ethiopia. I think there is 
a lot of jurisdiction for that. But they said because of the political 
problem--if we go back historically in Africa, and we look at the 
colonialism, there is this thing embedded back in the minds of people 
in Africa, thinking that having a command, a U.S. command located in 
Africa, it might revert back to some of the colonial days. That is the 
concern people had.
  So, anyway, I thought it would have been better to have it in Africa 
itself. But because of this--and, by the way, I have talked to many of 
the Presidents of countries over there--President Kikwete in Tanzania 
and President Kagame in Rwanda and President Kabila in the Congo, and 
several of the others--and they say: Yes, you are right. It would be 
better to have that command located somewhere in Africa, but we have 
the political problem with the people who would think that is a move 
back toward colonialism. So it is a complicated problem.
  However, I do believe all of the generals pretty much believe that 
AFRICOM should remain where it is. At least Stuttgart is in the same 
time zone. It is easier to transport people and equipment back and 
forth. So I would support defeating any of the amendments that would 
change that situation.
  With that, Mr. President, I yield the floor and suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. KIRK. 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. KIRK. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

 [...]

  Mr. FRANKEN. 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. FRANKEN. Mr. President, I have filed two amendments that I will 
offer at some time, and I will talk about them now.
  I am strongly opposed to the detention provisions in the Defense bill 
before us. I am disappointed that Senator Udall's amendment did not 
pass. Taken together, sections 1031 and 1032 would fundamentally alter 
how we investigate, arrest, and detain individuals suspected of 
terrorism.
  Before I get into the details of why I oppose these detainee 
provisions, I think it is important to recognize that September 11 
irrevocably and unalterably changed our lives. I was in Minnesota on 
that terrible day. A number of Minnesotans died in the towers, in the 
air, and at the Pentagon. In New York, in the months following the 
attacks, I attended the funerals of brave firefighters and law 
enforcement officers who sacrificed their lives to help rescue folks 
from the towers. I cannot shake those images from my mind, and I am 
guessing, like many of you, I will never be able to erase the horrors 
of September 11 from my mind.
  September 11 reminded us that we are vulnerable and that we are 
fighting an unusual enemy. It forced us to reassess our approach to 
counterterrorism, and it forced us to redouble our efforts to track 
down the people who aim to do us harm. But it is exactly in these 
difficult moments, in these periods of war when our country is under 
attack, that we must be doubly vigilant about projecting what makes us 
Americans.
  The Founders who drafted our Constitution and Bill of Rights were 
careful to draft a Constitution of limited powers--one that would 
protect Americans' freedom and liberty at all times, both in war and in 
peace.
  Today, as we contemplate fundamentally altering the criminal justice 
system our Founders developed in order to create a military detention 
system--a system that would permit the indefinite detention of U.S. 
citizens and lawful residents of the United States for acts committed 
in the United States--I think it is important to pause and remember 
some of the mistakes this country has made when we have been fearful of 
enemy attack.
  Most notably, we made a grave and indefensible mistake during World 
War II when President Roosevelt ordered the incarceration of more than 
110,000 people of Japanese origin, as well as approximately 11,000 
German Americans and 3,000 Italian Americans. There is a memorial right 
across the street from the Capitol that should remind us all of this 
terrible mistake.
  In 1971, President Richard Nixon signed into law the Nondetention Act 
to make sure the U.S. Government would never again subject any 
Americans to the unnecessary and unjustifiable imprisonment that so 
many Japanese Americans, German Americans, and Italian Americans had to 
endure.
  It wasn't until 1988--46 years after the internment--that President 
Reagan signed the Civil Liberties Act, that the government formally 
acknowledged and apologized for the grave injustice that was done to 
citizens and permanent residents of Japanese ancestry.
  These were dark periods in American history, and it is easy standing 
here today to think that is all behind us, that it is a distant memory. 
But I fear that the detention provisions in this bill forget the 
lessons we learned from the mistakes we made when we interned thousands 
of innocent Japanese, Germans, and Italians or when we destroyed the 
lives of supposed Communist sympathizers with nary a shred of evidence 
of guilt.
  In the weeks following September 11, the Justice Department made 
extraordinary use of its powers to arrest and detain individuals. We 
arrested hundreds of people for alleged immigration violations and 
dozens more under a material witness statute. None of these individuals 
were charged with a crime. All of this happened without the military 
detention scheme envisioned in this bill. This was also a mistake and 
one that should not be repeated.
  But if we pass the Defense authorization bill with section 1031, 
Congress

[[Page S7961]]

will, according to the arguments that were made on the floor last week, 
for the first time in 60 years, authorize the indefinite detention of 
U.S. citizens without charge or trial. This would be the first time 
Congress has deviated from President Nixon's Nondetention Act. What we 
are talking about is that Americans could be subjected to life 
imprisonment--think about that for just a moment--life imprisonment 
without ever being charged, tried, or convicted of a crime, without 
ever having an opportunity to prove your innocence to a judge and a 
jury of your peers, and without the government ever having to prove 
your guilt beyond a reasonable doubt. I believe that denigrates the 
very foundation of this country. It denigrates the Bill of Rights and 
what our Founders intended when they created a civilian, nonmilitary 
justice system for trying and punishing people for crimes committed on 
U.S. soil. Our Founders were fearful of the military, and they 
purposely created a system of checks and balances to ensure that we did 
not become a country under military rule. If this bill passes, the 
Supreme Court should find these detention provisions unconstitutional.
  Let's put that aside for now and focus on what we are currently doing 
right to fight terrorism. We are doing a heck of a lot of great things 
when it comes to national security. I think we actually need to 
remember that, and we need to remember that we are winning the fight 
against terrorists without trampling on our constitutional rights.
  Just last May, under the tremendous leadership of President Obama and 
Secretary Panetta, head of the CIA, we hunted down and killed Osama bin 
Laden. A few days ago, the Washington Post reported that the al-Qaida 
core has contracted and weakened since then, and its leadership ranks 
have been reduced to two members. To be sure, that does not mean that 
al-Qaida is no longer a threat, particularly coming from groups outside 
the core, but it is a remarkable achievement. Our current 
counterterrorism strategy is not broken. Indeed, just the opposite is 
true. We are winning the war against al-Qaida. There is no indication--
none--that we need to fundamentally alter our approach to locating 
terrorists here or overseas.
  Under Director Mueller's leadership, the FBI has turned itself inside 
out, and over the last 10 years, since September 11, it has become an 
intelligence-gathering counterterrorism machine. I can't say I have 
always agreed with 100 percent of the FBI's tactics, and there are 
times when I worry they may be overstepping, but make no mistake, if 
our goal is hunting down the bad guys, the FBI knows what they are 
doing. There is no reason to think we need to change course and create 
an entirely new system that would completely supplant the resources and 
expertise of the FBI.
  For those who would argue that we need to shift these people out of 
our civilian criminal justice system and away from article III courts 
and into a military system, I have to ask why. Where is the sign that 
we have a problem that needs fixing? There is no reason to think we 
need to create an entirely different framework for a problem we have 
been dealing with for centuries. This enemy is not so different that we 
need to upend our criminal justice system.
  I think this is a solution in search of a problem. There is no need 
to go down this path. We should be focused on doing what is best for 
this Nation and what is best for protecting Americans. We should be 
working together on this, not coming up with additional ways to divide 
and polarize this country. That is why, when the Secretary of Defense, 
the Director of National Intelligence, and the Director of the FBI 
express serious concerns about these provisions and when the 
President's top counterterrorism adviser, John Brennan, complains that 
these provisions will make it even harder for them to locate and detain 
terrorists in the United States and overseas, we should probably listen 
to them.
  Section 1031 runs the risk of authorizing the indefinite detention 
without trial of Americans. Section 1032 is unnecessary and complicates 
our counterterrorism policy. They are bad policy.
  In short, these provisions should not be passed. They are not well-
considered terrorism policy, and they would authorize poorly understood 
and deeply troubling policies. That is why I have put forward 
amendments that would strike each of these two sections. That is why I 
cosponsored Senator Mark Udall's amendment, the cousin of our Presiding 
Officer. That is why I cosponsored his amendment, and I would be happy 
to cosponsor amendments from our Presiding Officer as well, but that is 
why I cosponsored Senator Mark Udall's amendment that would have sent 
these matters back to the administration and the relevant committees of 
Congress for the full consideration, discussion, and debate they 
deserve. Our national security and our freedom require nothing less.
  I thank the Chair, I yield the floor, and 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. FEINSTEIN. Mr. 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. 1125 and 1126

  Mrs. FEINSTEIN. Mr. President, if I understand the procedure, it is 
now appropriate for me to speak on my pending amendments. I will not 
offer my two amendments for a vote now, but I would like to take the 
opportunity to speak about them at this time. I trust that is in order.
  The PRESIDING OFFICER. The Senator is recognized.
  Mrs. FEINSTEIN. Mr. President, I rise to express my continued 
opposition to the detention provisions in the Defense authorization 
bill.
  I was on the Intelligence Committee prior to 9/11, and I have watched 
the transition since that time. I have watched America--to use a 
phrase--get its act together, and I am proud of where this country 
stands at this time with the procedures, the interrogation techniques, 
the custody issues, and the prosecutions that have been successful in 
the last 10 years. In my judgment, this country is safer now than we 
were before 9/11.
  Before the recess, I laid out my views on why the detainee provisions 
in the Armed Services bill were detrimental to national security 
because they reduce the President's flexibility to make decisions on 
how best to detain and potentially interrogate and prosecute suspected 
terrorists. Today, I would like to speak to the two amendments I have 
filed, and I will describe them in a moment.
  Let me also reference two letters in opposition to the detention 
provisions in the underlying bill: one written to me from the Director 
of National Intelligence, James Clapper, and the second written 
yesterday to Chairman Levin from Bob Mueller, the Director of the FBI.
  These letters are in addition to the Statement of Administrative 
Policy, which includes a veto threat to the detention provisions and 
the letter from the Secretary of Defense, Leon Panetta, both of which 
were inserted into the Record before the recess.
  So I note that the provisions in the bill we are considering are 
opposed by the White House, by the Secretary of Defense, the Director 
of National Intelligence, and the Director of the FBI. These top 
national security officials are all concerned that the bill reduces the 
administration's flexibility to combat terrorism, both at home and 
abroad, and I would agree with that.
  I will ask at the appropriate time for a vote on amendment No. 1125, 
which will limit mandatory military custody to terrorists captured 
outside the United States. This is a very simple amendment that only 
adds one word, ``abroad,'' to section 1032 of the underlying bill.
  Currently, this bill creates a presumption that members or parts of 
al-Qaida or ``associated forces'' will be held in the military 
detention system, and I disagree with that approach. I believe the 
President should have the flexibility to hold captured terrorists in 
the military or the criminal justice systems, and the decision of which 
system to use should be made based on the individual facts and evidence 
of each case.
  Putting aside that general view, I am very concerned that creating a 
presumption for military custody--which this bill does--and requiring a 
cumbersome waiver process will jeopardize counterterrorism cases and 
intelligence gathering. This concern is not

[[Page S7962]]

only mine, it has been raised by the White House, by Secretary Panetta, 
and very directly by Director Mueller in his letter.
  So my amendment would clarify the situation and remove the confusion 
and delay that I believe this bill will cause. My amendment will make 
clear that under section 1032 of this bill the U.S. Armed Forces are 
only required to hold a suspected terrorist in military custody when 
that individual is captured abroad. All that amendment does is add that 
one word, ``abroad,'' to make clear that the military will not be 
roaming our streets looking for suspected terrorists. My amendment does 
not remove the President's ability to use the option of military 
detention or prosecution inside the United States.
  My amendment makes clear that inside the United States there is no 
presumption for military custody. Inside the United States, a Customs 
agent or local law enforcement officer could follow his or her standard 
process and turn a suspected terrorist over to the FBI for handling 
without having to worry about whether a waiver may apply or whether it 
is required.
  The FBI has changed. There are 56 field offices, there is a national 
security branch, and it is staffed with thousands of agents inside the 
United States. The FBI is well equipped to handle a terrorist inside 
the United States, but the Department of Defense is not. Listen to what 
Director Mueller wrote. He notes, and I quote:

       The legislation introduces a substantial element of 
     uncertainty as to what procedures are to be followed at 
     perhaps the most critical time in the development of an 
     investigation. . . .

  Now, I understand that the chairman and ranking member of the Armed 
Services Committee have included a waiver and have required that the 
administration issue procedures to lay out how the mandatory military 
custody provision will be carried out. But the administration is 
telling us, with a unanimous voice from all its senior counterterrorism 
officials, that this provision is harmful and unnecessary. But we say 
Congress knows better. I don't believe we do know better, and I think 
not to listen to those who are really responsible to carry out these 
missions in what is a very difficult field today, based on a careful 
assessment of national security, is a mistake.
  The administration has threatened to veto this bill and said it 
``strongly objects to the military custody provision of section 1032'' 
in its official Statement of Administration Policy because it would, 
and I quote, ``tie the hands of our intelligence and law enforcement 
professionals.'' So here are the experts saying: Don't do this, it will 
tie our hands; and here is the political branch saying: We know better.
  If something had gone wrong, if there had been mistakes, if there 
hadn't been over 400 cases tried successfully in civilian Federal 
criminal courts in the last 10 years and 6 cases and a muffed history 
of military prosecution in these cases, I might agree. But the march is 
on here in Congress: militarize this thing from stem to stern. And I 
disagree with that. When something isn't broke, don't fix it.
  Mr. President, there are rapid reaction teams part of the HIG--or 
High-Value Interrogation Group--who can deploy on a moment's notice, 
who can rapidly assess a suspect, who can carry out a proper and 
effective interrogation, and the executive branch then has an 
opportunity to decide whether the facts and the evidence really are 
best suited for a Federal criminal prosecution in Article III courts, 
or the facts and the evidence are really best suited for a military 
commission prosecution.
  This flexibility is what we are taking away from the executive branch 
under the provisions in this bill. It was well practiced during the 
Bush Presidency, and it has been well practiced by the Obama 
Presidency. Virtually every national security professional connected to 
the handling of terrorists and the intelligence obtained from them says 
to change it would be a mistake. So I believe the amendment I am 
offering--limiting mandatory military custody to detainees outside the 
United States--is a major improvement to the underlying bill. It 
removes the uncertainty that will occur if military custody is required 
for detainees captured inside the United States.
  Frankly, I would prefer that the provision--section 1032--be struck 
in its entirety, as I don't believe we should be creating a presumption 
of military custody over the law enforcement route. That is not what 
this country is about. There is the posse comitatus law on the books. 
The military isn't supposed be roaming the streets of the United 
States. But if there is going to be this type of provision, it should 
at least do no harm to our ability to detain, interrogate, and 
prosecute terrorists. So I ask for my colleagues' support on this 
amendment.

  While I am on the Senate floor, I would like to speak briefly to the 
second amendment I have filed and on which I also seek a vote, since 
the Udall amendment has failed; that is, amendment No. 1126, which 
would prohibit U.S. citizens from being held in indefinite detention 
without trial or charge.
  As Members know, section 1031 of the underlying bill updates and 
restates the authorization for the use of military force that was 
passed on September 18, 2001, 10 years ago, 1 week after the attacks of 
9/11. The provision updates the authority to detain terrorists who seek 
to harm the United States, an authority that I believe is consistent 
with the laws of armed conflict. However, I strongly believe that the 
U.S. Government should not have the ability to lock away its citizens 
for years, and perhaps decades, without charging them and providing a 
heightened level of due process. We shouldn't pick up citizens and 
incarcerate them for 10 or 15 or 20 years or until hostilities end--and 
no one knows when they will end--without giving them due process of 
law.
  So my amendment simply adds the following language to section 1031 of 
the underlying bill:

       The authority described in this section for the Armed 
     Forces of the United States to detain a person does not 
     include the authority to detain a citizen of the United 
     States without trial until the end of hostilities.

  It is hard for me to understand how any Member of this body wouldn't 
vote for this amendment because, without it, Congress is essentially 
authorizing the indefinite imprisonment of American citizens without 
charge or trial.
  As I said on the Senate floor previously, 40 years ago Congress 
passed the Non-Detention Act of 1971 that expressed the will of 
Congress and the President that America would never repeat the 
Japanese-American internment experience--something that I witnessed as 
a child up close and personal--and would never subject any other 
American to indefinite detention without charge or trial. In the 40 
years since President Richard Nixon signed the Non-Detention Act into 
law, Congress has never made an exception to it.
  A key issue in this bill is that this is the Congress making an 
explicit exception that has never been made before by the Congress, and 
what we are saying is, it is OK to detain an American citizen without 
trial, ad infinitum. I don't think it is. I don't think that is what 
our Constitution is all about. Yet the provision in this bill would do 
just that.
  I ask unanimous consent to have printed in the Record a column 
published yesterday in the San Jose Mercury News of California from 
Floyd Mori.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From MercuryNews.com, Nov. 27, 2011]

 S. Floyd Mori: Internment Specter Raises Ugly Head in Forgetful U.S. 
                                 Senate

                           (By S. Floyd Mori)

       The oldest generation of Japanese-Americans, those whose 
     earliest memories were of their lives and families being 
     upended by internment without charge or trial in 
     concentration camps during World War II, at least take 
     comfort in the hope that America is now committed to never 
     inflicting that experience on any other group of Americans or 
     immigrants. But our trust in that commitment is being shaken 
     by a bill poised to go to the Senate floor that could once 
     again authorize indefinite detention without charge of 
     American citizens and others now living peacefully in our 
     country.
       We have reason to believe in the commitment of Americans to 
     say never again to indefinite detention. In 1988, the Civil 
     Liberties Act officially declared that the Japanese-American 
     internment had been a ``grave injustice'' that had been 
     ``carried out without adequate security reasons.'' In other 
     words, the indefinite detention of Japanese-Americans during 
     World War II was not only wrong, but unnecessary.

[[Page S7963]]

       A bill on the Senate floor raises the question of whether 
     the Senate has forgotten our history. S. 1253, the National 
     Defense Authorization Act, has a provision in it, 
     unfortunately drafted by Sens. Carl Levin, D-Mich., and John 
     McCain, R-Ariz., that would let any U.S. president use the 
     military to arrest and imprison without charge or trial 
     anyone suspected of having any relationship with a terrorist 
     organization. Although Sen. Dianne Feinstein, D-Calif., and 
     more than a dozen of her colleagues are bravely calling for a 
     halt to a damaging bill, they face significant opposition.
       The troubling provision, Section 1031, would let the 
     military lock up both Americans and noncitizens in the 50 
     states. There would be no charges, no trial, no proof beyond 
     a reasonable doubt. All that would be required would be 
     suspicion.
       Although the details of the indefinite detentions of 
     Japanese-Americans during World War II and the proposed 
     indefinite detentions of terrorism suspects may differ, the 
     principle remains the same: Indefinite detentions based on 
     fear-driven and unlawfully substantiated national security 
     grounds, where individuals are neither duly charged nor 
     fairly tried, violate the essence of U.S. law and the most 
     fundamental values upon which this country was built.
       As the measures to indefinitely detain Japanese-Americans 
     during World War II have been deemed a colossal wrong, the 
     same should be true of modern indefinite detention of 
     terrorism suspects. Our criminal justice system is more than 
     equipped to ensure justice and security in terrorism cases, 
     and we certainly should not design new systems to resurrect 
     and codify tragic and illegitimate policies of the past.
       As our history shows, acting on fear in these situations 
     can lead to unnecessary and unfruitful sacrifices of the most 
     basic of American values. In the 10 years since the 9/11 
     attacks, Congress has shown admirable restraint in not 
     enacting indefinite detention without charge or trial 
     legislation. Now with the president seeking to end the 
     current wars, the Senate must avoid repeating the mistakes of 
     the past and protect American values before they are 
     compromised. We cannot let fear overshadow our commitment to 
     our most basic American values.
       The Senate can show that it has not forgotten the lessons 
     of the Japanese-American internment. It should pass an 
     amendment that has been offered by Sen. Mark Udall, D-Colo., 
     that would remove Section 1031 from the act. This Senate 
     should not stain that great body by bringing to the floor any 
     detention provision that would surely be looked upon with 
     shame and regret by future generations.

  Mrs. FEINSTEIN. I know Mr. Mori well. He is the national executive 
director of the Japanese American Citizens League, which is the oldest 
and largest Asian-American civil rights organization in the United 
States. The Japanese American Citizens League--or JACL as we would 
say--has been an active voice on the wrongful internment of Japanese 
Americans during World War II, and I believe it is worth listening to 
what they have observed from that painful history.
  The administration has threatened to veto this bill and said the 
following in its official Statement of Administration Policy:

       After a decade of settled jurisprudence on detention 
     authority, Congress must be careful not to open a whole 
     series of legal questions that will distract from our efforts 
     to protect the country.

  Yet by allowing the military to detain U.S. citizens indefinitely, 
Congress would be opening a great number of serious legal questions, in 
my judgment.
  This amendment would restore the language that was in an earlier 
version of this bill that would have established a similar ban on the 
indefinite detention of U.S. citizens. It is also consistent with the 
way we have conducted the war on terror over the past 10 years. In 
cases where the United States has detained American citizens, including 
John Walker Lindh and Jose Padilla, they have eventually been 
transitioned from indefinite detention to the criminal justice system, 
and both have been convicted and are serving long prison sentences. 
John Walker Lindh pleaded guilty to terrorism charges and was given a 
20-year sentence, and Jose Padilla was convicted of terrorism 
conspiracy and sentenced to a 17-year prison sentence.
  So I believe this amendment is consistent with past practice and with 
traditional U.S. values of due process. We are not a nation that locks 
up its citizens without charge, prosecution, and conviction. My 
amendment reflects that view, I believe in that view, and I hope this 
body does as well. So I urge its adoption.
  Mr. President, in conclusion, I ask my colleagues' support on these 
two amendments because I believe they will improve the legislation.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Durbin). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. TESTER. 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. TESTER. Thank you, Mr. President. It is good to see the Senator 
in the chair.
  I rise to speak on amendment No. 1145. I cannot call up this 
amendment at this point in time, but hopefully at some time during this 
debate we can deal with this issue of foreign base closures, which is 
what amendment No. 1145 does.
  I have offered--along with my colleague from Texas, Senator 
Hutchison--to establish an overseas basing commission. We are joined on 
this amendment by Senators Conrad, Wyden, and Sanders.
  This commission would be charged with saving taxpayer money by 
identifying and reevaluating our overseas military base structure and 
investments. It is not a new discussion. This has been done before. In 
Washington, colleagues from both sides of the aisle have long advocated 
for issues similar to this one.
  In Montana, Senator Mike Mansfield--a personal hero of mine and one 
of the truest statesmen of this body--advocated fiercely throughout his 
public service for a more commonsense approach to our overseas military 
commitment. Senator Mansfield's approach balanced our national security 
interests and decisions with decisions and investments that made sense 
fiscally. The time could not be more appropriate to renew this call. 
Given our budget outlook, we have a responsibility to exhaustively look 
for savings across our government. We need to be smart and we need to 
work together.
  It makes a lot of sense to me that cutting overseas military 
construction projects that have minimal negative impacts on our 
national security and military readiness is the right idea. We know 
there is a significant higher cost associated with maintaining 
facilities and forces overseas, particularly in Europe, than here in 
the United States. We also know we need a more complete picture of the 
cost, the benefits, and the savings associated with overseas basing as 
we make tough budgetary decisions. Given our military's advanced 
capabilities, it is time for some responsible decisions about how to 
best secure our country while saving American taxpayers every penny we 
possibly can.
  As Montana families examine their bottom line and as the country 
works to cut spending, it is past time to give our outdated military 
bases and installations a closer look. An overseas basing commission 
would independently address these issues firsthand and ensure that 
military construction spending and operational maintenance spending 
match our capabilities and our national security strategy.
  As we move forward, I hope we will do so in the spirit of Senator 
Mansfield by working together and by making commonsense decisions that 
keep us both safe and spend our taxpayer dollars more wisely.
  As I said when I opened these remarks, I think this is a no-brainer. 
We need to take a step back, look at the money we are spending on 
overseas bases, make sure we are getting the best bang for the buck and 
make sure it meets our national security needs. With a lot of these 
post-World War II installations, they can be shut down, we can save 
some money, and it is a win-win situation for everybody.
  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.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. 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. LEVIN. Mr. President, I was listening in the cloakroom to Senator 
Tester's comments about his amendment, and I wish to tell everyone how

[[Page S7964]]

right on point he is. I am focusing on overseas bases and the need to 
close some of those bases. We have another Defense bill coming up 
fairly soon, if we cannot get something done on this bill--and I hope 
we can--whether it is the sense of the Senate or otherwise to put our 
focus there, because we need to reduce our presence particularly in 
those bases, I believe, in Europe, where we simply no longer need those 
bases and cannot afford to maintain them. But whether we can get a 
commission done is a different issue because that could actually slow 
down the process, to appoint a BRAC-type commission.
  I just wished to comment while he was still on the floor that I 
believe he is right. He is focused on that which is critically 
important for not just the Armed Services Committee but for this Senate 
to look at, which is to look at the huge number of overseas facilities 
we have and the fact that there are many we no longer need and we have 
to look there for some significant savings. I just wished to commend 
the Senator from Montana.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. TESTER. Mr. President, I thank Chairman Levin for his comments. 
As we look for opportunities to save money, as we look for 
opportunities to focus in on the war on terror, I think our time has 
come to take a hard look at our overseas basing and do what, quite 
frankly, will enhance our opportunities to fight the war on terror 
while saving the taxpayers dollars over the short term and the long 
haul.
  I thank Chairman Levin for his comments.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. ISAKSON. Mr. President, I wish to address the Senate as if in 
morning business for up to 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[...]

                           Amendment No. 1064

  Mr. PAUL. Mr. President, I rise in support of bringing the Iraq war 
to a formal end. President Obama has ordered troops home by January 1. 
We should rejoice at the conclusion of the war. No matter whether one 
favored the Iraq war or not, there is a glimmer of hope for democracy 
to now exist in the Middle East in Iraq.
  War is a hellish business and never to be desired. As the famous POW 
and war hero John McCain once said: ``War is wretched beyond 
description, and only a fool or a fraud could sentimentalize its cruel 
reality.''
  This vote is more than symbolism. This vote is about the separation 
of powers. It is about whether Congress should have the power to 
declare war. The Constitution vested that power in Congress, and it was 
very important. Our Founding Fathers did not want all the power to 
gravitate to the Executive. They feared very much a King, and so they 
limited the power of the Executive.
  When Franklin walked out of the Constitutional Convention, a woman 
asked him: What have you brought us? Was it going to be a republic, a 
democracy, a monarchy?
  He said: A republic, if you can keep it.
  In order to keep a republic, we have to have checks and balances. But 
we have to obey the rule of law.
  Madison wrote:

       The Constitution supposes, what the History of all 
     Governments demonstrates, that the Executive is the branch of 
     power most interested in war, and most prone to it. The 
     Constitution has, therefore, with studied care, vested the 
     [power] to declare war in [Congress].

  When we authorize the war in Iraq, we give the President the power to 
go to war, and the Constitution gives the power to the President to 
execute the war. All the infinite decisions that are made in war--most 
of them are made by the executive branch. But the power to declare war 
is Congress's. This division was given to make there be a division of 
powers, a separation of powers, to allow there to be a reluctance to go 
to war.
  We have this vote now to try to reclaim the authority.
  If we do not reclaim the authority to declare war or to authorize 
war, it will mean our kids or our grandkids or our great-grandkids 
could be sent to a war in Iraq with no debate, with no vote of 
Congress. We have been at war for nearly 10 years in Iraq. We are 
coming home. And we should rejoice at the war's end. But we need to 
reclaim that authority. If we leave an open-ended authority out there 
that says to the President--or any President; not this particular 
President, it could be any President--if we leave that authority out 
there, we basically abdicate our duty, we abdicate the role of 
Congress. There are supposed to be checks and balances between Congress 
and the President.
  So what I am asking is that Congress today reclaim the authority to 
declare war and at the same time we celebrate that this is an end to 
something that no one should desire.
  As Senator McCain has pointed out, as many have pointed out, Dwight 
Eisenhower pointed out the same thing: If you want to know the hellish 
of war, talk to someone who has been to war.
  But that is why this power is too important to be given to one person 
and to be left in the hands of one person--a President of either party.
  So the vote today will be about reclaiming that authority, reclaiming 
the authority of Congress to declare war. I would recommend that we 
have a vote and that the vote today be in favor of deauthorizing the 
war in Iraq.
  It is not just I who have pointed this out. The first President of 
the United States wrote:

       The Constitution vests the power of declaring war in 
     Congress; therefore, no offensive expedition of importance 
     can be undertaken until after they shall have deliberated 
     upon the subject and authorized such a measure.

  This has been recognized by Presidents from the beginning of the 
history

[[Page S7969]]

of our country. The problem is that if we do not give it up, that power 
is left out there, and it is a power lost to Congress.
  Frank Chodorov wrote:

       All wars come to an end, at least temporarily. But the 
     authority acquired by the states hangs on; political power 
     never abdicates.

  This is a time to reclaim that power. It is an important 
constitutional question. I hope those Senators will consider this 
seriously and consider a vote to reclaim the authority to declare war.
  I reserve the reminder of my time and temporarily yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I would like to first of all thank the 
Senator from Kentucky for quoting me. It is always a very pleasant 
experience as long as it is something that one would admire. On several 
occasions, I have been quoted in ways that I wish I had observed what 
my old friend Congressman Morris Udall used to say is the politician's 
prayer: May the words that I utter today be tender and sweet because 
tomorrow I may have to eat them. So I want to thank the Senator from 
Kentucky for his kind words.
  I also want to praise the Senator from Kentucky, who is a person who 
has come here with a firm conviction that he not only has principles 
but he intends to act on those principles in as impactful a way as 
possible and represent the people of Kentucky in a very activist 
fashion. He has my admiration. However, I would rise in opposition to 
the amendment.
  I would like to read from a letter that was sent to the chairman and 
to me from the Chairman of the Joint Chiefs of Staff and the Secretary 
of Defense.

       This week, as you consider the National Defense 
     Authorization Act, the Department of Defense would like to 
     respond to your request for views on the amendment offered by 
     Senator Paul which would repeal the Authorization for the Use 
     of Military Force in Iraq. U.S. Forces are now in the final 
     stages of coming home by the end of 2011. We are moving to a 
     new phase in the relationship between our two countries and 
     equal partnership based on mutual interests and mutual 
     respect.
       While amendment No. 1064 echoes the President's policy, we 
     cannot support the amendment as drafted. Outright and 
     complete repeal of the AUMF-I, which is the Authorization for 
     the Use of Military Force in Iraq, withdraws all 
     Congressional support for any limited windup activities 
     normally associated with ending a war. Thank you very much 
     for your continued efforts.

  The Department of Defense sent over an unclassified response that was 
approved by several members of the Pentagon. It says: Although we are 
implementing the U.S.-Iraqi security agreement in full and pulling out 
all of our forces by the end of the year, we still have a limited 
number of DOD personnel under the Chief of Mission Authority to staff 
the Office of Security Cooperation-Iraq. Because there may be elements 
that would choose this time of transition to attempt to do harm to 
these personnel, it is essential that the Department of Defense retain 
the authority and flexibility to respond to such threats. The AUMF-I 
provides these authorities. The administration has worked closely with 
Congress in circumstances where it has been necessary to rely on the 
AUMF, and it would continue to do so should the need arise.
  In other words, and unfortunately, Iraq remains a dangerous place. We 
will have the largest contingent of Americans as part of the embassy 
there as we withdraw our combat troops. Some 16,000 Americans will man 
our embassy and consulates in Iraq, and unfortunately there are great 
signs of instability in Iraq. Al-Sadr has said that any remaining 
American troops will be a target. The Iranians continue to encourage 
attacks on Americans. There are significant divisions within the 
country which are beginning to widen, such as Sunni-Shia, the area 
around Kirkuk, increasing Iranian influence in the country.
  I will refrain from addressing the deep concerns I had before the 
agreement to completely withdraw took place. I will leave that out of 
this discussion because I feel the decision that was clearly made not 
to keep a residual force in the country, which was made by this 
administration and which is the subject for debate on another day, has 
placed the remaining Americans in significant jeopardy. As I say, that 
is 16,000 Americans to carry out the postwar commitments we have made 
to Iraq to help them rebuild their country after many years of war and 
bloodshed.
  I certainly understand the aim of the Senator from Kentucky. The 
President campaigned for President of the United States committing to 
withdraw all of our troops from Iraq. He is now achieving that goal. 
But I think it would be very serious to revoke all authority that we 
might have in order to respond to possible unrest and disruption within 
the country that might require the presence, at least on some level or 
another, of American troops to safeguard those 16,000 Americans who 
will be remaining in Iraq when our troops withdraw. So I argue that the 
amendment be defeated.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I, too, will oppose the Paul amendment for 
the repeal of the authorization for the use of military force in Iraq 
for a number of reasons, but I think mainly there are just too many 
unknown, uncertain consequences of repealing this authority, including 
the need to protect our troops. I am unwilling to take this risk during 
the critical transition period and not knowing precisely what will 
happen after that transition either.
  By the way, I take this position as someone who opposed the use of 
military force in Iraq to begin with. Back in October 2002 when 
Congress voted on the authorization to use military force in Iraq, I 
did not support it. I thought it was a mistake to do that and offered 
an alternative resolution that would have authorized the use of force 
if the United Nations Security Council supported that use of force. So 
I take a position here opposing the repeal of the authorization 
although I opposed the authorization itself in the first instance. It 
is an unusual position to be in. I want to explain why it is that I 
oppose the repeal of this authorization.
  First, the drawdown appears to be on track to be completed by 
December 31, but there can always be unforeseen circumstances that 
could delay that date. There is no provision in this bill for the 
possibility of an extension or a modification of that date. I would be 
reluctant to see it modified or extended. I must say that I do not want 
to preclude the possibility by ending something in advance--ending an 
authorization in advance of circumstances arising that might require 
for days, weeks, months the extension or modification of the current 
decision to withdraw our forces by December 31.
  Second, we simply do not know the consequences of repealing the 
authorization. Let me give a few examples. What about ongoing lawsuits 
in U.S. courts arising from actions by U.S. personnel that were 
authorized under this authorization for the use of military force? 
Would repeal of the authorization for the use of force have an effect? 
It is unknown to me. I don't know how many lawsuits there are. But what 
is the impact on this? That is something which surely we should want to 
know.
  By the way, we authorized the use of force in the first gulf war. We 
did not repeal that authorization. Technically, that authorization 
continues. It has done no harm that I can see.
  Third, the Paul amendment raises issues for our detention authority 
in Iraq. This is not an abstract concern. Currently, the administration 
is in the process of deciding how to deal with one high-value detainee 
in U.S. custody whose name is Ali Mussa Daqduq. He is suspected of 
having organized a 2007 kidnapping in Iraq that resulted in the deaths 
of five U.S. servicemembers. He is also tied to Hezbollah.
  The United States is relying on the authority of the AUMF--the 
authorization for the use of military force in Iraq--to continue to 
detain Daqduq. U.S. officials are still in discussions with the 
Government of Iraq over the ultimate disposition of Daqduq, including 
possibly releasing him to U.S. custody either in Iraq or somewhere 
else.
  Repeal of the AUMF could limit the administration's options for 
dealing with Daqduq after January of 2012. Would it limit those 
options? We don't know.
  Should we pass something as dramatic as a repeal of an authorization 
at this time without knowing what the consequences are in the real 
world to our interests? I don't think we can

[[Page S7970]]

take that chance, so I would oppose the amendment of the Senator from 
Kentucky.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I would like to rise in support of the 
statements made by Senators McCain and Levin.
  I do not have that good a feeling about Iraq, quite frankly. I am not 
very confident at all that the worst is behind us. I am hopeful that we 
can withdraw our troops and that nothing bad will happen in Iraq, but, 
as Senator Levin just described, the implications of repealing the 
authorization to use military force are wide, varied, and uncertain.
  What do you get by repealing this? You can go back home and say you 
did something that--I do not know what you get. I mean, I really do 
not. I do not know what we gain as a nation by taking the contingencies 
of using military force off the table as we try to wind down.
  I just don't see the upside, quite frankly. I know the reality of 
what our troops face and why the Department of Defense would want to 
continue to have this authorization until we get Iraq behind us. At the 
end of the day, 4,400 people plus have lost their lives, thousands have 
been wounded and maimed--not counting the Iraqis who have lost their 
lives and have been wounded and maimed trying to create order out of 
chaos.
  As we move forward as a body, I don't see the upside to those who are 
doing the fighting and who have to deal with complications of this 
long, protracted war by us repealing the authorization at a time when 
it may be necessary to have it in place. If there is any doubt in your 
mind about what Senators Levin and McCain say and what the Department 
of Defense says about the need for this to be continued, I ask you to 
give the benefit of the doubt to the DOD. You don't have to; I just 
think it is a wise thing to do because what we gain by repealing it--I 
am not sure what that is in any real sense.
  By having the authorization in place for a while longer, I understand 
how that could help those who are fighting in Iraq and the follow-on 
needs that come as we transition. I ask the body to be cautious, and if 
you have any doubt that Senator McCain's or Senator Levin's concerns 
are real, I think now is the time to defer to the Department of Defense 
and give them the tools they need to finish the operations in Iraq.
  I will close with this one thought. The vacuum created by the fact 
that we will not have any troops in 2012 can be filled in a very bad 
way if we don't watch it. The Kurd-Arab problem could wind up in open 
warfare. The Iranian influence in Iraq is growing as we speak. We do 
have troops and civilian personnel in the country, and we will have a 
lot next year. I think out of an abundance of caution we ought to leave 
the tools in place that the Department of Defense says they need to 
finish this out.
  I urge my colleagues to err on the side of giving the Department of 
Defense the authorization they need to protect those who will be left 
behind.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. PAUL. It disappoints me that President Obama opposes a formal end 
to the Iraq war, but it doesn't surprise me. As a candidate, he was 
outspoken against the war and for ending the war: He will be bringing 
the troops home. But this vote in this debate is not necessarily just 
about bringing the troops home. This is a debate over power. The 
executive branch wants to keep the unlimited power to commit troops to 
war. This is about who holds the power.
  The Founding Fathers intended that Congress should hold the power. 
This vote is about whether we will continue to abdicate that power and 
give up that power to the Executive. That allows for no checks and 
balances. We need to have checks and balances. It is what our Founding 
Fathers intended.
  With regard to defending ourselves, there is authorization for the 
President to always defend the Nation using force. There is 
authorization for every embassy around the world to defend the embassy. 
That is why we have soldiers there. We have agreements with the host 
country that the host military is supposed to support the embassy. If 
that fails, we have our own soldiers. We have these agreements around 
the world. There is nothing that says we cannot use force. This says we 
are reclaiming the power to declare war, and we will not have another 
war with hundreds of thousands of troops without a debate. Should not 
the public and Congress debate it before we commit troops to war?
  This war is coming to a close. I suggest that we should be proud of 
it. I hope people will support this amendment.
  I yield to the Senator from Oregon.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I rise to support Senator Paul's 
amendment to revoke war authority. We have heard on the floor that the 
consequences of revoking authority are vague and uncertain. Indeed, my 
team has been seeking a reply from the Department of Defense as to 
whether there were any conditions we should be alerted to or whether 
this would create a problem. At the last minute, we appear to have a 
memo--which has not come to my office--that says there are possible 
complications.
  Well, let's be clear. The executive branch never wants to hand back 
authority it has been granted. It always wants to retain maximum 
flexibility. But as my colleague has pointed out, this is an issue of 
constitutional authority. We had a constitutional discussion about 
authorizing action in Iraq and, certainly contrary to my opinion, this 
body supported that action. But now the President is bringing this war 
to an end.
  Doesn't it make sense, then, that we end the authority that went with 
this war and call a formal end to this battle? The issue has been 
raised that there might be something that happens in the future. Isn't 
that true for every country on this planet, that something might happen 
in the future? Something might happen in Somalia or in Yemen or in any 
nation in the world. Indeed, under the War Powers Act, the President 
has the ability to respond immediately. He doesn't need to come to this 
body for 60 days. So there is extensive flexibility that would go with 
Iraq just as it goes with every other country, in addition to the 
authority that has been granted to pursue al-Qaida and associated 
forces around the world.
  When, if not now, should we revoke this authority? Do we say that 
once granted, at any point in the future the administration can go back 
to war without the authorization of this body? It is time for us to 
reclaim the authority of Congress. Should the circumstances arise that 
the President feels the need to go back into a war mode versus many of 
the other uses of force that are already authorized under other 
provisions, then he would have 60 days. He could come back to this body 
and say: These are the changed circumstances. Under the Constitution, 
will you grant the power to renew or create a new force of war in that 
country? Then we can hold that debate in a responsible manner.
  But this open-ended commitment under these circumstances doesn't make 
sense. Congress has yielded its authority under the Constitution far 
too often to the executive branch. So many times this body has failed 
to do its fair share under our constitutional framework.
  This amendment before us today makes sense in the context of a 
withdrawal of troops and provides plenty of flexibility to undertake 
any security issues that might arise in the future. For that reason, I 
urge my colleagues to support the Paul amendment.
  The PRESIDING OFFICER. Who yields time?
  Mr. PAUL. Mr. President, is it appropriate to call for the yeas and 
nays at this point?
  The PRESIDING OFFICER. It is.
  Mr. PAUL. I ask for the yeas and nays on the amendment.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Kentucky has 4 minutes 
remaining.
  Mr. PAUL. I will yield back my time.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Ms. LANDRIEU. Mr. President, under the previous order, I think we 
were going to debate both amendments and

[[Page S7971]]

vote in a few moments. That is what I understood.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. McCAIN. How long will the Senator take?
  Ms. LANDRIEU. Up to 10 minutes.
  Mr. McCAIN. All right.


[...] 

                           Amendment No. 1064

  The PRESIDING OFFICER. Who yields time?
  Mr. McCAIN. Mr. President, I yield back the remainder of my time.
  The PRESIDING OFFICER. All time is yielded back.
  Under the previous order, the question is on agreeing to amendment 
No. 1064 offered by the Senator from Kentucky, Mr. Paul.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) and 
the Senator from New Hampshire (Mrs. Shaheen) are necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Alaska (Ms. Murkowski).
  The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 30, nays 67, as follows:
  The result was announced--yeas 30, nays 67, as follows:

                      [Rollcall Vote No. 211 Leg.]

                                YEAS--30

     Baucus
     Bingaman
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     DeMint
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harkin
     Heller
     Klobuchar
     Lautenberg
     Leahy
     Manchin
     McCaskill
     Menendez
     Merkley
     Murray
     Nelson (NE)
     Paul
     Rockefeller
     Sanders
     Snowe
     Tester
     Udall (CO)
     Udall (NM)
     Wyden

                                NAYS--67

     Akaka
     Alexander
     Ayotte
     Barrasso
     Bennet
     Blumenthal
     Blunt
     Boozman
     Brown (MA)
     Burr
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     Enzi
     Graham
     Grassley
     Hagan
     Hatch
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Kohl
     Kyl
     Landrieu
     Lee
     Levin
     Lieberman
     Lugar
     McCain
     McConnell
     Mikulski
     Moran
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rubio
     Schumer
     Sessions
     Shelby
     Stabenow
     Thune
     Toomey
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker

                             NOT VOTING--3

     Begich
     Murkowski
     Shaheen
  The PRESIDING OFFICER (Mr. Bennet). On this vote the yeas are 30; the 
nays are 67. Under the previous order requiring 60 votes for the 
adoption of this amendment, the amendment is rejected.

[[Page S7983]]

  The majority leader.
  Mr. REID. This will be the last vote of this evening. Tomorrow we 
will have a vote around 11 a.m. on cloture on this bill, and we will 
work with the managers to see how they are going to work through the 
germane amendments.


[...]



[Congressional Record Volume 157, Number 182 (Wednesday, November 30, 2011)]
[Senate]
[Pages S8012-S8054]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 1867, which the clerk will 
report.
  The legislative 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 
     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.
       Cardin/Mikulski amendment No. 1073, to prohibit expansion 
     or operation of the District of Columbia National Guard Youth 
     Challenge Program in Anne Arundel County, MD.
       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.
       Begich amendment No. 1149, to authorize a land conveyance 
     and exchange at Joint Base Elmendorf Richardson, Alaska.
       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 United States 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 
     United States Naval Station, Guantanamo Bay, Cuba, to foreign 
     countries and entities.
       Collins/Shaheen amendment No. 1180, relating to man-
     portable air-defense systems originating from Libya.
       Inhofe amendment No. 1094, to include the Department of 
     Commerce in contract authority using competitive procedures 
     but excluding particular sources for establishing certain 
     research and development capabilities.
       Inhofe amendment No. 1095, to express the sense of the 
     Senate on the importance of addressing deficiencies in mental 
     health counseling.
       Inhofe amendment No. 1096, to express the sense of the 
     Senate on treatment options for members of the Armed Forces 
     and veterans for traumatic brain injury and posttraumatic 
     stress disorder.
       Inhofe amendment No. 1097, to eliminate gaps and 
     redundancies between the over 200

[[Page S8013]]

     programs within the Department of Defense that address 
     psychological health and traumatic brain injury.
       Inhofe amendment No. 1098, to require a report on the 
     impact of foreign boycotts on the defense industrial base.
       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. 1101, to strike section 156, relating 
     to a transfer of Air Force C-12 aircraft to the Army.
       Inhofe amendment No. 1102, to require a report on the 
     feasibility of using unmanned aerial systems to perform 
     airborne inspection of navigational aids in foreign airspace.
       Inhofe amendment No. 1093, to require the detention at 
     United States Naval Station, Guantanamo Bay, Cuba, of high-
     value enemy combatants who will be detained long term.
       Casey amendment No. 1215, to require a certification on 
     efforts by the Government of Pakistan to implement a strategy 
     to counter improvised explosive devices.
       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 United States-built multirole fighter 
     aircraft to strengthen its self-defense capability against 
     the increasing military threat from China.
       McCain (for Ayotte) amendment No. 1066, to modify the 
     Financial Improvement and Audit Readiness Plan to provide 
     that a complete and validated full statement of budget 
     resources is ready by not later than September 30, 2014.
       McCain (for Ayotte) modified amendment No. 1067, to require 
     notification of Congress with respect to the initial custody 
     and further disposition of members of al-Qaida and affiliated 
     entities.
       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.
       McCain (for Wicker) amendment No. 1056, to provide for the 
     freedom of conscience of military chaplains with respect to 
     the performance of marriages.
       McCain (for Wicker) amendment No. 1116, to improve the 
     transition of members of the Armed Forces with experience in 
     the operation of certain motor vehicles into careers 
     operating commercial motor vehicles in the private sector.
       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 United States allies.
       McCain (for Corker) amendment No. 1172, to require a report 
     outlining a plan to end reimbursements from the Coalition 
     Support Fund to the Government of Pakistan for operations 
     conducted in support of Operation Enduring Freedom.
       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. 1257, 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, OR.
       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 McCain) further modified amendment No. 1230, to 
     modify the annual adjustment in enrollment fees for TRICARE 
     Prime.
       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 United States 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) amendment No. 1246, to establish a 
     commission to study the United States Force Posture in East 
     Asia and the Pacific region.
       Ayotte (for McCain) amendment No. 1229, to provide for 
     greater cybersecurity collaboration between the Department of 
     Defense and the Department of Homeland Security.
       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/Ayotte) amendment No. 1132, to require a 
     plan to ensure audit readiness of statements of budgetary 
     resources.
       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. 1250, to require the 
     Secretary of Defense to submit a report on the probationary 
     period in the development of the short take-off, vertical 
     landing variant of the Joint Strike Fighter.
       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 United States European 
     Command.
       Sessions amendment No. 1183, to require the maintenance of 
     a triad of strategic nuclear delivery systems.
       Sessions amendment No. 1184, to limit any reduction in the 
     number of surface combatants of the Navy below 313 vessels.
       Sessions amendment No. 1185, to require a report on a 
     missile defense site on the east coast of the United States.
       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 S8014]]

       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. 1210, to require an 
     assessment of the advisability of stationing additional DDG-
     51 class destroyers at Naval Station Mayport, FL.
       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 McCain) modified amendment No. 1281, to require 
     a plan for normalizing defense cooperation with the Republic 
     of Georgia.
       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 Blunt) amendment No. 1134, to require a report 
     on the policies and practices of the Navy for naming vessels 
     of the Navy.
       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 United States 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.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 11 a.m. will be equally divided and controlled between the 
Senator from Michigan, Mr. Levin, and the Senator from Arizona, Mr. 
McCain, or their designees.
  Mr. McCAIN. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. McCAIN. Madam President, I would like to say to my colleagues, we 
have been waiting approval of a managers' package of amendments that 
have been cleared by both sides. It is not a managers' package. It is 
simply a group of amendments that have been proposed by Members on both 
sides of the aisle, approved--no one has objected--and yet there are 
objections to moving forward with these amendments in a package. There 
are important amendments by Members on both sides.
  I would urge my colleagues who would object to moving forward with 
this package of amendments which have been agreed to by both sides--and 
there has been no objection voiced to them individually--that I would 
like to move to adopt those shortly before the vote on cloture at 11 
o'clock. If someone objects to that, then I would insist that they come 
over to the floor and object. That is the procedure we will follow that 
I would like to inform my colleagues.
  In other words, we have a group of amendments. They have been cleared 
by both sides; no one objects. And yet there seems to be an objection 
to moving forward with a group of amendments that has already been 
agreed to. So according to parliamentary rules, I will insist that the 
Member be here present to object when I move forward with the package 
shortly before the hour of 11. Anyone watching in the offices, please 
inform your Senator of that decision.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan.
  Mr. LEVIN. Madam President, just to reinforce something the Senator 
from Arizona said, these are amendments there is no objection to on the 
substance. We have worked very hard, working with all the Senators, to 
clear amendments. That process will continue after the cloture vote as 
well. But we now have this group we have worked very hard on. We know 
of no objection. If there were an objection, they would not be in a 
cleared package. So we know of no objection. None have been 
forthcoming. They have been here for a day or two now, and the Senate 
needs to work its will.
  This is the way we should be operating, if there is no objection to 
an amendment, if people have had a chance to look at it. They have been 
cleared on both sides. Any committee on jurisdiction that has an 
interest has been talked to, and that has been taken care of. This is, 
it seems to me, the right way to proceed.
  I commend Senator McCain for what he just said and join with him in 
that sentiment.
  The bill we have before us that we will be voting cloture on at about 
11 o'clock would authorize $662 billion for national defense programs. 
This is $27 billion less than the President's budget request. It is $43 
billion less than the amount appropriated for fiscal year 2011. We have 
been able to find savings without reducing our strong commitment to the 
men and women of our Armed Forces and their families, without 
undermining their ability to accomplish the mission we have assigned to 
them that they handle so remarkably bravely and consistently. So we 
have identified and scrubbed this budget to find those savings, and the 
bill we will be voting cloture on--and, hopefully, adopting cloture--
reflects those savings.
  Because of our action last night on the counterfeit parts amendment, 
the bill now contains important new provisions to help fight the tide 
of counterfeit electronic parts, primarily from China, that is flooding 
the defense supply chain. I went through the provisions last night, and 
I will not repeat them here other than to say we are taking strong 
action to make sure the parts that are provided to our weapons systems 
are new parts as required and are not counterfeit parts.
  There are a number of steps in this bill. They are effective and 
strong steps. We require, for instance, that parts that are being 
supplied come from the original manufacturer of those parts or an 
authorized distributor of those parts or, if that is not possible 
because the parts are no longer being manufactured or there is no 
authorized distributor, that whoever is supplying those parts be 
certified by the Department of Defense, the way they currently are, by 
one part of the Department of Defense, the Missile Defense Agency, as 
being a reliable supplier.
  We have had too many cases of missiles and airplanes that have 
defective parts, and the lives of our people in uniform depend upon 
these as being quality parts. We are not going to accept the status quo 
anymore in terms of counterfeiting, mainly from China, and we are 
taking this strong action in

[[Page S8015]]

this bill now, following last night's action, to make sure this status 
quo is reversed.
  We have over 96,000 U.S. soldiers, sailors, airmen, and marines on 
the ground in Afghanistan. We have 13,000, as we speak, remaining in 
Iraq. There are many issues upon which we disagree. But every one of us 
knows we must provide our troops with the support they need and deserve 
as long as they are in harm's way. Senate action on the Defense bill 
will improve the quality of life for our men and women in uniform. It 
will give them the tools they need to remain the most effective 
fighting force in the world, and it will also send a critically 
important message that we as a nation stand behind our troops and their 
families and we appreciate their service.
  So I hope we can adopt the cloture motion which is before us so we 
can proceed to the postcloture period, where we can then resolve the 
remaining amendments that can be resolved, and then pass this bill, 
hopefully, tomorrow. But we have a lot of work to do today and 
tomorrow. We have many dozens of amendments yet to be voted on, 
disposed of, and hopefully cleared in many cases.
  With that, I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEVIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

[...]

  Mr. UDALL of Colorado. Mr. 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. 1125 and 1126

  Mr. UDALL of Colorado. Mr. President, I rise today in support of 
amendments Nos. 1125 and 1126, which have been offered by the 
Intelligence Committee chairwoman, Senator Feinstein.
  While the Senate did not adopt my amendment that would have 
instructed the Senate to consider these detainee matters separately 
from the Defense authorization bill, I believe Senator Feinstein's 
amendments make important changes and improvements to the bill--
improvements that may yet avoid a problem with a Presidential veto.
  I thank the Presiding Officer for his comments yesterday on the 
detainee provisions that are in this proposed legislation. I urge my 
colleagues to support these amendments. I want to be clear. I intend to 
support them.
  I have serious concerns going forward about the unintended 
consequences of enacting the detainee provisions in subtitle D of the 
Defense Authorization Act. These amendments help to alleviate some of 
my concerns.
  I wish to, in the context of the debate we are having, note that in 
addition to the Secretary of Defense, Leon Panetta; the Director of 
National Intelligence, General Clapper; and FBI Director Mueller--who 
all oppose the detainee provisions--CIA Director Petraeus's senior 
staff has indicated they, too, oppose the detention provisions. The CIA 
believes it is important to preserve the current U.S. Government's 
prosecution flexibility that has allowed both the Bush and the Obama 
administrations to effectively combat those who seek to do us harm.
  After the vote yesterday, I had a chance to talk with a number of 
Members on the other side of the aisle and, frankly, on the other side 
of the debate, because this had bipartisan support on both sides of the 
debate. But the folks I talked to told me they did not support my 
amendment, but they were still interested in making some more targeted 
changes to the detention provisions. I hope those colleagues will take 
a close look at what Senator Feinstein is offering here today.
  Let me speak to specifically what she would help resolve with her 
amendments. There are two important shortcomings that still exist in 
the current bill. One of her amendments would preserve the flexibility 
of the military, law enforcement, and intelligence agencies to 
collaborate, without undue limitation, in any investigation, 
interrogation, and prosecution of suspected terrorists. The other 
amendment would make it clear that American citizens cannot be held 
indefinitely in military detention without a trial. Again, I know the 
Presiding Officer spoke powerfully to that very legitimate and 
important concern yesterday.
  The current language in the bill--which is why I took to the floor 
yesterday and I know on other occasions to make this point--I believe 
will disrupt the investigation, interrogation, and prosecution of 
terror suspects by forcing the military to interrupt FBI, CIA, or other 
counterterrorism agency operations--against each of these 
organizations' recommendations, including the military's.
  In sum, we are going to create an unworkable bureaucratic process 
that would take away the intelligence community's and the 
counterterrorism community's capabilities to make critical and, in some 
cases, split-second decisions about how best to save Americans' lives.
  Further--I cannot emphasize this enough--although my friends on the 
other side of this debate argue otherwise, the detainee provisions do 
allow for the indefinite military detention of American citizens who 
are accused of planning or participating in terror attacks. Simply 
accused--that cuts directly against values we hold dear: innocent until 
proven guilty, presumption of innocence. That is why this is such an 
important debate.
  Let me be clear. There are American citizens who have collaborated 
with our enemies. There are American citizens who have participated in 
attacks against our soldiers and civilians. Those Americans are 
traitors. They should be dealt with, and we already have a system for 
ensuring they are brought to justice and made to pay a very heavy price 
for their crimes. That system is working. However, even in the darkest 
hours, we must ensure that our Constitution prevails. We do ourselves a 
grave disservice by allowing for any citizen to be locked up 
indefinitely without trial--no matter how serious the charges may be 
against them. Doing so may be politically expedient, but we risk losing 
our principles of justice and liberty that have kept our Republic 
strong, and it does nothing to make us safer. Our national security 
leadership has even said if we implement these provisions, it could 
make us less safe.
  If I might reflect a bit on what we have learned. At least in three 
different wars--three wars we all learn about in our history classes: 
the Civil War, World War I, and World War II--as we look back at those 
three wars, we made the decision and we drew the conclusion as 
Americans that we overreached, that we constricted civil liberties. 
President Lincoln limited habeas corpus in the Civil War. I know the 
Presiding Officer is familiar with the Palmer Raids during World War I 
and the aftermath of World War I. Of course, we know all too well the 
history of the interment of Japanese Americans.
  I am not suggesting these provisions, as they are now included in 
this bill, would result in historians drawing those similar kinds of 
conclusions 10 or 20 or 30 years from now. But why not be safe? Why not 
take the time to ensure that we keep faith with those core values that 
make America what it is? That is all I am asking. I think that is all 
Senator Feinstein is asking for us to do. That is what the 38 Senators 
who joined us yesterday to vote for my commonsense approach were saying 
as well.
  In sum, Senator Feinstein has offered some small changes. It would 
help alleviate some of the justifiable concerns with these provisions. 
As I have said, I continue to worry that there will be unintended 
consequences to enacting the detainee provisions altogether. However, 
we can make some of these small improvements to avoid harming our 
counterterrorism activities and preventing the loss of rights and 
freedoms granted to all Americans by our Constitution.
  In closing, I urge all of our colleagues to support Senator 
Feinstein's amendments.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, briefly, while my friend from Colorado is 
on the floor, he said: Take the time. We have been taking time, I tell 
the Senator from Colorado, since September 11, 2001, when the United 
States of America was attacked. We passed the Detainee Treatment Act. 
We passed other pieces of legislation--the PATRIOT Act, and others. 
Take the time?
  I say, in all due respect, we have taken a lot of time--in fact, 
hundreds and hundreds of hours of debate, discussion--as to how to 
address this threat to the United States of America.
  If the Senator from Colorado supports the Feinstein amendment, I 
agree with that. I cannot agree that we have not taken the time. I 
personally have taken--I cannot tell you--untold hours addressing this 
issue of how we treat detainees. We may have a fundamental 
disagreement, but I do reject the argument that we have not taken the 
time.
  I yield the floor.
  Mr. UDALL of Colorado. Would the Senator respond to a question?
  Mr. McCAIN. Go ahead.
  Mr. UDALL of Colorado. As the Senator from Arizona knows, I have the 
utmost respect for the time the Senator has spent in this very 
important area. I think what I have been trying to say is that in 
regard to this particular set of detainee provisions, I want to ensure 
that all of the questions the FBI Director, General Clapper, Secretary 
Panetta, and others have raised about how these provisions would 
actually be applied--I have no question that the intent is spot on--I 
just am aware that there have been some concerns raised about how these 
new provisions would actually be applied. I

[[Page S8026]]

think Senator Feinstein's amendments--and I do not know where the 
Senator from Arizona stands at this point--may provide some greater 
clarification. I know there have been some conversations on the floor 
as to how we will deal with these amendments. So I appreciate the 
Senator's comments.
  Mr. McCAIN. I thank the Senator from Colorado for his clarification, 
and I think I understand more clearly his rationale for his support of 
the amendment.
  I yield the floor.
  Mr. UDALL of Colorado. I yield the floor as well and suggest the 
absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call 
the roll.
  The bill clerk proceeded to call the roll.
  Mr. HOEVEN. 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. 1274

  Mr. SESSIONS. Mr. President, I have offered an amendment that 
clarifies--although that is not exactly the right word--the fact that 
an unlawful combatant or a combatant who is held by the U.S. military 
for being an enemy of the United States, a combatant against the United 
States, or an unlawful combatant, is not therefore entitled to be 
released if the U.S. military or the civilian courts choose to 
prosecute him and he is acquitted or after he serves his sentence but 
before hostilities have ended. These are entirely different matters.
  There are two questions: Are you an enemy combatant of the United 
States? These are the kinds of prisoners of war in World War II, 
Germans, for example, who were kept in Aliceville, AL. They stayed in a 
prisoner-of-war camp until the war was over, and they went home. They 
didn't violate the rules of war; they weren't prosecuted for any 
crimes. They simply were not released so that they could go and rejoin 
the battle in an attempt to kill more American service men and women. 
But they were lawful. They wore uniforms, they complied with the rules 
of war, and they were not able to be prosecuted.
  But when a person sneaks into the country with an intent to murder 
women and children and innocent noncombatants, does not wear a uniform, 
and violates other provisions of the rules of war, then they can be not 
only held as a combatant but they can be held and tried for commission 
of crimes against the United States. That is the classic standard of 
the law of war.
  I believe it is clear that if a person is captured and tried for a 
crime and, let's say, acquitted--whether in a civilian court or a 
military commission--they are not entitled to be released. To that end, 
I would quote a number of statements to that effect. But I believe the 
legal system would be a lot better off if we spoke clearly on that 
matter today so there is no doubt whatsoever.
  President Obama, on May 21, 2009, said this:

       But even when [the prosecution] process is complete, there 
     may be a number of people who could not be prosecuted for 
     past crimes, but who nonetheless pose a threat to the 
     security of the United States.


[[Page S8031]]


  In other words, they remain prisoners of war who are likely to join 
the enemy if they are released. He goes on to say:

       These are people who, in effect, remain at war with the 
     United States. As I said, I am not going to release 
     individuals who endanger the American people.

  I think that is consistent with all rules of war, and I think the 
President was right in that statement.
  Attorney General Eric Holder, in November of 2009, before the 
Judiciary Committee, said:

       I personally think that we should involve Congress in 
     [ensuring that the Executive Branch has the authority to make 
     that decision], that we should interact with . . . this 
     committee in crafting a law of war detention process or 
     program.

  In other words, he was calling on us to work with them in developing 
statutes. But, historically, I think the law is clear at any rate.
  Jeh Johnson, General Counsel to the Department of Defense, who came 
from the New York Times as general counsel for the New York Times--not 
a career Department of Justice defense attorney--said this before the 
Senate Armed Services Committee:

       The question of what happens if there's an acquittal is an 
     interesting question . . . I think that as a matter of legal 
     authority, if you have the authority under the laws of war to 
     detain someone, and the Hamdi decision said that in 2004, 
     that is true irrespective of what happens on the prosecution 
     side . . . as a matter of legal authority, I think we have 
     law-of-war authority, pursuant to the authority Congress 
     granted us with AUMF, as the Supreme Court interpreted it, to 
     hold that person provided they continue to be a security 
     threat, and we have the authority in the first place.

  So, again, he is saying if they are not convicted, they can still be 
held if they continue to be a threat.
  Secretary of State Hillary Clinton on ``Meet the Press'' November of 
last year:

       MR. GREGORY: But my question is, are we committed with 
     these terror suspects that if they are acquitted in civilian 
     courts, they should be released?
       SECRETARY CLINTON: Well, no. . . .

  Senator Jack Reed, our West Point graduate and a member of the Armed 
Services Committee--I am proud to serve with my Democratic colleague--
this is what he said the November before last:

       There are no guarantees [of conviction], but under basic 
     principles of international law, as long as these individuals 
     pose a threat, they can be detained, and they will. . . . I 
     do not believe they will be released . . . under the 
     principle of preventive detention, which is recognized during 
     hostilities.

  I believe this is legislation that would do nothing more but, 
importantly, will affirm the classical understanding of our laws of 
war, and as a result, the people who are charged can be tried, and if 
they are not convicted of a crime, they can still be detained.
  I would note that an individual American soldier or German soldier or 
Japanese soldier who is lawful and released has a duty to report back 
to their military unit and commence hostilities until the war is over.
  Senator Graham is here, a current JAG officer in the U.S. Air Force 
who has studied these matters very closely and has been engaged in this 
debate so eloquently. I am delighted to have him here and to have his 
support on this amendment. Perhaps he has some comments?
  Mr. GRAHAM. Perhaps the Senator will yield for a question?
  Mr. SESSIONS. I will be pleased to.
  Mr. GRAHAM. As I understand the purpose of this amendment, it is 
basically to have the Congress on record for the concept that once you 
are determined to be an enemy combatant, a part of the enemy force, 
there is no requirement to let you go at any certain time because in 
war it would be silly to let an enemy prisoner go back to the fight for 
no good reason.
  As the Senator has indicated, in the law of war, you can be 
prosecuted for a war crime. You could be taken to a Federal court and 
prosecuted for an act of terrorism, but if you are acquitted, that is 
not an event that would require us to release you if the evidence still 
exists that you are a threat to the country and part of the enemy 
forces; is that correct?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. What I would like my colleagues to understand is that no 
German prisoner in World War II had the ability to go to a Federal 
judge and say: Let me go.
  If you had brought up the concept in World War II that an American 
citizen who was collaborating with the Nazis could not be held as an 
enemy combatant, you would have been run out of town.
  Does the Senator agree with me that in every war we have fought since 
the beginning of our Nation, unfortunately, there have been episodes 
where American citizens side with the enemy?
  Mr. SESSIONS. That is certainly true.
  Mr. GRAHAM. Does the Senator agree with me that our Supreme Court, as 
recently as about 3 to 4 years ago, affirmed the fact that we can hold 
our own as enemy combatants when the evidence suggests they have joined 
forces with the enemy? That is the law?
  Mr. SESSIONS. That is the law as I understand it.
  Mr. GRAHAM. Does my colleague agree with me that makes perfect sense, 
that an American who helps the Nazis has committed an act of war, not a 
common crime?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. Does he agree with me that our courts understand that 
when an American citizen collaborates with an enemy of our Nation, that 
is an act of war by that citizen against his own country and the law of 
war applies, not domestic criminal law?
  Mr. SESSIONS. I certainly agree with the Senator that an American 
citizen can join in a war against the United States.
  Mr. GRAHAM. And they can be treated as an enemy combatant in 
accordance with our laws?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. And the law of war allows the following: trial or 
detention or both. Is that correct?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. You can be held as an enemy combatant without trial?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. There is no requirement in international law to prosecute 
an enemy prisoner for a crime?
  Mr. SESSIONS. Absolutely. It is up to the detaining authority whether 
they believe a person has committed a crime.
  Mr. GRAHAM. Does the Senator agree with me that we do not want to 
start the practice in the United States that everybody we capture as an 
enemy prisoner is automatically a war criminal because that could come 
back to haunt our own people in future wars?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. That we should reserve prosecution for a limited class of 
persons among enemy prisoners?
  Mr. SESSIONS. That is correct.
  The PRESIDING OFFICER (Mr. Cardin). The Senator has consumed 10 
minutes.
  Mr. GRAHAM. I ask unanimous consent to have 1 more minute.
  The PRESIDING OFFICER. The Chair was informing the Senator that 10 
minutes has elapsed.
  Mr. SESSIONS. I asked to be informed at 10. I see Senator Sanders is 
here.
  Mr. GRAHAM. Let's just logically walk through this. In every war in 
which America has been involved, American citizens unfortunately have 
chosen at times to side with the enemy. Our courts say the executive 
branch can hold them as enemy combatants, and the purpose is to gather 
intelligence. Does the Senator agree with that?
  Mr. SESSIONS. That is a very important purpose of that.
  Mr. GRAHAM. The Senator has been a U.S. attorney; is that correct?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. Does criminal law focus on intelligence gathering?
  Mr. SESSIONS. Absolutely not. It focuses on punishment for a crime 
already committed, normally.
  Mr. GRAHAM. Does the Senator agree that holding an enemy prisoner--
one of the benefits of capturing someone is gathering intelligence?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. Does the Senator agree that our criminal system is not 
focused on that?
  Mr. SESSIONS. Absolutely. In fact, we specifically tell people 
arrested that they have a right not to provide any intelligence, and it 
indicates it is clearly not the primary function.

  Mr. GRAHAM. Does the Senator agree with me that if this Congress

[[Page S8032]]

chose to change the law and say that an American citizen who has 
associated himself with al-Qaida cannot be interrogated for 
intelligence-gathering purposes, we would be less safe?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. And that would be a change in the law as it exists today.
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. Does the Senator agree with me that his amendment that 
says you can be acquitted but still be held as an enemy prisoner is 
consistent with the law today?
  Mr. SESSIONS. I certainly believe it is.
  Mr. GRAHAM. I thank the Senator for offering this amendment.
  To my colleagues, we are trying to fight a war, not a crime, within 
the value systems of being the United States, being the champion of the 
free world. I do not believe in torturing people, but I do believe--
does the Senator agree with me that when it comes to interrogating 
people, sometimes the best tool is time?
  Mr. SESSIONS. Absolutely. Someone may not be willing to talk today, 
but as time goes by they might be willing to completely change and be 
forthcoming.
  Mr. GRAHAM. Does the Senator agree with me that we gathered good 
intelligence over time from people held at Guantanamo Bay?
  Mr. SESSIONS. That is certainly true.
  Mr. GRAHAM. Without water boarding them?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. My point to my colleagues--and I enjoyed this 
discussion--is that if you take the ability to hold someone as an enemy 
combatant off the table, you cannot interrogate them for intelligence-
gathering purposes, and if you put a time limit on how long you can 
hold them, you defeat the purpose of gathering intelligence. Does the 
Senator agree with that?
  Mr. SESSIONS. Absolutely. That would undermine one of the functions 
of the U.S. military in dealing with enemies of the state.
  Mr. GRAHAM. Does my colleague also agree that in this war, we provide 
a due process unlike any other war in the past?
  Mr. SESSIONS. There is no doubt. No war has ever been lawyered to the 
degree this has.
  Mr. GRAHAM. Does the Senator agree with me that every enemy 
combatant, citizen other otherwise, held at Guantanamo Bay or captured 
in the United States has their day in Federal court through habeas 
proceedings?
  Mr. SESSIONS. They do, and to a large degree that is different from 
any other war in our history.
  Mr. GRAHAM. We never had, in the history of other wars, a Federal 
judge determining whether the military has the ability to determine 
whether someone is an enemy combatant, but we have that in this war. 
Does the Senator agree with that?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. Does the Senator agree that the government has to prove 
to an independent judge by a preponderance of the evidence that the 
person is a member of al-Qaida involved in hostilities?
  Mr. SESSIONS. Yes.
  Mr. GRAHAM. So everybody held after judicial review for the first 
time in the history of warfare.
  Does the Senator agree with me that the annual review process that we 
have created by this law, this bill, the Defense Authorization Act, is 
something we have not done in other wars?
  Mr. SESSIONS. We have not done that before, yes.
  Mr. GRAHAM. Every detainee not only gets their day in Federal court, 
the government must prove they have a solid case to hold them as an 
enemy combatant, and everyone gets a yearly review as to whether they 
are a continuing threat?
  Mr. SESSIONS. I believe so, yes, consistent with the language in the 
recent Supreme Court opinions--recent opinions--and perhaps it even 
goes further than what the Supreme Court requires.
  Mr. GRAHAM. Is the Senator familiar with competency hearings in the 
civilian court?
  Mr. SESSIONS. Yes.
  Mr. GRAHAM. In our civilian law, we can hold people who are a danger 
to themselves or others without a trial but with judicial oversight; is 
that correct?
  Mr. SESSIONS. That is done every day, yes, with judicial oversight.
  Mr. GRAHAM. Would the Senator agree with me that it is very smart to 
evaluate whether we should allow someone to be let go and intelligence 
professionals should be able to make that decision as to whether the 
individual is a military threat, that that is a logical process?
  Mr. SESSIONS. Absolutely it is. And just for the fact of my 
amendment, it does not require people to be held. It only gives the 
government the authority to do so if they deem it appropriate for the 
defense of America.
  Mr. GRAHAM. Does my colleague agree with me that the recidivism rate 
of people we are releasing from Guantanamo Bay has gone up?
  Mr. SESSIONS. Yes. It is extraordinarily disappointing, actually, and 
against projections of many of those advocating for early release.
  Mr. GRAHAM. Some of these people have gone back to fighting and 
killed American soldiers?
  Mr. SESSIONS. They certainly have.
  Mr. GRAHAM. Does the Senator agree with me that the dangers our 
Nation faces do not justify changing existing law, denying this country 
the ability to gather intelligence even against an American citizen 
joined with al-Qaida, that that would be an unwise decision given the 
dangers we're facing?
  Mr. SESSIONS. Yes.
  Mr. GRAHAM. Does he agree with me that we need a legal system that 
understands the difference between fighting a war and fighting a crime?
  Mr. SESSIONS. So well said. I agree.
  Mr. GRAHAM. I thank the Senator.
  Mr. SESSIONS. Mr. President, with regard to the question of 
citizenship, I would just say to my colleague that this in no way deals 
with that. Whatever the courts, whatever the bill and other laws say 
about citizenship will apply here. It does not change that status at 
all. I do believe the legislation is clearly consistent with the 
statements and testimony of President Obama; Attorney General Eric 
Holder; Jeh Johnson, counsel of the Secretary of Defense; Secretary of 
State Clinton, and others.
  I urge acceptance of my amendment and yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.


                      Amendment No. 1073 Withdrawn

  Mr. LEVIN. Mr. President, I ask unanimous consent that the Cardin 
amendment, No. 1073, be withdrawn. That has the approval of the sponsor 
of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Vermont.
  Mr. SANDERS. Mr. President, I want to say a word about two amendments 
I have offered, both of which I think are important and both of which 
should be agreed to.
  As I think you know, this country has a recordbreaking deficit and a 
$15 trillion national debt. What many people do not know is that one of 
the reasons our deficit is as high as it is is because there is a 
significant amount of fraud from defense contractors who sell their 
products to the Department of Defense.
  I think the American people are very clear that when we pay one 
dollar for a product that goes to our military, we want to get one 
dollar's worth of value; that we do not want to see the taxpayers of 
this country or the Department of Defense ripped off because of 
fraudulent contractors. Unfortunately, fraud within the DOD in terms of 
private contractors is widespread.
  During the last number of years, we have seen company after company 
engaged in fraud, including some of the largest defense contractors in 
the United States. For example, Lockheed Martin, the largest defense 
contractor in our country, in 2008 paid $10.5 million to settle charges 
that it defrauded the government by submitting false invoices on a 
multibillion-dollar contract connected to the Titan IV space-launch 
vehicle program. That did not seem to sour the relationship between 
Lockheed and the DOD, which gave Lockheed $30.2 billion in contracts in 
fiscal year 2009--more than ever before. One of the patterns we see is 
that a company gets convicted or reaches a settlement with regard to 
charges of fraud, but next year they continue to get very significant 
contracts.
  In another case regarding one of the very large defense contractors, 
Northrop Grumman paid $62 million in 2005

[[Page S8033]]

to settle charges that ``it engaged in a fraud scheme by routinely 
submitting false contract proposals'' and ``concealed basic problems in 
its handling of inventory, scrap and attrition.'' Despite that serious 
charge of pervasive and repeated fraud, Northrop Grumman received $12.9 
billion in contracts the following year, 16 percent more than the year 
before.

  It seems clear to me that we need to do a much better job in terms of 
attacking fraud within the Department of Defense. Several years ago, I 
offered an amendment--which was passed--which provided that the DOD 
list virtually all of the fraud committed within the DOD. We have that 
report, and it is rather astounding. People should read it. Right now 
what this amendment does is it says to the DOD: Get your act together, 
hire the necessary well-trained staff so they are monitoring the 
contracts and making sure we do not continue to see the pervasive 
amount of fraud committed against the taxpayers of this country or the 
Defense Department. I would hope very much that amendment gets 
widespread support and that we see it passed.
  There is another amendment we have offered, which I think is equally 
important, and that deals with making sure the Department of Defense--
which turns out to be the largest single consumer of energy in the 
United States of America. Obviously, the Department of Defense has huge 
resources, controls huge numbers of buildings, has enormous aircraft, 
and so forth and so on. It is by far the single largest consumer of 
energy in the United States, accounting for approximately 90 percent of 
Federal energy consumption, with an annual energy cost of up to $18 
billion. So the Department of Defense spends $18 billion on energy 
costs alone. I think, in recent years, the Department of Defense has 
understood the importance of trying to move toward energy efficiency in 
terms of saving energy, but we have a long way to go.
  The major program to help cut energy consumption and costs at our 
military bases is called the Energy Conservation Investment Program. 
This is a very important program, although a relatively small program. 
This program has operated for more than 10 years, helping to invest in 
programs for more energy-efficient lighting, for example, at an Air 
Force base in Alaska, geothermal heating at Fort Knox Army Base in 
Kentucky, wind turbines for an Army base in Arizona, and solar power 
for the Air Force in Colorado.
  Historically, according to the Department of Defense, every $1 used 
by the Energy Conservation Investment Program yields $2 in savings. We 
invest in energy efficiency; we invest in sustainable energy. For every 
$1 invested, we save $2. This makes it a very positive program for the 
DOD. Some projects, such as energy efficiency improvements at a Navy 
base in California, achieve greater than $15 in savings for every $1 
invested.
  The Department itself, the DOD, has stated this program achieves 
``long-term public benefits by investing in technologies that increase 
economic efficiency and health benefits, build new sources of renewable 
energy, enhance job creation/retention, improve military facilities, 
and improve the quality of life for our troops and their families.''
  Unfortunately, the authorization for this program in the current 
Defense authorization bill is $135 million, a relatively small amount 
of money for a Department of Defense which spends about $18 billion 
every year on energy. I think what we want to see is, A, the DOD save 
money through energy efficiency and sustainable energy and, secondly, 
become a model for the country as we attempt to break our dependence on 
fossil fuel, foreign oil, and we attempt to cut back on greenhouse gas 
emissions.
  I can tell you that in the State of Vermont, we have our National 
Guard base, where we have worked with them to install a major solar 
installation which will pay a significant part of their electric bill. 
Frankly, I would like to see this done on National Guard bases all over 
the country and to the Active-Duty structures as well.
  The bottom line is, we are currently spending about $135 million, a 
relatively small amount of money compared to the $18 billion energy 
bill run up by the DOD. What this amendment would do is increase the 
authorization for the Energy Conservation Investment Program to $200 
million, up from $135 million--not anywhere near as much as I think we 
should be doing, but it is a step forward in helping the Department of 
Defense save money on their energy bill, break our dependence on 
foreign oil, and help us cut greenhouse gas emissions.
  We know there remain many worthy projects at our military bases that 
have not yet been funded at today's funding levels that could be funded 
if my amendment were to pass. The amendment is fully offset and paid 
for by reducing expenditures on construction at overseas' bases, while 
still leaving nearly $300 million in funding for that purpose. I think 
that is a decent offset.
  I applaud the Department of Defense and the military for the strides 
they have made so far in investing in energy efficiency and renewable 
energy. There are some wonderful projects going on all over this 
country--in fact, all over the world--under the DOD, and they deserve 
credit for that. They can and should be a leader for our country, but 
we still have a very long way to go.
  I would ask for support from my colleagues for this amendment, which 
will save the Department of Defense money, will help break our 
dependency on foreign oil, move us to energy independence, and cut 
greenhouse gas emissions.
  I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Arizona.


               Amendment No. 1230, As Modified, Withdrawn

  Mr. McCAIN. I ask unanimous consent to withdraw McCain amendment No. 
1230, as modified.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. 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. CORKER. 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. 1172, As Modified

  Mr. CORKER. Mr. President, I ask unanimous consent that a 
modification to amendment No. 1172 be accepted.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendment (No. 1172), as modified, is as follows:

  (Purpose: To require a report assessing the reimbursements from the 
  Coalition Support Fund to the Government of Pakistan for operations 
          conducted in support of Operation Enduring Freedom)

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

     SEC. 1230. REPORT ON COALITION SUPPORT FUND REIMBURSEMENTS TO 
                   THE GOVERNMENT OF PAKISTAN FOR OPERATIONS 
                   CONDUCTED IN SUPPORT OF OPERATION ENDURING 
                   FREEDOM.

       (a) In General.--Not later than 120 days after the date of 
     the enactment of this Act, the Secretary of Defense, shall 
     submit a report to the congressional defense committees and 
     the Committee on Foreign Relations of the Senate and the 
     Committee on Foreign Affairs of the House of Representatives 
     assessing the effectiveness of the Coalition Support Fund 
     reimbursements to the Government of Pakistan for operations 
     conducted in support of Operation Enduring Freedom.
       (b) Elements.--The report required under subsection (a) 
     shall include the following elements:
       (1) A description of the types of reimbursements requested 
     by the Government of Pakistan.
       (2) The total amount reimbursed to the Government of 
     Pakistan since the beginning of Operation Enduring Freedom, 
     in the aggregate and by fiscal year.
       (3) The percentage and types of reimbursement requests made 
     by the Government of Pakistan for which the United States 
     Government has deferred or not provided payment.
       (4) An assessment of the effectiveness of Coalition Support 
     Fund reimbursements in supporting operations conducted by the 
     Government of Pakistan in support of Operation

[[Page S8034]]

     Enduring Freedom and of the impact of those operations in 
     containing the ability of terrorist organizations to threaten 
     the stability of Afghanistan and Pakistan and to impede the 
     operations of the United States in Afghanistan.
       (5) Recommendations if any, relative to potential 
     alternatives to or termination of reimbursements from the 
     Coalition Support Fund to the Government of Pakistan, taking 
     into account the transition plan for Afghanistan.
       (c) Form.--The report required under subsection (a) shall 
     be submitted in unclassified form, but may contain a 
     classified annex.

  Mr. CORKER. Mr. President, I wish to speak briefly about this 
amendment. I think most people in this body understand we are 
reimbursing the Pakistani military for efforts they are putting forth 
on behalf of what we are doing in Afghanistan in Enduring Freedom. We 
have crafted an amendment that asks for certain reporting to take place 
from the Pentagon and for them to look at ways of diminishing this 
reimbursement over time as we wind down our operations in Afghanistan.
  This amendment has been drafted in such a way as to not further 
escalate tensions between us and the Government of Pakistan. This is a 
good-government type of amendment that asks the Pentagon to begin 
looking at ways of decreasing the support we are giving to the 
Pakistani military on our behalf regarding Afghanistan as we wind down 
our operations there simultaneously.
  It is my understanding that both the chairman and ranking member of 
the Armed Services Committee have accepted this, there is no hold from 
the majority on the Foreign Relations Committee, and I hope we will 
have an opportunity to vote and pass this by voice vote very soon.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I support the amendment, as modified, by 
the Senator from Tennessee, Mr. Corker, who has devoted a great deal of 
time and effort and thought to this issue, and the result is this 
amendment. I point out that it would require the Secretary of Defense 
to prepare a report on the effectiveness of coalition support fund 
reimbursements made to Pakistan in support of coalition military 
operations in Afghanistan.
  Before I proceed, let me once again express my deep condolences to 
the families of the Pakistani soldiers who were killed this weekend in 
a cross-border air action. All Americans are deeply saddened by this 
tragedy, and I fully support NATO and the U.S. military in their 
commitment to conduct a thorough and expeditious investigation.
  As my colleagues will recall--this is an important aspect of Senator 
Corker's amendment--Congress has authorized and appropriated funding 
for coalition support fund reimbursements to Pakistan since we began 
our military operations in Afghanistan. At the time, Pakistan made a 
strategic decision to support the U.S. war effort against the Taliban 
government in Afghanistan and their al-Qaida terrorist allies. In 
response, Congress and the Bush administration agreed to reimburse the 
Pakistani Government for military activities that support our mission 
in Afghanistan.
  Over the past decade, Congress has provided billions of dollars worth 
of these reimbursements to Pakistan, and we should acknowledge that 
much good has come of it. Over the past few years in particular, 
Pakistan has shifted tens of thousands of their soldiers from the 
eastern border of their country opposite India to the tribal areas in 
western Pakistan. Pakistani troops have been deployed and engaged in 
military operations in their western provinces and tribal areas for 
more than 2 years straight. They have paid a heavy price in this 
prolonged fighting.
  Hundreds of Pakistani troops have given their lives to fight our 
mutual terrorist enemies in their country, and thousands of Pakistani 
civilians have been tragically murdered in the same time by these 
militant groups who show no compunction about attacking weddings and 
funerals and mosques. We honor the sacrifice of Pakistan's soldiers, 
and we mourn the loss of innocent Pakistani civilians.
  It must be noted, however, that certain deeply troubling realities 
exist within Pakistan. It must be noted that elements in Pakistan's 
army and intelligence service continue to support the Haqqani Network 
and other terrorist groups that are killing U.S. troops in Afghanistan, 
as well as innocent civilians in Afghanistan, India, and Pakistan. It 
must also be noted that the vast majority of the materials for 
improvised explosive devices that are maiming and killing U.S. troops 
in Afghanistan originate within Pakistan. These are facts. We cannot 
deny them. Any effective strategy for Pakistan and Afghanistan must 
proceed from this realistic basis.
  It is for this reason that I believe this amendment and this report 
would be extremely useful. Already, in response to recent Pakistani 
activities, the administration has chosen to withhold coalition support 
fund reimbursements to Pakistan. Over the past two quarters, that 
withheld money amounts to roughly $600 million. I can imagine that, 
amid the current tensions, further administration requests to Congress 
for reimbursement of coalition support funds for Pakistan will not be 
forthcoming.
  The report requested in this amendment would seek additional 
information on the amounts, types, and effectiveness of coalition 
support fund reimbursements to the Government of Pakistan. It also 
would seek recommendations as to the future disposition of this 
program, including potential alternatives to it or the possible 
termination of it altogether. That option cannot be ruled out. This is 
valuable information and recommendations to have as Congress continues 
to discuss and debate not just the future of the coalition support fund 
reimbursements to Pakistan but the future of our relationship with 
Pakistan more broadly. I strongly support this amendment.
  Again, I don't want to spend too much time stating the facts. This is 
a terrible dilemma. The fact is that Pakistan is a nuclear nation. They 
have a significant nuclear inventory. The fact is that for 10 years we 
and Pakistan had virtually no relations. We found that not to be a 
productive exercise. But at the same time, when there exists--as my 
colleague from Tennessee agrees--two fertilizer factories from which 
come the majority of the materials used for the majority of IEDs 
manufactured and that are killing young Americans, it is not tolerable. 
I understand, as I have said earlier in my comments, the tragedy that 
resulted from the deaths of these young Pakistani soldiers. I also 
understand, as every one of us does, what it is like to call a family 
member of a young man or woman who has lost their life in Afghanistan, 
which has happened many times, as a result of an IED.
  In a hearing of the Armed Services Committee, the then-Chairman of 
the Joint Chiefs of Staff ADM Mike Mullen, stated:

       The fact remains that the Quetta Shura and the Haqqani 
     Network operate from Pakistan with impunity.

  I wish to repeat, these are the words of the former Chairman of the 
Joint Chiefs of Staff.

       Extremist organizations serving as proxies of the 
     government of Pakistan are attacking Afghan troops and 
     civilians as well as U.S. soldiers. For example, we believe 
     the Haqqani Network--which has long enjoyed the support and 
     protection of the Pakistani government and is, in many ways, 
     a strategic arm of Pakistan's Inter-Services Intelligence 
     Agency--is responsible for the September 13th attacks against 
     the U.S. embassy in Kabul.

  He goes on to say:

       This is ample evidence confirming that the Haqqanis were 
     behind the June 28th attack against the Inter-Continental 
     Hotel in Kabul and the September 10th truck bomb attack that 
     killed five Afghans and injured another 96 individuals, 77 of 
     whom were U.S. soldiers . . .

  Finally, another comment by Admiral Mullen who, by the way, worked 
very hard for a long period of time to develop a close working 
relationship with General Kayani and other military leaders in 
Pakistan. He went on to say:

       The Quetta Shura and the Haqqani Network are hampering 
     efforts to improve security in Afghanistan, spoiling 
     possibilities for broader reconciliation, and frustrating 
     U.S.-Pakistan relations. The actions by the Pakistani 
     government to support them--actively and passively--
     represents a growing problem that is undermining U.S. 
     interests and may violate international norms, potentially 
     warranting sanction. In supporting these groups, the 
     government of Pakistan, particularly the Pakistani Army, 
     continues to jeopardize

[[Page S8035]]

     Pakistan's opportunity to be a respected and prosperous 
     Nation with genuine regional and international influence.

  Finally, I wish to say again this is an incredibly difficult 
challenge for U.S. security policy. We have a country on which we are 
dependent in many respects for supplies, for cooperation, for, 
hopefully, not to be a sanctuary, although it is not the case, for 
Taliban and al-Qaida elements. We have a country that is a nuclear 
power, and we have a country that has a government that I will say 
charitably is very weak.
  It seems to me the Corker amendment is important for the American 
people to know exactly where we are, what policy we are going to 
formulate, and what measures need to be taken, because we have, as I 
mentioned earlier, spent billions of U.S. taxpayers' dollars. That 
doesn't play very well in States such as mine where we have 9 percent 
unemployment and more than half--or just less than half the homes 
underwater. So the Corker amendment isn't all we need. In fact, we need 
to have a national debate and discussion about the whole issue of our 
relations with Pakistan. But I believe the Corker amendment is a very 
important measure so we can assure the American people that not only 
are their tax dollars wisely spent but that actions are being taken to 
prevent needless wounding and death of our brave young men and women 
who are serving in the military.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I support the amendment of the Senator from 
Tennessee. It is a balanced amendment which deals with a very complex 
situation. What Senator Corker is doing is pointing out very important 
facts. One is that Pakistan has received a lot of funds from the United 
States for this particular purpose which is aimed at helping the 
success of our operations in Afghanistan. The whole purpose of the 
coalition support fund is to reimburse Pakistan for the support they 
provide--for instance, in providing security for trucks and other 
equipment that is going through Pakistan that have oil, fuel, food 
going into Afghanistan to support the effort in Afghanistan. That is 
the purpose of these funds. It is a good purpose. This is not a foreign 
aid deal; this is a reimbursement deal.
  The problem is that while on the one hand the Pakistanis are 
assisting us, on the other hand they are assisting our enemy and the 
enemy of mankind and the enemy of the Afghan people and the enemy of 
the coalition forces in Afghanistan. That is the problem. That is the 
dilemma which we all face and which this amendment seeks to address. 
Again, it does so in a way which doesn't prejudge the outcome of the 
assessment, but it makes a very important point, which is, as is now 
stated in the amended final paragraph, that we need recommendations 
given this ``on the one hand they are with us, on the other hand they 
are against us'' situation. We need recommendations from the 
administration, if any, relating to potential alternatives to or 
termination of reimbursements for the coalition support fund, the 
Government of Pakistan, taking into account the transition plan for 
Afghanistan.
  I agree with my friend from Arizona that we send condolences to the 
families of troops in Pakistan who have recently lost their lives. We 
also have to understand that Pakistan has paid a huge price for 
terrorism in their country against their people. They have paid a 
massive price. But what is unacceptable to us is that they are making 
us pay a price by providing a safe haven for the Haqqanis and for the 
Quetta Shura. Our troops, our families, coalition troops, coalition 
families, Afghan troops, and Afghan families are paying a heavy price 
because of the Pakistan support through their ISI for the insurgency in 
Afghanistan.
  Admiral Mullen, a former Chairman of the Joint Chiefs of Staff, put 
it very succinctly. He said the Haqqani Network is a veritable arm of 
the Pakistan intelligence service. When he was pressed on that 
formulation, he said he meant every word of it.
  So we have to send an important message to Pakistan, and the message 
is that we want a normal relationship if we can have one, but we cannot 
have a normal relationship if you are, on the one hand, supporting the 
very people who are attacking us in Afghanistan and, on the other hand, 
purporting to help us through the protection of supplies going through 
Pakistan, helping us succeed in Afghanistan.
  We cannot have it both ways. They cannot have it both ways. This 
amendment sends a very significant and important message, I believe, to 
the Pakistanis and to our coalition allies and to our Afghan partners 
that what is going on inside Pakistan has to come to an end. I believe 
this will help bring that important result about. So I very much 
support the amendment of Mr. Corker, the Senator from Tennessee, and 
hope we can adopt it.
  If there is no further debate about it--there may be others who do 
want to debate, so I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. CORKER. Mr. President, because of the tremendous cooperation of 
the Senator from Michigan and the Senator from Arizona--obviously, my 
goal is to call for this amendment to be adopted--I did not provide a 
lot of context because I know they both support this amendment. But I 
want to thank them both for their comments.
  I do not think there are two Senators who can better articulate the 
issue we face in Afghanistan with Pakistan, which is both a friend and 
a foe on many occasions. None of us who have traveled to Afghanistan--I 
know these two Senators have probably more than most, but all of us who 
have been there have heard our generals talking about the fact that 
they are fighting a war in Afghanistan that is really being led and 
directed out of Pakistan.
  So basically we have an issue here. I think the two Senators have 
articulated the issue very well. The fact is, we need to know, first of 
all, if what we are doing in support of the Pakistan military is 
effective for us, and the two Senators have outlined that is a big 
issue.
  The second piece is how we are actually reimbursing. If you talk with 
folks at the State Department, we literally are going through reams of 
invoices and documents, looking at how many bullets they have used, how 
much food has been supplied to the military, what is going to be 
counted, what is not going to be counted. We are spending more time, in 
many ways, accounting for this than we are really looking at how 
effective the aid is.
  This amendment would deal with both of those issues. I thank the 
Senators for putting this in the proper context, and I do hope, with 
the Senators' support and the support of the chairman of the Foreign 
Relations Committee, that this is an amendment we can voice vote. I 
thank both Senators for their leadership on this issue but also for 
putting this in the appropriate context.
  I yield the floor.
  Mr. McCAIN. Mr. President, I urge adoption of the amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Without objection, the amendment, as modified, is agreed to.
  The amendment (No. 1172), as modified, was agreed to.
  Mr. LEVIN. 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.
  Mr. LEVIN. Mr. President, I believe Senator Cantwell will want to be 
recognized.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll of the Senate.
  The legislative clerk proceeded to call the roll.
  Ms. CANTWELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. CANTWELL. Mr. President, we continue to make progress on the 
Defense authorization bill. Hopefully somewhere in the Halls of 
Congress, we are also making progress on the FAA authorization bill 
and, maybe before the end of the year, getting that to a final resolve.
  I know my colleagues on both sides of the aisle are working very 
hard, but I had to come to the Senate floor at this moment to say that 
Christmas came early in the Northwest today when a major deal between 
the Boeing Company and aerospace workers, machinists, resolved what had 
been a conflict in the past on how to work together.

[[Page S8036]]

  A new relationship of working together on incentives and efficiency 
and performance has resulted in the Boeing Company making a decision to 
build the next-generation 737 MAX plane in the Pacific Northwest. That 
is great news for aerospace workers in Puget Sound. It means there is 
going to be a skill set for building fuel-efficient planes for many 
years to come. But it is a great testament to both the company and the 
workers who--a year ago you probably heard more about the NLRB issue, 
and now what you are hearing about is an agreement on a multiyear 
contract that is going to get these workers jobs in building planes 
with the next-generation technology.
  This is very big and important news not just for the Pacific 
Northwest but for the country because it means we can come together to 
resolve differences. I would hope the Senate might apply some of the 
same things because the dispute as to where these two organizations 
were about how to proceed to the future obviously had a lot of 
discussion, even here on the Senate floor, and yet now today we see 
them coming together in a huge milestone agreement that means more 
planes are going to be built, in an agreement where workers and the 
company are working together to improve performance and deliver these 
planes, which many people want because they are so fuel-efficient, on 
time.
  So for the Northwest to have this kind of boost, this shot in the 
arm, at this point in time is really important. I expect that as this 
agreement and the agreement details are seen by many people, they will 
see this really is a way forward for the Northwest to continue to be at 
the top of the aerospace game. That is important because the United 
States needs to be at the top of the aerospace game. We are facing 
tough competition from many countries such as China and Europe and 
others that are trying to lure the manufacturing base away from the 
United States.
  What we see in the Northwest is that not only do you have a company 
such as Boeing, but you have a chain of many suppliers that are also 
working to make aerospace manufacturing in the United States one of the 
key industries in which the United States is world premier.
  So I say congratulations to both the company and to the machinists 
and to Machinists International for their hard work on inking this 
deal. I hope it will bring much benefit and economic growth not just to 
Puget Sound--certainly to there--but to the rest of the country as 
well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.


                           Amendment No. 1126

  Mr. KIRK. Mr. President, I rise in support of the Feinstein amendment 
with regard to section 1031 of this legislation. I am particularly 
worried because, unlike the authorized use of force original doctrine 
and legislation passed by the Congress, we limited the authority of the 
President and the U.S. military to those connected directly to the 
September 11 mass murder of Americans. I think, in times of emergency, 
I understand that. But the legislation would be the first congressional 
authorization to go far beyond that, to say that any ``person who . . . 
substantially supported al-Qaeda, the Taliban, or associated forces''--
undefined--`` . . . including any person who has committed a 
belligerent act'' would be allowed to be picked up by U.S. military 
authorities and held in U.S. military detention.
  While I am in favor of robust and flexible U.S. military action 
overseas, including action against American citizens waging war against 
the United States, such as Anwar Al-Awlaki, I think we all should agree 
on a special zone of protection inside the jurisdiction of the United 
States on behalf of U.S. citizens.
  I say this in support of the Feinstein amendment because I took the 
time--as we all should from time to time, serving in this body--to re-
read the Constitution of the United States yesterday. The Constitution 
says quite clearly: In the trial of all crimes--no exception--there 
shall be a jury, and the trial shall be held in the State where said 
crimes have been committed. Clearly, the Founding Fathers were talking 
about a civilian court, of which the U.S. person is brought before in 
its jurisdiction.
  They talk about treason against the United States, including war in 
the United States. The Constitution says it ``shall consist only in 
levying War against them, or in adhering to their Enemies, giving them 
Aid and Comfort.
  The following sentence is instructive:

       No person--

  ``No person,'' it says--

     shall be convicted of Treason unless on the Testimony of two 
     Witnesses to the same overt Act, or on Confession in open 
     Court.

  I would say that pretty clearly, ``open court'' is likely to be 
civilian court.
  Further, the Constitution goes on, that when a person is charged with 
treason, a felony, or other crime, that person shall be ``removed to 
the State having Jurisdiction of the Crime''--once again contemplating 
civilian, State court and not the U.S. military.
  As everyone knows, we have amended the Constitution many times. The 
fourth amendment of the Constitution is instructive here. It says:

       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable searches 
     and seizures--

  Including, by the way, the seizure of the person

     shall not be violated, and no Warrants shall issue, [except] 
     upon probable cause, supported by Oath or affirmation, and 
     particularly describing the place to be searched, and the 
     persons or things to be seized.

  Now, in section 1031(b)(2), I do not see the requirement for a 
civilian judge to issue a warrant. So it appears this legislation 
directly violates the fourth amendment of the Constitution with regard 
to those rights which are inalienable, according to the Declaration of 
Independence, and should be inviolate as your birth right as an 
American citizen.

  Recall the fifth amendment, which says:

       No person--

  By the way, remember, ``no person''; there is not an exception here.

       No person shall be held to answer for a capital, or 
     otherwise infamous crime, unless on a presentment or 
     indictment--

  Hear the words--

     of a Grand Jury, except in cases arising in the land or naval 
     forces, or in the Militia, when in actual service in time of 
     War--

  Meaning there is a separate jurisdiction for U.S. citizens who are in 
the uniformed service of the United States. But unless you are in the 
service of the United States, you are one of those ``no persons'' who 
shall be answerable for a ``capital'' or ``infamous crime,'' except on 
``indictment of a Grand Jury.''
  The sixth amendment says:

       In all criminal prosecutions--

  Not some, not by exception; in all criminal prosecutions--

     the accused shall enjoy the right to a speedy and public 
     trial, by an impartial jury of the State and district wherein 
     the crime shall have been committed. . . .

  I go on to these because I regard all of these rights as inherent to 
U.S. citizens, granted to them by their birth in the United States.
  If we go on through the Constitution's amendments, we find in the 
fourteenth amendment that it says:

       No State shall make or enforce any law--

  Any law--

     which shall abridge the privileges or immunities of citizens 
     of the United States. . . .

  I realize these powers have been defined by courts. But we would 
recall that even Abraham Lincoln ex post facto lost his ability to 
suspend the writ of habeas corpus pursuant to a Supreme Court decision; 
that in the case of Hamdi v. Rumsfeld, the Court did recognize that 
under the 2001 statute, the President is authorized to detain persons 
captured while fighting U.S. forces in Afghanistan. But I will recall--
and, by the way, this included American citizens--I will recall that 
was in Afghanistan.
  Clearly, we see in the case where an American citizen has gone to a 
foreign jurisdiction, joined a terrorist organization or foreign 
military, and is waging war on the United States, they can be held as a 
detainee of the U.S. military. Why didn't this legislation say that? 
Why did it not restrict its purview to those provisions? In Padilla v. 
Hanft, the Fourth Circuit did allow the capture of a U.S. citizen, 
Padilla--by the way, arrested at O'Hare Airport, a U.S. citizen and 
held in military detention. The Fourth Circuit said because he had 
foreign training and a foreign connection that it was legal to hold 
him.

[[Page S8037]]

  But, remember, very soon thereafter the Bush administration 
surrendered this case. I think the Bush administration realized they 
were about to lose in the Supreme Court on the subject of whether the 
U.S. military could arrest and detain a U.S. citizen and to deprive 
them of their rights and subject them only to review under a petition 
of habeas corpus. I think they realized they had to kick Padilla into 
the civilian court system, and therefore they did. It is only in that 
context that we should read the Padilla decision.
  I think the bottom line is this: We funded a multihundred-billion-
dollar Department of Defense, in the words of the movie, to put men on 
that wall, that we need on that wall, to defend us against foreign 
threats, and they must do hard and difficult things, including 
sometimes to U.S. citizens, such as Anwar al-Awlaki, who are waging war 
on the United States from a terrorist base in Yemen.
  But the whole purpose of this exercise and this institution is to 
defend the rights of the United States and U.S. citizens inside their 
own country. One of the first things a person does when they join the 
U.S. military is not to swear allegiance to a President or to a foreign 
leader but actually swear allegiance to the Constitution of the United 
States and to its rights.
  What is the whole purpose of the Constitution? It is to defend our 
rights against the government because we are one of those unique 
governments that ``posits'' a limited government and which rights are 
reserved according to the 10th amendment to the States or the 
individuals; that our rights supersede the government's. So we cannot 
say for an individual, for example, in Wisconsin, who has never been 
abroad, who may or may not have committed an act or may or may not have 
one association, that suddenly the U.S. military can roll in on that 
person, seize him or her, hold them in military detention, and only 
subject review of that case by one habeas corpus petition.
  I would argue, then, that all of our rights as American citizens hang 
on the decision of the President of the United States; that if the 
President of the United States decides a person is substantially part 
of al-Qaida, the Taliban, or associated forces engaged in hostilities 
against the United States or they have committed a belligerent act or 
supported such hostilities in aid of such forces, all of their rights 
as an American citizen are now forfeited. Clearly, that is not the 
case.
  The Founding Fathers understood the power of the state run amok under 
a distant king who did not regard the rights of the individual as worth 
much. We founded a republic and then wrote a constitution to defend 
those rights. While we face a very difficult and dangerous world 
overseas and have to do difficult and dangerous things, which I 
support, we should make sure there is a place for peace and justice and 
rights inside the United States.
  So for us, in looking at this provision, the Feinstein amendment 
clearly limits the scope of this legislation in an appropriate way--
that we do the difficult things overseas. But the whole purpose of the 
Department of Defense is to defend the United States and those rights 
inside our country, but that we as U.S. citizens, especially when we 
are inside this country, have inalienable rights which cannot be 
separated from us by any executive action; that we can only be held, 
incarcerated, that we can only have our liberties taken away from us on 
indictment of a grand jury, before a civilian court, and with a 
presumption beyond a reasonable doubt by unanimous vote of that jury.
  That is the essence of who we are as Americans, and it is a historic 
decision that we would make if we allow this power to go forward. I 
think that is why Senator Paul and I were the only two Republicans to 
vote against this. That is why so many e-mails and letters that I have 
received in the last few hours support this decision.
  I understand that others have a different view. They describe the 
United States as a battlefield. I would say that is on overly harsh 
determination of how cheaply our rights can be held; that we have a 
multihundred-billion-dollar Defense Department; that we have a 
substantial and capable FBI; that we have enormous State and city and 
local police establishments, all with the capabilities to investigate 
and prosecute crimes, but under the Constitution of the United States; 
and that if we hold U.S. citizens as capable of losing their rights on 
an executive branch decision, that not beyond the shadow of a doubt but 
on a lower standard of care, that in the executive branch's view a 
person is connected to one of those things, then our rights are not 
worth very much.
  I would say the whole purpose of the Constitution is to hold our 
rights higher than the government and subject only to review by a 
civilian court. That review, as described in the Constitution of the 
United States, is far more than a habeas corpus review. The text of the 
Constitution specifically refers to grand jury indictment.
  For those who have questions, I would urge them, first, take a moment 
to reread the Constitution, that first document which, as a member of 
the U.S. military or as an elected Member of this body, we have to 
swear allegiance to, and then make up their minds. I think when they 
do, they will support the Feinstein amendment.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Tester). The Senator from Arizona.
  Mr. McCAIN. Mr. President, I must admit that I have heard some 
bizarre arguments in my time as a Member of this body in referencing 
the Constitution of the United States as a basis for the argument. Now, 
it is my understanding my friend from South Carolina--I ask unanimous 
consent to enter into a colloquy with the Senator from South Carolina.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. It is my understanding that under the Constitution, it is 
the Supreme Court of the United States that gives the interpretation of 
the Constitution as to various laws and challenges to the Constitution. 
It is their responsibility. Is that a correct assumption?
  Mr. GRAHAM. Yes, it is.
  Mr. McCAIN. So our colleague from Illinois who continues to quote 
from the Constitution of the United States fails to quote from the 
specific addressing of this issue by the U.S. Supreme Court, 
specifically the Hamdan decision. Is that correct?
  Mr. GRAHAM. That is correct.
  Mr. McCAIN. Is it not true that according to that decision, the U.S. 
Supreme Court, whom we ask to interpret the Constitution of the United 
States--they have made many interpretations over the years--says there 
is no bar to this Nation's holding one of its own citizens as an enemy 
combatant.
  Now, one would think to the casual observer that is exactly what the 
U.S. Supreme Court meant. It is fairly plain language, not really 
complicated. I am not a lawyer, but how the Senator from Illinois, 
quoting from inalienable rights, can somehow totally disregard in every 
way what the U.S. Supreme Court says--they go on to say we hold that 
``citizens who associate themselves with the military arm of the enemy 
government''--and I believe, in the view of most, they would view that 
as a member of al-Qaida, which this legislation specifically addresses. 
We hold that ``citizens who associate themselves with the military arm 
of the enemy government and with its aid, guidance and direction,'' 
which is exactly, basically, the language of our legislation, ``aid, 
guidance and direction enter this country,'' enter this country, ``bent 
on hostile acts are enemy belligerents within the meaning of the law of 
war.''

  How can anything be more clear to the Senator from Illinois? I mean, 
it is beyond belief. It is beyond belief.
  They then go on and talk about the Civil War, the U.S. Supreme Court 
does. They talk about the Civil War. They talk about a code binding the 
Union Army during the Civil War that captured rebels would be treated 
as prisoners of war. So a citizen, no less than an alien, can ``be part 
of or supporting forces hostile to the United States or coalition 
partners and engaged in an armed conflict against the United States.''
  Now, after 9/11, we declared that we were at war with al-Qaida. Is 
that correct?
  Mr. GRAHAM. Yes.
  Mr. McCAIN. So we are at war. We have American citizens who are enemy 
combatants. Yet the Senator from Illinois, in the most bizarre fashion 
that I have heard, says, therefore, they are

[[Page S8038]]

guaranteed the protections of--as he said--a trial.
  I mean, I do not get it. Maybe the Senator from South Carolina can 
explain.
  Mr. GRAHAM. I will be glad to yield to my friend from Illinois. Let 
me just try to set the stage the best I can. And I would love to have 
Senator Levin weigh in and anyone else.
  The law, as it exists today, to my good friend from Illinois, has 
long held that when an American citizen collaborates with the enemy, 
that is an act of war, not a common crime. The constitutional review 
provided by the Supreme Court in cases involving American citizens 
collaborating with the enemy has said that we view that as an act of 
war and we apply the law of war. So our Supreme Court, in the Hamdi 
case just a few years ago, upheld the ruling in the In re Quirin case, 
which went back to World War II.
  In that case, we had American citizens assisting Nazi saboteurs. The 
Supreme Court ruled that citizenship status does not prevent someone 
from being treated as part of the enemy force when they choose to join 
the enemy.
  Why is this important? My good friend from Illinois is an intel 
officer. Intelligence gathering is part of war. An enemy combatant can 
be interrogated by our military intelligence community without Miranda 
rights. They can be held for an indefinite period of time to be 
questioned about past, present, and future attacks. The Supreme Court 
has legitimized that process because the individual in question was an 
American citizen captured in Afghanistan.
  He pled to the Court: You cannot hold me as an enemy combatant 
because I am an American citizen.
  The Court said: No, there is a long history in this country of having 
American citizens who collaborate with the enemy to be held as an enemy 
combatant.
  Unfortunately, in every war we have engaged in, American citizens 
have provided aid and comfort to the enemy. In World War II we had 
American citizens assisting Nazi saboteurs.
  Mr. McCAIN. Was not one of the most famous cases a woman whose name 
was Tokyo Rose, who propagandized--she was an American citizen. She 
propagandized on behalf of the Japanese when we were in the war. 
Afterwards she was given a military trial.
  Mr. GRAHAM. Yes. The point is----
  Mr. McCAIN. Not a civilian trial, not given her Miranda rights, but 
tried by military tribunal.
  Mr. GRAHAM. Right. What we have done in the Military Commissions Act 
in 2009, civilians, American citizens cannot be tried in military 
commissions. It can only go to Federal court. But the point we are 
trying to make is it has been long held in this country that when an 
American citizen abroad or on the homeland decides to help the enemy, 
we have the right to hold them, not under a criminal theory but under 
the law of war because their effort to help the enemy, I say to my good 
friend from Illinois, is an act of war against their fellow citizens.
  This is so important. If we deny our country the ability to hold and 
interrogate an American citizen who has joined forces with al-Qaida, we 
lose the ability to find out the intelligence they may have to keep us 
safe. If the choice is that an American citizen who chooses to 
collaborate with al-Qaida must be put in the criminal justice system, 
meaning they will have criminalized the war, the Congress will have 
restricted executive branch power.
  To make it clear--please understand, I say to Senator Feinstein--the 
courts of the United States have acknowledged that the executive branch 
can hold an American citizen as an enemy combatant when they engage and 
assist the enemy. The courts of the United States recognize the power 
of the executive to do that as Commander in Chief.
  The question for us is, Do we want to be the first Congress in the 
history of the Nation to say to the executive branch that they no 
longer have that power given to them by the courts, inherent with being 
Commander in Chief, to protect us against enemies foreign and domestic.
  I argue to my colleagues, given the threats we face from homegrown 
terrorism, from al-Qaida groups and their affiliates, that now is not 
the time to change the law preventing our military intelligence 
community from holding an American citizen who is helping the enemy on 
the homeland and prevent them from gathering intelligence.
  I argue that the reason no other Congress has done this in past wars 
is because it didn't make a lot of sense. I argue that if a Senator 
came to the floor of the Senate during World War II and suggested that 
an American citizen who sided with the Nazis to sabotage American 
interests here could not be held as an enemy combatant, they would have 
been run out of town because most citizens would say anybody who helps 
the enemy--citizen or not--is a threat to our country.
  Unlike other wars, we do have due process that exists today that 
never existed before. No Nazi soldier was able to go to a Federal court 
and say: Judge, let me go. The reason I have agreed, and the courts 
have applied habeas review to enemy combatant determination, is this is 
a war without end.
  How does one become an enemy combatant? The executive branch makes 
the accusation. They have to follow the statutory criteria. This is a 
limited group of people in a limited classification. American citizen 
or not, if someone falls into this group, they can be held as an enemy 
combatant. But the executive branch has to prove to an independent 
judiciary that the case is sufficient, and under the law the judge has 
to agree with the military; we have an independent judiciary looking 
over the shoulder of the military in this war, unlike at any other 
time. So the government has to prove to a Federal judge, by a 
preponderance of the evidence, that this person is, in fact, an enemy 
combatant. If the judge disagrees, they are let go. If the judge 
agrees, we hold the enemy combatant, and they get an annual review 
process as to whether future detention is warranted. So we have robust 
due process.
  But please understand what the Feinstein amendment is about. It is 
about the Congress of the United States, the Senate of the United 
States, for the first time in American history, restricting the ability 
of the executive branch to hold an American citizen who is 
collaborating with the enemy and question them under the law of war. If 
we do that to ourselves, we will regret it. I don't want to be in the 
first Congress, in the times in which we live, to change the law to 
deny our intelligence community and the Department of Defense the 
ability to deal with American citizens who have decided on their own to 
become part of al-Qaida. The day one decides they are going to side 
with al-Qaida, they have committed an act of war against the rest of 
us, and the courts acknowledge they can be held as an enemy combatant, 
not a common criminal.
  The question for the Congress is, Do we want to undo that in the 
times in which we live? I plead with everybody in this body, get 
yourself educated about what the law is today. I ask Senator Levin, we 
have done nothing to change the law in this bill; is that correct?
  Mr. LEVIN. Not only does 1031, the overall section, not change the 
law, it incorporates it, according to the administration's own 
statement of policy on what the current law is. The Senator is right. 
There is nothing in here which in any way affects habeas corpus, nor 
should we seek to do so. Habeas corpus remains exactly as it is. We 
could not change it if we wanted to, and we don't want to.
  While the Senator asked me a question, I wish to answer a question 
with a question to him. Is it not true that for the first time, we 
provide that where there is going to be an unprivileged enemy 
belligerent who could be held in long-term detention under the law of 
war--for the first time we provide a judge and a lawyer to that person; 
is that right?
  Mr. GRAHAM. That is correct, and we have been working on that 
together for 5 years. To respond, if I may, because I think it is a 
very good discussion, does the Senator agree with me that under the law 
that exists today, in terms of the Supreme Court rulings, an American 
citizen can be held as an enemy combatant?
  Mr. LEVIN. I read this yesterday, and I will read it again now. The 
Senator is right. I don't know how anybody reading this can reach any 
other conclusion but what the Supreme

[[Page S8039]]

Court says, not because they are right or wrong but because of the 
Supreme Court: ``There is no bar to this Nation's holding one of its 
own citizens as an enemy combatant.''
  By the way, nor should there be, in my judgment.
  Mr. GRAHAM. Does the Senator agree that in past wars American 
citizens, unfortunately, have collaborated with the enemy?
  Mr. LEVIN. They have, and they have been treated as enemy combatants.
  Mr. GRAHAM. Does he agree with me that in World War II some American 
citizens agreed to assist the Nazis and were held as enemy combatants?
  Mr. LEVIN. I agree.
  Mr. GRAHAM. Does the Senator agree it is good policy to hold and 
interrogate someone who is helping al-Qaida to find out what they know?
  Mr. LEVIN. It is good policy. If they decline, under the procedures 
under our language, the person should be first interrogated for 
whatever length of time those procedures provide--by the FBI, local 
police or anybody else. They have the right to do that.
  Mr. GRAHAM. Does the Senator agree that the criminal justice system 
is not set up to gather military intelligence?
  Mr. LEVIN. Yes.
  Mr. McCAIN. To interrupt, briefly, I wonder--in the interpretation of 
the Senator from Illinois of the Constitution of the United States--if 
it is an American citizen, say, somewhere over in Pakistan, who is 
plotting and seeking to destroy American citizens, it is OK for us to 
send a predator and fire and kill that person, but according to the 
interpretation of the Senator from Illinois, if that person were 
apprehended in Charleston planning to blow up Shaw Air Force Base, then 
that person would be given his Miranda rights, how in the world does 
that fit?

  Again, this is one of the more bizarre discussions I have had in the 
20-some years I have been a Member of this body.
  Mr. GRAHAM. Under the law as it exists today, an American citizen can 
be held as an enemy combatant. The question we are debating on the 
floor--Senator Feinstein is saying that in the future an American 
citizen who is deemed to have collaborated with al-Qaida or the Taliban 
or others could no longer be held as an enemy combatant for an 
indefinite period, which means we cannot gather military intelligence 
as to what they know about past, present, and future attacks.
  I argue we would be the first Congress in history to bring about that 
result and that now would be the worst time in American history to do 
that. If we cannot hold a citizen who is suspected of assisting al-
Qaida under the law of war, the only option is to put them in the 
criminal justice system. Then we cannot hold them indefinitely, and we 
cannot ask about present, past or future attacks because now we are 
investigating a crime, nor should we be allowed to do that under 
criminal law.
  The point is that when a person assists the enemy, whether at home or 
abroad, they have committed an act of war against our citizens, and the 
Supreme Court has acknowledged that the executive branch has the power 
to hold them as an enemy combatant. The question is, Are we going to 
change that and say in the 21st century, in 2011, every American 
citizen who chooses to cooperate with al-Qaida can no longer be 
interrogated for intelligence-gathering purposes by our Department of 
Defense and our intelligence community; that they have to go into the 
criminal justice system right off the bat, where they are given a 
lawyer and are read their Miranda rights? If we do that, we are going 
to deny ourselves valuable intelligence. We would be saying to our 
citizens that we no longer treat helping al-Qaida as an act of war 
against the rest of us.
  If one suggested during World War II that someone who collaborated 
with the Nazis should be viewed as a common criminal, most Americans 
would have said: No, they turned on their fellow citizens and they are 
now part of the enemy.
  All I want to do is keep the law as it is because we need it now more 
than ever. I am sensitive to due process. There is more due process in 
this war. Every enemy combatant being held at Guantanamo Bay, captured 
in the United States, has to go before a Federal judge. The military 
has to prove their case to a Federal judge. There is an annual review 
process. That makes sense to me. What doesn't make sense to me is for 
this country and this Senate to overturn a power that makes eminent 
sense when we need it the most. It doesn't make sense to set aside a 
Supreme Court case that acknowledges that when an American citizen 
affiliates with al-Qaida, that is an act of war against the rest of us 
and to criminalize that conduct, denying us the ability to gather 
intelligence. If we go down that road, we have weakened ourselves as a 
people, without any higher purpose.
  To those American citizens thinking about helping al-Qaida, please 
know what will come your way: death, detention, prosecution. If you are 
thinking about plotting with the enemy inside our country to do the 
rest of us harm, please understand what is coming your way: the full 
force of the law.
  The law I am talking about is the law of armed conflict. You subject 
yourself to being held as an enemy of the people of the United States, 
interrogated about what you know and why you did what you did or 
planned to do, and you subject yourself to imprisonment and death. The 
reason you subject yourself to that regime is because your decision to 
turn on the rest of us and help a group of people who would destroy our 
way of life is not something we idly accept. It is not a common, 
everyday crime. It is a decision by you to commit an act of aggression 
against the rest of us.
  I hope and pray this Senate will not, for the first time in American 
history, deny our ability to interrogate and find intelligence from 
those citizens who choose to associate with the enemy on our soil, 
because if we do that, it will be a deviation from the law that has 
existed at a time when we need that law the most.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. KIRK. Mr. President, I will yield to Senator Feinstein in a 
minute. I appreciate the debate with my friends and mentors. The three 
of us who were just debating were all military officers, but we have 
different views. We are dangerously close to being similar to the House 
of Representatives, where they have face-to-face debate. I appreciate 
that.
  The law that should not be changed is the Constitution of the United 
States, and we realize the regulations of the United States have force, 
that the statutes of the United States have greater force, and the 
Supreme Court decisions have even greater force. But no document is 
above the actual words of the Constitution. I will say those words are 
our birthright as American citizens.
  The sixth amendment says you shall be secure in your person and that 
shall not be violated and no warrant shall issue except upon probable 
cause--meaning that a court has made that decision. Your first 
amendment rights say that no person--and there is no exception in the 
Constitution--shall be held to answer for capital or otherwise infamous 
crimes, unless presentment or indictment of a grand jury.
  By the way, I am talking specifically about a U.S. person inside the 
jurisdiction of the United States. Our sixth amendment right says that 
in all criminal prosecutions, the accused shall enjoy the right of a 
speedy and public trial. Our fourteenth amendment right says no State 
shall make or enforce any law which shall abridge the privileges or 
immunities of the citizens of the United States. These are, without 
question, for U.S. citizens. There is a balancing act between the 
threats we perceive. We know the threats from foreign enemies and 
terrorists. That is well known to us, especially the new generation of 
Americans who witnessed the mass murders of September 11.
  The Founding Fathers were also wrestling with another threat--the 
threat of the state, the government itself, against its own individuals 
and the abuse of power. We would forget the lesson of history, unless 
we understood that is a threat as well. We are told there will be no 
intelligence benefit if a U.S. citizen who is arrested can't be 
interrogated by Homeland Defense or FBI people. And yet, I would say, 
as a member of the intelligence community, the FBI and the Department 
of Homeland Security are part of the intelligence community and feed

[[Page S8040]]

information into the intelligence community and can be used.

  One of the key ideas behind our American government is it is not what 
we do, it is how we do it. One of the things missing in section 1031 is 
who is the decider. The decider in this case is the suspicion of being 
part of the al-Qaida, the Taliban, or committing that belligerent act, 
but we have no court making the decision. As an American, you no longer 
have a right to the civilian court system, and those rights are 
inherent to you and are your birthright as an American citizen.
  We should make sure that what we do here and now is that we 
understand your rights; that as an American citizen you can only be 
incarcerated on indictment by a grand jury, which is by a preponderance 
of evidence; and then conviction is beyond the shadow of a doubt. Under 
this language, if you are accused of being part of al-Qaida or the 
Taliban, or of committing an act, you can be held subject to only one 
habeas review on a preponderance of evidence.
  Most Americans think you can only be convicted of a crime in the 
United States beyond the shadow of a doubt by a jury of your peers. But 
if this is passed, that is no longer true. We want to make sure the 
decider always is a civilian article III court. We are talking about a 
very specific definition here inside the jurisdiction of the United 
States among American citizens.
  I agree we can kill Anwar al-Awlaki, who is making war on the United 
States from a foreign jurisdiction. But when we are inside the United 
States, the whole point of the U.S. military and our establishment is 
to defend our rights, and those rights cannot be taken away from us by 
any executive action. They can only be taken away from us by action of 
a civilian court, by a jury of our peers and by their decision beyond a 
shadow of a doubt.
  With that, I yield for the Senator from California, whose amendment I 
so strongly support.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I want one quick moment to respond and then 
I will propound a unanimous consent request.
  We couldn't change the Constitution here if we wanted to, and nobody 
does want to. And that includes the right of habeas corpus. All the 
constitutional rights which the Senator from Illinois talked about are 
constitutional rights. They are there. They are guaranteed. They 
couldn't be changed by the Congress if we wanted to, and I hope nobody 
wants to change those rights.
  But what the Senator ignores, and what has been ignored generally 
here, is that there is another path, and the Supreme Court has approved 
this path so that if any American citizen joins a foreign army in 
attacking us, that person may be treated as an enemy combatant. That is 
not me speaking. That is the Supreme Court in Hamdi.
  There is no bar to this Nation's holding one of its own citizens as 
an enemy combatant.
  If you join an army and attack us, you can be treated as an enemy 
combatant. The Supreme Court has said so more than once.
  My unanimous consent request is the following: that the Senator from 
California be recognized first for whatever comments she wishes to 
make, then the senior Senator from Illinois be recognized to speak on 
whatever subject he wishes--on the amendment of the Senator from 
California or whatever--and then Senator Merkley's amendment be in 
order to be called up by Senator Merkley.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from California.
  Mrs. FEINSTEIN. I thank the distinguished manager of the bill, and I 
say to the distinguished senior Senator from Illinois, who is here, I 
will try to be relatively brief. But I would also say that seldom do we 
get an opportunity on the floor of the Senate to debate what is 
fundamental to this American democracy. In a sense, I am pleased this 
issue has now been aired publicly because I think we can address it 
directly.
  Senator Durbin, I also want to thank your colleague, the junior 
Senator from Illinois, Senator Kirk, for his cosponsorship of this 
amendment.
  The fact of the matter is, the original draft of this defense bill 
had this language in it:

       The authority to detain a person under this section does 
     not extend to the detention of citizens or lawful resident 
     aliens of the United States on the basis of conduct taking 
     place in the United States except to the extent permitted by 
     the Constitution of the United States.

  That was removed from the bill. Essentially, what we are trying to do 
is put back in that you cannot indefinitely detain a citizen--just a 
citizen--of the United States without trial. Due process is a basic 
right of this democracy. It is given to us because we are citizens of 
the United States. And due process requires that we not authorize 
indefinite detention of our citizens.
  Where I profoundly disagree with the very distinguished chairman and 
ranking member of the Armed Services Committee is by saying that Ex 
parte Quirin established the law for U.S. citizens in this area that 
still holds. It does not. I went to the Hamdi opinion, and I wish to 
read some of the plurality opinion as written by Justice O'Connor. This 
first quote is from page 23 of her opinion.

       As critical as the government's interest may be in 
     detaining those who actually pose an immediate threat to the 
     national security of the United States during ongoing 
     international conflict, history and common sense teach us 
     that an unchecked system of detention carries the potential 
     to become a means for oppression and abuse of others who do 
     not present that sort of threat.

  Continuing on page 24:

       We reaffirm today the fundamental nature of a citizen's 
     right to be free from involuntary confinement by his own 
     government without due process of law, and we weigh the 
     opposing governmental interests against the curtailment of 
     liberty that such confinement entails.

  It then goes on, referring to the Hamdi case, on page 26:

       We therefore hold that a citizen-detainee seeking to 
     challenge his classification as an enemy combatant must 
     receive notice of the factual basis for his classification, 
     and a fair opportunity to rebut the government's factual 
     assertions before a neutral decisionmaker.

  Then to quote from Justice Scalia's opinion, which is important 
commentary on the 1942 case Ex parte Quirin, he says:

       The government argues that our more recent jurisprudence 
     ratifies its indefinite imprisonment of a citizen within the 
     territorial jurisdiction of Federal courts. It places primary 
     reliance on Ex parte Quirin, a World War II case upholding 
     the trial by military commission of eight German saboteurs, 
     one of whom, Hans Haupt, was a U.S. citizen.

  Justice Scalia concludes:

       This case was not this Court's finest hour.

  Mr. President, the difference today is that we as a Congress are 
being asked, for the first time certainly since I have been in this 
body--and I believe since the senior Senator from Illinois has been in 
this body--to affirmatively authorize that an American citizen can be 
picked up and held indefinitely without being charged or tried. That is 
a very big deal, because in 1971 we passed a law that said you cannot 
do this. This was after the internment of Japanese-American citizens in 
World War II. It took that long, until 1971, when Richard Nixon signed 
the Non-Detention Act, and that law has never been violated.
  The Quirin case was not about whether a U.S. citizen captured during 
wartime could be held indefinitely, but rather whether such an 
individual could be held in detention pending trial by military 
commission. The recent case of an American put into military custody, 
of course, was Jose Padilla, and there was a good deal of controversy 
over the years about his case. He was ultimately transferred out of 
military custody, tried and convicted in a civilian court.

  What we are talking about here--and I am very pleased Senator Kirk 
and Senator Lee have joined us as cosponsors in this--is the right of 
our government, as specifically authorized in a law by Congress, to say 
that a citizen of the United States can be arrested and essentially 
held without trial forever.
  The hypothetical example that has been offered by the Senator from 
Arizona, the ranking member of the committee, is: Would we want someone 
who is an American--who is planning to kill our people, bomb our 
buildings--not to be held indefinitely under the laws of war? I believe 
it is a different situation when it comes to American citizens. What if 
it is an innocent

[[Page S8041]]

American we are talking about? What if it is someone who was in the 
wrong place at the wrong time? The beauty of our Constitution and our 
law is it gives every citizen the right of review--review by a court, 
and this is what the Hamdi decision is all about. The defense bill on 
the floor, as written, would take us a step backward. The bill, as 
written, would say an American citizen can be picked up, can be held 
for the length of hostilities--is that 5 years, 10 years, 15 years, 20 
years, 25 years, 30 years--without a trial. I say that is wrong. I say 
that is not the way this democracy was set up. And I also say that is 
totally unnecessary because our federal courts work well to prosecute 
terrorists. We can go back to the Shoe Bomber, as a case in point. We 
can go back to Abdulmutallab as a case in point. We can go back to the 
record of the Federal courts prosecuting over 400 terrorists since 9/
11.
  I want to thank Senator Durbin for his interest in this issue and his 
cosponsorship of this amendment. It is very much appreciated. I don't 
know whether we can win this, but I think it is very important that we 
try and I know we are getting more and more support as people learn 
more about what this bill does. I think it is very important that we 
build a record in this body, because I have no doubt this is going to 
be litigated. I hope we are successful with this amendment. I hope we 
can protect the rights of Americans.
  Mr. President, as we have occasion to look at people in Guantanamo, 
we know there are people there who were in the wrong place at the wrong 
time. If they are going to be held forever, that is a mistake, and we 
don't want the same thing to happen to American citizens in this 
country.
  This is another example of how we are over-militarizing things that 
aren't broken. As I have said previously here on the floor, I don't see 
a need for the military to go around arresting Americans. The national 
security division of the FBI now has some 10,000 people. They have 56 
field local offices with special agents who are well equipped to arrest 
terrorists and also interrogate them. Certainly the Justice Department 
is equipped to prosecute terrorists in Federal criminal court. The 
conviction rate and the long sentences achieved shows their success.
  I am hopeful we will be able to pass this amendment and change the 
bill to reflect that Americans are protected from permanent detention 
without trial. That is all we are trying to do.
  I thank the Senator from Illinois, I thank the Chair, and I yield the 
floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, let me say at the outset what an 
extraordinary job my colleague from California has done. There was a 
time in American history, before law schools, when people read the law 
and practiced the law. The Senator from California has not only read 
the law, she has written many laws, and her competence in advocating 
this important constitutional question has been proven over and over. 
So I thank her for having the determination and courage to stand up for 
her convictions against some who would be critical of anyone who 
broaches the subject.
  This is a controversial subject. We are talking about the security of 
Americans. We are talking about terrorism. We all remember a few years 
ago when our lives were interrupted--a time we will never forget--when 
terrorists attacked the United States and killed 3,000 innocent 
American people on 9/11. We came together in this Congress, Democrats 
and Republicans, and said we need to keep this country safe; that we 
never want that to happen again. So we passed new laws, suggested by 
President George W. Bush, and enacted by Democrats and Republicans in 
Congress.
  We created new agencies, such as the TSA security agency at airports 
and we empowered our intelligence branches--which Senator Feinstein has 
a particular responsibility for as chairman of the Senate Intelligence 
Committee--by giving them more people, more technology, and more 
authority, and we said to them, keep us safe.
  We said to our military: We want you to be the best in the world and 
continue to be, and we will provide the resources for that to happen. 
Then we turned, as Senator Feinstein has noted, to the Federal Bureau 
of Investigation and said: We are going to dramatically increase your 
numbers and give you the technology you need to keep us safe.
  Here we are some 10 years later, and what can we say? We can say 
thanks to the leadership of President George W. Bush and Barack Obama, 
9/11 was not repeated--and we never want it repeated.
  We can also say, with very few exceptions, in the 10 years since 9/11 
that we have done all these things consistent with America's values and 
principles. Other countries--and we see them even today--faced with 
uncertainty and insecurity throw out all of the rules of human conduct 
even to the point of killing their own people in the streets to 
maintain order. Thank God that never has occurred in the United States, 
and I pray it never will. Those of us who are elected to represent our 
States in the Senate take an oath, an oath that we are going to uphold 
and defend the Constitution with its values and principles. We 
understand that taking that oath may mean that we are accepting due 
process, and due process says a fair day in court for someone accused 
of a crime. Other countries dispense with that. They don't need a 
trial. They find someone suspected of a crime, whatever it might be, 
that person is given summary execution, and that is the end of the 
story. No questions asked.
  We don't do it that way in America. We establish standards of conduct 
and justice, and particularly as it relates to the people who live in 
America, our citizens and legal residents who are in the United States. 
That is what this debate is about.
  This is an important bill, S. 1867. It comes up every year in a 
variety of different forms, and we are lucky to have Senator Carl Levin 
and Senator John McCain who put more hours into it than we can imagine 
to write the bill to authorize the Department of Defense to do its job. 
It is the best military in the world, and their hard work makes certain 
that it stays in that position.
  But this provision they have added in this bill is a serious 
mistake--serious. It is serious enough for me to support Senator 
Feinstein in her efforts to change and remove the language. Why?
  First, we know the law enforcement officials in the United States of 
America, the Attorney General's Office, the FBI have done a good job in 
keeping America safe. They have arrested over 300 suspected terrorists 
in the United States--over 300 of them--and they have tried them in the 
criminal courts of America, on trial, in public, for the world to see 
that these people will be held to the standards of trial as an American 
citizen. Of those 300, they have successfully prosecuted over 300 
alleged terrorists, then incarcerated them in the prisons of America, 
including Marion, IL, in my home State, where they are safely and 
humanely incarcerated.
  The message to the world is: We are going to keep America safe, but 
we are going to do it by playing by the rules that make us America. Due 
process is one of those rules, and it has worked. It has worked under 
two administrations.
  Now comes this bill and a suggestion that we need to change the 
rules. The suggestion is, in this measure, that we will do something 
that has not been done in America before. Section 1031 of this bill, 
for the first time in the history of America, will authorize the 
indefinite detention of American citizens in the United States. This is 
unprecedented. In my view, as chair of the Constitution Subcommittee of 
Senate Judiciary, it raises serious constitutional concerns.
  Senator Levin and Senator McCain disagree. In an op-ed piece for the 
Washington Post, they recently wrote:

       No provision in the legislation expands the authority under 
     which detainees can be held in military custody.

  But look at the plain language of section 1031. There is no exclusion 
for U.S. citizens. So the question is, If we believe an American 
citizen is guilty or will be guilty of acts of terrorism, can we detain 
them indefinitely? Can we ignore their constitutional rights and hold 
them indefinitely, without warning them of their right to remain 
silent, without advising them of their right to counsel, without giving 
them the basic protections of our Constitution? I don't believe that 
should be the standard.

[[Page S8042]]

  I listened to Senator McCain. He makes a pretty compelling argument: 
Wait a minute. You are telling me that if you have someone in front of 
you who you think is a terrorist who could repeat 9/11, you are going 
to read their Miranda rights to them?
  Well, as an American citizen, yes, I would. I would say to Senator 
McCain the same argument would apply if that person in front of me was 
not a suspected terrorist but a suspected serial killer, a suspected 
sexual predator; we read them their Miranda rights. We believe our 
system of justice can work with those rights being read.
  Do you remember the case about 2 years ago of the person who was on 
the airplane, the Underwear Bomber, Abdulmutallab? He was coming to the 
United States to blow up that airplane and kill all the people onboard, 
and thank God he failed. He tried to ignite a bomb and his clothing 
caught on fire, and the other passengers jumped on him, subdued him, 
and he was arrested. This man, not an American citizen, was taken off 
the plane and interrogated by the Federal Bureau of Investigation. 
After he stopped talking voluntarily, they read him his Miranda rights. 
We all know them from the crime shows that we watch on TV: the right to 
remain silent, everything you say can be used against you, the right to 
retain counsel. He was read all those things, and he shut. But that 
wasn't the end of the story.
  By the next day, they were back interrogating him and they had 
contacted his parents, brought his parents to this country. He met with 
his parents and turned and said: I will cooperate. I will tell you 
everything I know. He started talking, and he didn't stop.
  At the end of the day, he was charged with terrible, serious crimes, 
brought to trial in Detroit, and pled guilty under our criminal system. 
Now, he wasn't an American citizen, but even playing by the rules for 
American citizens we successfully prosecuted this would-be bomber and 
terrorist.
  What is the message behind that? The message behind that is we will 
stand by our principles and values and still keep America safe. We will 
trust the Federal Bureau of Investigation and the Department of Justice 
to successfully prosecute suspected and alleged terrorists. We will not 
surrender our principles even as we fight terrorism every single day.

  Now, this bill changes, unfortunately, a fundamental aspect of that. 
It says if an American citizen is detained and suspected to be involved 
in terrorism with al-Qaida or other groups, they can be held 
indefinitely without being given their constitutional rights.
  I appreciate that Senator Levin and Senator McCain have said they are 
willing to consider excluding U.S. persons, but section 1031 doesn't. I 
hope they do.
  I want to address a couple statements that have been made by my 
Republican colleagues. I like them and respect them.
  I would say to Senator Graham, my colleague and friend from South 
Carolina, I listened to Senator Levin tell us privately and publicly 
over and over again: What we have here doesn't change the law. Then I 
listened to your arguments on the floor saying: Well, the law needs to 
be changed. That is why we are doing this. So I am struggling to figure 
out if Senator Levin and Senator Graham have reconciled.
  Mr. GRAHAM. May I respond?
  Mr. DURBIN. I want the Senator to respond, but I want to ask point 
blank, is there an exclusion currently in the law for U.S. citizens 
under section 1031 and whether or not under 1031 American citizens can 
be detained indefinitely?
  Mr. GRAHAM. No. And there should not be. Could I finish my thought?
  Mr. DURBIN. Of course.
  Mr. GRAHAM. Now, we are good friends, and we are going to stay that 
way. But you keep saying something, Senator Durbin, that is not true. 
The law of the land is that an American citizen can be held as an enemy 
combatant. It is the Hamdi decision, and I quote:

       There is no bar to this Nation's holding one of its own 
     citizens as an enemy combatant.

  Hamdi was an American citizen captured in Afghanistan fighting for 
the Taliban. Justice O'Connor specifically recognized that Hamdi's 
detention could last for the rest of his life because law of war 
detention can last for the duration of the relevant conflict.
  The Padilla case involves an American citizen captured in the United 
States, held for 5 years as an enemy combatant, and the Fourth Circuit 
reviewed his case and said that we could hold an American citizen as an 
enemy combatant.
  To my good friend from Illinois, throughout the history of this 
country American citizens in every conflict have, unfortunately, 
decided to side with the enemy at times. In re Quirin is a 1942-1943 
case that involved American citizens assisting German saboteurs. They 
were held under the law of war because the act of collaborating with 
the enemy was considered an act of war, not a common crime.
  So the law of the land by the courts is that an American citizen can 
be held as an enemy combatant. That has been the law for decades.
  What Senator Feinstein would do is change that. The Congress would be 
saying we cannot hold an American citizen as an American combatant.
  I do appreciate the time. Now, let me tell you why I think that is 
important.
  The Senator is a very good lawyer. Under the domestic criminal law, 
we cannot hold someone indefinitely and question them about enemy 
activity: What do you know about the enemy? What is coming? What were 
you doing? Where did you train? Under domestic criminal law, we can't 
question somebody in a way that would put them in jeopardy.
  Under military intelligence gathering we can question an enemy 
prisoner without them having a lawyer to be able to find out how to 
defend America. If we can't hold this person as an enemy combatant, the 
only way we can hold them is under domestic criminal law. When the 
interview starts and the guy says: I want my lawyer; I don't want to 
talk to you anymore--under the criminal justice model there is a very 
limited time we can hold them or question them without reading them 
their rights or giving them a lawyer.
  Under intelligence gathering our Department of Defense, the FBI, and 
the CIA can tell the individual: You are not entitled to a lawyer. You 
have to sit here and talk with us because we want to know what you know 
about present, past, and future attacks.
  If we can't hold an American citizen who has decided to collaborate 
with al-Qaida as an enemy combatant, we lose that ability to gather 
intelligence. That is the change that Senator Feinstein is proposing; 
that the law be changed by the Congress to say enemy combatant status 
can never be applied to an American citizen if they collaborate with 
al-Qaida. That would be a huge loss of intelligence gathering, it would 
be a substantial change in the law, and it would be the first time any 
Congress has ever suggested that an American citizen can collaborate 
with the enemy and not be considered a threat to the United States from 
the military point of view. I don't want to go down that road because I 
think that is a very bad choice in the times in which we live.
  So to my good friend, the law is clear we can hold an American 
citizen as an enemy combatant. The Congress is contemplating changing 
that, and I think it would be a very bad decision in the times in which 
we live to deny our ability to hold an American citizen and question 
them about what they know and why they decided to join al-Qaida.
  Mr. McCAIN. Mr. President, I ask for the regular order. What is the 
regular order?
  The PRESIDING OFFICER. The Senator from Illinois has the floor.
  Mr. GRAHAM. Simply stated, if a person decides to collaborate with 
al-Qaida in a very limited way, can we hold them? They have to be a 
member of al-Qaida or affiliated with it or be involved in a hostile 
act. But if they do those things, historically, American citizens who 
chose to side with the Nazis--in this case, al-Qaida--have been viewed 
by the rest of us not as a common criminal but as a military threat.
  Now is not the time to change that. We need that ability to question 
that person: Why did you join al-Qaida? Where did you train? What do 
you know about what is coming next? And the only way we can get that 
information is to hold them as an enemy combatant and take all the time 
we need to protect this Nation and interrogate.
  Mr. DURBIN. I would like to reclaim the floor.

[[Page S8043]]

  Mr. GRAHAM. Yes, sir. I appreciate the exchange.
  Mr. DURBIN. And would the Senator end that with a question mark?

  Mr. GRAHAM. And, was I right?
  Mr. DURBIN. I thank my colleague from South Carolina.
  What the Senator concluded with, though, I think is critical to this 
conversation. He said the only way to get to the bottom of whether 
there is an al-Qaida connection that could threaten the United States 
is military detention. Well, the Abdulmutallab case argues just the 
opposite. It was the Federal Bureau of Investigation that he sat before 
and told all of the information that the Senator has just discussed.
  Mr. GRAHAM. May I respond and say the Senator is right.
  I am an all-of-the-above guy. I believe that military and civilian 
courts should be used.
  When an American citizen is involved, does the Senator agree with me 
that military commissions are off the table?
  Mr. DURBIN. So the Senator is arguing that every President should 
have all the options, criminal courts as well as military commissions 
and tribunals?
  Mr. GRAHAM. Absolutely.
  Mr. DURBIN. Well, what is the difference, then, with what the Senator 
is standing for and what is the current situation? From my point of 
view, our Presidents--President Bush and President Obama--since 9/11, 
have used both, with more success on the criminal courts side--
dramatically more success on the criminal courts side.
  The obvious question that Senator Feinstein poses is, if the system 
isn't broken, if the system is keeping us safe, if we have successfully 
prosecuted over 300 alleged terrorists in our criminal courts and 6 in 
military commissions, why do we want to change it?
  Mr. GRAHAM. Here is the point I am trying to make.
  Mr. DURBIN. Retaining the floor.
  Mr. GRAHAM. Thank you. And this is a very good exchange.
  My view is that when we capture somebody at home and the belief is 
that they are now part of al-Qaida, that if we want to read them their 
Miranda rights and put them in Federal court, we have the ability to do 
that. This legislation doesn't prevent that from happening.
  Does it, I ask Senator Levin?
  Mr. LEVIN. It does not.
  Mr. GRAHAM. But what Senator Feinstein is proposing is that no longer 
do we have the option of holding the American citizen as an enemy 
combatant to gather intelligence, and we don't have the ability to hold 
them for a period of time to interrogate them under the law of war.
  What I would suggest to the Senator is that the information we 
receive from Guantanamo Bay detainees has been invaluable to this 
Nation's defense. To those who believe it was because of waterboarding, 
I couldn't disagree more. The chief reason we have been able to gather 
good intelligence at Guantanamo Bay is because of time.
  The detainee is being humanely treated, but there is no requirement 
under military law to let the enemy prisoner go at a certain period of 
time.
  If you take away the ability to hold an American citizen who has 
associated himself with al-Qaida to be held as an enemy combatant, you 
can no longer use the technique of interrogating him over time to find 
out what he knows about the enemy.
  You are worried about prosecuting them. I am worried about finding 
out what they know about future attacks. They are not consistent. You 
can prosecute somebody. That is part of the law. What the Senator is 
taking away from us is the ability to gather intelligence. Our criminal 
justice system is not set up to gather intelligence.
  Mr. DURBIN. I want to reclaim the floor. I know Senator McCain is 
anxious for me to conclude and there is something he is anxious to do 
quickly, but I will try to do this in appropriate time for the gravity 
of the issue before us.
  But to suggest the only way we can get information about a terrorist 
attack on the United States by al-Qaida and other sources is to turn to 
the military commissions and tribunals and not use the FBI and not use 
the Department of Justice defies logic and experience. Abdulmutallab, 
the Underwear Bomber, a member of al-Qaida, failed in his attempt to 
bring down that plane, interrogated successfully by the FBI, basically 
told them everything he knew over a period of time. It worked. To argue 
that you cannot do this defies the experience with Abdulmutallab.
  I want to say a word about the Hamdi case. I listened as Senator 
Feinstein read the Supreme Court decision. I do not think the Supreme 
Court decision stands for what was said by the Senator from South 
Carolina. I think what he said was inaccurate. I do not believe Justice 
O'Connor went to the extent of saying you can hold an American citizen 
indefinitely.
  Let me also say when it comes to the Hamdi case, Hamdi was captured 
in Afghanistan. He was captured on the battlefield in Afghanistan, not 
the United States. And Justice O'Connor, in that opinion, was very 
careful to say the Hamdi decision was limited to ``individuals who 
fought against the United States in Afghanistan as part of the 
Taliban.'' She was not talking about American citizens and their 
rights. She was talking about this specific situation.
  Now let's go to the case of Jose Padilla. Jose Padilla, some will 
argue, is a precedent for the indefinite detention of American 
citizens. But look at what happened in the case of Padilla, a U.S. 
citizen placed in military custody in the United States. The Fourth 
Circuit Court of Appeals, one of the most conservative courts in our 
Nation, upheld Padilla's military detention.
  Then, before the Supreme Court had the chance to review the Fourth 
Circuit's decision, the Bush administration transferred Padilla out of 
military custody and prosecuted him in an article III criminal court.
  I do not think that Hamdi or Padilla makes the case that has been 
made on this floor.
  I want to say I think Senator Feinstein is proper in raising this 
amendment. I think the fact is that Hamdi is a U.S. citizen, but it 
does not stand for the indefinite detention of U.S. citizens as this 
new law would allow.
  It troubles me that as good, as professional, as careful as our 
government has been to keep America safe, we now have in a Defense 
authorization bill an attempt to change some of the most fundamental, 
constitutional principles in America. This bill went through a great 
committee, our Armed Services Committee, but not through the Judiciary 
Committee which has specific subject matter jurisdiction over our 
Constitution. It did not go through the Intelligence Committee. And for 
the record, the provisions in this bill--which some have said are not 
that significant, that much of a change--are opposed by this 
administration, opposed by the Secretary of Defense, Leon Panetta, who 
received a 100-to-nothing vote of confidence from the U.S. Senate when 
he was appointed, opposed by our Director of National Intelligence, who 
says these provisions will not make America safer but make it more 
difficult to protect America, and opposed by the Federal Bureau of 
Investigation.
  I entered a letter from Director Muller in the Record yesterday, as 
well as the Department of Justice.
  You have to ask yourself, if all of these agencies of government, 
which work day in, day out, 24-7 to keep us safe, tell us not to pass 
these provisions because it does not make America safer, it jeopardizes 
our security, why are we doing it?
  Senator Feinstein has the right approach: Let us try to preserve some 
of the basic constitutional values here. I think we can. I hope my 
colleagues will take care before they vote against Feinstein. Despite 
the respect, which I share, that they have for our Armed Services 
Committee and its leadership--this is a matter of constitutional 
importance and gravity. It is important for us to take care and not to 
change our basic values in the course of debating a Defense 
authorization bill. Let's keep America safe but let's also respect the 
basic principle that American citizens are entitled to constitutional 
rights. The indefinite detention of an American citizen accused--not 
convicted, accused of terrorist activity--the indefinite detention runs 
counter to the basic principles of the Constitution we have sworn to 
uphold.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Hagan). The Senator from Michigan.

[[Page S8044]]

  Mr. LEVIN. I wonder if the Senator will yield for a question. Would 
the Senator agree that the majority opinion in Hamdi said the 
following:

       There is no bar to this Nation's holding one of its own 
     citizens as an enemy combatant.

  Mr. DURBIN. I would respond by saying Justice O'Connor in that 
decision said:

       [A]s critical as the Government's interest may be in 
     detaining those who actually pose an immediate threat to the 
     national security of the United States during ongoing 
     international conflict, history and common sense teach us 
     that an unchecked system of detention carries the potential 
     to become a means for oppression and abuse of others who do 
     not present that sort of threat. . . .
       We therefore hold that a citizen-detainee, seeking to 
     challenge his classification as enemy combatant, must receive 
     notification of the factual basis for his classification, and 
     a fair opportunity to rebut the Government's factual 
     assertions before a neutral decisionmaker.

  Mr. LEVIN. Would the Senator agree that specifically referred to 
there is that a citizen being held as an enemy combatant is--excuse me. 
Would the Senator agree that what he read refers to the exact statement 
of the Justice that a citizen who is held as an enemy combatant is 
entitled to certain rights? Would the Senator agree that that, by its 
own terms, says that a citizen can be held as an enemy combatant?
  Mr. DURBIN. In the particular case of Hamdi, captured in Afghanistan 
as part of the Taliban.
  Mr. LEVIN. She did not say that. She said ``a citizen.'' I know what 
the facts of the case are. She did not limit it to the facts of the 
case.
  Mr. DURBIN. I am sorry but she did. The quote:

       . . . individuals who fought against the United States in 
     Afghanistan as part of the Taliban.

  Mr. LEVIN. She did not limit it to that. She described the facts of 
that case.
  Mr. DURBIN. She limits it to that case. If I could make one response 
and then I will give the floor to the Senator. This is clearly an 
important constitutional question and one where there is real 
disagreement among the Members on the floor. I think it is one that 
frankly we should not be taking up in a Defense authorization bill but 
ought to be considered in a much broader context because it engages us 
at many levels in terms of constitutional protections.
  Mr. LEVIN. I agree with the Senator that Justice O'Connor said what 
the Senator said she said. Would the Senator agree with me that Justice 
O'Connor said:

       There is no bar to this Nation's holding one of its own 
     citizens as an enemy combatant.

  Would the Senator agree that she said that?
  Mr. DURBIN. As it related to Hamdi captured in Afghanistan.
  Mr. LEVIN. Would the Senator agree she said that, however?
  Mr. DURBIN. As it related to Hamdi, of course.
  Mr. LEVIN. I am giving the Senator an exact quote. I know the facts 
of the case.
  Mr. DURBIN. I can read the whole paragraph rather than the sentence.
  Mr. LEVIN. You already have. Given the facts of the case. I 
understand the facts of the case, that it was somebody captured in 
Afghanistan. My question is, of the Senator: Would he agree that 
Justice O'Connor said--she is talking about this case, of course----
  Mr. DURBIN. Yes.
  Mr. LEVIN. ``There is no bar to this Nation holding one of its own 
citizens''?
  Mr. DURBIN. Captured on the field of battle in Afghanistan.
  Mr. LEVIN. Would the Senator agree that the Justice said the 
following, that a citizen, no less than an alien, can be ``part of or 
supporting forces hostile to the United States or coalition partners'' 
and ``engaged in an armed conflict against the United States,'' and 
would pose the same threat of returning to the front during the ongoing 
conflict? Would the Senator agree that she said that?
  Mr. DURBIN. Of course.
  Mr. LEVIN. Would the Senator agree that she quoted from the Quirin 
case, in which an American citizen was captured on Long Island?
  Mr. DURBIN. She did make reference to the Quirin case.
  Mr. LEVIN. Did she cite that with approval?
  Mr. DURBIN. I would say there was some reservation in citing it. I 
say to the Senator, our difficulty and disagreement is the fact we are 
dealing with a specific individual captured on the field of battle in 
Afghanistan with the Taliban.
  Mr. LEVIN. I understand.
  Mr. DURBIN. We are not talking about American citizens being arrested 
and detained within the United States and being held indefinitely 
without constitutional rights.
  Mr. LEVIN. My question, though--my question is: Did Justice O'Connor 
say that, in Quirin, that one of the detainees alleged that he was a 
naturalized United States citizen, we held that--these are her exact 
words:

       Citizens who associate themselves with the military arm of 
     the enemy government, and with its aid, guidance and 
     direction enter this country bent on hostile acts, are enemy 
     belligerents within the meaning of . . . the law of war.

  Did she say that?
  Mr. DURBIN. I can tell the Senator there were references in there to 
the case, but the Supreme Court has never ruled on the specific matter 
of law which the Senator continues to read. Until it rules, we will 
make the decision in this Department of Defense authorization bill, and 
it is not an affirmation of current law because there has been no 
ruling.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Isn't it true that Justice O'Connor was specifically 
referring to a case of a person who was captured on Long Island? Last I 
checked, Long Island was part--albeit sometimes regrettably--part of 
the United States of America.
  Mr. LEVIN. She is quoting with approval from the Quirin case in which 
one of the detainees was----
  Mr. McCAIN. Captured in the United States of America.
  Those are the facts of the case.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. McCAIN. Madam President, I am afraid we have to move to the 
amendment of Senator Merkley, who has been very patient.
  Mr. LEVIN. According to a unanimous consent agreement which was 
entered into----
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I understand Senator Merkley was going to be recognized 
next to offer his amendment. That was according to the unanimous 
consent agreement. I understand the Senator from New Hampshire, I don't 
know for how long, needed to make a unanimous consent request. Am I 
correct? No? I am incorrect.
  According to the existing unanimous consent agreement, which was 
entered into----
  Mr. McCAIN. Can I ask the indulgence----
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Could I ask the indulgence of my friend from Oregon, that 
the Senator from South Carolina be allowed 2 minutes, and the Senator 
from New Hampshire be allowed 5 minutes? Would that be all right with 
the Senator from Oregon?
  Mr. MERKLEY. Yes.
  Mr. McCAIN. I thank him for his courtesy too. I say to the Senator 
from Illinois, this is an important debate and discussion. I appreciate 
his presentation. I think a lot of people are getting a lot of good 
information, on what is a very complex and very central issue. I thank 
the Senator from Illinois.
  I yield.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Please understand what you are about to do if you pass 
the Feinstein amendment. You will be saying as a Congress, for the 
first time in American history, an American citizen who allies himself 
with an enemy force can no longer be held as an enemy combatant. The In 
Re Quirin decision was about American citizens aiding Nazi saboteurs, 
and the Supreme Court held then that they could be held as enemy 
combatants. So as much respect as I have for Senator Durbin, it has 
been the law of the United States for decades that an American citizen 
on our soil who collaborates with the enemy has committed an act of war 
and will be held under the law of war,

[[Page S8045]]

not domestic criminal law. That is the law back then. That is the law 
now.
  Hamdi said that an American citizen--a noncitizen has a habeas right 
under law of war detention because this is a war without end. The 
holding of that case was not that you cannot hold an American citizen, 
it is that you have a habeas right to go to a Federal judge and the 
Federal judge will determine whether the military has made a proper 
case. It has nothing to do with an enemy combatant being held as an 
American citizen. What this amendment would do is it would bar the 
United States in the future from holding an American citizen who 
decides to associate with al-Qaida.
  In World War II it was perfectly proper to hold an American citizen 
as an enemy combatant who helped the Nazis. But we believe, somehow, in 
2011, that is no longer fair. That would be wrong. My God, what are we 
doing in 2011? Do you not think al-Qaida is trying to recruit people 
here at home? Is the homeland the battlefield? You better believe it is 
the battlefield.

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GRAHAM. Madam President, I ask unanimous consent for 1 more 
minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. That is the point. Why would you say that if you are in 
Afghanistan, we can blow you up, put you in jail forever, but if you 
make it here, all of a sudden we cannot even talk to you about being 
part of al-Qaida. What a perverse outcome, to say if you make it to 
America, you are home free; you cannot be interrogated by our military 
or our CIA; you get a lawyer. And that is the end of the discussion. 
That is what you would be doing. That is crazy. No Congress has ever 
decided to do that in other wars. If we do that here, we are changing 
the law in a way that makes us less safe. That is not going to be on my 
resume.
  It is not unfair to make an American citizen account for the fact 
that they decided to help al-Qaida to kill us all and hold them as long 
as it takes to find intelligence about what may be coming next. And 
when they say ``I want my lawyer,'' you tell them ``Shut up. You don't 
get a lawyer.''
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GRAHAM. ``You are an enemy combatant, and we are going to talk to 
you about why you joined al-Qaida.''
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. Madam President, I also rise in opposition to the 
amendment offered by Senator Feinstein, and I certainly appreciate the 
comments of my colleague from South Carolina. It would lead to an 
absurd result that if we were in a situation where an American citizen 
became a member of al-Qaida and from within our country attacked 
Americans and we could not gather the maximum amount of information 
from them to make sure we could prevent future attacks against our 
country--that is what is at issue here.
  I would like to point out a couple of issues that have not been 
addressed with respect to Senator Feinstein's amendment.
  If you look at the language of that amendment, she says that the 
authority described in this section for the Armed Forces of the United 
States to detain a person does not include the authority to detain a 
citizen of the United States without trial until the end of 
hostilities. I think this provision is going to create some real 
problems for the executive branch. If I were they, I would be in here 
raising these issues because it does not distinguish--the language--
between an American citizen who is captured overseas versus an American 
citizen captured in the United States of America.
  Let's use the example of Anwar al-Awlaki. Mr. al-Awlaki, a member of 
al-Qaida, was actually killed by us overseas. So it would lead to the 
absurd result that we could not detain him to gather intelligence, but 
we believe that we are authorized--by the way, I agreed with the 
administration taking that step to take out Mr. al-Awlaki, who was a 
great danger to our country overseas. So the language as written would 
lead to that absurd result that would tie the administration's hands, 
that they can actually kill these individuals, but they can't detain 
them under military custody and interrogate them to make sure we can 
find out what they do know and what other attacks are being planned 
against the United States of America.
  Also with respect to the language in this amendment, the language 
itself is a defense lawyer's dream. You can't hold a U.S. citizen until 
the end of hostilities. Well, how long can you hold them? I mean, it is 
not clear. There is no language in that. This is going to be litigated 
to heaven, and this is an area where our intelligence professionals 
need clarity. This is going to create more issues for the executive 
branch in an area that needs clarity and where there needs to be some 
identified rules and they have to be focused on gathering intelligence 
to protect Americans.
  Senator Durbin has cited the Abdulmutallab case on numerous occasions 
as a way--as a great case as an example of how we can gather 
intelligence from enemy combatants to protect America. Let's review the 
facts of that case again. Fifty minutes into the interrogation, he was 
told: You have the right to remain silent. He exercised that right 
because he was given Miranda warnings, and it was only 5 weeks later 
that we were actually able to get through the Miranda warnings after we 
went to his parents. Is that the type of system we want? What happened 
in that 5 weeks? What did we lose in terms of information that could 
have protected America?
  If we can't hold an American citizen who has chosen to be a member of 
al-Qaida and has participated in a belligerent act against our country 
to ask them what other attacks they are planning and whom they are 
working with, how are we going to get information to make sure that--
God forbid--we can prevent another 9/11 on our soil, because that is 
why they want to come to the United States of America. Also, how do we 
deal with this issue of homegrown radicals?
  Unfortunately, this amendment, in my view, is going to be a situation 
where we are opening the welcome mat. If you get to America and you can 
recruit one of our citizens to be a member of al-Qaida, then you don't 
have to worry about them being held in military custody. You don't have 
to worry about us using our maximum tools to gather intelligence to 
protect Americans.
  I think this amendment is very misguided. I again would point out 
that the administration should be concerned about the language in this 
amendment. It does not distinguish between an American citizen who is 
captured on our soil who is trying to attack us and one overseas. But 
either way, if an American citizen has joined al-Qaida and is trying to 
kill us from within our own country, they have become part of our enemy 
and are at war with us.
  The PRESIDING OFFICER. The Senator's time has expired.
  Ms. AYOTTE. Thank you, Madam President.
  I urge my colleagues to oppose the Feinstein amendment.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I believe it is now in order for Senator Merkley to offer 
amendment No. 1257, as amended, with the amendment at the desk. The 
amendment at the desk has four words added to the printed amendment, 
and those words are ``NATO and coalition allies''; is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. LEVIN. I thank the Presiding Officer.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.


                    Amendment No. 1257, as Modified

  Mr. MERKLEY. Madam President, I call up amendment No. 1257, as 
modified, under the unanimous consent agreement and rise to speak to 
it.
  The PRESIDING OFFICER. Under the previous order, the amendment No. 
1257, as modified, is now the pending question.
  The amendment (No. 1257) as modified, is as follows:

       On page 484, strike line 22 through 24 and insert the 
     following:
       (c) Transition Plan.--The President shall devise a plan 
     based on inputs from military commanders, NATO and Coalition 
     allies, the diplomatic missions in the region, and 
     appropriate members of the Cabinet, along with the 
     consultation of Congress, for expediting the drawdown of 
     United States combat troops in Afghanistan and accelerating

[[Page S8046]]

     the transfer of security authority to Afghan authorities.
       (d) Submittal to Congress.--The President shall include the 
     most current set of benchmarks established pursuant to 
     subsection (b) and the plan pursuant to subsection (c) with 
     each report on progress.

  Mr. MERKLEY. Madam President, this amendment requires the President 
of the United States to develop a plan to expedite the reduction of 
U.S. combat troops in Afghanistan and to accelerate the transfer of 
responsibility for military and security operations to the Government 
of Afghanistan. Before I speak to some of the details, I want to thank 
the original cosponsors who have worked hard on this amendment: Senator 
Mike Lee, Senator Tom Udall of New Mexico, Senator Rand Paul, and 
Senator Sherrod Brown.
  The United States went to Afghanistan with two main goals that were 
laid out by President Bush: to destroy al-Qaida training camps and to 
hunt down those responsible for 9/11. Our very capable American troops 
and their NATO partners have aggressively pursued these objectives. 
There are very few al-Qaida operating in Afghanistan. Secretary of 
Defense Leon Panetta said in June 2010 that there were at most only 50 
to 100 al-Qaida members in Afghanistan. Afghanistan is no longer and 
has not been for some time a central arena for al-Qaida activity.
  American forces have also effectively pursued the second objective, 
which is capturing or killing those who attacked America on 9/11. In 
recent years, America has captured or killed two dozen high-level al-
Qaida operatives, including Khalid Shaikh Mohammed, the alleged 
operational mastermind of the September 11 attacks, who was captured in 
a raid on a house in the Pakistani garrison city of Rawalpindi near the 
capital, Islamabad; Ramzi bin al-Shibh, described as a key facilitator 
of the September 11 attacks; Sheikh Sa'id Masri, an Egyptian believed 
to have acted as the operational leader of al-Qaida, who was killed in 
a U.S. drone strike. Most importantly, our exceptional intelligence 
teams and armed services have tracked down and killed Osama bin Laden, 
the founder and head of al-Qaida.
  Citizens may fairly ask--and they do ask--given that we have 
successfully pursued our original two missions, isn't it time to bring 
our sons and daughters home? Our citizens remind us that the United 
States has been at war in Afghanistan for over 10 years, the longest 
war in American history. Our citizens recognize that the war in 
Afghanistan has come at a terrible price. More than 1,200 Americans 
have died from snipers, from improvised explosive devices, and other 
deadly weapons of war. More than 6,700 Americans have been wounded by 
those same weapons. Thousands of our soldiers have suffered from--and 
will suffer for years, decades to come--traumatic brain injuries and 
post-traumatic stress disorder. Our soldiers have paid a huge price. 
Their families have paid a huge price.
  In addition, the war in Afghanistan has consumed and is consuming an 
enormous share of our national resources. According to the 
Congressional Research Service, by the end of this year--just over a 
month from now--we will have spent the better part of $\1/2\ trillion 
or approximately $444 billion. In 2011 alone, we will spend about $120 
billion.
  So what is the answer to our citizens who ask, given our success in 
destroying al-Qaida training camps and given our success in pursuing 
those responsible for 9/11, why we haven't brought our troops and our 
tax dollars home. The official answer is that America has expanded its 
mission in Afghanistan from the narrow two original objectives of 
destroying al-Qaida and hunting down those responsible for 9/11 to the 
broad mission of nation building.
  Destroying al-Qaida--our original mission--and building a modern 
nation state where one has never existed are two entirely different 
things. The expanded mission of nation building in Afghanistan goes way 
beyond those original two military objectives. This expanded nation-
building mission involves creating a strong central government. It 
involves creating an election process for a functioning democracy. It 
involves building infrastructure--roads and bridges and schools. It 
involves a major mission to create a sizable national police force and 
a sizable and effective national army.
  We have spent a lot on this mission, but the success is limited. Over 
10 years, as I mentioned, we have spent $444 billion. Now, that is in a 
nation that had a prewar gross domestic product, or economy, of about 
$10 billion a year. So we have spent an amount equal to 44 times the 
economy of Afghanistan. One would think the result is we would have 
rebuilt the infrastructure of Afghanistan 10 times over or 20 times 
over. But the reality is there is very little to show for this nation-
building mission. Why is that the case? Most simply, this nation-
building mission is systematically stymied by multiple forces. One is 
high illiteracy.

  On my recent trip to Afghanistan, I was told that among those 
recruited for the national police, the literacy rate at a first grade 
level is only about 16 percent--first grade level, 16 percent. The goal 
is to be able to raise that literacy rate so that soldiers can read the 
serial numbers on their rifles. That is a very different world from the 
world we live in.
  The second huge factor is vast corruption. Just after my first trip 
to Afghanistan, the newspapers were full of stories about the family 
members and the associates of the President of Afghanistan building 
massive mansions in Dubai. Well, sending our money to Afghanistan so 
the elite can send it to Dubai to build mansions does not serve our 
national security.
  The efforts in nation building are stymied by deeply felt, ancient 
tribal and ethnic divisions. Moreover, there is a strong national 
aversion to the very mission of building a strong central government. I 
had an interesting experience where I met with six Pashtun tribal 
leaders in Kabul, the capital. They came in to share their stories and 
each one of them said that some form of the government you are trying 
to build is an affliction to our people. Please do not build a stronger 
government that exploits and afflicts our people. I said to them, help 
me understand this, because building a government means a force that 
can help with education, that can help with health care, that can help 
build transportation infrastructure, that can help provide security for 
businesses to prosper. They spoke to me and said--one of them summed it 
up and said, Senator, you don't understand. All of the government 
positions here are sold. The people who buy them do not buy them to 
serve our people. They buy them to exploit our people. And when you 
build a strong central government, which we oppose, the exploitation 
increases.
  So this nation-building mission is systematically stymied by high 
illiteracy, vast corruption, extensive and deep tribal and ethnic 
divisions, and a historic national aversion to a strong central 
government.
  We have been in Afghanistan for more than 10 years. It is time to 
change course. Our President recognizes this. He has worked out an 
agreement with the NATO partners to remove the remaining combat troops 
by the end of 2014. That is just over 3 years from now. But what 
happens during this next 3 years? This amendment says: Mr. President, 
during these next 3 years, seize the opportunity to diminish the combat 
role of American soldiers and increase the responsibility placed with 
the Afghanistan Government and the Afghanistan forces. Seize that 
opportunity.
  I say to my colleagues today, this is incredibly important for our 
success in transferring responsibility. If we do not provide the 
opportunity and the necessity for the Afghanistan institutions to take 
responsibility for their own security, they will not be prepared to 
exercise that responsibility down the road.
  The United States is facing a global terrorist threat. We will be 
well served by using U.S. troops and resources in a counterterrorism 
strategy against terrorist forces wherever in the world they may locate 
and train. That strategy was highlighted by the pursuit of Osama bin 
Laden in Pakistan or more recently our successful pursuit of Anwar 
Awlaki in Yemen. Our intelligence and our military, the best in the 
world, have proven without a doubt that they excel at this strategy. 
Thus, it makes sense to expedite the reduction of U.S. combat troops in 
Afghanistan and accelerate the responsibility for military and security 
operations to the Government of Afghanistan. That is what this 
amendment does.
  The amendment specifically requires the President to prepare a plan 
for the

[[Page S8047]]

expedited reduction of troops and accelerate transfer responsibility 
based on inputs from military commanders, from NATO and coalition 
allies, from diplomatic missions in the region, from appropriate 
members of the Cabinet, and from consultation with Congress. What this 
amendment does not do is it does not limit our ability to identify an 
attack by al-Qaida or terrorist forces wherever they may be in the 
world. It does not limit our ability to destroy al-Qaida or associated 
terrorist training camps wherever they may be, wherever they are in the 
world. It does not restrict funding for supplies and equipment needed 
by our troops deployed in the field.
  If our national security is well served by taking the fight to al-
Qaida wherever they are, if our nation-building strategy in Afghanistan 
is confounded by illiteracy and corruption and cultural opposition and 
tribal and ethnic conflicts, if our national resources are needed in 
that global antiterrorism strategy and are needed as well for nation 
building here at home, if our men and women have suffered enough on 
Afghan soil, then we should encourage our President to seize every 
opportunity over these next 3 years to reduce our forces in Afghanistan 
and to transfer security responsibilities to the Afghan Government.
  That is what this amendment does, and I encourage every colleague to 
support it.
  Thank you, Madam President. I yield the floor and note the absence of 
a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant editor of the Daily Digest proceeded to call the roll.
  Mr. McCAIN. 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. McCAIN. Madam President, I oppose this amendment for one simple 
reason. It requires the President to submit a plan to Congress for an 
accelerated drawdown from Afghanistan--an accelerated withdrawal; not 
just the withdrawal that is already planned, not the withdrawal that 
has already been accelerated on several occasions, but a new 
accelerated drawdown.
  The President is supposed to submit a plan to Congress for an 
accelerated drawdown from Afghanistan. Does that mean the Congress of 
the United States could see a plan for an accelerated withdrawal from 
Afghanistan? Is it required that it be implemented by Congress or is it 
a nice informational, notional kind of thing: Here is a plan. Hey, 
let's get together. I have a plan. And the President's drawdown plan, 
our senior military commanders have stated, is already--already--more 
accelerated than they are comfortable with.
  First of all, I don't get the point of the Senator's amendment, which 
is to submit a plan. It doesn't require that the plan be acted on, just 
a plan. I can submit a plan for him if it is plans he is interested in. 
But the fact is we are accelerating our withdrawal from Afghanistan at 
great risk, as our military commanders have testified--much greater 
risk. So I guess another accelerated plan would obviously have the 
result of even greater risk to the men and women in the military.

  I understand the opposition of the Senator from Oregon to the war. 
That is fine. I respect that. But an amendment that a plan is to be 
submitted without any requirement that it be implemented--a plan which 
would already accelerate more what has already been accelerated--I 
guess is some kind of statement.
  The plan as required by this amendment would be based on inputs from 
our military commanders. I can tell the Senator from Oregon what our 
military commanders in Afghanistan have said in testimony before the 
Senate Armed Services Committee, which is that more acceleration would 
mean greater risk. The acceleration that is already taking place means 
greater risk. But the Senator from Oregon wants a more accelerated 
plan, I guess.
  Then-chairman of the Joint Chiefs of Staff, ADM Mike Mullen, 
testified before the House Armed Services Committee on June 23--this is 
the Chairman of the Joint Chiefs of Staff--that the President's 
drawdown plan would be--that is the present plan, not an accelerated 
plan such as the amendment proposes--``more aggressive and incur more 
risks than I was originally prepared to accept.''
  I wonder if the Senator from Oregon heard that. The present plan is 
``more aggressive and would incur more risks'' than the Chairman of the 
Joint Chiefs of Staff would have been prepared to accept. So with this 
amendment, we accelerate even more.
  On the same day, in testimony before the Senate Select Committee on 
Intelligence, GEN David Petraeus stated that no military commander 
recommended what the President ultimately decided. That is the present 
plan.
  Their concerns were well grounded. Our commanders had wanted to keep 
the remaining surge forces in Afghanistan until the conclusion of next 
year's fighting season, which roughly occurs with the onset of the 
colder months. That was their recommendation to the President. So now 
the President shall devise a plan based on inputs from military 
commanders. I can tell the Senator from Oregon what the input from the 
military commanders is. It is the same input he got with the first 
accelerated withdrawal. All we have to do is pick up the phone and ask 
them. We don't have to have an amendment. That was their recommendation 
to the President. However, the President chose to disregard that advice 
and announce that all U.S. forces would be withdrawn from Afghanistan 
by the end of next summer. That guarantees that just as the fighting 
season next year is at its peak, U.S. surge forces will be leaving 
Afghanistan. In my view, that is a huge and unnecessary risk to our 
mission. But the decision has been made. I think there will be great 
long-term consequences to it.
  A story was related to me recently by a former member of the previous 
administration, high ranking, in a meeting with one of the highest 
ranking members of the Government of Pakistan. He said to this high-
ranking government official: What do you think the chances for peace 
with the Taliban are? That individual laughed and said, Why should they 
make peace? You are leaving.
  Those are fundamental facts. The primary reason for maintaining all 
of our surge forces in Afghanistan through next year's fighting season 
is because of another time the President chose to disregard the advice 
of his military commanders. It is well known that our military leaders 
had wanted a surge to be 40,000 U.S. troops, but the President only 
gave them 33,000. So rather than being able to prioritize the south and 
east of Afghanistan at the same time, as they had planned, our 
commanders had to focus first in the south, which they did last year 
and this year, and then concentrate on eastern Afghanistan next year, 
all because they didn't have enough troops.
  That is not my opinion; that is the sworn testimony of military 
leaders before the Senate Armed Services Committee.
  The President's decision made the war longer and now our commanders 
will not have the forces they said they wanted and needed to finish the 
job in eastern Afghanistan.
  Before we mandate a plan to further accelerate the drawdown of U.S. 
forces from Afghanistan, I suggest we review the facts and consider the 
potential consequences of the overly accelerated drawdown we already 
have.
  Before we base such a plan on the views of our military commanders, I 
certainly recommend that my colleagues travel to Afghanistan and speak 
with those commanders who can explain far better than I can why further 
accelerating our drawdown is reckless and wrong.
  So I do not get the amendment. I do not understand why the title of 
it is ``To require a plan for the expedited transition of 
responsibility for military and security operations in Afghanistan to 
the Government of Afghanistan.''
  As I said, in case the Senator from Oregon missed it, we have already 
accelerated, and in the view of our military commanders, unanimously, 
it is a far greater risk.
  It says:

       The President shall devise a plan based on inputs from 
     military commanders, NATO and Coalition allies, the 
     diplomatic missions in the region, and appropriate members of 
     the Cabinet, along with the consultation of Congress, for 
     expediting the drawdown of United States combat troops in 
     Afghanistan and accelerating the transfer of security 
     authority. . . .


[[Page S8048]]


  Apparently, the Senator from Oregon is not satisfied with the 
President's already accelerated plan for withdrawal from Afghanistan 
beginning in the fall of--well, it has already begun--but the serious 
withdrawal in the fall, September 2012.
  I can assure--I can assure--the Senator from Oregon that if our 
withdrawal, which I greatly fear now, will have long-term consequences, 
a further accelerated withdrawal will absolutely guarantee that 
Afghanistan becomes a cockpit--a cockpit--of competing interests from 
Iran, from India, from Pakistan, and from other countries in the 
region. I think the people of Afghanistan deserve better.
  So I will, obviously, oppose this amendment.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEE. 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. LEE. Madam President, I ask unanimous consent that the current 
amendment be set aside so I might speak briefly regarding amendment No. 
1126.
  Mr. LEVIN. Madam President, reserving the right to object, I wonder 
if the Senator would just seek the right to--the Senator has a right to 
speak on another amendment without setting aside this amendment. So I 
ask that the Senator not set aside the pending amendment but just 
simply speak on whatever amendment he wishes to speak.
  Mr. LEE. Wonderful. The second request is withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1126

  Mr. LEE. Madam President, I rise today to speak in support of 
amendment No. 1126 to the current pending legislation. The purpose of 
this amendment is to make clear that the United States shall not detain 
for an indefinite period U.S. citizens in military custody.
  I understand this has been the subject of a lot of debate. I also 
understand this would be a break not only with the current pending 
legislation but also with current practice, based on Supreme Court 
precedent and lower court precedent that some have interpreted to deem 
this a constitutionally permissible practice.
  It has often been suggested by several of my colleagues that it is 
the province of the Supreme Court to interpret the Constitution, and 
that statement is absolutely correct as far as it goes. But it is not 
the beginning of the analysis and the end of the analysis.
  We, as Senators, independently have an obligation, consistent with 
and required by our oath to the Constitution--which I took just a few 
months ago just a few feet from where I stand now--to uphold the 
Constitution of the United States. That means doing more than simply 
the full extent of whatever the courts will tolerate.
  In this instance, what we are talking about is the right of the U.S. 
military to detain indefinitely, without trial, a U.S. citizen, simply 
on the basis that person has been deemed an enemy combatant.
  Now, there is a real slippery slope problem here, and it is the very 
kind of slippery slope problem for which we have protections such as 
the fifth amendment and the sixth amendment. You see, under the fifth 
amendment, a person cannot be held for an infamous crime unless they 
have been subjected to a process whereby a grand jury indictment has 
been issued. A person cannot be held and tried for a crime without 
having counsel made available to them and without the opportunity for a 
speedy trial in front of a jury of the peers of the accused.
  We can scarcely afford as Americans to surrender these fundamental 
civil liberties for which wars have been fought, for which the founding 
era, the founding generation fought so nobly against our mother country 
to establish and thereafter to protect. We have to support these 
liberties. I think at a bare minimum, that means we will not allow U.S. 
military personnel to arrest and indefinitely detain U.S. citizens, 
regardless of what label we happen to apply to them. These people, as 
U.S. citizens, are entitled to a grand jury indictment to the extent 
they are being held for an infamous crime. They are also entitled to a 
jury trial in front of their peers and to counsel.
  We cannot, for the sake of convenience, surrender these important 
liberties. I am not willing to do that. That is why I support this 
amendment, amendment No. 1126, to the pending legislation. I encourage 
each of my colleagues to do so.
  I want to point out that yesterday I voted against what became known 
as the Udall amendment. I did so in part because I do not believe that 
fixed the problem I am talking about. The Udall amendment did not even 
purport to address current practice or the policies as they have been 
established in recent years: that this kind of detention is in some 
circumstances acceptable. It called for a study and it eliminated 
certain provisions in the proposed legislation, but it did not fix the 
underlying problem.
  This Feinstein amendment, amendment No. 1126, does fix that. That is 
why I support it. I encourage each of my colleagues to do the same.
  When we take an oath to the U.S. Constitution--to uphold it, to 
support it, to protect it, to defend it--we are doing more than simply 
agreeing to do whatever the courts will tolerate. We are taking an oath 
to the principles embodied in this 224-year-old document that has 
fostered the greatest civilization the world has ever known.
  Thank you, Madam 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. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so 
ordered.


                    Amendment No. 1257, as Modified

  Mr. LEVIN. Mr. President, let me just ask Senator Merkley a question, 
and then I think we can proceed from there.
  It is my understanding that the original language in this and related 
amendments had the dates 2012 and 2014 in them, and it could have been 
interpreted that the Senator was trying to press those dates forward 
rather than address--as I interpret the Senator's current amendment--
the pace of reductions after consultation with the people the Senator 
has identified. Am I correct?
  Mr. MERKLEY. The Senator is correct. The amendment is designed to 
encourage, to increase the pace of the reduction of U.S. forces and the 
transfer of responsibility to Afghanistan's forces.
  Mr. LEVIN. Mr. President, unless there is someone else here who wants 
to speak, I yield the floor.
  Mr. McCAIN. Mr. President, I urge adoption of the amendment.
  The PRESIDING OFFICER. The question is on agreeing to the amendment, 
as modified.
  The amendment (No. 1257), as modified, was agreed to.
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mr. MERKLEY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEVIN. Mr. President, I understand the Senator from New 
Hampshire----
  Mr. McCAIN. Mr. President, the Senator from New Hampshire had 
intended to talk about her amendment and withdraw it, and she may be 
coming. I have not had a chance to notify her, so there may be a 
couple-minute delay.
  So 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. McCAIN. 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. McCAIN. Mr. President, in an exchange I had on the floor, I 
mentioned the people on wonderful Long Island. I made a joke. I am 
sorry there is at least one of my colleagues who cannot take a joke. So 
I apologize if I offended him and hope that someday he will have a 
sense of humor.
  I yield the floor.

[[Page S8049]]

  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I have been working for some time to 
wrestle with this question of the right number of military forces we 
need in Europe. It is an issue that has given me some pause. I thought 
we had an agreement several years ago to make some noticeable changes 
in that force structure. Some changes have indeed been made and others 
were in the works and they apparently have been put on hold and 
altered.
  So I just wished to share some thoughts about it. I thank Senator 
Levin and Senator McCain for working with me to develop an amendment to 
this bill that helps call attention to this problem with the Department 
of Defense.
  We have had a long and historic relationship with Europe and our 
European allies. They remain the best allies we have in the world. We 
have large numbers of troops still in Europe. But there are not nearly 
as many as there have been in the past. But the numbers are still 
extraordinary. We have, at this time, 80,000 U.S. troops in Europe, and 
I do not believe military threats justify that large a troop presence. 
Our historic even larger number was based on the Soviet threat, the 
Fulda Gap, the weakness of our European allies after World War II and 
their lack of strength and the bond that NATO meant. We stuck together 
and transformed the entire North Atlantic region in a positive way.
  A book called ``Paradise and Power'' has been written about where we 
are today. It is a pretty significant book, frankly. The essence of it 
is that the Europeans are in a paradise protected by American power, 
and they do not feel any need to substantially burden themselves with 
national defense because the United States is there.
  We have a nuclear presence, we have 80,000 troops, and we have the 
fabulously trained, highly skilled military with the lift capability of 
moving to a troubled and dangerous spot at any time. I do think it is 
fair to say they have become a bit complacent.
  As part of a CODEL I led in 2004, we visited Europe, because the 
United States was going through a BRAC, a reduction of U.S. basing, and 
we did not have the same type policy with regard to international 
bases. We visited--Senator Chambliss and Senator Enzi and I--bases in 
Europe, particularly bases we felt would be enduring, such as Rota, 
Spain, Sigonella and Vicenza and other bases--and Ramstein in Germany.
  But there are others, lots of others. So part of the NATO commitment 
is that each nation in Europe would invest and spend 2 percent of their 
GDP on defense. We have been 4 percent--sometimes over that recently--
in recent years. So our NATO members, however, are falling below that. 
Germany, the strongest economy in Europe, is at 1.2 percent of GDP on 
defense, and they spend a large portion of that on short-term, less 
than 1 year, military training of young people in Germany.
  The fact is, a 9-month trainee is not someone in the modern world we 
can send into combat. They are just not sufficiently trained. Many 
military experts believe this is a waste of money. So even the money 
they are spending, in many ways, is not effectively and wisely spent to 
create the kind of modern military they have to have to be successful 
in a serious manner.
  We do, though, believe Europe is not facing the kind of threats we 
had. I think it is appropriate for us to talk to our European allies 
and say we want to proceed with a drawdown, where possible. This Nation 
is borrowing 40 cents of every $1 we spend. The Defense Department, 
under the sequester that will occur as a result of the failure of the 
committee of 12 to reach an agreement, will be facing dramatic cuts in 
spending, over $1 trillion based on President Obama's projected budget 
over 10 years. We need to look for every reasonable savings we can.
  The Defense Department is taking too heavy a cut in my opinion, far 
more than any other department of government. However, we cannot 
sustain that. I do not support that large a cut, but it will be 
reducing spending by a significant amount. So I believe we should think 
about our foreign deployments. The National Defense Authorization Act 
represents a vision for defense spending. We are now down from $548 
billion spent on the Defense Department last year, $527 billion this 
year, an actual reduction in noninflation dollars of over $20 billion.
  As a matter of fact, the Budget Control Act agreement calls for a 
reduction of total spending in the discretionary account this year of 
$7 billion; whereas, the Defense Department is taking $20 billion. 
Other departments therefore are receiving increases to get the net 7 
that is claimed. Unfortunately, that is not an accurate number because 
we do not achieve even the $7 billion promised.
  Since 2004, the Defense Department had a plan to transfer two of its 
four highly trained combat brigades in Europe back to the United States 
as part of the larger post-world war realignment. However, in April of 
this year, the Department of Defense announced it would maintain three 
combat brigades and not bring the fourth one home until 2015.
  I have asked the Chairman of the Joint Chiefs of Staff, General 
Dempsey, at the Armed Services hearing, and I asked Admiral Stavridis, 
our European EUCOM commander, and they had no good explanation for why 
we are altering the plan that has been in place.
  So my amendment has been agreed to on both sides and would require 
three things from the Department of Defense: No. 1, assessment of the 
April 2011 decision to station three Army brigade combat teams in 
Europe; No. 2, an analysis of the fiscal and strategic costs and 
benefits of reducing the number of forward-based military personnel in 
Europe to that recommended by the 2004 Global Posture Review; and, No. 
3, to describe the methodology used by the Defense Department to 
estimate the current and future cost of U.S. force posture in Europe.
  So is Europe more threatened today than before? I do not think so. 
The United States has a tougher financial condition today than before? 
Yes. I believe we need to look at this carefully. I thank Senator 
McCain and Senator Levin for working with me to recommend an amendment 
they believe is consistent with the goals I am seeking without 
micromanaging the Department of Defense.
  I thank the Chair. I am pleased this amendment will be considered, 
and perhaps we can make some progress to analyzing more properly the 
deployment of forces in Europe. Finally, I would say there is no doubt 
in my mind that the economy of the United States is benefited if a 
brigade is housed in the United States, and the costs of support and 
family are in the United States strengthening our economy rather than 
transferring the wealth of our Nation to a foreign area.
  I hope we will consider that as we deal with this issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.


                           Amendment No. 1229

  Mr. McCAIN. Mr. President, I call up amendment No. 1229 and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The amendment is already pending.
  Mr. McCAIN. I note the presence of my colleague, Senator Lieberman, 
on the floor, the chairman of the Homeland Security Committee.
  I thank my friend from Connecticut for his support of this amendment 
and the importance, with the full realization of the key role the 
chairman of the Homeland Security Committee plays in the issue of cyber 
security, which is the most--in many respects, one of the most looming 
threats to our Nation's security.
  Mr. LIEBERMAN. Mr. President, I thank my friend from Arizona. I 
appreciate this amendment he has offered. I believe I am now listed as 
a cosponsor. If not, I ask unanimous consent that I be so listed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. This amendment essentially codifies a very important 
memorandum of understanding between the Department of Homeland Security 
and the NSA, the National Security Agency. This is a perfect balance 
and exactly the kind of overcoming of stovepipes we need to see in our 
government.
  Under existing law, the Department of Homeland Security has 
responsibility for protecting nondefense government, Federal Government 
cyberspace--cyber networks--and the privately owned and operated 
cyberspace,

[[Page S8050]]

which actually amounts to some of the most critical cyber 
infrastructure in our country is privately owned.
  Today, as Senator McCain suggested, a target of attack by an enemy 
wanting to do us harm could be, for instance, our transit systems, 
financial systems, electric grid, and the like. What is embodied in 
this memorandum of understanding between DHS and NSA--which we will, by 
this amendment, codify into law--is to maintain the quite appropriate 
interface of the Department of Homeland Security with the privately 
owned cyber-infrastructure and those who own and operate it, yet 
utilizing the unsurpassed capabilities of NSA.
  I appreciate that in this colloquy Senator McCain and I are entering 
into, we both make clear--and I appreciate that his intention here in 
offering this amendment is not to circumvent the need for broader 
legislation to protect our American cyberspace from theft, 
exploitation, and attack. It happens that the current occupant of the 
chair, the junior Senator from Rhode Island, has been a leader in this 
Chamber in pushing us to deal with these kinds of problems.
  Senator Reid has announced that he will bring a comprehensive cyber-
security bill to the floor of the Senate in the first work period of 
2012. That is very good news for our security. As Senator McCain said, 
I don't know that we today have a more serious threat to our security 
than that represented by those who would do us harm by attacking our 
cyber-systems, both public and private. This colloquy makes clear that 
this is a very significant first step, and that we need to do something 
more comprehensive and look forward to doing it on a bipartisan basis 
in the first work period in 2012.
  Mr. McCAIN. I thank the Senator from Connecticut, my dear friend. The 
amendment establishes a statutory basis for the memorandum of agreement 
between the Department of Defense and Homeland Security on cooperative 
cyber-security support. Nobody should have any doubt about how serious 
this issue is. Secretary of Defense Panetta said this in June:

       The next ``Pearl Harbor'' we confront could very well be a 
     cyber attack.

  ADM Mike Mullen at a hearing on 
9/22 referred to the cyber-threat as an existential threat to our 
country. This is a serious issue and one that, as the Senator from 
Connecticut pointed out, is of utmost importance to our Nation's 
security.
  Mr. LIEBERMAN. Mr. President, I would like to thank my friend Senator 
McCain for introducing an amendment codifying an existing memorandum of 
agreement between the Department of Homeland Security and the 
Department of Defense that formalizes their cooperation on 
cybersecurity work. Our Nation needs to confront the growing threats we 
face in cyberspace; as Secretary of Defense Leon Panetta testified in 
June, the ``next Pearl Harbor we confront could very well be a cyber-
attack.''
  Mr. McCAIN. I thank my friend for cosponsoring my amendment, and 
share his concern about the threat our Nation faces. In a hearing 
before the Armed Services Committee just two months ago, former 
Chairman of the Joint Chiefs of Staff Admiral Mike Mullen called the 
cyber threat an ``existential'' threat to our country.
  The purpose of my amendment is to codify the current memorandum of 
agreement, and to ensure that the relationship between DoD and DHS 
endures. This growing partnership demonstrates that the best 
government-wide cybersecurity approach is one where DHS leverages, not 
duplicates, DoD efforts and expertise. This is just one of the many 
issues we need to address on cyber legislation, and does not diminish 
the need for a comprehensive bill addressing our Nation's 
cybersecurity. But our work together on this should serve as an example 
of where consensus can and should exist moving forward.
  Mr. LIEBERMAN. I agree wholeheartedly. The approach embodied by the 
memorandum of agreement--and this amendment--exemplifies the potential 
for DoD and DHS to leverage each other's expertise, to make efficient 
use of existing government resources, and to avoid unnecessary growth 
of government. That is the approach we must follow as we continue down 
the path toward comprehensive cybersecurity legislation.
  Mr. McCAIN. I agree, and I again thank my colleague for supporting my 
amendment. While at the end of the day we may not agree on all of the 
provisions of a bill, I look forward to working together early in the 
coming year to address these issues under a process that allows for 
full debate of the issues on which we may differ.
  Mr. McCAIN. Mr. President, I urge adoption of the amendment.
  The PRESIDING OFFICER. Is there further debate?
  The question is on agreeing to the amendment.
  The amendment (No. 1229) was agreed to.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. Mr. President, I ask unanimous consent that Senator 
Lieberman and I be allowed to engage in a colloquy.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1068

  Ms. AYOTTE. Mr. President, obtaining intelligence from high-value 
terrorist detainees is an urgent national security priority that is 
essential to protecting Americans. Unfortunately, under current law, 
terrorists need look no further than the Internet to find out 
everything they need to know about our interrogation practices and how 
they can circumvent them. Under President Obama's 2009 Executive Order 
13491, all U.S. Government interrogators are limited to the 
interrogation techniques that are available online and described in the 
Army Field Manual. As a result, all members of the intelligence 
community, including the non-Department of Defense intelligence 
professionals who support the high-value detainees interrogation group, 
must conform to the procedures in the Army Field Manual, which was 
written by the U.S. Army for the U.S. Army; that is, there is little 
flexibility permitted under these rules, and they are easy for those 
who want to harm us to circumvent them and to know exactly what 
techniques we will use to gather information to protect our country if 
they are detained as an enemy combatant.
  Mr. LIEBERMAN. Would the Senator yield for a question?
  Ms. AYOTTE. Yes, I will.
  Mr. LIEBERMAN. Let me thank my friend, Senator Ayotte, for playing 
such a leading role in our debates on this critical issue of how our 
country handles detainees and gathers intelligence in our war on 
terrorism. I share her concerns about the potential damage to our 
intelligence collection efforts inflicted by adherence to the existing 
restrictions on interrogations. That is why I am pleased to be, with 
others, a cosponsor of the amendment introduced, amendment No. 1068.
  I will say that I am also disturbed about the amount of 
misinformation that seems to be circulating about this amendment and 
similar efforts in the past that I have supported.
  I ask the Senator from New Hampshire, does amendment No. 1068 
authorize torture?
  Ms. AYOTTE. I thank my friend, the Senator from Connecticut, first, 
for his leadership in this body on national security. We both had the 
privilege of serving our States as attorneys general.
  The answer is no. This is an amendment, I point out, that not only is 
Senator Lieberman sponsoring--and I appreciate his experience and 
leadership on this most important national security issue--but Senator 
Chambliss, vice chairman of the Intelligence Committee, as well as 
Senator Graham and Senator Cornyn, who are both members of the Armed 
Services Committee, as well as the Judiciary Committee. It is very 
important to be clear about what this amendment would and would not do.
  This proposal takes every possible measure to put into place 
intelligence-gathering practices that honor our American values and 
laws. Our amendment in no way condones or authorizes torture. There 
have been many groups trying to misrepresent what is in this amendment. 
Any new interrogation techniques that are developed would be required 
to comply with the U.N. Convention Against Torture, the Military 
Commissions Act, the Detainee Treatment Act, as well as section 2441 of 
Title 18 U.S. Code that relates to war crimes.

[[Page S8051]]

  Mr. LIEBERMAN. I thank my friend for that clarification. It is very 
important. It is very critical--particularly for those who 
misunderstood this amendment--to understand the host of protections 
that the amendment puts in, both compelling compliance with the 
international convention against torture, as well as explicit 
prohibition in American law against interrogation that amounts to 
torture.
  I want to ask my friend another question. Right now, all Federal 
Government interrogators, whether in the military or in the civilian 
intelligence community, are limited to using the Army Field Manual. So 
why does the Senator think it is so critical to give interrogators the 
ability--limited ability--to go beyond the Army Field Manual?
  Ms. AYOTTE. I appreciate the question from my friend and colleague. 
The decision by President Obama to limit interrogators to the Army 
Field Manual was based, in part, on the horrible abuses that happened 
at Abu Ghraib prison in Iraq. Undoubtedly, the abuses at Abu Ghraib 
failed to reflect American values, tarnished America's reputation, and 
certainly damaged our interests. However, responding to these abuses by 
reflexively applying an Army Field Manual--which, to be clear, 
terrorists can go online and get and know exactly which techniques they 
will be subject to if captured--to all Federal Government interrogators 
doesn't reflect the severity of the threat to our country and the 
importance of providing our nonmilitary intelligence collectors all of 
the lawful tools they need to gather intelligence to prevent nuclear 
attacks and protect our country.
  Mr. LIEBERMAN. I thank the Senator for that answer. I completely 
agree with her. It is important to step back and perhaps state the 
obvious. Why do we capture enemy combatants? Why do we take prisoners 
of war? Two reasons, really. The obvious one is to get them off the 
battlefield against us so they can no longer attempt to kill Americans 
in uniform and, in the case of the war we are in with Islamist 
terrorists, to kill civilians. That is first--get them off the 
battlefield.
  The second purpose--and this has been the traditional purpose of 
taking prisoners of war as long as there has been warfare in human 
history, and all the more so now--is to gather intelligence from them 
that will assist us in defeating the enemy and protecting our goals and 
protecting the lives of our men and women in uniform. That traditional 
purpose for taking prisoners of war is all the more critical in the 
unconventional war we are in against a brutal enemy that doesn't strike 
from battleships or tactical air fighters or military tanks or even in 
uniform; they strike us from the shadows, and they strike civilians as 
well.
  It is very important to approach this amendment understanding that we 
are trying to increase, in a reasonable way, the capacity of those who 
work for us to protect our security and freedom to interrogate 
detainees that we have captured in the war against terrorism. One of 
the purposes is to gather intelligence, which will help us protect the 
lives of Americans and of our allies.
  The preface to the Army Field Manual says it applies to the active 
Army, the Army National Guard, and the U.S. Army Reserve, unless 
otherwise stated. So as to the field manual, recognizing that these 
words create limited applicability of the manual outside the Army, the 
Army Training and Doctrine Command authors had the wisdom to warn that 
this manual was ``Army doctrine,'' and it would have to be adapted, 
altered to apply to other ``military departments'' or other military 
service. If the interrogation techniques in this manual are not ideally 
suited for military services other than the U.S. Army, why should 
civilian interrogation professionals in the intelligence community, and 
particularly those who are in support of a high-value detainee 
interrogation, those who get the most powerful and influential and 
dangerous prisoners of war, be forced to comply with a document written 
for a defined military unit, which is the U.S. Army? I ask my friend 
from New Hampshire that question.

  Ms. AYOTTE. I appreciate the question from the Senator from 
Connecticut. Absolutely, as the Senator pointed out, the Army Field 
Manual was not created for this purpose. As he mentioned, the high-
value detainee interrogation group is a group consisting of the CIA, 
FBI, and Defense Intelligence Agency, designed to interrogate the worst 
terrorists, who are likely to have valuable information about future 
attacks and information we need to protect our country. To address this 
problem, we drafted the amendment through this authorization that would 
allow members of the intelligence community, who are assigned to or in 
support of the high-value interrogation group, to utilize interrogation 
techniques that are consistent with our laws and values. Our amendment 
would ask the Secretary of Defense, working with the Director of 
National Intelligence and the Attorney General, to develop a classified 
annex to the Army Field Manual that terrorists could not see. 
Unfortunately, now they can go on the Internet and look at the 
techniques. It classifies that the Army Field Manual would provide 
interrogation techniques that would be used by that important select 
group of intelligence-gathering professionals, to allow them to have 
for their use the techniques they need to gather information and 
protect our country.
  Mr. LIEBERMAN. Again, I thank my friend from New Hampshire, but I 
want to go back to something I said earlier. We have described the 
purpose of this amendment--what I call the due process we have put into 
it, the mandate that it comply with existing international norms and 
treaties, and, obviously, to comply with our law. I want to say to my 
colleague that it is certainly not my intention--and I ask my colleague 
is it her intention--that any of the measures we are authorizing--the 
interrogation tactics for the worst of the terrorist detainees--should 
or could equal what is conventionally known as torture? In other words, 
we are not attempting to legalize torture with this amendment.
  Ms. AYOTTE. I thank the Senator for the question. The answer is, no; 
we are not. We believe torture violates our laws and runs counter to 
American values. That is what I believe. That is why we specifically 
require the techniques developed by the Secretary of Defense, the 
Director of National Intelligence, and the Attorney General have to 
comply with the U.N. Convention Against Torture and all applicable 
laws, including the Detainee Treatment Act. Thus, the ACLU's claim the 
amendment threatens to revive the use of torture is patently false, 
unfortunately.
  Currently, the Army Field Manual interrogation techniques our 
intelligence community interrogators must follow are publicly listed 
online. That is unacceptable. It is like the New England Patriots 
giving their opponents their playbook days or weeks before the game 
begins. In my experience as attorney general of New Hampshire and as a 
murder prosecutor, no detective or cop in even a common criminal case 
would tell the criminals what techniques they are going to use to 
gather information.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, could I ask my friend from New Hampshire to 
allow me to propose a unanimous consent request?
  Ms. AYOTTE. I would grant the leader that request.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. The reason I ask is that Senator Levin and I have a 
classified briefing that starts at 5:30.
  May I ask the Senator how much longer she wishes to speak? It doesn't 
matter, but just so I have an idea.
  Ms. AYOTTE. I would say probably 5 minutes.
  Mr. REID. Mr. President, I ask unanimous consent that following the 
statement of Senator Ayotte of approximately 10 minutes--she has been 
here long enough that she has learned to keep Senators' time, and 5 
minutes really isn't 5 minutes--does the Senator from Connecticut wish 
to speak?
  Mr. LIEBERMAN. Mr. President, I would say to the leader, I am in this 
with the Senator from New Hampshire, so we will complete our colloquy 
within 10 minutes.
  Mr. REID. So following their colloquy of 10 minutes, I ask unanimous 
consent the Senate proceed to a period of morning business for 1 hour; 
that following that we go back to the Defense authorization bill.
  There will be no more votes this evening, though, Mr. President.

[[Page S8052]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I appreciate the time of the Senator from New Hampshire.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. I thank our leader for giving us the opportunity to 
continue this colloquy.
  I just wanted to point out--we were talking about the fact the Army 
Field Manual is online--that in my experience as New Hampshire's 
attorney general and prior to that as a murder prosecutor--and I know 
my colleague served as his State's attorney general as well--no 
detective or cop on the beat, in a common criminal case--and, of 
course, we are dealing with a situation where we are at war with 
terrorists--would ever give a criminal their playbook as to what 
techniques they would use to question them to get information to see if 
a crime has been committed and to see that justice is served. Yet here 
we are in a situation where we have online the techniques from the Army 
Field Manual while we are at war with terrorists who want to kill us.
  What we are saying with this amendment is that we need to allow the 
intelligence professionals to develop techniques, but in a classified 
annex, consistent with our laws, that would allow them to gather 
intelligence and not tell our enemies what techniques will be used to 
gather information from them.
  Not surprisingly, al-Qaida terrorists have taken advantage of our 
willingness to tell them publicly on the Internet what will and will 
not happen during an interrogation should they be captured. Al-Qaida 
terrorists have familiarized themselves with the interrogation 
techniques they would confront if captured, and they are training on 
how to respond. That makes it more difficult for us to gather 
information.
  The willingness of the United States to give the equivalent of 
interrogation CliffsNotes to terrorists places our interrogators at a 
disadvantage and makes it more difficult to gather the information we 
need to save American lives. So developing a classified annex of lawful 
techniques for intelligence professionals who are interrogating the 
worst terrorists would make it harder for terrorists to train to avoid 
and resist interrogation.
  The key to our amendment is giving this limited group of intelligence 
community interrogators the techniques they need to gather information 
but to do so without resorting to torture and while retaining an 
operational advantage that makes it more likely an interrogation will 
be successful.
  Mr. LIEBERMAN. Again, Mr. President, I thank the Senator from New 
Hampshire. Just in listening to her, it seems so unacceptable that we 
are basically telegraphing to our enemy exactly the range of tactics 
that we will use against them as part of the interrogation.
  We have set some quite appropriate constraints in this amendment 
consistent with our values and our laws and international law so that 
we are not going to get anywhere near torture. But when a member of al-
Qaida or a similarly associated terrorist group is captured, I want 
that person to be terrified about what is going to happen to them while 
in American custody. I want them not to know what is going to happen. I 
want the terror they inflict on others to be felt by them as a result 
of the uncertainty of not knowing they can look on the Internet and 
find out exactly what our interrogators are going to be limited to.
  Again, we will not tolerate torture. We will not tolerate what 
happened at Abu Ghraib. I think the limited interrogation in the Army 
Field Manual was an understandable but excessive reaction to the 
extreme and unacceptable behavior by Americans at Abu Ghraib. I hope 
this amendment will facilitate a return to the kind of sensible middle 
ground on which we will not be shackling our interrogators as they try 
to get intelligence, within the law, to protect our freedom and the 
safety of those who are fighting for us.

  So I want to ask my friend from New Hampshire whether she thinks we 
have now a kind of one-size-fits-all approach to interrogation that is 
posted online. In other words, our laws should make it easier, within 
the law, not harder, to gather intelligence to keep Americans safe. Yet 
it seems the current policy runs counter to that basic principle. Does 
my friend from New Hampshire agree?
  Ms. AYOTTE. I do. I do agree. As a matter of common sense, this 
amendment should go forward. The reality of telling our enemies online 
what to expect just defies common sense. That is what we are addressing 
with this amendment.
  Mr. GRAHAM. If I may, I find the discussion fascinating. May I enter 
into the colloquy?
  The PRESIDING OFFICER. Subject to the previous order, the Senator is 
welcome to join the colloquy.
  Mr. GRAHAM. I thank the Chair.
  As I understand it, the reason the Senator is having to do this is 
because President Obama, by Executive order, prevented the CIA and 
other agencies from using any enhanced interrogation techniques that 
have been classified in the past; is that correct?
  Ms. AYOTTE. That is right. Unfortunately, we are just telegraphing to 
our enemies what techniques we are going to use.
  Mr. GRAHAM. If I may, let me ask another question. All of us agree we 
don't want to torture anybody. Waterboarding is not the way to get good 
intelligence. Not only is it not the right thing to do, it is just not 
the wise thing to do. But we believe we have gone too far the other 
way; that when the President said no interrogation technique is 
available to our intelligence community other than the Army Field 
Manual, does my colleague agree that, for the first time in American 
history, we are advertising to our enemies what we can do to them if we 
capture them, and no more can be done?
  Ms. AYOTTE. I would say the Senator is absolutely right. I appreciate 
that the Senator from South Carolina has cosponsored this amendment, as 
has Senator Lieberman, and I appreciate Senator Lieberman's leadership. 
I would like to say while we are in this colloquy that Senator 
Lieberman has also been a mentor to me in the Senate, and I appreciate 
that as well as his leadership on these issues.
  Really, it comes down to this: We should not be telegraphing, we 
should not be advertising to our enemies what techniques our 
professional interrogators will use. This amendment is limited to the 
group of professionals who will focus on these issues and who will be 
gathering intelligence from terrorists.
  We have to protect our country. Why would we do this? It just doesn't 
make sense.
  Mr. GRAHAM. My good friend from Connecticut is aware there is a 
proposal pending on the floor of the Senate that would say, for the 
first time in American history, if a U.S. citizen decides to 
collaborate with an enemy, they cannot be held as an enemy combatant. I 
think the Senator is very familiar with the history of the law in this 
area. Unfortunately, during the entire history of our country, during 
other conflicts, American citizens have, on occasion, collaborated with 
the enemy, one of the most famous cases being the In re Quirin case, 
where an American citizen in New York and other places was helping Nazi 
saboteurs try to sabotage America.
  In that case, the Supreme Court ruled an American citizen could be 
detained as an enemy combatant because the decision to collaborate with 
the enemy was a decision to go to war with their country, not a common 
crime, and that the law to be applied was the law of war. I am certain 
the Senator is familiar with the Hamdi case, where an American citizen 
seized in Afghanistan was allowed to be held as an enemy combatant. The 
Hamdi decision reaffirmed In re Quirin, and the Padilla case involved 
an American citizen captured in the United States accused of 
collaborating with al-Qaida.
  All of those cases reaffirm the law of the land is, if someone 
chooses to help al-Qaida, they have committed an act of war against 
their fellow citizens, and they can be held as an enemy combatant for 
an indeterminate period of time so that we can gather intelligence 
about what they may have done or about what they know about the enemy.
  Does the Senator from Connecticut agree that now would be a very bad 
time for the Congress to say, for the first time in American history, 
if an American citizen decides to help al-

[[Page S8053]]

Qaida attack us, to kill us, our military can't hold them as an enemy 
combatant and find out what they were up to?
  Mr. LIEBERMAN. Mr. President, I thank my friend from South Carolina 
for participating in our colloquy, and, of course, I totally agree with 
him, first of all, on the principle. As he has said very well, and he 
knows the law very well or better than anyone around here, the Supreme 
Court has made clear an American citizen, who by his or her acts has 
declared themselves to be an enemy of the United States, can be treated 
as an enemy combatant. If we change that now, it is not only wrong on 
principle, but it is absolutely the wrong time to do this.
  Let me speak now for a moment--and I am privileged to be the chair of 
the Senate Homeland Security Committee.
  The PRESIDING OFFICER. The 10 minutes allocated for the colloquy has 
expired.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent for an 
additional 4 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Very briefly, the great concern we have now in terms of the security 
of the homeland is from so-called homegrown terrorists, radicalized 
Americans who effectively have joined al-Qaida or other terrorist 
enemies to attack the United States.
  It is a sad and painful reality that, since 9/11, the only Americans 
killed on American soil by Islamist extremists and terrorists have been 
killed by other Americans who have been radicalized, who have become 
enemy combatants. I am speaking particularly of MAJ Nidal Hasan who 
killed 13 people at Fort Hood, and then an American named Bledsoe, who 
walked into an Army recruiting station in Little Rock, AR, and killed 
an Army recruiter just because he was wearing a uniform of the U.S. 
Army.
  So these people have taken sides. They have joined the enemy. So to 
have this body at this time, as the threat of homegrown terrorism 
rises, say: No, they can't be treated as enemy combatants, not only 
does it not make sense and is totally unresponsive to the facts I have 
just described, the fact is, it is also dangerous.
  So I couldn't agree with the Senator more. I wish to thank Senator 
Ayotte, as we come to the end of this colloquy, for her initiative, 
frankly, for swiftly establishing herself in the Senate as one of our 
important leaders on national security matters. I am a little biased 
about this, but I know her experience as a former State attorney 
general has helped as well as what I have noted is her active and 
informed participation on the Armed Services Committee.
  I must say that as I am about to enter my last year privileged to be 
a U.S. Senator, it gives me great comfort to know Senator Ayotte is 
going to be here to carry on these fights for American national 
security and for freedom.
  Ms. AYOTTE. I thank Senator Lieberman very much. Again, I appreciate 
the Senator's leadership and all he has done for our country, to 
protect our country. I dare say no one has been more focused on 
protecting our country, and we deeply appreciate his leadership.


                      Amendment No. 1067 Withdrawn

  Ms. AYOTTE. Before I yield the floor, I need to briefly discuss the 
withdrawal of an amendment I have, which is amendment No. 1067, 
regarding notification of Congress with respect to the initial custody 
and further disposition of members of al-Qaida and affiliated entities.
  I have received assurances from the Armed Services Committee majority 
and minority staff that these comments and steps which are outlined in 
that amendment will be addressed when the Defense bill goes to 
conference.
  Therefore, Mr. President, I ask unanimous consent that my amendment 
No. 1067 be withdrawn. But I also understand that the Armed Services 
Committee will take up my amendment when the Defense bill goes to 
conference as part of the conference on this bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. RUBIO. Mr. President, some people are wrongly suggesting that the 
National Defense Authorization Act for fiscal year 2012, this 
legislation will allow the military to capture and indefinitely detain 
any American citizen, and that the U.S. Armed Forces would be able to 
perform law enforcement functions on American soil because of the 
authority conferred under sections 1031 and 1032 of the act.
  Several people have asked about my votes on the National Defense 
Authorization Act for fiscal year 2012. In particular, some people are 
wrongly suggesting that this legislation will allow the military to 
capture and indefinitely detain any American citizen, and that the U.S. 
Armed Forces would be able to perform law enforcement functions on 
American soil because of the authority conferred under sections 1031 
and 1032 of the act. While I do have other serious concerns with this 
legislation, those particular assertions could not be further from the 
truth. I want to take this time to explain what the law actually does, 
what my position is on these issues, and why I joined with Senators 
Demint, Coburn and Lee to vote for those specific sections but against 
cloture on the final bill.
  Section 1031 of this act merely affirms the authority that the 
President already has to detain certain people pursuant to the current 
authorization for use of military force. In fact, this same section of 
the bill specifically states that nothing stated in section 1031 is 
intended to expand the President's power. In addition, this section 
sets specific limits on who can be detained under this act to only 
those people who planned or helped carry out the 9/11 attacks on the 
United States or people who are a member of, or substantially support, 
al-Qaida, the Taliban, or their respective affiliates. There is no 
language that could possibly be construed as repealing the Posse 
Comitatus Act and allowing the U.S. military to supplant your local 
police department in carrying out typical law enforcement activities.
  In particular, some folks are concerned about the language in section 
1031 that says that this includes ``any person committing a belligerent 
act or directly supported such hostilities of such enemy forces.'' This 
language clearly and unequivocally refers back to al-Qaida, the 
Taliban, or its affiliates. Thus, not only would any person in question 
need to be involved with al-Qaida, the Taliban, or its surrogates, but 
that person must also engage in a deliberate and substantial act that 
directly supports their efforts against us in the war on terror in 
order to be detained under this provision. There is nothing in this 
bill that could be construed in any way that would allow any branch of 
the military to detain a law-abiding American citizen if they go to the 
local gun store or grocery store. What this section of the bill does is 
help provide for our national security by giving clarity to the 
military in regard to its authority to detain people who have committed 
substantially harmful acts against the United States. This is extremely 
important given that there are al-Qaida cells currently operating 
within our borders. I would not leave the risk of a terrorist attack 
that could claim the life of a member of my family up to chance, and I 
will not leave that risk for your family either.
  Section 1032 of this bill concerns a smaller group of people who 
Congress believes are required to be detained by the U.S. military 
because people who fit within this criteria are a more serious threat 
to our national security. Any person detained under section 1032 must 
be a member of, or part of, al-Qaida or its associates and they must 
have participated in the planning or execution of an attack against the 
U.S. or our coalition partners. Simply put, the application of this 
detention requirement is limited to al-Qaida members that have tried to 
attack the U.S. or its allies. However, this detention requirement is 
clearly limited by a clause that states that the requirement to detain 
does not extend to U.S. citizens or lawful permanent residents.
  Together, these two sections do the following: They affirm the 
authority of the executive branch to act within our national interest, 
and they provide the Federal Government with the tools that are needed 
to maintain our national security. This bill does not overturn the 
Posse Comitatus Act; the military will not be patrolling the streets. 
This bill does not take away our rights as citizens or lawful permanent 
residents; the authority under this act does not take away one's habeas 
rights. These sections do not take

[[Page S8054]]

away an individual's rights to equal protection under the 14th 
amendment to the U.S. Constitution, nor do they take away one's due 
process rights afforded under the 5th or 14th. If this bill did such a 
thing, I would strongly oppose it.
  I want to thank everyone for reaching out to the office to voice 
their concerns on this bill. I want to assure them that I always have, 
and always will, listen to their concerns and address them in a timely 
fashion. I know this bill is not perfect. In fact, I proposed two 
amendments to prevent the President from transferring foreign 
terrorists to the U.S. to be prosecuted in the Federal court system, 
and I joined with Senators DeMint, Coburn, and Lee to vote against 
cloture. However, in regard to the assertions that this bill allows the 
U.S. military to supplant our local police departments or that it 
allows the Federal Government to detain otherwise law-abiding citizens 
for simply carrying on in their daily lives, those assertions are 
entirely unfounded. As always, if anyone has any other questions, 
please feel free to contact me.

                          ____________________




[Congressional Record Volume 157, Number 183 (Thursday, December 1, 2011)]
[Senate]
[Pages S8088-S8094]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]




                         DEFENSE AUTHORIZATION

  Mr. GRAHAM. While we decide how we are going to move on the Defense 
bill, I appreciate Senator Kyl coming to the floor. Senator Kyl and I, 
along with Senators Levin and McCain, have been working on detainee 
policy for years now. There is an issue that is before the Senate soon. 
It involves what to do with an American citizen who is suspected of 
collaborating with al-Qaida or an affiliated group.
  Does the Senator agree with me that in other wars American citizens, 
unfortunately, have aided the enemies of their time?
  Mr. KYL. Mr. President, yes. I would say to my colleague, 
unfortunately, it is the case that there probably hasn't been a major 
conflict in which at least some American citizen has decided to leave 
his country and side with the enemy.
  Mr. GRAHAM. Is the Senator familiar with the efforts by German 
saboteurs who landed--I believe, in the Long Island area, but I don't 
know exactly where they landed--during World War II, and they were 
aided by American citizens to execute a sabotage plot against the 
United States?
  Mr. KYL. Mr. President, yes. In fact, there is a famous U.S. Supreme 
Court case, Ex parte Quirin, decided in 1942, that dealt with the issue 
of an American citizen helping the Nazi saboteurs that came to our 
shores.
  Mr. GRAHAM. Does the Senator agree with me that our Supreme Court 
ruled then that when an American citizen decides to collaborate and 
assist an enemy force, that is viewed as an act of war and the law of 
war applies to the conduct of the American citizen?
  Mr. KYL. Mr. President, I would say to my colleague, yes. My 
colleague knows this case, I am confident. I think one quotation from 
the case makes the point clearly--in Ex parte Quirin the court made 
clear: ``Citizenship in the United States of an enemy belligerent does 
not relieve him from the consequences of his belligerency.''
  In other words, if a person leaves their country and takes the 
position contrary, they side with the enemy, they become a belligerent 
against the United States, the fact that they are still a citizen does 
not protect them from being captured, from being held, and in this case 
even being tried by a military tribunal.
  Mr. GRAHAM. So the law, at least since 1942, by the Supreme Court has 
been that if someone decides as an American citizen to join forces with 
enemies of the United States, they have committed an act of war against 
their fellow citizens. It is not a criminal event we are investigating 
or dealing with; it is an act of war, and the American citizens who 
helped the Nazis were held as enemy combatants and tried as enemy 
combatants?
  Mr. KYL. Mr. President, yes. I would just qualify that statement this 
way. A person can be subject to military custody being a belligerent 
against the United States, even while being a U.S. citizen, be tried by 
military commission because of the act of war against the United States 
that they committed. One could also theoretically have been tried in a 
criminal court. But one can't reach the opposite conclusion, which is 
that they can only be tried in civilian court.
  Mr. GRAHAM. In the Military Commission Act of 2009, we prohibited 
American citizens from being tried by military commissions. I am OK 
with that. But what we have not done--and I would be very upset if we 
chose to do that--is take off the table the ability to interrogate an 
American citizen who has chosen to help al-Qaida regarding what they 
know about the enemy and what intelligence they may provide us to 
prevent a future attack.
  Since homegrown terrorism is a growing threat, under the current law, 
if an American citizen became radical, went to Pakistan and trained 
with al-Qaida or an affiliated group, flew back to Dulles Airport, got 
off the plane, got a rifle, went down to the Mall right behind us and 
started shooting people, does the Senator agree with me that under the 
law as it exists today, that person could be held as an enemy 
combatant, that person could be interrogated by our military and 
intelligence community and we could hold them as long as necessary to 
find out what they know about any future attacks or any past attacks 
and we don't have to read them their Miranda rights?
  Mr. KYL. Mr. President, yes. The answer to the question, short, is, 
yes. It is confirmed by the fact that in the Hamdi case, the U.S. 
Supreme Court precisely held that detention would be lawful. Of course, 
with the detention being lawful, the interrogation to which my 
colleague refers could also be taken.
  Mr. McCAIN. Would the Senator yield for a question on that subject 
point?
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. McCAIN. The individual who was an American citizen--Mr. Hamdi, 
the subject of the U.S. Supreme Court case--was an American citizen 
captured in Afghanistan; is that correct?
  Mr. GRAHAM. Yes.
  Mr. McCAIN. Yet in the Supreme Court decision reference is made to an 
individual who was captured during World War II in the United States of 
America; isn't that correct? It was referenced in the Supreme Court 
decision.
  Mr. GRAHAM. Yes. The In re Quirin case dealt with an American citizen 
helping the Nazis in America. The Hamdi case dealt with an American 
citizen helping the Taliban in Afghanistan.
  Mr. McCAIN. The reason why I raise the question is because the 
Senator from Illinois, and others, have cited the fact that Hamdi was 
an American citizen but captured in Afghanistan, not in the United 
States of America.
  Yet isn't it a fact that the decision in Hamdi also made reference to 
a person who was apprehended in the United States of America?
  This is what is bizarre about this discussion, it seems to me.

  Mr. GRAHAM. The Hamdi case cited In re Quirin for the proposition 
that an American citizen who provides aid, comfort or collaboration 
with the enemy can be held as an enemy combatant. The In re Quirin case 
dealt with an American citizen helping the Nazis in New York. The 
Padilla case involves an American citizen, collaborating with al-Qaida, 
captured in the United States.
  Mr. McCAIN. So I guess my question is, it is relevant where the 
citizen of the United States was captured. Because the decision made 
reference to people captured both in the United States and outside the 
United States.
  Mr. GRAHAM. Exactly. I would add, and get Senator Kyl's comment. 
Wouldn't it be an absurd result if you can kill an American citizen 
abroad--Awlaki--whatever his name was--the President targeted him for 
assassination because he was an American citizen who went to Yemen to 
engage in an act of terrorism against the United States. The President 
went through an Executive legal process, targeted him for assassination 
and a drone attack killed him and we are all better off. Because when 
an American citizen helps the enemy, they are no longer just a common 
criminal; they are a military threat and should be dealt with 
appropriately.
  But my point is, wouldn't it be an odd result to have a law set up so 
that if they actually got to America and they tried to kill our people 
on our own soil, all of a sudden they have criminal status?
  I would argue that the homeland is part of the battlefield, and we 
should protect the homeland above anything else. So it would be crazy 
to have a law that says if you went to Pakistan and attacked an 
American soldier, you could be blown up or held indefinitely, but if 
you made it back to Dulles Airport, you went downtown and started 
killing Americans randomly, we couldn't hold you and gather 
intelligence. The Supreme Court, in 1982, said that made no sense.
  If a Senator, in 1942, took the floor of the Senate and said: You 
know those American citizens who collaborated with the Nazis, we ought 
not treat them as an enemy, they would be run out of town.
  I am just saying, to any American citizen: If you want to help al-
Qaida, you do so at your own peril. You can

[[Page S8089]]

get killed in the process. You can get detained indefinitely. When you 
are being questioned by the CIA, the FBI or the Department of Defense 
about where you trained and what you did and what you know and you say 
to the interrogator: I want my lawyer, the interrogator will say: You 
don't have a right to a lawyer because you are a military threat.
  This is not ``Dragnet.'' We are fighting a war. The Supreme Court of 
the United States has clearly said an American citizen who joins with 
the enemy has committed an act of war.
  Senator Feinstein, who is the chairman of the Intelligence Committee, 
is a very good Senator. But her concerns about holding an American 
citizen under the law of war, her amendment, unfortunately, would 
change the law.
  Does Senator Kyl agree with that?
  Mr. KYL. Yes. Mr. President, that is the key point. There is a reason 
why you don't want to adopt the Feinstein amendment: It would preclude 
us from gaining all the intelligence we could gain by interrogating the 
individual who has turned on his own country and who would have 
knowledge of others who might have joined him in that effort or other 
plans that might be underway.
  We know from past experience this interrogation can lead to other 
information to save American lives by preventing future attacks, and it 
has occurred time and time again. In a moment, I will put a statement 
in the Record that details a lot of this intelligence we have gathered. 
It is not as if an American citizen doesn't have the habeas corpus 
protection--which still attaches--whether or not that individual is 
taken into military custody.
  The basic constitutional right of an American citizen is preserved. 
Yet the government's ability to interrogate and gain intelligence is 
also preserved by the existing law, by the status of the law that 
exists today. We would not want to change that law by something such as 
the Feinstein amendment.
  Mr. GRAHAM. Simply stated, when the American citizens in question 
decided to give aid and comfort to the Nazis, I am very glad they were 
allowed to be held by the military and interrogated about the plot and 
what they knew, because intelligence gathering is the best way to keep 
us safe.
  I would be absolutely devastated if the Senate, for the first time in 
2011, denied the ability of our military and intelligence community to 
interrogate somebody who came back from Pakistan and started killing 
people on the Mall--that we could no longer hold them as an enemy 
combatant and find out what they did and why they did it; that we would 
have to treat them as a common criminal and read them their Miranda 
rights. That is not the law.
  If that becomes the law, then we are less safe because I tell you, as 
we speak, the threat to our homeland is growing. Homegrown terrorists 
are becoming the threat of the 21st century, and now is not the time to 
change the law that has been in place for decades. I do hope people 
understand what this means.
  It means we would change the law so that if we caught somebody in 
America who went overseas to train and came back home, an American 
citizen who turned on the rest of us, no longer could we hold them as 
an enemy combatant and gather intelligence. That, to me, would be a 
very dangerous thing to do.
  I ask the Senator, who determines what the Constitution actually 
means; is it the Congress or the Supreme Court?
  Mr. KYL. Mr. President, ultimately the U.S. Supreme Court, when cases 
come before the Court that present these issues, determines what the 
law is. In this situation we have actually two specific cases, and 
there are others that are tangential, that do clarify what the Court 
believes what the Constitution would provide in this case.
  Mr. GRAHAM. So the issue is pretty simple. Our courts at the highest 
level--the Supreme Court has acknowledged that the executive branch has 
the legal authority to hold an American citizen who is collaborating 
with an enemy as an enemy belligerent to gather intelligence to protect 
the rest of us; they recognize that power of the executive. Does the 
Senator agree with me that the amendment of Senator Feinstein would be 
a situation where the Congress does not recognize that authority and 
would actually try to change it?
  Mr. KYL. Yes. One of the questions is this interplay between the 
executive and the legislative branch. When the legislative branch, as 
Congress has done here through the authorization of military force, has 
provided the legal basis for the administration to hold a person 
engaged in war against us, then it cannot be denied that that authority 
exists. There is a 1971 law that Congress passed that said you could 
hold people only pursuant to law. This was the precise holding of the 
Hamdi case, where the U.S. Supreme Court said they had the authority 
because of the authorization of military force. So the executive has 
that authority, the legislature has provided the basis for the 
authority, and the Supreme Court has upheld it by its ultimate 
jurisdiction.
  Mr. GRAHAM. And to conclude this colloquy--I enjoyed the discussion--
I am not saying our law enforcement or military intelligence community 
cannot read someone their Miranda rights. I will leave that up to them. 
I am saying Congress should not take off the table the ability to hold 
someone under the law of war to gather intelligence, and that is what 
we are about to do if this passes.
  To those who believe that homegrown terrorists are a threat now and 
in the future, if you want to make sure we can never effectively gather 
intelligence, we only have one option, then that is what we are about 
to impose on the country.
  Mr. KYL. If I might ask my colleague to yield for one other point I 
wish to make here.
  Mr. GRAHAM. Absolutely.
  Mr. KYL. In a criminal trial, the object is to do justice to an 
individual as it pertains to his alleged violation of law in the United 
States. In the case of the capture and detention of a combatant, 
someone who has taken action against the United States, the object 
first is to keep the United States safe from this individual's actions 
and, second, where possible, gain intelligence from that individual. 
That is the critical element that would be taken from our military, 
were the Feinstein amendment to be adopted.
  I ask unanimous consent to have printed in the Record a statement 
that makes very clear where military detention is necessary: to allow 
intelligence gathering that will prevent future terrorist attacks 
against the American people.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Wartime Detention of Enemy Combatants--Including U.S. Citizens Who Join 
  the Forces of the Enemy--Is An Established Practice That Is Clearly 
                             Constitutional

       Unfortunately, in almost every major war that the United 
     States has fought, there have been some U.S. citizens who 
     have joined the forces of our Nation's enemies or who have 
     otherwise collaborated with the enemy. These traitors and 
     collaborators have always been treated as enemy combatants--
     and have been subjected to trial by military commission where 
     appropriate.
       The U.S. Supreme Court has consistently held that the 
     President has the constitutional authority to detain enemy 
     combatants, including U.S. citizens who have cast their lot 
     with the enemy.
       In its 2004 decision in Hamdi v. Rumsfeld, for example, the 
     Supreme Court held that the detention of enemy combatants is 
     proper under the U.S. Constitution. Moreover, the person 
     challenging his military detention in that case was a U.S. 
     citizen.
       During World War II, the Supreme Court also upheld the 
     military detention and trial of a U.S. citizen who had served 
     as a saboteur for Nazi Germany and was captured in the United 
     States. The Court made clear that ``[c]itizenship in the 
     United States of an enemy belligerent does not relieve him 
     from the consequences of a belligerency.'' That case is Ex 
     Parte Quirin (1942).
       In support of her amendment number 1126, Senator Feinstein 
     yesterday cited a 1971 law, apparently arguing that the 
     detention of an enemy combatant who is a U.S. citizen would 
     be prohibited under that law.
       That 1971 law is 18 U.S.C. 4001. It provides that ``no 
     citizen shall be imprisoned or otherwise detained by the 
     United States except pursuant to an Act of Congress.''
       This is the very law that was at issue in the Hamdi case. 
     And the precise holding of the U.S. Supreme Court in Hamdi 
     was that the detention of a U.S. citizen as an enemy 
     combatant through the duration of hostilities would not 
     violate that law.
       The Supreme Court stated: ``[Hamdi] posits that his 
     detention is forbidden by 18 U.S.C. Sec. 4001(a). Section 
     4001(a) states that `[n]o citizen shall be imprisoned or 
     otherwise detained by the United States except pursuant

[[Page S8090]]

     to an Act of Congress.' . . .  Congress passed Sec. 4001(a) 
     in 1971. . . . [The government maintains] Sec. 4001(a) is 
     satisfied because Hamdi is being detained pursuant to an Act 
     of Congress, the AUMF. . . . [W]e conclude that . . . the 
     AUMF satisfied Sec. 4001(a)'s requirement that a detention be 
     pursuant to an Act of Congress.''
                                  ____


 Why Military Detention Is Necessary: To Allow Intelligence Gathering 
 That Will Prevent Future Terrorist Attacks Against the American People

       Some may ask, why does it matter whether a person who has 
     joined Al Qaeda is held in military custody or is placed in 
     the civilian court system? One critical reason is 
     intelligence gathering. A terrorist operative held in 
     military custody can be effectively interrogated. In the 
     civilian system, however, that same terrorist would be given 
     a lawyer, and the first thing that lawyer will tell his 
     client is, ``don't say anything. We can fight this.''
       In military custody, by contrast, not only are there no 
     lawyers for terrorists. The indefinite nature of the 
     detention--it can last as long as the war continues--itself 
     creates conditions that allow effective interrogation. It 
     creates the relationship of dependency and trust that 
     experienced interrogators have made clear is critical to 
     persuading terrorist detainees to talk.
       Navy Vice-Admiral Lowell Jacoby, who at the time was the 
     Director of the Defense Intelligence Agency, explained how 
     military custody is critical to effective interrogation in a 
     declaration that he submitted in the Padilla litigation. He 
     emphasized that successful noncoercive interrogation takes 
     time--and it requires keeping the detainee away from lawyers.
       Vice-Admiral Jacoby stated:
       DIA's approach to interrogation is largely dependent upon 
     creating an atmosphere of dependency and trust between the 
     subject and the interrogator. Developing the kind of 
     relationship of trust and dependency necessary for effective 
     interrogations is a process that can take a significant 
     amount of time. There are numerous examples of situations 
     where interrogators have been unable to obtain valuable 
     intelligence from a subject until months, or, even years, 
     after the interrogation process began.
       Anything that threatens the perceived dependency and trust 
     between the subject and interrogator directly threatens the 
     value of interrogation as an intelligence gathering tool. 
     Even seemingly minor interruptions can have profound 
     psychological impacts on the delicate subject-interrogator 
     relationship. Any insertion of counsel into the subject-
     interrogator relationship, for example--even if only for a 
     limited duration or for a specific purpose--can undo months 
     of work and may permanently shut down the interrogation 
     process.
       Specifically with regard to Jose Padilla, Vice Admiral 
     Jacoby also noted in his Declaration that: ``Providing 
     [Padilla] access to counsel now would create expectations by 
     Padilla that his ultimate release may be obtained through an 
     adversarial civil litigation process. This would break--
     probably irreparably--the sense of dependency and trust that 
     the interrogators are attempting to create.''
       In other words, military custody is critical to successful 
     interrogation. Once a terrorist detainee is transferred to 
     the civilian court system, the conditions for successful 
     interrogation are destroyed.
       Preventing the detention of U.S. citizens who collaborate 
     with Al Qaeda would be a historic abandonment of the law of 
     war. And, by preventing effective interrogation of these 
     collaborators, it would likely have severe consequences for 
     our ability to prevent future terrorist attacks against the 
     American people.
       We know from cold, hard experience that successful 
     interrogation is critical to uncovering information that will 
     prevent future attacks against civilians.
       On September 6 of 2006, when President Bush announced the 
     transfer of 14 high-value terrorism detainees to Guantanamo, 
     he also described information that the United States had 
     obtained by interrogating these detainees. Abu Zubaydah was 
     captured by U.S. forces several months after the September 11 
     attacks. Under interrogation, he revealed that Khalid Sheikh 
     Mohammed was the principal organizer of the September 11 
     attacks. This is information that the United States did not 
     already know--and that we only obtained through the 
     successful military interrogation of Zubaydah.
       Zubaydah also described a terrorist attack that Al Qaida 
     operatives were planning to launch inside this country--an 
     attack of which the United States had no previous knowledge. 
     Zubaydah described the operatives involved in this attack and 
     where they were located. This information allowed the United 
     States to capture these operatives--one while he was 
     traveling to the United States.
       Again, just imagine what might have happened if the 
     Feinstein amendment had already been law, and if the Congress 
     had stripped away the executive branch's ability to hold Al 
     Qaeda collaborators in military custody and interrogate them. 
     We simply would not learn what that detainee knows--including 
     any knowledge that he may have of planned future terrorist 
     attacks.
       Under military interrogation, Abu Zubaydah also revealed 
     the identity of another September 11 plotter, Ramzi bin al 
     Shibh, and provided information that led to his capture. U.S. 
     forces then interrogated bin al Shibh. Information that both 
     he and Zubaydah provided helped lead to the capture of Khalid 
     Sheikh Mohammed.
       Under interrogation, Khalid Sheikh Mohammed provided 
     information that helped stop another planned terrorist attack 
     on the United States. K.S.M. also provided information that 
     led to the capture of a terrorist named Zubair. And K.S.M.'s 
     interrogation also led to the identification and capture of 
     an entire 17-member Jemaah Islamiya terrorist cell in 
     Southeast Asia.
       Information obtained from interrogation of terrorists 
     detained by the United States also helped to stop a planned 
     truck-bomb attack on U.S. troops in Djibouti. Interrogation 
     helped stop a planned car-bomb attack on the U.S. embassy in 
     Pakistan. And it helped stop a plot to hijack passengers 
     planes and crash them into Heathrow airport in London.
       As President Bush stated in his September 6, 2006 remarks, 
     ``[i]nformation from terrorists in CIA custody has played a 
     role in the capture or questioning of nearly every senior al 
     Qaida member or associate detained by the U.S. and its 
     allies.'' The President concluded by noting that Al Qaida 
     members subjected to interrogation by U.S. forces: ``have 
     painted a picture of al Qaeda's structure and financing, and 
     communications and logistics. They identified al Qaeda's 
     travel routes and safe havens, and explained how al Qaeda's 
     senior leadership communicates with its operatives in places 
     like Iraq. They provided information that . . . has allowed 
     us to make sense of documents and computer records that we 
     have seized in terrorist raids. They've identified voices in 
     recordings of intercepted calls, and helped us understand the 
     meaning of potentially critical terrorist communications.
       [Were it not for information obtained through 
     interrogation], our intelligence community believes that al 
     Qaeda and its allies would have succeeded in launching 
     another attack against the American homeland. By giving us 
     information about terrorist plans we could not get anywhere 
     else, this [interrogation] program has saved innocent 
     lives.''
       If the Feinstein amendment were adopted, this is all 
     information that we would be unable to obtain if the Al Qaeda 
     collaborator that our forces had captured was a U.S. citizen. 
     It would simply be impossible to effectively interrogate that 
     Al Qaeda collaborator--the relationship of trust and 
     dependency that military custody creates would be broken, and 
     the detainee would instead have a lawyer telling him to be 
     quiet. And we know that information obtained by interrogating 
     Al Qaeda detainees has been by far the most valuable source 
     of information for preventing future terrorist attacks.
       Again, in every past war, our forces have had the ability 
     to capture, detain, and interrogate U.S. citizens who 
     collaborate with the enemy or join forces with the enemy. I 
     would submit that in this war, intelligence gathering is more 
     critical than ever. Al Qaeda doesn't hold territory that we 
     can capture. It operates completely outside the rules of war, 
     and directly targets innocent civilians. Our only effective 
     weapon against Al Qaeda is intelligence gathering. And the 
     Feinstein amendment threatens to take away that weapon--to 
     take away our best defense for preventing future terrorist 
     attacks against the American people.

  Mr. KYL. I hope this statement clarifies in anyone's mind the point 
that by taking people in custody in the past we have gathered essential 
intelligence to protect the American people. That is the reason for the 
detention in the first place--A, to keep the American people safe from 
further attack by the individual, and, B, to gather this kind of 
intelligence. Nothing precludes the United States, the executive 
branch, from thereafter deciding to try the individual as a criminal in 
the criminal courts with all the attendant rights of a criminal. But 
until that determination, it cannot be denied that the executive has 
the authority to hold people as military combatants, gather 
intelligence necessary, and hold that individual until the cessation of 
hostilities.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The senior Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I understand we are still in morning 
business?
  The PRESIDING OFFICER. The time for morning business has expired.
  Mr. LEAHY. I ask unanimous consent I be recognized for another 5 
minutes as in morning business, and the distinguished Senator from 
Illinois be recognized for 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, earlier this week, one of this bill's lead 
sponsors said here on the floor of the United States Senate that the 
bill's detention subtitle would authorize the indefinite detention of 
U.S. citizens at Guantanamo Bay. That is a stunning statement. We 
should all pause to consider the ramifications of passing a bill

[[Page S8091]]

containing such language. Supporters of the detention provisions in the 
bill continue to argue that such measures are needed because, they 
claim, ``we are a nation at war.'' That does not mean that we should be 
a Nation without laws, or a Nation that does not adhere to the 
principles of our Constitution.
  One of the provisions in this bill, Section 1032, runs directly 
contrary to those principles. Section 1032 requires the military to 
detain terrorism suspects, even those who might be captured on U.S. 
soil. This provision is opposed by the very intelligence, military, and 
law enforcement officials who are entrusted with keeping our Nation 
safe--including the Secretary of Defense, the Director of National 
Intelligence, the Attorney General, the Director of the FBI, and the 
President's top counterterrorism advisor. As Chairman of the Judiciary 
Committee, I support the efforts of Senator Feinstein, the chair of the 
Senate Intelligence Committee, to modify Section 1032 so that it does 
not interfere with ongoing counterterrorism efforts or undermine our 
constitutional principles.
  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. But the mandatory military detention provision in 
Section 1032 actually limits those tools by tying the hands of the 
intelligence and law enforcement professionals who are fighting 
terrorism on the ground, and by creating operational confusion and 
uncertainty. This is unwise and unnecessary.
  On Monday, Director Mueller warned that Section 1032 would adversely 
affect the Bureau's ability to continue ongoing international 
investigations. Secretary Panetta has also stated unequivocally that 
``[t]his provision restrains the Executive Branch's options to utilize, 
in a swift and flexible fashion, all the counterterrorism tools that 
are now legally available.'' These are not partisan objections, but 
rather the significant operational concerns voiced by the Secretary of 
Defense and the Director of the FBI--both of whom were confirmed by 
this body with 100-0 votes. And yet these are the voices that 
supporters of this bill would ignore.
  Supporters of this bill have argued that the new national security 
waiver and implementation procedures in this section provide the 
administration with the flexibility it needs to fight terrorism. The 
intelligence and law enforcement officials who are actually responsible 
for fighting terrorism and keeping our Nation safe, however, could not 
disagree more. As Director Mueller stated in his letter, these 
provisions are still problematic and ``fail to recognize the reality of 
a counterterrorism investigation.'' Director of National Intelligence 
Clapper has stated that ``the various detention provisions, even with 
the proposed waivers, would introduce unnecessary rigidity'' in the 
intelligence gathering process. Put differently, Lisa Monaco, the 
Assistant Attorney General for the National Security Division, recently 
stated that ``agents and prosecutors should not have to spend their 
time worrying about citizenship status and whether and how to get a 
waiver signed by the Secretary of Defense in order to thwart an al-
Qaida plot against the homeland.''
  We should listen to the intelligence and law enforcement 
professionals who are entrusted with our Nation's safety, and we should 
fix this flawed provision.
  Senator Feinstein's amendment would ensure that the requirement of 
military detention of terrorism suspects does not apply domestically. 
As Chairman of the Judiciary Committee, I am proud to be a cosponsor of 
this amendment, and I urge all Senators to support its adoption.
  I know Senator Durbin is next, but I now understand from Senator 
Durbin the distinguished Senator from Missouri is going next.
  In any event, I yield the floor and thank my colleagues for their 
courtesy.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BLUNT. Mr. President, I ask unanimous consent to address the 
Senate for 10 minutes in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUNT. I appreciate my good friend from Illinois allowing me to 
go ahead and talk about the Defense bill at this time, but doing it in 
the context of where we are on the floor right now.
  Mr. President, defending the country is the Congress's most important 
constitutional responsibility. Abraham Lincoln said that government 
should do for people only those things that people cannot better do for 
themselves. If there is anything at the top of that list, this is at 
the top of that list. So it is critical that we have this discussion, 
that we pass this bill as soon as possible in order to give our men and 
women in uniform the tools they need to do their job and the certainty 
we need to know how that job is going to be done from the point of view 
of what the Government can and needs to provide.
  While this bill we are debating today is only about next year's 
defense program, we should not lose sight of the fact that our budget 
environment is more challenging all the time and whether the automatic 
budget cuts to future defense happen, we do know we are going to have 
to be more thoughtful, more cautious about how we get the most for our 
investment in defense. Everybody else in America has spent the last 20 
years figuring out how you focus on a better result from less 
investment, and defense is going to have to be there as well. Still, 
that does not mean it is not a top priority for the Federal Government.
  I appreciate the work my friends Senator Levin and Senator McCain 
have done to get this bill to the floor. I am proud to represent a 
State that is involved in our national defense. Missouri is the home of 
Fort Leonard Wood, of Whiteman Air Force Base, of the Marine Corps 
Mobilization Command Center in Kansas City. We have dozens of National 
Guard and Reserve facilities in our State. Our State has 17,184 active-
duty soldiers, marines, and airmen right now; 34,000 Guard and 
Reservists.
  We are the home of large and small defense contractors that provide 
thousands of jobs in our State. Those defense contractors can do their 
work better and our defense dollars are better spent if we know what 
the plan is. The only real way to know what the plan is is to have an 
authorization bill that works.
  Since the beginning of Operations Enduring Freedom and Iraqi Freedom, 
134 Missourians have given their lives and over a thousand have been 
wounded in the line of duty. In fact, one of the amendments I have that 
I hope finds its way into this bill is research associated with 
rehabilitating those wounded warriors who have eye injuries. Thousands 
of vision-related injuries have occurred as a result of the wars we are 
fighting now. Tremendous work is being done by St. John's Hospital and 
Missouri State University in Springfield to see what can be done to 
develop better ways to deal with those eye wounds. With IEDs as a 
principal tool of our opponents, our enemies in this war, your eyes are 
the hardest thing ultimately to protect. Twelve percent of our wounded 
warriors have eye wounds. Hopefully we can look to see what we can do 
to provide greater protection and greater recovery from those wounds.
  I join all Missourians in thanking those who serve. I think all of us 
will show greater commitment to those who serve by actually having a 
Defense authorization bill that sets out a plan for the future.
  I am particularly pleased that this bill contains funding for 
modifications of the B-2 bomber's mixed load capacity. Most of our 
Stealth bombers operate out of Whiteman Air Force Base in Missouri and 
we discovered, as recently as the operation in Libya, that operations 
with our B-2 bombers are not as efficient as they need to be or could 
be, simply by making that loading capacity work differently. That is 
the kind of thing we are going to have to do as we look at more 
difficult-to-get defense dollars. We are going to have to figure out 
how we spend those defense dollars in the best possible way. I hope the 
Senate language as it is in the bill now prevails in a final bill.
  I also want to call attention to the bill's full authorization of the 
development of the next generation long-range strike bomber and I am 
pleased with the funding in this bill for a vehicle maintenance 
facility at Fort Leonard

[[Page S8092]]

Wood and weapons storage at Whiteman.
  I filed a few amendments to this bill and I will mention a couple of 
them. One I am working on with Senator Gillibrand is an amendment to 
ensure National Guard soldiers mobilized for domestic emergency 
operations are entitled to the same employment rights as others are 
when they come back. Senator Gillibrand and I also worked on a bill to 
ensure that people in the Guard and Reserve, and their families, have 
access to financial and marital and other kinds of counseling as they 
try to put their other life back together.
  I thank my colleagues for bringing this bill to the floor. We face a 
wide variety of threats today, including some that are new and 
constantly evolving--cyber-warfare, WMD, all things that we need to 
take seriously. This is a principal responsibility of the Federal 
Government. I am looking forward to seeing this bill passing the Senate 
today and then to work with the House to get a bill on the President's 
desk so that all who are involved in the defense of the country know 
what the long-term plan is.
  I yield the floor.
  The PRESIDING OFFICER. The assistant majority leader is recognized.
  Mr. DURBIN. Mr. President, I thank my colleague from Missouri, and I 
concur with his comments about our American military. We have the best 
in the world. These men and women serve us well with courage and honor 
every day, and we are fortunate to have them. We are fortunate--those 
of us who enjoy the blessings of liberty and the safety of this 
Nation--to have men and women willing to risk their lives for America.
  This Defense authorization bill is a bill that authorizes the 
continued operations of our military, and every year we pass this bill, 
as we should, in a timely manner. I have supported it consistently over 
the years with very few exceptions and believe the work product brought 
to us by Senators Levin and McCain is excellent, bipartisan, and moves 
us in a direction toward an even safer America, and I thank them for 
all the work they put into it.
  There are provisions within this bill today which trouble me greatly. 
There are provisions on which I hope Members of the Senate will 
reflect, one in particular that I will address at this time. Senator 
Feinstein is offering amendment No. 1125, which I am cosponsoring. I 
would say this amendment raises a serious question about section 1032 
in this bill. I am concerned this section would limit the flexibility 
of any President to fight terrorism. I am concerned it will create 
uncertainty for law enforcement, intelligence, and our military 
regarding how to handle suspected terrorists. I think it raises 
fundamental and serious constitutional concerns.
  This provision, 1032, would, for the first time in the history of the 
United States, require our military to take custody of certain 
terrorism suspects in the United States. On its face, that doesn't 
sound offensive, but, in fact, it creates a world of problems. Where do 
we start this debate?
  We understand the responsibility of Congress in passing laws and the 
President with the option to sign those laws or veto them and the 
courts with the responsibility to interpret them. When it comes to the 
protection of this country in fighting terrorism, most of us have 
believed this is primarily an executive function under Presidents of 
both political parties. We may disagree from time to time on the 
PATRIOT Act and other aspects of it and debate those issues, but, by 
and large, I think we have ceded to Presidents of both parties the 
power to protect America.
  My colleague and friend, Senator Lindsey Graham, a Republican of 
South Carolina, on September 19, 2007, stated--and he states things 
very colorfully and clearly--

       The last thing we need in any war is to have the ability of 
     535 people who are worried about the next election to be able 
     to micromanage how you fight the war. This is not only 
     micromanagement, this is a constitutional shift of power.

  That was Senator Graham's statement in 2007. Although I would 
carefully and jealously guard the constitutional responsibility of 
Congress when it comes to the declaration of war, even the waging of 
war, I do believe there is a line we should honor. We should not stop 
our President and those who work for him in keeping America safe by 
second-guessing decisions to be made.
  Today, again, on the Republican side of the aisle came colleagues who 
make the argument that it is a serious mistake for us to take a 
suspected terrorist and put them into our criminal justice system. They 
argue the last thing in the world we want to do is to take a suspected 
terrorist and read them their constitutional rights: the right to 
remain silent, everything you say can be used against you, the right to 
counsel. They argue that is when terrorists will clam up and stop 
talking. Therefore, they argue, suspected terrorists should be 
transferred to military jurisdictions where Miranda rights will not be 
read. On its face it sounds like a reasonable conclusion. In fact, it 
is not. It is not.
  Since 9/11, we have arrested and detained 300 suspected terrorists, 
read them their Miranda rights, and then went on to prosecute them 
successfully and incarcerate them. They cooperated with the Federal 
Bureau of Investigation, gave information, and in many cases gave 
volumes of information even after having been read their rights. So to 
argue that it cannot be done or should not be done is to ignore the 
obvious. Three hundred times we have successfully prosecuted suspected 
terrorists, and America has remained safe for these 10 years-plus since 
9/11. How many have been prosecuted under military tribunals in that 
period of time? Six, and three have been released. We are keeping this 
country safe by giving to the President and those who work for the 
President in the military intelligence and law enforcement community 
the option to decide the best course of action when it comes to 
arresting, detaining, investigating, and prosecuting an individual.
  Remember the man who was on the plane flying into Detroit a couple of 
years ago? He tried to detonate a bomb on the plane. His clothing 
caught fire, and the other passengers subdued him, restrained him. He 
was arrested, investigated by the FBI, and read his Miranda rights. 
Within a day his parents were brought over. The following day he 
decided to cooperate with the United States and told us everything he 
knew. At the end of the day, he was prosecuted, brought to trial, and 
pled guilty. He went through our regular criminal court system, though 
he was not an American citizen, and he was successfully prosecuted. 
President Obama had the right to decide what best thing to do to keep 
America safe, and he did it. Why would we want to tie his hands?
  Now let me talk about this section 1032 and why it is a serious 
mistake. Section 1032 in this bill would for the first time in American 
history require the military to take custody of certain terrorism 
suspects in the United States. From a practical point of view, it could 
be a deadly mistake for us to require this. Listen to what was said by 
the Justice Department in explaining why:

       While the legislation proposes a waiver in certain 
     circumstances to address concerns, this proposal inserts 
     confusion and bureaucracy when FBI agents and 
     counterterrorism prosecutors are making split-second 
     decisions. In a rapidly developing situation--like that 
     involving Najibullah Zazi traveling to New York in September 
     of 2009 to bomb the subway system--they need to be completely 
     focused on incapacitating the terrorist suspect and gathering 
     critical intelligence about his plans.

  Instead, this provision, 1032, written into this law, would require a 
handoff of terrorism suspects to military authorities. So what does our 
military think about this?
  Well, the Secretary of Defense Leon Panetta made it abundantly clear 
when he said:

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

  What we have seen, then, as our Secretary of Defense tells us, ceding 
to the military this authority could compromise America's security at a 
critical moment when every second counts, when the gathering of 
intelligence could literally save not just a life but thousands of 
lives.
  Senator Feinstein's amendment makes it clear--as the administration

[[Page S8093]]

wants to make it clear--that those terrorism suspects who are arrested 
abroad will be detained by the military. But within the United States 
we are told by this administration this provision will jeopardize the 
security of our country, will require a procedure now to hand off these 
individuals to the military side in places where they could not 
possibly be handed off quickly or seamlessly.
  We have 10,000 FBI agents dedicated to the security of this country 
when it comes to these national security issues and 56 different 
offices. We don't have anything near that capacity when it comes to the 
military picking up the interrogation of an individual who may have 
knowledge that if we can glean it from that person could save thousands 
of lives.
  Why in the world do we want to tie the hands of law enforcement? Why 
do we want to tie the hands of the intelligence community? Why do we 
want to create this situation of giving to the military this 
responsibility when they are not prepared at this moment to take it?
  I think Senator Feinstein is doing the right thing for the protection 
of this country. Her position is supported by the Attorney General, by 
the Secretary of Defense, and by the intelligence community. They have 
done a good job in keeping America safe. They have asked us: Please, do 
not micromanage. Do not presume, do not create another hurdle for us 
when it comes to gathering information that can save lives in America.
  Why would we do that? After more than 10 years of success and 
avoiding another 9/11, let's not make the situation worse by this 1032, 
this section of the bill that is being presented to us.
  I know we will hear arguments on the Senate floor, well, there are 
opportunities for a waiver. So if a person is detained by the Federal 
Bureau of Investigation and then it is determined that this is a 
suspect who falls in the category and needs to go to military detention 
and then we need to turn to the executive side for a waiver of that 
military detention, how much time will be lost? Will it be minutes, 
hours, days? Could we afford that if what is at stake is the potential 
loss of thousands of American lives? Why? Why make it more complex?
  I cannot understand why the other side of the aisle is now so 
determined with this President to micromanage the defense of this 
country when it comes to terrorism. When it was a Republican President 
any suggestions along those lines were dismissed as unpatriotic and 
unwise and illogical. Now, under this President, everything is fair 
game. They want to change the rules, rules which have successfully 
protected the United States for more than 10 years.
  I urge my colleagues to support Senator Feinstein's amendment No. 
1125 and amend this section 1032 and make sure that our Defense 
Department, military and law enforcement, as well as intelligence 
community have the tools they need to continue to keep America safe.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. CORNYN. Mr. President, I ask unanimous consent that I be 
recognized to speak as in morning business for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The senior Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask unanimous consent that when we return 
to the bill, which will be after Senator Cornyn speaks, we move 
immediately to Feinstein amendment No. 1125, and that there be a 30-
minute debate evenly divided and that the vote would occur immediately 
following that.
  I withdraw my request.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I want to talk about something that is all 
too rare, and that is bipartisan support for an important piece of 
legislation that not only fulfills America's commitments to our ally, 
Taiwan, under the Taiwan Relations Act of 1979, but it helps stabilize 
a critical region of the world--that would be in Asia--and particularly 
the growing tensions between Taiwan and China. It also creates jobs in 
America by facilitating foreign military sales of things made here in 
America, by Americans, that we are going to sell to people in other 
countries--our friends in other countries--for cash and doesn't cost 
taxpayers a penny.
  My amendment No. 1200 is pending before the Senate, and I was pleased 
in introducing this amendment to be joined by several of my colleagues 
on a bipartisan basis: Senator Menendez from New Jersey, Senator Inhofe 
from Oklahoma, Senator Lieberman from Connecticut, Senator Wyden from 
Oregon, and Senator Blumenthal from Connecticut.
  This amendment is straightforward and simple. It would require the 
President to carry out the sale of 66 F-16C/D aircraft to Taiwan. These 
are American-made fighters our Democratic ally in Taiwan has been 
trying to purchase since 2007. As I said earlier, this is a win-win 
amendment. It reflects the right national security policy, and it is 
good for the American economy and jobs. We know Taiwan's Air Force 
continues to deteriorate.
  First, let me just remind my colleagues what Taiwan is looking at in 
terms of the disparity in combat aircraft between Communist China and 
Democratic Taiwan.
  Communist China has roughly 2,300 operational combat aircraft. Our 
ally and friend democratic Taiwan has 490 operational combat aircraft--
obviously a growing imbalance in the Taiwan Strait. But that only tells 
part of the story because, as my colleagues also know, this chart 
indicates the incredible shrinkage of Taiwan's air force, that many of 
Taiwan's combat aircraft are F-5 aircraft which America has previously 
sold to Taiwan but which are now becoming older and more obsolete as 
time goes by, as well as French Mirage 2000 aircraft. As this chart 
indicates, around roughly 2020, maybe even before, these aircraft are 
going to become completely obsolete, and we will see the huge cliff 
and, in fact, exacerbate the disparity between Communist China and our 
democratic ally Taiwan.
  This F-16 sale would be an export-driven job machine for our country 
at a time when unemployment is at 9 percent and when the No. 1 issue on 
America's agenda is job creation. People without jobs can't pay their 
mortgages, and they lose their homes due to foreclosure. Why in the 
world, when this sale would support jobs in 32 different States and the 
District of Columbia, would anyone object to this amendment? Indeed, as 
I indicated, I believe there is strong bipartisan support for it. This 
sale would support more than 60 job-years of employment and generate 
some $8.7 billion in economic output. It would also generate $768 
million in taxes for the Federal Government.
  As I indicated, Taiwan's air force is facing a looming fighter 
shortfall. The fact is, this falls squarely in Congress's wheelhouse. 
The Taiwan Relations Act that I referred to earlier was, in 1979, 
signed by President Jimmy Carter with bipartisan support. It requires 
the U.S. Government to provide Taiwan, our friend and ally, with the 
defense articles necessary for them to defend themselves against 
Communist Chinese aggression, and it instructs the President and the 
Congress to determine the nature and quantity of such defense articles 
based on their judgment of the needs of Taiwan.
  Forty-seven Democrats and Republicans in the Senate--almost half--
have signed a letter to the President of the United States supporting 
this sale. In the House of Representatives, 181 Democrats and 
Republicans have signed a letter to the President supporting this sale.
  As my colleagues will recall, in September the Senate voted on an 
amendment like this in the trade adjustment authority assistance bill, 
which ended up in a 48-to-48 tie. Although the bill had strong 
bipartisan support, some of my colleagues said they preferred not to 
offer that amendment on that particular legislative vehicle but said 
that if I came back on an appropriate legislative vehicle, they would 
support it. And if there is a more appropriate legislative vehicle than 
the Defense authorization bill, I hope someone will point that out to 
me. This is the appropriate vehicle. This is the appropriate time. This 
is the right thing to do for job creation in America. It is the right 
thing to do in terms of our national security and stability in Asia. 
That is why I believe this is an appropriate time for us to take up 
this amendment.

[[Page S8094]]

  I was advised by the Parliamentarian that my original amendment as 
drafted would not be germane postcloture. However, in consultation with 
the Parliamentarian, we have come up with a technical modification 
which essentially would strike what are called the findings that would 
support the need for the legislation. In essence, it strikes the A 
section and the B section and leaves only the C section remaining. 
This, of course, at this point in the proceedings would require 
unanimous consent.
  In consultation with Senator McCain, the ranking member of the Senate 
Armed Services Committee, I am advised that our friends across the 
aisle will not grant unanimous consent for us to modify what is really 
a technical modification for this amendment so we can get a vote on it. 
I realize that at this point we are in morning business and it is not 
appropriate, perhaps, for me to ask unanimous consent, but I will ask 
unanimous consent at a later and appropriate time because I would like 
to get an explanation from the distinguished chairman of the Armed 
Services Committee as to why in the world there would be an objection 
to an amendment that enjoys such broad bipartisan support on a clearly 
appropriate legislative vehicle.
  Madam President, I see the distinguished chairman on the floor. So I 
would at this time, if it is appropriate, ask unanimous consent to 
modify my pending amendment, to strike the findings under section A and 
under section B, and to leave section C, which states in full:

       Sale of aircraft. The President shall carry out the sale of 
     no fewer than 66 F-16 C and D multirole fighter aircraft to 
     Taiwan.

  We have been advised by the Parliamentarian that this section is 
indeed germane and would be eligible for a vote with that modification. 
So I ask unanimous consent to so modify my amendment.
  The PRESIDING OFFICER (Mrs. Hagan). Is there objection?
  Mr. LEVIN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, there is objection on this side, and I 
will attempt to bring together Senator Cornyn and the objectors so he 
can hear from them why they object, but in the meantime I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Texas.
  Mr. CORNYN. Madam President, I am disappointed, but more than 
disappointed, I look forward to that explanation. I hope there will be 
an opportunity to have a colloquy and a discussion here on the floor so 
the American people can see why a piece of legislation that enjoys such 
broad bipartisan support can't even get a vote.
  When people watch what is happening in Washington these days, I think 
they are tempted to avert their gaze because they ask the question of 
me--and I am sure, when the Presiding Officer is back in North 
Carolina, of her as well--why can't people get anything done? Well, it 
is because, unfortunately, of things like this. These are technical 
objections that are not based on the substance or the merit of the 
legislation.
  I respect the chairman of the Armed Services Committee, who says 
there is an objection on the Democratic side, and he personally is not 
making that objection but is on behalf of some unnamed other party. I 
hope that person will be named. I hope they will come to the floor. I 
hope they will explain to the American people and to our Democratic 
allies in Taiwan why it is they object to a vote on this amendment.
  I believe that if we are able to get a vote on the Defense 
authorization bill, this has a high likelihood of passage, and I think 
it would send a strong message to our friends and allies around the 
world that, yes, you can count on your friend and ally, the United 
States of America. Conversely, if we are thwarted in our attempt to try 
to get this amendment voted on and passed, then this will send a 
countervailing message--that you cannot depend on America--and it will 
embolden bullies around the world.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Michigan.

                          ____________________





[Congressional Record Volume 157, Number 183 (Thursday, December 1, 2011)]
[Senate]
[Pages S8094-S8138]
From the Congressional Record Online through the Government Printing 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

[[Page S8095]]

     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.
       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

[[Page S8096]]

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.
  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.

[[Page S8097]]

  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 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.

[[Page S8098]]

  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.
  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.

[[Page S8099]]

  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 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 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.

[[Page S8100]]

  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 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

[[Page S8101]]

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 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

[[Page S8102]]

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 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

[[Page S8103]]

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 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

[[Page S8104]]

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.
  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--brandnew, 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 brandnew 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-Reed legislation--this is where the so-called 
millionaires' tax comes in--it only refunds what Social

[[Page S8105]]

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 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.

[[Page S8106]]

  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.
  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,

[[Page S8107]]

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 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

[[Page S8108]]


     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
     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.

[[Page S8109]]

  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.
  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 S8110]]

  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 
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,

[[Page S8111]]

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. Its 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, 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

[[Page S8112]]

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 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

[[Page S8113]]

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 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.

[[Page S8114]]

  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.
  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

[[Page S8115]]

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 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.

[[Page S8116]]

  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:

     ``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

[[Page S8117]]

     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;
       (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.

[[Page S8118]]

  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.
  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

[[Page S8119]]

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 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

[[Page S8120]]

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.


                            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

[[Page S8121]]

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.
  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.

[[Page S8122]]

  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 
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.

[[Page S8123]]

  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 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?

[[Page S8124]]

  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.
  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.

[[Page S8125]]

  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 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.

[[Page S8126]]

  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 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

[[Page S8127]]


     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 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?

[[Page S8128]]

  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.
       (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

[[Page S8129]]

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.
  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

[[Page S8130]]

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 
America's standing and outraged the American public, and there was 
discussion about how there were a few isolated incidents at Abu Ghraib.
  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 was far more systematic and widespread than we thought.
  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 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.
  As an example, 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 briefed the Select Committee on Intelligence numerous times. The 
group has repeatedly assured the committee that they have all authority 
they need to effectively gain actionable intelligence. As a consummate 
consumer of the intelligence products they produce, I agree.
  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

[[Page S8131]]

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. 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

[[Page S8132]]

 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 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

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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 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.

[[Page S8134]]

  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 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

[[Page S8135]]

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, 
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

[[Page S8136]]

waiver, a lag period for implementation of the crude oil sanctions, and 
other measures. But I think the provision could use further refinement. 
That 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 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.

[[Page S8137]]

  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

                                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

[[Page S8138]]

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

                          ____________________