[国会记录157卷，第181（星期二，2011年11月29日）] [参议院] [网页的S7943-S7956]国防授权法案2012财年代理临时总统。按照以前的订单，参议院将继续审议S. 1867年，该店员会报告。立法店员如下：法案（S. 1867）授权的2012财年拨款国防部的军事活动，军事建设，以及能源部的国防活动，规定军事人员的长处这样的财政年度，以及用于其他目的。待处理：莱/侃修正案号1092，以加强伪造电子部件的检测和避免。保罗/吉利布兰德修正案号1064，废除授权于2002年修订的Merkley号1174，军事武力打击伊拉克决议的用来表达有关军事和安全行动的责任在阿富汗的加急过渡国会的意义阿富汗政府。范因斯坦修正案号1125，澄清了关于被拘留军方关押的要求的适用性。范因斯坦修正案号1126，以限制军队的权力扣留美国公民根据第1031尤德尔（CO）1107号修正案，修订与被拘留者有关事项的规定。兰德鲁/斯诺修正案号1115，重新批准和完善SBIR和STTR计划，以及用于其他目的。 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 [[Page S8133]] 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. ____________________