S8632 CONGRESSIONAL RECORD — SENATE December 15, 2011 itself into a lighter, more modular, and The Airborne Laser effort is to be son, retired from the Air Force, during what more deployable fighting force. Origi- canceled. The fantastic story of the period of time did he serve as an advisor, nally and erroneously executed under a VH–71 new Presidential Helicopter Re- consultant or mentor, or in any other simi- lar capacity, to the Air Force? type of contract more fitting for small- placement Program was canceled only 2. Describe, with specificity, General Rob- er programs, the FCS was supposed to after it became more expensive than a ertson’s duties, responsibilities and activi- develop 18 manned and unmanned full-size 747. ties while serving in the foregoing capacity ground systems, including sensors, ro- What can we do? during this period. bots, UAVs, and vehicles, all connected I know it is time for us to get on with 3. Identify, with specificity, what project(s) by a complicated mobile electronic the Defense authorization bill. General Robertson served on in the foregoing network. When work began on this pro- We need to have transparency. We capacity, including but not limited to, as a gram in 2000, the Army estimated that mentor. need to have accountability. We have 4. Describe, with specificity, what relation- the first combat units would be to use competition to encourage indus- ship these projects had with any program or equipped by 2011 and that all the try to produce desired outcomes and process in which Boeing had a direct or indi- Army’s ground combat formations better incentivize the acquisition rect interest. would be equipped by 2032. The Army workforce to do more with less. We 5. Describe, with specificity, the activity initially estimated the entire effort have to do a lot of things. We have cited in the article described above (i.e., a would cost about $160 billion. clearly failed to abide by the warning ‘‘war game’’) and what relationship, if any, By 2006, independent cost estimators that this activity had with the pending Air President Eisenhower issued in his Force program to replace its aerial refueling at the Pentagon pegged total procure- speech 50 years ago, but I do find some tanker fleet. ment costs at upwards of $300 billion. comfort that times of fiscal restraint 6. Describe what was happening with the And, from there, with the assistance of and austerity can drive desired change, Air Force’s program to replace its aerial re- a fundamentally flawed fee structure even in the face of daunting systemic fueling tanker fleet while the foregoing ac- that was not focused on objective re- obstacles such as the military-indus- tivity was conducted. 7. What direct or indirect input or influ- sults, FCS total costs kept growing. To trial-congressional complex. We must make a long story short, in April 2009, ence did General Robertson have in the out- do better. come of the activity for which he was serv- then-Secretary Gates terminated most Mr. President, I yield the floor. I ing as a mentor (or in any similar capacity) of the program and the problem. thank my friend from Michigan for his or the overall program or process that this While the Army has had its problems, indulgence. activity was intended to support? the Navy’s Littoral Combat Ship is an- 8. How much per year and in total com- EXHIBIT 1 other example of a fundamentally pensation was General Robertson paid for his U.S. SENATE, flawed acquisition process. Originally service as an advisor, consultant or mentor, COMMITTEE ON ARMED SERVICES, conceived by former Chief of Naval Op- or in any other similar capacity, to the Air Washington, DC, December 1, 2011. Force? erations Vern Clark as a revolutionary, Hon. LEON PANETTA, 9. Please provide a copy of his employment new, affordable class of surface com- Secretary of Defense, contract(s) with the Air Force for his service batant—about the size of a light frigate Pentagon, Washington, DC. in the foregoing capacity. or Coast Guard cutter—the LCS was to DEAR SECRETARY PANETTA: I was very 10. Explain why it reportedly took two be able to conduct shallow-water and troubled to read recently in USA Today that years to provide the information described near-shore operations. the Air Force allowed a retired general offi- above where this information was responsive The first two LCS contracts set the cer who was then-serving as an executive in to a properly presented FOIA request. The Boeing Company to participate as a cost of the sea frame at $188 million 11. What is the current status or the De- ‘‘mentor’’ in a war game involving the aerial partment of Defense’s mentor program? each. After spiking to over $730 mil- refueling tanker that Boeing was at the 12. If the program is still extant at all, lion, the cost is now about $400 million same time competing to build for the Air what controls are in place today that will per hull. In December of 2010, the Pen- Force under a multibillion dollar procure- ensure against conflicts-of-interests and the tagon’s chief tester gave LCS poor per- ment program. This, in my view, warrants appearance of impropriety by its partici- formance ratings, saying that ‘‘LCS is serious inquiry. pants? not expected to be survivable in terms According to the article, the retired gen- Thank you for your cooperation and your of maintaining a mission capability in eral officer previously served as the chief of attention to this serious matter. Sincerely, a hostile combat environment.’’ U.S. Transportation Command and Air Force Mobility Command, which would have given JOHN MCCAIN, I continue to be very troubled by the him keen insight into the Air Force’s plans Ranking Member. Navy’s decision late last year to set to replace its aerial refueling tanker fleet. It f aside then-pending competition and appears that what this mentor did for the award contracts to each of the bidders Air Force in this case directly related to one NATIONAL DEFENSE AUTHORIZA- on this program. of Boeing’s largest potential contracts with TION ACT FOR FISCAL YEAR The F–22 raptor program. The F–22 the Air Force. This makes the story particu- 2012—CONFERENCE REPORT was supposed to maintain air superi- larly alarming. No less disturbing is that the The PRESIDING OFFICER. Under ority in the face of the Soviet threat Air Force apparently withheld publicly dis- closing this information from a Freedom of the previous order, the Senate will pro- during the Cold War. The F–22 obtained ceed to the consideration of the con- full operational capability 20 years Information Act (FOIA) request for approxi- mately two years. ference report to accompany H.R. 1540, later, well after the Soviet Union dis- This latest revelation plainly validates my which the clerk will report. solved. When it finally emerged from concerns that I conveyed last year about the The assistant legislative clerk read its extended testing and development potential for conflicts-of-interests associated as follows: phase, the F–22 was recognized as a with military mentor programs. It is also an- The committee of conference on the dis- very capable tactical fighter, probably other example of the revolving door between agreeing votes of the two Houses on the the best in the world for some time to the Department and private industry and the amendment of the Senate to the bill (H.R. come. But plagued with development prevalence of the military-industrial com- 1540), to authorize appropriations for fiscal and technical issues that caused the plex in the Department’s planning and pro- year 2012 for military activities of the De- curement processes, which has plagued the costs of buying to go through the roof, partment of Defense, for military construc- Air Force’s attempts to replace its aerial re- tion, and for defense activities of the Depart- not only was the F–22 20 years in the fueling tanker fleet from day-one. making, but the process has proved so ment of Energy, to prescribe military per- Although there appears to be general com- sonnel strengths for such fiscal year, and for costly that the Pentagon could ulti- fort that the contract for the KC–46A was other purposes, having met, after full and mately afford only 187 of the planes awarded properly and that the contracting free conference, have agreed that the House rather than the 750 it originally strategy for the development of these tank- recede from its disagreement to the amend- planned to buy. To make a long story ers is viable, whether any misconduct some- ment of the Senate and agree to the same short, the F–22 has not flown in combat how biased the program at its inception to- with an amendment, and the Senate agree to since its inception. wards a particular outcome must be taken the same, signed by a majority of the con- very seriously. ferees on the part of both Houses. The DDG–1000 Zumwalt Class De- With this in mind, please answer the fol- stroyer was supposed to cost $1.1 bil- lowing questions. (The conference report is printed in lion each. It is now expected to cost 1. After the individual cited in the article, the House proceedings of the RECORD of $3.5 billion each. retired Lieutenant General Charles Robert- December 12, 2011.)

VerDate Mar 15 2010 03:38 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.021 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8633 The PRESIDING OFFICER. There port is the provision relative to mili- The language in the Senate bill and will be up to 3 hours of debate equally tary detention for foreign al-Qaida ter- in the conference report is intended to divided between the leaders or their rorists. This provision was written to preserve the operational flexibility of designees. be doubly sure there is no interference law enforcement and national security The Senator from Michigan. with civilian interrogations and other professionals in the executive branch. Mr. LEVIN. Mr. President, I yield law enforcement activities and to en- Nothing in the language limits the myself 20 minutes. sure that the President has the flexi- President as to when he can waive the The PRESIDING OFFICER. Without bility he needs to use the most appro- provision or for whom he can waive it. objection, it is so ordered. priate tools in each case. The bill as For example, he is not required to Mr. LEVIN. Mr. President, on behalf passed in the Senate addressed this wait for a coverage determination to be of the Senate Armed Services Com- issue by including language that: No. 1, made before deciding to waive the re- mittee, I am pleased to bring to the left it to the President to adopt proce- quirements of the provision. Similarly, Senate the conference report on H.R. dures to determine who is a foreign al- he is not precluded from waiving the 1540, the National Defense Authoriza- Qaida terrorist and therefore subject to provision with regard to more than one tion Act for fiscal year 2012. This con- presumed military detention; No. 2, re- individual at a time—for example, with ference report, which was signed by all quired that those procedures not inter- regard to a group of conspirators or po- 26 Senate conferees, contains many fere with ongoing intelligence, surveil- tential codefendants. provisions that are of critical impor- lance, or interrogations by civilian law In short, the waiver language in the tance to our troops. This will be the enforcement; No. 3, left it to the execu- conference report is broad enough to 50th consecutive year in which a Na- tive branch to determine whether a reflect circumstances in which it is in tional Defense Authorization Act has military detainee who will be tried is the national security interests of the been enacted into law. tried by a civilian court or a military United States for a President to waive I thank all of the members and staff court; and No. 4, gave the executive the requirements of the provision with of the Senate Armed Services Com- branch broad waiver authority. respect to a category of covered per- mittee—and especially our sub- The conference report retains that sons, if he so determines, in order to committee chairs and our ranking language and adds additional assur- preserve the flexibility of counterter- members—for the hard work they have ances that there will be no interference rorism professionals and operators to done to get us to this stage. Every year with civilian interrogations or other we take on tough issues and we work take expeditious action. law enforcement activities. In par- With the exception of those assur- through them on a bipartisan basis, ticular, the conferees added language ances, the detainee provisions in the consistent with the traditions of our that says the following: conference report are largely un- committee. This year was a particu- Nothing in this section shall be construed changed from the provisions in the bill larly difficult one because of the se- to affect the existing criminal enforcement verely condensed timeline for floor that was approved by the Senate on a and national security authorities of the Fed- 93-to-7 vote just 2 weeks ago. Those consideration and conference on the eral Bureau of Investigation or any other do- bill. mestic law enforcement agency with respect who say we have written into law a I particularly thank my friend Sen- to a covered person, regardless of whether new authority to detain American citi- ator MCCAIN, our ranking minority such covered person is held in military cus- zens until the end of hostilities are member, for his strong support tody. wrong. Neither the Senate bill nor the throughout the process. I know both of It also modifies the waiver language conference report establishes new au- us thank the chairman and ranking to give the President, rather than the thority to detain American citizens—or member of the House Armed Services Secretary of Defense, the authority to anybody else. Committee, BUCK MCKEON and ADAM waive the requirements of the provi- The issue of indefinite detention SMITH, for their commitment to this sion. arises from the capture of an enemy bill and to the men and women of our Under the provision in the conference combatant at war. According to the Armed Forces. report, law enforcement agencies are law of war, an enemy combatant may The conference report we bring to the not restrained in apprehending sus- be held until the end of hostilities. Can floor today authorizes $662 billion for pects or conducting any investigations an American citizen be held as an national defense programs. While it au- or interrogations. If a suspect is appre- enemy combatant? According to the thorizes $27 billion less than the Presi- hended and is in law enforcement cus- law of war, an enemy combatant may dent’s budget request and $43 billion tody, the suspect can be investigated be held until the end of hostilities. But, less than the amount appropriated for and interrogated in accordance with again, can an American citizen be held fiscal year 2011, I am confident this existing procedures. If and when a de- as an enemy combatant? I believe that conference report, nonetheless, pro- termination is made that a suspect is a if an American citizen joins a foreign vides adequate support for the men and foreign al-Qaida terrorist, that person army or a hostile force such as al- women of the Armed Forces and their would be slated for transfer to military Qaida that has declared war and orga- families and provides them with the custody under rules written by the ex- nized a war against us and attacks us, means they need to accomplish their ecutive branch. Again, however, any that person can be captured and de- missions. ongoing interrogations are not to be tained as an enemy combatant under This conference report contains interrupted, and the President also has the law of war. many important provisions that will a waiver authority. If the suspect is In 2004, the Supreme Court held in improve the quality of life of our men transferred to military custody, all ex- the Hamdi case that ‘‘there is no bar to and women in uniform. It will provide isting law enforcement and national se- this Nation’s holding one of its own needed support and assistance to our curity tools remain available to the citizens as an enemy combatant.’’ troops on the battlefield. It will make FBI and other law enforcement agen- The Court cited with approval its the investments we need to meet the cies, and even if the suspect is held in holding in the Quirin case, in which an challenges of the 21st century, and it military custody, it would be up to the earlier court held that ‘‘citizens who will provide for needed reforms in the Attorney General, after consulting associate themselves with the military management of the Department of De- with the Secretary of Defense and the arm of the enemy government, and fense. Director of National Intelligence, to with its aid, guidance and direction I ask unanimous consent that a list determine whether the suspect will be enter this country bent on hostile acts, of some of the more significant provi- tried in Federal court or before a mili- are enemy belligerents within the sions be printed in the RECORD at the tary commission. The bill provides the meaning of . . . the law of war.’’ close of my remarks. Attorney General with broad discretion But despite that view of mine, which The PRESIDING OFFICER. Without to ensure that whatever consultation is I clearly expressed on the Senate floor objection, it is so ordered. conducted does not impede operational a couple weeks ago, neither the Senate (See exhibit 1.) judgments that may need to be made bill nor the conference report takes a Mr. LEVIN. Probably the most dis- to pursue investigative leads, effect ar- position on this issue. Both the Senate cussed provision in the conference re- rests or file charges. bill and the conference report include

VerDate Mar 15 2010 03:38 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.022 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8634 CONGRESSIONAL RECORD — SENATE December 15, 2011 the language of the Feinstein amend- It requires the Department of De- vative research and technologies that ment, which we drafted together and fense and Department of Defense sup- have contributed significantly to the passed 99 to 1. That amendment leaves pliers to purchase electronic parts from expansion of the defense industrial this issue to the executive branch and manufacturers and their authorized base and the development of new mili- the courts by providing the following: dealers or from trusted, certified sup- tary capabilities. Nothing in this section shall be construed pliers. As to Pakistan, the conference report to affect existing law or authorities relating It requires Department of Defense of- limits to 40 percent the amount of the to the detention of United States citizens, ficials and Department of Defense con- Pakistan Counterinsurgency Capa- lawful resident aliens of the United States, tractors that become aware of counter- bility Fund that can be obligated until or any other persons who are captured or ar- feit parts in the supply chain to pro- the Secretary of Defense provides Con- rested in the United States. vide written notification to the govern- gress with a strategy on the use of the The more difficult issue for me—and ment. fund and on enhancing Pakistan’s ef- I believe it goes to the heart of the con- It requires the Department of De- forts to counter the threat of impro- cern of the detention policy—is the fense and its largest contractors to es- vised explosive devices, those IEDs kind of war we are in with al-Qaida, tablish systems and procedures to de- which kill so many of our troops and so and that issue is when does the deten- tect and avoid counterfeit parts. many civilians. tion end? In other words, when are the It requires the Secretary of Home- Finally, the Department of Defense hostilities over? In this kind of non- land Security to consult with the Sec- has informed us it does not need an ex- traditional war, we are not likely to retary of Defense on the sources of emption from section 526 of the Energy sign a peace treaty or receive a formal counterfeit electronic parts in the Independence and Security Act of 2007 surrender or even reach an agreement military supply chain and establish a because that section does not apply to on a cease-fire. purchases at market prices from gen- Under these circumstances, it is ap- risk-based program of enhanced inspec- propriate for us to provide greater pro- tion of imported electronic parts. erally available fuel supplies and does It authorizes Customs to share infor- cedural rights to enemy detainees than not preclude the Department from pur- we might in a more traditional war. We mation from electronic parts inspected chasing any fuel it needs or expects to have done so in this conference report. at the border with manufacturers to purchase in the foreseeable future. We are in the final stages of with- The conference report, for instance, re- help determine whether the parts are drawing our combat troops from Iraq, quires periodic reviews of detainee counterfeit. but we continue to have almost 100,000 cases in accordance with an executive It strengthens criminal penalties for order issued earlier this year to deter- counterfeiting military goods or serv- U.S. soldiers, sailors, airmen, and ma- mine whether detainees pose a con- ices. rines on the ground in Afghanistan. We are very grateful for the support tinuing threat or safely can be re- While there are issues on which we leased. Under the conference report, of Members of this body for that provi- may disagree, we all know we must enemy combatants who will be held in sion. provide our troops the support they Relative to the strengthening of long-term military detention are told, need as long as they remain in harm’s criminal penalties, I wish to add our for the first time, they will get a mili- way. The enactment of this conference tary judge and a military lawyer for thanks to Senator WHITEHOUSE for his report will improve the quality of life their status determination. work on this subject, for his provisions for our men and women in uniform. It The conference report includes many relative to additional criminal pen- will give them the tools they need to other important provisions. alties for counterfeiting military goods remain the most effective fighting It includes new sanctions against the that are a part of this bill, and they are force in the world. Most important of financial sector of Iran, including the a very important part. all, it will send an important message Central Bank of Iran. These sanctions The conference report requires sound that we as a nation stand behind our would, among other actions, require planning—this is another provision of troops and we deeply appreciate their foreign financial institutions to choose this bill—and justification before we service. between maintaining ties with the U.S. spend more money on troop realign- In conclusion, I would, once again, financial system or doing business with ment from Okinawa to Guam and on thank Senator MCCAIN, all our Mem- the Central Bank of Iran. tour normalization in Korea. Those bers, and our majority and minority It includes provisions addressing the provisions follow detailed oversight staff, led by Rick DeBobes and Dave problem of counterfeit parts that can that Senators WEBB, MCCAIN, and I Morriss, for their hard work on this undermine the performance of military have conducted. bill. We could not have done this with- weapons systems and endanger our On some other provisions: The con- out them. men and women in uniform. This is one ference report requires that the next I ask unanimous consent that a full of the most important additional provi- lot of F–35 aircraft—lot 6—and all sub- list of our majority and minority staff, sions we have in our bill; that is, the sequent aircraft, be purchased under who gave so much of themselves and provisions relative to these counterfeit fixed-price contracts, with the con- their families, be printed in the parts that are flooding our defense sys- tractor assuming full responsibility for RECORD. tem with electronic parts that are any costs above the target cost speci- There being no objection, the mate- counterfeited and come mainly from fied in the contract. rial was ordered to be printed in the China. We were able to identify ap- Our conference report fences 75 per- RECORD, as follows: proximately 1,800 cases of suspect cent of the money available for the Me- SENATE ARMED SERVICES COMMITTEE STAFF counterfeit electronic parts, covering dium Extended Air Defense System— Richard D. DeBobes, Staff Director; David more than 1 million individual parts, MEADS—until the Secretary of De- M. Morriss, Minority Staff Director; Adam J. with most of them, again, coming from fense submits a detailed plan to use Barker, Professional Staff Member; June M. China. This conference report includes those funds to close out the program or Borowski, Printing and Documents Clerk; pay contract termination costs. Leah C. Brewer, Nominations and Hearings comprehensive reforms to keep coun- Clerk; Christian D. Brose, Professional Staff terfeit electronic parts out of the de- The conference report includes Sen- Member; Joseph M. Bryan, Professional Staff fense supply chain and provides proper ator LANDRIEU’s bill to extend the Member; Pablo E. Carrillo, Minority Inves- accountability when suspect parts Small Business Innovative Research— tigative Counsel; Jonathan D. Clark, Coun- make it through that chain. SBIR—Program for an additional 6 sel; Ilona R. Cohen, Counsel; Christine E. In particular, the conference report years. It has been about 6 years since Cowart, Chief Clerk; Jonathan S. Epstein, relative to this subject does the fol- we reauthorized this vitally important Counsel; Gabriella E. Fahrer, Counsel; Rich- lowing: program, which provides a huge benefit ard W. Fieldhouse, Professional Staff Mem- It clarifies acquisition rules to en- to our small businesses so they can ef- ber; Creighton Greene, Professional Staff Member; Ozge Guzelsu, Counsel; John Heath, sure that the cost of replacement and fectively participate in research pro- Jr., Minority Investigative Counsel. rework that is required by the use of grams that are funded by the Federal Gary J. Howard, Systems Administrator; suspect counterfeit parts is paid by the Government. In the defense arena, Paul C. Hutton IV, Professional Staff Mem- contractor, not by the taxpayer. SBIR has successfully invested in inno- ber; Jessica L. Kingston, Research Assistant;

VerDate Mar 15 2010 04:27 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.023 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8635 Jennifer R. Knowles, Staff Assistant; Mi- The PRESIDING OFFICER. Without to gain as much information from such chael J. Kuiken, Professional Staff Member; objection, it is so ordered. individuals as possible regarding their Kathleen A. Kulenkampff, Staff Assistant; Mr. MCCAIN. Madam President, I plans to wage war against our citi- Mary J. Kyle, Legislative Clerk; Gerald J. fully support the conference report and Leeling, Counsel; Daniel A. Lerner, Profes- zens—I want to emphasize—without sional Staff Member; Peter K. Levine, Gen- the national defense authorization bill violating the rules of war, without vio- eral Counsel; Gregory R. Lilly, Executive As- for fiscal year 2012. This is the 50th lating the Geneva Conventions, with- sistant for the Minority; Hannah I. Lloyd, year the Congress will pass this, and I out engaging in torture or waterboard- Staff Assistant; Mariah K. McNamara, Staff am now confident this bill will be ing or any of the kinds of techniques Assistant; Jason W. Maroney, Counsel; signed into law by the President of the that have stained America’s honor in Thomas K. McConnell, Professional Staff United States. the 21st century. Member; William G. P. Monahan, Counsel; It is an important piece of legisla- Lucian L. Niemeyer, Professional Staff tion. I appreciate the participation of I strongly believe the detainee provi- Member. sions in the bill are constitutional and Michael J. Noblet, Professional Staff Mem- all Members, as we went through this ber; Bryan D. Parker, Minority Investigative bill in a relatively short period of time. in no way infringe upon the rights of Counsel; Christopher J. Paul, Professional There certainly was a lot of participa- law-abiding Americans. Unfortunately, Staff Member; Cindy Pearson, Assistant tion by almost every Member. rarely in my time have I seen legisla- Chief Clerk and Security Manager; Roy F. I am most appreciative, of course, of tion so consistently misunderstood and Phillips, Professional Staff Member; John H. Senator LEVIN, whom I have had the misrepresented as these detainee provi- Quirk V, Professional Staff Member; Robie I. honor of serving with for many years. sions. The hyperbole used by both the Samanta Roy, Professional Staff Member; Brian F. Sebold, Staff Assistant; Russell L. Quite often we have spirited discus- left and the right regarding this lan- Shaffer, Counsel; Michael J. Sistak, Re- sions on various issues, but my admira- guage is false and misleading. search Assistant; Travis E. Smith, Special tion and appreciation for his leadership Let me be clear. The language in this Assistant; William K. Sutey, Professional is very large. He is a man of incredible bill will not affect any Americans en- Staff Member; Diana G. Tabler, Professional patience—a quality some accuse me of gaging in the pursuits of their con- Staff Member; Mary Louise Wagner, Profes- lacking, I think correctly. sional Staff Member; Barry C. Walker, Secu- stitutional rights. The language does Senator LEVIN and his staff and our rity Officer; Richard F. Walsh, Minority recognize that those people who seek staff work very closely together Counsel; Bradley S. Watson, Staff Assistant; to wage war against the United States throughout the year as we bring forth Breon N. Wells, Staff Assistant. will be stopped, and we will use all eth- this Defense authorization bill. Obvi- Mr. LEVIN. I yield the floor. ical, moral, and legal methods to do so. ously this bill provides for defense pol- EXHIBIT 1 icy guidance and funding that is vital I am very pleased that the adminis- SELECTED HIGHLIGHTS OF THE NATIONAL DE- tration has finally recognized that the FENSE AUTHORIZATION ACT FOR FISCAL to our national security, provides the YEAR 2012 clearest indication to our men and language we have adopted merits the —Authorizes a 1.6 percent across-the-board women in uniform that the Congress President’s signature and will soon be pay raise for all uniformed military per- cares about them and their families. signed into law. While we have made sonnel and extend over 30 types of bonuses In testament to the importance of some technical changes to the detainee and special pays aimed at encouraging en- this legislation, as I mentioned, we provisions, they remain substantially listment, reenlistment, and continued serv- have passed a defense authorization the same as passed by the Senate ice by active-duty and reserve military per- bill every year since 1961. Armed Services Committee. sonnel; Let me remind my colleagues of the —Extends authorities needed to fairly The Congress, in strong bipartisan hard work that went into this bill. The compensate civilian employees and highly majorities, especially in the Com- bill is a product of 11 months of legisla- qualified experts who are assigned to work mittee on Armed Services, is deeply overseas in support of contingency oper- tive effort in the Senate, 71 hearings concerned by the administration’s ations; and meetings on the full range of na- flawed handling of detainees in the —Clarifies provisions of the Uniform Code tional security priorities. We reported of Military Justice relating to the offenses of our bill out of the committee with a 26- fight against terrorism. rape, sexual assault, and other sexual mis- conduct to address constitutional defi- to-0 vote. We debated nearly 40 hours, It was Congress that took up this ciencies in the existing law; disposed of 139 amendments, and the vital national security issue and draft- —Extends the authority of U.S. Special Op- bill was overwhelmingly passed 93 to 7. ed all the versions of these provisions erations Forces to provide support to regular After Senate passage on December 1, and led the negotiations on all of the forces, irregular forces, and individuals aid- our staffs have worked around the major compromises. Yes, we listened to ing U.S. special operations to combat ter- clock for 9 days to put this together. the administration’s concerns, as we rorism; —Freezes the Department’s spending on As Senator LEVIN mentioned, it au- should, and we took many of them into contract services at fiscal year 2010 levels, to thorizes $662.4 billion for national de- account. Unfortunately, the adminis- ensure that cost reductions and savings are fense, which is $26.6 billion less than tration has fought these provisions spread across all components of the DOD the President’s request. It authorizes every step of the way. They tried to workforce; $530 billion for the base budget for the have these provisions stripped from the —Authorizes the Department to void a Department of Defense, and it goes on. Senate bill as a condition for bringing contract in Afghanistan, if the contractor or We authorize a 6-percent increase in its employees are determined to be actively it to the floor for debate. When that working with the enemy to oppose U.S. funding over last year’s request for our did not work, they tried to have these forces in that country; special operations forces, who play a provisions dropped from the bill —Implements cost-saving programs to ad- lead role in counterterrorism oper- through amendments on the floor. dress rapidly escalating costs for the oper- ations. We authorize over $2.4 billion to When that did not work, they urged the ation and support of weapon systems, includ- counter improvised explosive device ac- conferees to drop these provisions in ing costs incurred as a result of corrosion; tivities. The IEDs still plague the men and conference or at least water them down —Enhances the role of the National Guard and women who are serving in Afghani- into nothingness. Again and again, the by including the Chief of the National Guard stan. administration failed. So for them now Let me also mention some note- Bureau as a member of the Joint Chiefs of to try to claim credit for these provi- worthy provisions in this legislation. Staff. sions flies in the face of the historical Mr. LEVIN. I suggest the absence of The conference report includes strong, unambiguous language that record. Facts are stubborn, and when it a quorum. comes to these detainee provisions, the The PRESIDING OFFICER (Mrs. recognizes that the war on terror ex- tends to us at home and that we must fact is this: Congress has led and de- HAGAN). The clerk will call the roll. fined the debate, and the administra- The bill clerk proceeded to call the address it as such. The language the tion has finally conceded to that re- roll. Senate adopted regarding detainees Mr. MCCAIN. Madam President, I ask recognizes both that we must treat ality. unanimous consent that the order for enemy combatants who seek to do us Let’s establish once again what these the quorum call be rescinded. harm as such and that we must be able detainee provisions do and do not do.

VerDate Mar 15 2010 04:27 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\A15DE6.005 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8636 CONGRESSIONAL RECORD — SENATE December 15, 2011 They would, among other things, re- The provision adopted in the con- displayed a great deal of courage in for- affirm the military’s existing author- ference report requires that such deter- mulating what he thought was best for ity to detain individuals captured in mination must not interfere with ongo- our Nation’s security. the course of hostilities conducted pur- ing intelligence, surveillance, or inter- Regardless of the motivation that suant to the authorization of the use of rogation operations. may have colored the debate until now, military force. All of this flexibility was added to I believe that, by any responsible read- The ‘‘authority to detain provision’’ the bill even before we began negotia- ing, these provisions will not impair in the conference report confirms that tions with the White House to make it the flexibility of the President or na- nothing in this section of the bill clear that the intent of the Senate’s tional security officials in protecting should be ‘‘construed to affect existing provisions was not to tie the adminis- the United States and its citizens. The law or authorities relating to the de- tration’s hands but to give them addi- military custody provision, which has tention of United States citizens, law- tional means to defeat the most serious been the focus of much of this debate, ful resident aliens of the United States, type of threat from al-Qaida to our provides flexibility to use either a ci- or any other persons who are captured country. The result of these Senate vilian track or a military track for or arrested in the United States.’’ modifications to the original form of custody and eventual trial and leaves There could be nothing clearer than the provisions ensures that the execu- the details of implementation in the that statement. tive branch has complete flexibility in hands of the executive branch, as it is This confirmation of the intent of how it first determines and then how it appropriate to do so. It preserves the the bill was inserted as a result of floor applies military custody for al-Qaida current state of the law as it applies to debate and negotiations with the Sen- members who are captured after having the rights of U.S. citizens and lawful ator from California, Mrs. FEINSTEIN, attacked the United States or while resident aliens. to make absolutely clear what Chair- planning or attempting such an attack. In terms of FBI authority to conduct man LEVIN and I and members of the Moreover, after meeting with FBI Di- investigations and interrogations, as committee who have supported this rector Robert Mueller, the Senate con- well as use other instruments of the in- legislation have said throughout—that ferees added language in conference in vestigative and criminal process, these this provision does not and is not in- response to his concerns about the im- provisions preserve all of the FBI’s role tended to change the existing state of pact on FBI operations confirming that and authority under existing law. the law with regard to detention of nothing in this provision may be ‘‘con- The conference report also includes, U.S. citizens. This section simply re- strued to affect the existing criminal virtually unchanged, the Senate provi- states the authority to detain what has enforcement and national security au- sion requiring a plan to normalize U.S. already been upheld by the Federal thorities of the Federal Bureau of In- defense cooperation with Georgia and courts. We are not expanding or lim- vestigation, or any other domestic law the sale of defensive weapons. U.S. de- iting the authority to detain as estab- enforcement agency, with regard to a fense cooperation with the Republic of lished by the 2001 authorization for the covered person, regardless whether Georgia has been stalled ever since use of military force. such covered person is held in military Russia invaded that country 3 years The conference report also includes a custody.’’ ago. While there has been slow and provision requiring military detention It is the intent of the Senate con- minor progress to enable Georgia’s for foreign al-Qaida terrorists who at- ferees, in agreement with House col- armed forces to deploy to Afghani- tack the United States—something leagues on a bipartisan basis, that the stan—which they have done in greater this administration has been not only FBI continue to execute the full range numbers than most of our NATO al- hesitant but completely unwilling to of its investigative and counterterror- lies—precious little has been done to even consider until this legislation ism responsibilities and that any shift strengthen Georgia’s ability to defend highlighted the inconsistency between to military custody will be an adminis- its government, people, and territory. claiming the authority to kill an al- trative measure that does not limit in This provision would require the Sec- Qaida member with drones overseas any way the FBI’s authority. retary of Defense, in consultation with but not being willing to hold a cap- I acknowledge that these issues were the Secretary of State, to develop a tured al-Qaida member in military cus- very controversial with some Members. plan for the normalization of our de- tody in the United States, even in a These provisions were debated exten- fense cooperation with Georgia, espe- situation where the al-Qaida terrorist sively—as thoroughly as any matter I cially the reestablishment of U.S. sales had penetrated our defenses and had have seen in recent memory—but I be- of defensive weapons. It puts the Con- carried out or attempted an attack in- lieve we have addressed in a positive gress on record as demanding a more side the United States. way and have been responsive to con- normal U.S. defense relationship with The authority to hold al-Qaida mem- cerns raised by the administration. In- Georgia, particularly on defensive bers in military custody, while com- deed, the Senate made changes both on arms sales. pletely consistent with the law of war the floor and during conference to en- The conference report includes a that applies to enemy combatants, is sure that the intent of the provisions strong and important provision to not a straitjacket but is as flexible as was fully understood by the adminis- sanction the Central Bank of Iran, to the President desires to make it. tration and others even before negotia- curtail Iran’s ability to buy and sell pe- While we in Congress have given the tions over the final form of the text troleum through its Central Bank, and President a statutory authority to use began. to prevent foreign financial institu- military custody for al-Qaida members In many ways, as Chairman LEVIN tions that deal with the Central Bank as a tool to ensure that we are able to has pointed out in many of his public of Iran from continuing their access to obtain timely, actionable intelligence, statements and speeches on these de- the U.S. financial system. This provi- the President can exercise a broad na- tainee provisions, rarely has such mis- sion, which was adopted on the Senate tional security waiver to this require- information, speculation, and outright floor by a vote of 100 to 0, and the at- ment—a broad national security waiv- misrepresentation been greater over tempted assassination of the Saudi er. Most important, this provision re- what a bill actually does compared to Ambassador here in Washington, DC, quiring military detention explicitly what some from the left and right had a very positive and forceful effect excludes U.S. citizens and lawful resi- claim it does than has been the case on this bill being enacted by the Sen- dent aliens. with these detainee provisions. Wheth- ate. This provision would force foreign The military custody provision in the er 2012 campaign politics played a role financial institutions to make an im- final compromise authorizes the trans- in the characterization of these provi- portant choice: Do they want to deal fer of any detainee to civilian custody sions or whether this was simply a case with the U.S. economy or with Iran’s for trial in civilian court and leaves it of not fully understanding the intent of Central Bank? up to the President to establish proce- the authors of these provisions I will The Treasury Department urged the dures for determining how and when leave to others to decide. conferees to make a series of changes persons determined to be subject to I point out again that I think my to this provision, some of which would military custody would be transferred. friend from Michigan Senator LEVIN have narrowed its scope and weakened

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.027 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8637 it. We rejected that course of action. President or by our military and civil- to repeat one sentiment in the state- We made some minor technical ian leaders in the Pentagon. Examples ment that has to do with Senator changes but kept the provision as the of funding authorized by this con- MCCAIN and his staff. The way in which authors, Senators MENENDEZ and KIRK, ference report include $255 million for he and our staff work together is in the intended. The conferees did, however, additional M–1 tank upgrades the finest tradition of this body. Our com- provide the Treasury Department the Army didn’t want in order to keep the mittee has had that reputation. It is a ability to more effectively implement M–1 production line hot despite no well-earned, well-deserved reputation this legislation by imposing strict con- compelling need to upgrade more tanks that we are able to work on a bipar- ditions on foreign financial institu- at this time; $325 million for Army Na- tisan basis. tions that maintain ties to the Central tional Guard and Reserve equipment Senator MCCAIN continues in a great Bank of Iran. not requested by the Army; $8.5 million tradition on the Republican side, and I The conference report directs the for an Air Force R&D program called would hope I strive at least to do the Secretary of Defense to pause further the Metals Affordability Initiative that same on our side. We have had some spending on Guam in support of the re- the Air Force didn’t consider a high great leaders of our committee over location of 8,500 U.S. marines from Oki- enough priority to fund; $30 million for the decades, and Senator MCCAIN is one nawa until Congress and the adminis- an industrial base innovation fund that of those leaders in that tradition, and I tration have had an opportunity to re- the Pentagon didn’t ask for; $200 mil- want to say what a great pleasure it is view and assess the impact of an esti- lion for the Rapid Innovation Pro- to work with him. mated $20 billion spending initiative on gram—created by Congress in last I know our staffs work beautifully Guam in the context of the full range year’s Defense authorization bill—that together, and we are grateful for that. of our national interests in the Pacific the Pentagon never asked for and The Senator was right in pointing out region. This pause will allow Congress which has about $439 million in funds who we are doing this for—it is the to ensure that the taxpayer funds in- left over from last year it hasn’t fig- men and women in uniform—but we vested in overseas military force pos- ured out how to spend. couldn’t do that without our great ture and basing will afford us the best The bottom line is this: Congress will staffs, and I know he joins me, and has opportunity to continue our strong al- pump over $1.4 billion into things the already in his statement, in a tribute liances in the region, while pursuing Pentagon never requested and didn’t to our staffs. new arrangements with emerging part- think were a priority. The American Mr. MCCAIN. Madam President, I say ners that support security and eco- taxpayers are not fooled by this exer- to my friend from Michigan, I guess in nomic development. cise, and they have long ago lost pa- our many years together we have seen The final agreed-upon provision in- tience with it. For all the many good the ups and downs and back and forth, cludes a requirement for an inde- things this conference report did, we but during our more than a quarter of pendent study to offer views and sug- still fell short of providing only the a century of service we have always gestions from a range of regional ex- most essential needs and priorities of seen the bill coming to fruition and we perts on current and emerging U.S. na- the Department of Defense as identi- have carried on in that tradition. tional security interests in the Pacific fied by our civilian and military lead- I wish also to point out to my col- and options for the realignment of U.S. ers. A total of $1.4 billion is real money leagues, in a rather drab and dreary military forces in the region. The con- and could make an enormous difference landscape of gridlock and acrimony, it ference report would restrict the use of to many Americans if properly applied is kind of nice to show that every once $33 million in operation and mainte- to real priorities. in a while there is a little ray of sun- nance funds for items on Guam that do Those criticisms aside, as we look shine. So I hope we have been able to not directly support military require- forward to the holidays ahead, I want provide it for our colleagues, and I look ments, such as civilian schoolbuses, all Senators to think about whom this forward to a unanimous, if not near the construction of museums, and men- report is really for—the men and unanimous, vote on the part of this tal health facilities. women of our Armed Forces, who have body. This provision should not be inter- served our Nation so bravely and so I hope if there are other colleagues preted as a lack of U.S. commitment to selflessly during the past 10 years of who wish to come and speak on the realignment. The President has stated war. We owe it to them to pass this bill bill—I know we have planned a col- that we are shifting a lot of our atten- to demonstrate our support for them loquy on a provision of the bill con- tion to the Pacific region, and we un- and the burden they carry for all of us cerning depots—so, hopefully, our col- derstand the importance of the Pacific and to show in a concrete way that the leagues who are very concerned about region in the 21st century. American people and the Congress that issue might want to arrange to Finally, the conference report in- stand with them and appreciate what come to the floor so we can dispose of cludes a provision to require that the they do for us. Passing this bill is real- that. contract for the sixth slot of ‘‘low-rate ly the very least we can do for so many I don’t know of any other except, I initial production’’ for the Joint Strike who are willing to give all they have to think, Senator UDALL, who wishes to Fighter be executed on a firm fixed- defend us and our great country. come. price basis. The Pentagon has thus far Finally, I thank Chairman LEVIN and Mr. LEVIN. I think one on our side. failed to incentivize the prime con- Chairman MCKEON and Ranking Mem- While we are talking about rays of tractor to control costs. So a tougher ber SMITH for their dedication and co- lightness, we thank Senator HAGAN, measure, as embodied in the report, is operation in getting through the con- our Presiding Officer, who is a member warranted. ference in a rapid but comprehensive of our committee. She provides a ray of While I would have preferred the and collegial manner. It is an honor to light—one of the many rays of light on original Senate position that would work with Senator LEVIN on such an our committee. I see her presiding and have made the fixed-price requirement important cause for the American peo- smiling over this effort, and I wanted apply to the fifth lot currently being ple and for our men and women serving to acknowledge that she is an impor- negotiated, I strongly support this pro- around the world in the Department of tant part of it and to recognize her vision. The chairman and I are com- Defense, who risk their lives for us contribution as well. mitted to a close monitoring of this every day. They deserve positive action Mr. MCCAIN. I happen to know for a weapons system. We understand its im- and your vote on this conference re- fact that Senator HAGAN is a strong de- portance. We also understand that the port. fender of the men and women who kinds of cost overruns that have char- I urge my colleagues to vote for the serve her State, which has a very large acterized this system cannot be contin- conference report of the fiscal year 2012 military presence. I know they are ued. national defense authorization bill. very appreciative of her advocacy and I am gratified that there are no ear- The PRESIDING OFFICER. The Sen- service. marks in this bill. Unfortunately, it ator from Michigan. Before we get too hokey around here, still contains over $1.4 billion in spend- Mr. LEVIN. Madam President, I maybe we should suggest the absence ing that was never requested by the spoke at some length before, but I want of a quorum.

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.028 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8638 CONGRESSIONAL RECORD — SENATE December 15, 2011 The PRESIDING OFFICER. The The harsh comments and his insistence Mrs. HAGAN. Mr. President, I ask clerk will call the roll. that the December 4 election was valid will unanimous consent the order for the The legislative clerk proceeded to likely fuel anger and may draw even bigger quorum call be rescinded. call the roll. crowds of protest later this month. The PRESIDING OFFICER (Mr. Putin also lashed out at U.S. Senator John Mr. LEVIN. Madam President, I ask MANCHIN). Without objection, it is so McCain, who had goaded him with a Twitter unanimous consent that the order for post saying ‘‘the Arab Spring is coming to a ordered. the quorum call be rescinded. neighborhood near you.’’ Mrs. HAGAN. Mr. President, I ask The PRESIDING OFFICER. Without unanimous consent that all time in the Quoting Putin now, the article con- objection, it is so ordered. quorum call be divided equally. tinues: SECTION 1022 The PRESIDING OFFICER. Without ‘‘He has the blood of peaceful civilians on objection, it is so ordered. Mr. LEVIN. Mr. President, section his hands, and he can’t live without the kind 1022(d) of the conference report states Mrs. HAGAN. Mr. President, I sug- of disgusting, repulsive scenes like the kill- gest the absence of a quorum. that ‘‘nothing in this section shall be ing of Gadhafi,’’ Putin said, referring to The PRESIDING OFFICER. The construed to affect the existing crimi- McCain’s role as a combat pilot and prisoner nal enforcement and national security of war in Vietnam. clerk will call the roll. The assistant legislative clerk pro- authorities of the Federal Bureau of In- He went on to say: ceeded to call the roll. vestigation or any other domestic law ‘‘Mr. McCain was captured and they kept Mr. LEVIN. Mr. President, I ask enforcement agency with regard to a him not just in prison, but in a pit for sev- unanimous consent that the order for covered person, regardless whether eral years,’’ he said. ‘‘Anyone (in his place) the quorum call be rescinded. would go nuts.’’ such covered person is held in military The PRESIDING OFFICER. Without custody.’’ Would the Senator agree I know my friend from Michigan may objection, it is so ordered. with me that this language is intended think there is some veracity to the last DEPOT PROVISIONS to ensure that the provision does not sentence from Putin’s comments, but I Mr. LEVIN. Mr. President, I now ask interfere with ongoing civilian interro- would mention that, in the context of unanimous consent that the following gations and other law enforcement ac- the National Defense bill, in my view, Senators be recognized for up to 4 min- tivities and that the President has the the reset with Russia has not gone as utes each to address the depot provi- flexibility he needs to decide on the we had hoped and it is an argument for sions in the bill, and at the end of their most appropriate law enforcement and some missile defense provisions in this remarks Senator MCCAIN and I be rec- intelligence tools for each individual bill in particular. ognized to address the same issue. This case? I think the reason why Mr. Putin re- was the order we were given. They may Mr. MCCAIN. Yes. That was the in- acted in the way he did is that I believe want to change it: Senator SESSIONS, tention of the provision we wrote in he has been shaken, as he should have Senator CHAMBLISS, Senator INHOFE, committee, and it has been clarified by been, by the massive demonstrations Senator SHAHEEN, Senator AYOTTE, and the addition of subsection (d). The that have taken place in Moscow and Senator HAGAN. statement of managers specifically other cities in Russia. It will be very The PRESIDING OFFICER. Is there states that the law enforcement and interesting on December 24 to see how objection? Without objection, it is so national security tools that are not af- large or whether there will be dem- ordered. fected by the provision include, but are onstrations concerning a government The Senator from Oklahoma. not limited to, grand jury subpoenas, that in many ways has turned into a Mr. INHOFE. Mr. President, let me national security letters, and actions cryptocracy, and the abuse of human thank the chairman of the committee. pursuant to the Foreign Intelligence rights, including the case of Mr. I appreciate the opportunity to have Surveillance Act. Magnitsky, who died in prison; and Mr. this colloquy because something has Mr. LEVIN. Section 1022 applies only Khodorkovsky, who was again sen- happened that shouldn’t have hap- to a person who is ‘‘a member of, or tenced to more time in prison, and pened. It happened over on the House part of, al-Qaeda or an associated force what Mr. Khodorkovsky and others side, and we had no control over it. that acts in coordination with or pur- have described as a death sentence. While I support and will vote for the suant to the direction of al-Qaeda.’’ These are very interesting times in fiscal year 2012 Defense authorization The statement of managers states that which we live, and the world is a very bill, this is the third year in a row we this language intentionally excluded interesting place. I think it argues for have bypassed the formal conference the Taliban. Would the Senator agree the United States of America to main- process. I am pleased we finished the with me that the requirements of sec- tain its defenses, as we have in the con- bill, but this broken process allows for tion 1022—including the transfer re- sideration of this bill. abuse, and we have certainly had some strictions applicable under that provi- The PRESIDING OFFICER. The Sen- abuse that I will allude to here. If the sion—do not apply to individuals de- ator from Michigan. proper procedure had been followed, tained by our forces in Afghanistan? Mr. LEVIN. Madam President, I had some of these problems would not have Mr. MCCAIN. Yes. Our forces in Af- not seen those remarks of Mr. Putin, happened. ghanistan can continue to transfer de- but referring to his last comment, read On December 3, the House Armed tainees to the host nation in accord- by Senator MCCAIN, I guess people Services Committee staff inserted new ance with existing agreements. This would go nuts in the setting Senator language into the conference that provision does not apply to battlefield MCCAIN found himself in the Vietnam would impact how DOD maintains its transfers in—Afghanistan. war. He probably is perhaps, only in ships, maintains its aircraft, maintains The PRESIDING OFFICER. The Sen- that line, accurate that most people, its ground vehicles—private and pub- ator from Arizona. indeed, could not have survived that lic—impacting thousands of jobs in a Mr. MCCAIN. Madam President, for experience. I know Senator MCCAIN number of States. That was December the benefit of my colleagues, there is a does not raise this matter, but those of 3. It wasn’t until the morning of De- bit of interesting news today. When the us who work with him appreciate all he cember 7 that I, along with several demonstrations began in Moscow, I has done for this country and for this other Senators, were shown the new tweeted—I am a big believer in body. I wish we had a chance to language. That was just 61⁄2 hours be- tweets—and said, ‘‘Dear Vlad, the Arab straighten out Mr. Putin about Sen- fore we were to have our first con- Spring is coming to a neighborhood ator MCCAIN. I don’t think we will have ference. We were going to be asked to near you.’’ that opportunity, but maybe his own support the new language without a Apparently, Mr. Putin was not people will do so in a free election full vetting from the concerned Mem- amused, because an Associated Press someday. bers’ offices or from the depots and headline read: ‘‘Putin rejects any redo I suggest the absence of a quorum. shipyards, arsenals, the Shipbuilders of fraud-tainted vote.’’ The article also The PRESIDING OFFICER. The Council of America, the Virginia Ship mentioned he was apparently on a pro- clerk will call the roll. Repair Association, and all of the rest gram where he answered some ques- The legislative clerk proceeded to of these stakeholders and those who tions. To quote the article: call the roll. were concerned. That was November 7.

VerDate Mar 15 2010 05:09 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.030 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8639 Then on November 9, 2 days later, I, willingness to enter into this colloquy. That is not the way it should be, and along with Senators CHAMBLISS, SES- We had a discussion, as Senator INHOFE we need to fix that. SIONS, AYOTTE, COLLINS, HAGAN, and said, during the conference meeting The current ‘‘core’’ waiver in 2464 is SHAHEEN sent a letter to Chairman last week in which it now is apparent much narrower and more defined. The LEVIN and Chairman MCKEON from the that the process through which the presumption and philosophy in the cur- House and ranking members MCCAIN depot language was inserted was not rent waiver is that work, other than and SMITH opposing the new House proper. Senator LEVIN has been very up work on commercial items, will be con- Armed Services Committee language front and straight forward with us, and sidered core, and only considered not and asked that it not be included in the I appreciate his willingness to do this core when it is clear it no longer needs conference. today. I know the chairman has al- to be. The committee’s rewrite changes That was on December 9. We assumed ready acknowledged there are prob- that presumption based on new stand- they dropped the language, but they lems, and I appreciate his commitment ards which are unclear. didn’t. The new language was put in to not only discuss it today but to re- In addition to the two specific issues the bill at the insistence of staff, ap- visit these issues as soon as the next I have raised, there may be other unin- parently, from all we can determine. Senate session convenes and address tended consequences to these changes Several Members of the Senate com- this issue through a truly inclusive of which we are unaware since we have plained that the new language was not process during which all Members and had limited time, as Senator INHOFE in either the House or the Senate bill, stakeholders can express their views. said, to vet them and are just now re- so it should not have been able to be Clearly, there was a process problem ceiving feedback from some of the dropped in. related to how these provisions wound stakeholders. They took the position that this was up in the bill, and I think we can all During the chairman’s remarks and just a clarification of language that agree that for issues that are as central in response, I would appreciate his was already in, when in fact that to so many Members as the definitions commitment to revisit these issues as wasn’t the case because the new lan- of ‘‘depot maintenance’’ and ‘‘core,’’ soon as we can next year. I encourage guage was a complete and comprehen- the process needs to be inclusive and DOD to go slowly in implementing any sive rewrite of depot language con- extensive and both Houses of Congress changes since there is a good chance we tained in the original House bill. need to be equally involved. That sim- will make additional changes next Stakeholders were not included in ply did not happen in this case. year. I appreciate as well his commit- drafting the language. Senators were Specifically, related to the substance ment to include a legislative package not included. Nobody knew. of the provisions, I am extremely con- in next year’s national defense author- The problem we had at that point— cerned the rewrite of the 10 USC 2464 ization bill that gets it right. that was done on December 9. We were ‘‘core’’ statute replaces all references Again, I thank both Senator LEVIN all committed to passing out the bill at to ‘‘core logistics’’ functions in the and Senator MCCAIN for allowing us to that time, and many of the House original statute with ‘‘depot mainte- address this issue and for their willing- Members had already signed the con- nance and repair’’ functions. This basi- ness to cooperate as we move forward ference report. Then there was a roll- cally redefines ‘‘core’’ to be depot next year to clear this matter up. call vote, so they all disappeared. So maintenance only, to exclude other lo- The PRESIDING OFFICER. The Sen- our choice was to go back and open up gistics functions such as supply chain ator from North Carolina. everything again and nobody wanted to management and product support. This Mrs. HAGAN. Mr. President, I wish do that. does constitute a very significant to thank the chairman and the ranking So we had language contained in the change, and I would argue that it is ex- member for allowing this colloquy to Senate bill, but it was dropped out in actly in these areas of logistics func- take place. I also wish to state that I conference. That language specifically tions beyond simple depot maintenance believe the Senator from Oklahoma called for DOD to provide their inputs where the government has the greatest laid out a little bit of the groundwork by March 1, 2012, on a recent study on interest in protecting their own capa- of what we are discussing now. the capability and efficiency of the de- bilities. Yet the bill defines these ac- I rise to discuss the depot mainte- pots before—and I emphasize this—be- tivities out of the core definition. This nance issues associated with the fore any change in legislation because could very easily result in the govern- House-adopted language in the con- the study alone does not provide Con- ment’s ability to employ and therefore ference. We must avoid doing anything gress with a comprehensive view. This maintain expertise in areas such as that may upset the existing balance be- is what we requested. program management, supply chain tween DOD’s internal depots, logistic I thank Senators LEVIN and MCCAIN management, and product support centers, arsenals and specialty facili- for their support of this colloquy. I management atrophying. ties, and the industrial base. The wish we had time to take care of this I have no doubt that private industry House-adopted provision can disrupt in conference, but I hope that by doing applauds this change because they that delicate balance and have unin- this we can slow down the implementa- would be the ones to presumably pick tended consequences. We just don’t tion of the new language contained in up this work. However, we should not know who may be impacted. We need the bill until the Senate has had time kid ourselves into thinking industry time to get this right, and we need to to fully vet these changes. would be cheaper. If the government ensure a transparent process in which I certainly don’t blame Chairman loses this or any other depot-related all stakeholders can make their posi- MCKEON. His staff told him—because he capability, they will have an extremely tion known to Members of Congress. stated this in the meeting—his staff hard time rebuilding that expertise, The sensitivity associated with main- told him the new language was fully and this will only incentivize industry tenance workload is at an all-time vetted, but it was not, and we were not to charge more for their efforts. This is high. Disrupting the balance of depot- contacted. So the process is wrong. I clearly a problem and one of the issues level maintenance comes at a time have to say this is the first time in my we need to address next year. when our economy is struggling and 8 years in the House on the House Secondly, the waiver in the 2464 re- when DOD is consolidating depot Armed Services Committee and my 17 write is much broader than previously source-of-repair work for current and years in the Senate that I have seen and allows for a waiver for military emerging weapons systems. Addition- anything such as this happen. I hope equipment that is not an enduring ele- ally, prematurely disrupting the readi- we can delay implementing these ment of the national defense strategy. ness of our weapons systems fleet is changes until we in the Senate can be Perhaps this could make sense at some not an option, especially with the oper- heard. That is what this colloquy is all level if we knew what this meant, but ational tempo of our military. about. we don’t. What an ‘‘enduring element It is critically important to preserve The PRESIDING OFFICER. The Sen- of the national defense strategy’’ is has the capability and competencies of ator from Georgia. never been defined; hence, we will be at DOD’s internal depot-level mainte- Mr. CHAMBLISS. Mr. President, I the mercy of the subjective interpreta- nance facilities while also sustaining wish to thank the chairman for his tion of the Department of Defense. the defense industrial base in order to

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.033 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8640 CONGRESSIONAL RECORD — SENATE December 15, 2011 preserve our technological advantages the process. That alters that under- two provisions included in the con- and readiness on the battlefield. Both standing, and I am not comfortable ference report, sections 321 and 327. face considerable challenges within a with it. These provisions constitute a major re- fiscally constrained environment. Both I feel I have engaged in these issues. write of depot policies and laws. the depots and the defense industrial We have a depot in my State, and we These sections have not been suffi- base are reshaping and restructuring should have given it better consider- ciently vetted. They could potentially their operations in anticipation of this. ation. I do not believe it is correct, the hurt competition in acquisition pro- As our military said, ‘‘It’s one team, language as it is. I do believe we need grams, harm our public depots, and one fight.’’ The research, development, to make changes. So it is a concern cause unintended consequences that and manufacturing communities with- that the delicate balance created by could significantly affect not only de- in DOD, as well as in our universities, the current definition of ‘‘core depot- pots, but also the private sector indus- small businesses, and large corpora- level maintenance’’ between govern- trial base and the thousands of employ- tions, are essential partners in our na- ment facilities and industry could be ees in both sectors. tional security. That being said, we altered and at risk. In February, the Logistics Manage- need to acknowledge the fragile nature We have all worked on this issue for ment Institute, LMI, delivered a report of DOD’s depot-level maintenance fa- a number of years. We have a more effi- to Congress making recommendations cilities and the defense supply chain cient and productive model today than to modify the depot statutes. Both within a heavily consolidated defense we had when I first came here because Armed Services Committees asked industrial sector. Our country simply of a lot of hard work and intense effort. DOD to offer input on the LMI study, cannot lose skilled manufacturing re- So that is a problem for me. but the Department did not do so. search and development expertise to Another troubling element of this The Senate held DOD to account in global competitors. new definition is the potential treat- the committee report accompanying Congress needs to do our due dili- ment of commercial items. The notion this very bill, which states: gence to address the concerns of DOD’s that perhaps an engine or other major The committee is concerned that a lack of internal base involving maintenance, assembly of a major end item such as a Department of Defense input regarding the repair, and overhaul of the military tank or aircraft could be considered a findings and recommendations of the LMI equipment. At the same time, we need commercial item and not part of our study does not provide Congress with a com- to facilitate public-private partner- depot core mission is very problematic prehensive view prior to enacting legislation that could have unintended consequences. ships and healthy competition that and would be contrary to the way we will be mutually beneficial to the De- have been operating for many years. But even without DOD input, the partment and the industrial base. I would like to point out that be- House went ahead and included I know my colleagues are concerned cause of the hasty way this language changes to depot provisions when it about the impact this language may came into the bill, we do not know the passed its bill in May. have in their States. I wish to high- second- and third-level effects of this The Senate-passed bill also included light Fleet Readiness Center-East in language. That in itself is another rea- a provision to prohibit any change to North Carolina. Reducing FRC-East’s son to make sure we get the policy the definition of depot maintenance workload is not an option. It would right in a very deliberative and col- until after the Defense Business Board negatively impact the quality and cost- laborative process. conducted its own study as well. effective maintenance and logistics I hope we have a solution that will Given the concern identified by the support for Navy and Marine Corps work. I say to Chairman LEVIN and Senate Armed Services Committee and aviation. The operational readiness and Senator MCCAIN, the ranking member, the requests for additional fact-based availability of deployable Navy and I appreciate your willingness to work analysis, you can imagine my alarm Marine Corps aircraft would be under- to correct the error in the process—and when I learned that such a rewrite was mined without preserving FRC-East’s I believe there was a process error—and being considered for inclusion in the capabilities. to ensure that due diligence is done as conference report. I certainly understand the incredible we work to codify the definition of What surprised me even more was pressure the chairman and the ranking ‘‘core depot-level maintenance.’’ that the proposed rewrite differed sig- member were under trying to resolve So I look forward to your leadership nificantly even from the provision in hundreds of issues in conference over a in conducting subcommittee hearings, the original House-passed bill. very short period of time, and I cer- full committee hearings, working ses- The Senator from Oklahoma, Senator tainly do appreciate their willingness sions, and whatever it takes to make INHOFE, and I voiced our concerns to engage members of the committee sure we get the language right before about this in a meeting of the con- and other interested stakeholders in a we get to the markup and consider- ferees. After that, six Senators and I more comprehensive process next year ation of the fiscal year 2013 National sent a letter to the leadership of both so we can be sure we get this right. Defense Authorization Act. committees warning of the unintended Thank you, Mr. President. I yield the I will conclude by saying we had consequences of including these provi- floor to the Senator from Alabama. some very important issues to deal sions in the conference report. I ask The PRESIDING OFFICER. The Sen- with in the Defense bill. A lot of them unanimous consent to have our letter ator from Alabama. were very difficult. Under Chairman printed in the RECORD. Mr. SESSIONS. Mr. President, I ap- LEVIN’s leadership and Senator There being no objection, the mate- preciate and share the comments made MCCAIN, we either reached an agree- rial was ordered to be printed in the by the distinguished Senator from ment or reached an agreement not to RECORD, as follows: North Carolina. I believe it is impor- agree, and moved the bill forward. I U.S. SENATE, tant. Having come here 15 years ago think it is over 50 years now that this Washington, DC, December 9, 2011. and having confronted the question of bill has moved forward every year. I Hon. CARL LEVIN, depots and how they operate, I was sur- Chairman, Senate Armed Services Committee, think it is something to be proud of. Washington, DC. prised to learn the intensity of the feel- The only real controversy that came Hon. JOHN MCCAIN, ings and the difficulty of the issue. out of it is this depot matter. So it sort Ranking Member, Senate Armed Services Com- We worked on it for some time, and of went against the way we felt we mittee, Washington, DC. for the most part, it has been quiet should operate, the way that has re- DEAR CHAIRMAN LEVIN AND RANKING MEM- under Senator LEVIN and Senator WAR- sulted in settlements of disputed issues BER MCCAIN: As conferees to the Fiscal Year NER. We kind of worked out how this and moving the bill forward. For that 2012 National Defense Authorization Act thing should be handled. I thought reason, I think it is appropriate we ask Conference, we write to voice our concerns things were rocking along well and with the HASC proposal regarding Sections that this issue be redealt with next 321 and 322 of the House bill. While we appre- have been very disappointed that the year. ciate the attempt to improve the depot and House Members have taken an initia- I yield the floor. shipyard related statutes, none of our offices tive at a point where we were told it Ms. COLLINS. Mr. President, I would were advised or consulted regarding these was too late to make any changes in like to voice my concerns regarding last minute changes being proposed by the

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.034 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8641 HASC or consulted during the last several ample, vital submarine overhauls, re- the House could be included in the final months as these provisions were apparently fueling, and maintenance work are per- NDAA report—a measure we have all being crafted. formed at the Portsmouth Naval Ship- been working on for the past 11 Only a few conferees received the new pro- yard in Kittery, ME. months. So along with six other mem- posed language on December 7th, but we are all now being asked to support new language It is unclear if the ramifications of bers of the committee, I signed a letter that will have far reaching implications on the conference report will lead to work that very day—so 1 week ago tomor- aviation depots, shipyards, arsenals, and am- flowing away from our public depots, row—indicating our concerns and frus- munition plants across the United States. It thus jeopardizing the government’s tration over including such language is inappropriate to attempt legislative core repair capability. without adequate Senate review or changes that could affect more than 100,000 I would ask the chairman to closely input. Despite the concerns expressed jobs, public and private, across the United reevaluate these provisions to ensure in our letter, the language was in- States without careful vetting and ensuring that the two concerns I described, as cluded. there will be no unintended consequences. well as the concerns of other interested While we support improvements to oper- On such an important issue as this, ations at our depots, shipyards, arsenals, and Senators, are fully addressed. usually we have had a very collabo- ammunition plants, the HASC proposed This process should allow Members rative, transparent process in our com- changes to the definitions of depot level adequate time to reach out to inter- mittee, on the Senate side anyway, and maintenance could have profound and endur- ested parties and a committee hearing I appreciate that. I think that has been ing negative consequences to the industrial to understand the ramifications of one of the reasons for the great success base and ultimately the readiness of our these legislative changes to the defense of Senator LEVIN and Ranking Member force. Given the lack of transparency and ab- industrial base. MCCAIN in being able to get a bill out breviated conference timeline, we request I would also ask the chairman to that you not include Sections 321 and 322 of year after year on which there has been the House bill in the FY12 NDAA Conference commit to modifying or repealing consensus agreement. Report. We further recommend that we begin these provisions, if necessary, in next Unfortunately, that did not happen to work together as soon as possible regard- year’s NDAA. with respect to this language. As such, ing the possibility of incorporating a more I would also ask the chairman to en- we now face a situation where the com- thoroughly considered version of this lan- sure that any future proposals per- mittee will need to spend a significant guage in the Fiscal Year 2013 NDAA. taining to these sensitive issues be ad- amount of time examining the lan- Thank you for your consideration in this dressed in a more inclusive and delib- guage and its implementation over the matter. A similar letter has been sent to erate manner. next year to ensure no changes result. Chairman McKeon and Ranking Member Finally, given the uncertainty and Smith. The reason we as a nation maintain Respectfully, confusion surrounding these critical the 50–50 rule—where all maintenance JAMES M. INHOFE. depot issues, I would hope that the De- work is split between the public and JEFF SESSIONS. partment of Defense would exercise private sectors—is to ensure that in SUSAN COLLINS. much care and refrain from making times of conflict, the Federal Govern- JEANNE SHAHEEN. dramatic changes in its policies. ment will have the critical capabilities KAY HAGAN. The PRESIDING OFFICER. The Sen- necessary to repair our Nation’s com- SAXBY CHAMBLISS. ator from New Hampshire. bat equipment. KELLY AYOTTE. Mrs. SHAHEEN. Mr. President, I Advanced technical repair work, such Ms. COLLINS. The two provisions come to the floor to echo the com- as the work done on nuclear sub- raise a number of unanswered ques- ments and concerns we have heard in marines at the Portsmouth Naval Ship- tions, questions that remain unan- the last few minutes from my col- yard, requires highly skilled and spe- swered by the advocates of these provi- leagues on the Armed Services Com- cialized technicians. Any changes to sions, and which could lead to signifi- mittee regarding this House-inserted the way we structure workload for cant consequences for public and pri- language on our Nation’s military de- these facilities has to be closely exam- vate sector components of the indus- pots, arsenals, and shipyards. ined and should include input from the trial base. Let me share two examples. I wish to begin by saying to Chair- individual stakeholders who under- First, the provision expands the defi- man LEVIN how much I appreciate his stand this issue best. nition of depot maintenance to include assurances, as well as those of Ranking Generations of Americans have in- the installation of modifications and Member MCCAIN, and Chairman vested significant resources in our Na- upgrades to end-items—a measure po- MCKEON and Ranking Member SMITH in tion’s military to ensure our men and tentially harmful to competition. the House, that there are no intended women in uniform have the most ad- There is a concern that the Army changes to the current law under this vanced equipment in the world to keep may be required by this provision to di- language. I think that is very impor- us safe. rect work related to the Modernized tant for us to say to our constituents I say to the chairman of the com- Expanded Capacity Vehicle, MECV, so they are reassured. mittee, I very much appreciate your program to the public sector without a I also appreciate Chairman LEVIN’s assurance that we will continue to full and open competition allowing ex- commitment to examine this issue take a close look at this issue, includ- perienced private entities to bid. closely in the coming year to prevent ing holding a hearing next year, if nec- It is my view that the MECV is much any unintended consequences that this essary. So I thank the Senator very more than a modification to a weapon language might have on our Nation’s much for his cooperation to work with system because it is an acquisition pro- industrial repair facilities, including us. gram. I understand this view is shared the Portsmouth Naval Shipyard, which With that, I yield the floor. by the Army, which has consistently my home State of New Hampshire The PRESIDING OFFICER. The jun- said the source selection for the MECV shares with Maine and which is very ior Senator from New Hampshire. will be full, open, and fair. important to us in the Northeast and I Ms. AYOTTE. Mr. President, I would Those who have invested in this pro- think to our military capabilities. like to join in the comments of my col- gram deserve to know that this lan- With that said, I have to say I share league from New Hampshire and the guage does not restrict competition or the concern that has been expressed concerns she has expressed, along with introduce, in any way, an incentive to about the manner in which this lan- my other colleagues who serve on the favor the public or the private sector guage was inserted. While I understand Armed Services Committee. as it relates to acquisition programs, that the House has been working on But, first of all, I thank Chairman and the MECV program in particular. this issue for some time, including LEVIN and Ranking Member MCCAIN While depot maintenance work is an holding roundtable discussions at the again for their tremendous leadership important component of both the pub- National Defense University, I believe on the Defense authorization bill. We lic and private sector industrial base, there is much more that should have have conducted a tremendous amount Congress has consistently supported a been done. of work in a short period of time, con- strong core requirement at the depots On Friday, December 9, my staff was tinuing the long-running, proud tradi- for national security reasons. For ex- made aware that this language from tion of the Senate Armed Services

VerDate Mar 15 2010 05:09 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\A15DE6.009 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8642 CONGRESSIONAL RECORD — SENATE December 15, 2011 Committee of professionalism and bi- hearing on these depot provisions at construed to restrict competition or to partisanship in support of our troops the earliest opportunity next year. create any incentive to favor the public and our national security. The capabilities of our depots and or the private sector as it relates to ac- This is a bill of which we can be shipyards and their role in sustaining quisition programs. proud. In a time of war, this bill sup- military readiness are too important to The narrowing of the statutes from ports the men and women of our Armed hastily adopt such potentially far- core logistics to corps depot-level Forces and their families and author- reaching provisions. maintenance could be interpreted as izes the equipment, training, and re- Let me conclude by again thanking congressional intent to eliminate the sources our servicemembers need to my colleagues on the Senate Armed identification of core activities in the complete their missions. Services Committee. Despite the par- defense supply chain affecting arsenals While I am very proud of this bill and tisanship that often characterizes and ammunition plants. pleased that many of my provisions to Washington, it is encouraging to see On the other hand, the inclusion of reduce wasteful spending and maintain that bipartisanship continues to pre- an expansive waiver provided to the military readiness have been included vail in the Senate Armed Services Secretary of Defense to waive core re- in the final conference report, I also Committee. That is largely due to the quirements is very unsettling for every share the concerns of my colleague leadership of Chairman LEVIN and depot activity. Such a waiver could from New Hampshire, Senator SHA- Ranking Member MCCAIN. move significant amounts of depot HEEN, and other colleagues who serve I am proud of this bill, and I look for- work to the private sector. on the Senate Armed Services Com- ward to it becoming law in the coming Revisions to the definitions of ‘‘com- mittee—both substantive and proce- days. mercial items’’ to be exempted from dural concerns—regarding the depot I thank my colleagues. core determinations could have an im- provisions, sections 321 and 327, that I yield the floor. mediate detrimental impact to those were included by the House in the con- The PRESIDING OFFICER. The Sen- depots that work on commercially ference report. ator from Arizona. available items of equipment, such as When we were informed of this sig- Mr. MCCAIN. Mr. President, I join engines and transmissions of ground nificant language—only last week—I the chairman in the acknowledgment combat vehicles. joined a bipartisan group of Senators, that many Members of the Senate have So many depots that do this sort of work are concerned about the impact. I including my colleague JEANNE SHA- concerns with both the process and agree we need to fully understand the HEEN, to express our concern and our substance of the changes adopted in impacts, real and unintended, from the opposition to including the depot pro- the Defense authorization conference implementation of these provisions. We visions in the final Defense bill. report regarding statutes for depot ac- As ranking member of the Senate tivities in the Department of Defense. will need to work closely with the De- partment of Defense to ensure that Armed Services Readiness Sub- The protection of a core logistics capa- whatever changes or repeals we make committee—which has oversight over bility within the Department has been are in the best interests of our military depots, shipyards, arsenals, and ammu- a very controversial issue for many with the priority placed on readiness as nition plants—I am troubled that such years, as the Department’s depot enter- well as efficiency of operations and fis- a significant rewrite of depot statutes prise employs over 77,000 personnel with an annual operating budget ex- cal responsibility. was hastily included in the final bill I support the chairman and commit ceeding $30 billion. As we draw down without consulting with key stake- to giving this issue focused attention from two wars which have consumed so holders and without conducting more in the year ahead to ensure the meas- much in resources and equipment, complete analysis involving the Sen- ures taken in this year’s bill are the there will be much concern and debate ate. right outcome for the Department of In the coming years, as we ask the about the continued workload and jobs Defense and the taxpayers. Department of Defense to do more with at depots, shipyards, and arsenals, par- I yield the floor. less, the role of our depots and ship- ticularly in light of declining defense The PRESIDING OFFICER (Mr. yards will become even more impor- budgets. SANDERS). The Senator from Michigan. tant. This is certainly true for our four I agree this debate and deliberation Mr. LEVIN. Mr. President, I appre- public shipyards, including the Ports- should have included all interested par- ciate and I understand the Senators’ mouth Naval Shipyard, where many of ties. While I support legislation that concerns about this issue as they have my constituents work on a daily basis would have the clear intent of improv- been expressed here this afternoon. I to sustain the world’s best submarine ing the effectiveness and efficiency of also very much appreciate their under- force. the Department’s industrial activities, standing relative to the extremely I share the pride my colleague from I was not and am not in support of short period for conference this year New Hampshire Senator SHAHEEN and moving forward on changes that have where we worked through hundreds of my colleague from Maine Senator COL- not been addressed with all members of provisions with our House colleagues in LINS feel about the Portsmouth Naval the committee. The concerns expressed about a week, a process that usually Shipyard. Portsmouth conducts main- to us by Senator INHOFE, Senator takes a month or more. tenance on the Los Angeles- and Vir- CHAMBLISS, Senator COLLINS, Senator While I am proud of what we were ginia-class submarines. In fact, Ports- AYOTTE, Senator SHAHEEN, and others able to accomplish in this bill as a mouth has led the way for the entire need to be reviewed in an open and whole, it was probably likely that some Navy with the first-in-class mainte- transparent process. language would need more consider- nance availability on the USS Virginia. As to the substance of the concerns, ation because of the time constraints While I am troubled by the process from what I can tell, there are opinions we were operating under. Before I con- through which the depot provisions on the impact of these two provisions tinue, I want to state my appreciation were included in the conference report, on both sides of the issue—from private to the Members who spoke here this I am encouraged that both Chairman industry and from the depots and their afternoon and members of the Armed LEVIN and Ranking Member MCCAIN government civilian workers and Services Committee. They make major have expressed similar concerns and unions. contributions to this committee. have committed to addressing these I am aware some are very concerned I listened carefully to what our col- concerns in the coming months. that the changes in the conference re- leagues have had to say about the This process should include an inclu- port will upset the balance currently depot maintenance issue. I believe sive and thorough vetting of the provi- maintained between public and private their concerns are substantive and sions to ensure we understand all the performance of these activities, which merit careful consideration from the ramifications of what was included by could affect readiness. Changes to the Armed Services Committee. This is an the House. definition of depot-level maintenance issue that was brought to our con- As ranking member of the Readiness and repair have the potential to result ference in the House bill. Subcommittee, I plan to propose to in the shift of workload at shipyards. The depot maintenance provisions Chairman MCCASKILL that we hold a Changes to this provision should not be that were approved by the House last

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.038 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8643 May arose out of a congressionally tems that are based on commercial week, which appear to include funding mandated independent review of the technology? reductions from the President’s request statutes, regulations, and policies guid- Fourth, the new language includes a for nuclear weapons modernization ac- ing depot maintenance performance waiver rather than an exemption from tivities for the year 2012. and reporting. The House conferees core requirements for nuclear aircraft Earlier this year I introduced the then proposed modifications to their carriers. Will the new language result New START Implementation Act be- own provisions based on the results of in any change in requirements for the cause other Senators and I believed it a series of discussions with stake- maintenance and modifications of nu- is necessary that the Congress codify holders held throughout the summer at clear aircraft carriers? the agreement made between the Presi- the National Defense University. We Fifth, the new language includes the dent and Congress regarding the com- were told this process was comprehen- authority to waive core requirements mitment to the modernization of our sive, that all stakeholders were in- for any weapons system that is ‘‘not an nuclear deterrent. Indeed, it is fair to vited, and that the resulting rec- enduring element of the national de- say the Senate’s support for the ratifi- ommendations were widely accepted by fense strategy,’’ rather than an exclu- cation of New START was contingent all interested parties. sion for a workload that is ‘‘no longer on modernization of the remaining nu- In particular, we understood the De- required for national defense reasons.’’ clear arsenal. partment of Defense, private industry, Does this new language mean some- One of the critical features of that and the House Depot Caucus had thing different from the existing lan- legislation was the link between fund- ing of the administration’s 10-year nu- reached consensus on the revised House guage? If so, will it change the balance clear modernization program to any language. While those statements were of work between the depots and the pri- U.S. nuclear force reductions in a given made in good faith, it turns out they vate sector? year. The language that appeared in were not accurate. A number of key I am committed to have the Armed the House-passed version of the De- Services Committee revisit the modi- players, including stakeholders in gov- fense bill was good policy because it fications to the depot maintenance ernment, private industry, and labor, limited the reductions in warheads the laws included in this conference report did not participate in the process at United States otherwise would make and to give full consideration to the National Defense University and were pursuant to the New START treaty if apparently unaware of the results. concerns our Members have raised. Congress failed to provide the funding Senators with a strong interest in Over the coming months we will en- prescribed each year under the so- the issue were not aware of the modi- gage with interested Members and called 1251 modernization plan. In fied House language that was presented their staffs to review the language in other words, warhead reductions were in our conference until it was too late detail. Together we will reach out to based on adequate funding. to consider changes. I am aware that interested parties through a process The House language would also pro- the depot maintenance issue has long that will include a full committee hibit reduction of the nuclear stockpile been a sensitive one to our Nation and hearing if we determine one is needed. hedge of nondeployed warheads until to many of our Members, and that the We will then take action to repeal or after we completed construction of the precise words in these provisions mat- modify anything that needs to be re- key nuclear facilities necessary to re- ter. The existing statutes, regulations, pealed or modified in these provisions gain our production capacity. The rea- and practices have served to sustain during our consideration of next year’s son for that, of course, is we have a both core logistics capabilities and the National Defense Authorization Act. hedge or a stockpile of these weapons defense industrial base over the last Many of my colleagues heard Chairman that exists in the event we would need decade, so any changes need to be fully BUCK MCKEON make a similar commit- them since we do not have a production understood. ment at our final conference meeting. capacity right now to replace them. I understand there are a number of During the next year, while this re- Until that capacity is created, prob- unanswered questions about the provi- view process is underway, I join my ably in about a decade, we will need to sions in the conference report that colleagues in urging the Department of continue to maintain that hedge capa- could have significant effects. For ex- Defense to proceed with caution in im- bility. ample, first, the new language sub- plementing this legislation. In par- The language that appears in the stitutes the term ‘‘core depot level ticular, I urge the Department to make conference report now before us re- maintenance’’ for the existing term as little change as possible in the sta- moves this explicit linkage, which I ‘‘core logistics.’’ Does this change im- tus quo with regard to these functions think is very unfortunate. The NDAA pact National Guard readiness, during the next year. It would be un- conference report addresses these con- sustainment maintenance sites, and fortunate if the Department were to cerns in some ways, though not as other DOD facilities that are not de- change significant functions from one strongly as we originally intended. pots? Does the change impact require- form of performance to another this Here is what the compromise in the bill ments for supply chain management year only to be required to change the provides: First, in any year in which and other logistics functions that are decision again the year later. modernization is not fully funded, the not performed by depots? Our objective has always been and al- President must report to Congress how Second, the new language changes ways will be to ensure the Nation’s he intends to address the shortfall and the wording regarding modifications in depot maintenance system is struc- whether as a result of the shortfall it is the definition of core depot level main- tured and supported in a manner that still in the national interest to remain tenance. Does this change impact efficiently and effectively provides for a party to the New START treaty. For planned public-private competitions the readiness of our Armed Forces and the first time, the President will be for modifications and upgrades pro- our national security. I know this is a compelled to detail his plans for U.S. grams? Does the change preserve the critically important issue. I look for- nuclear force reductions over the next distinction between modifications and ward to working with Senators over 5 years, which will provide Congress an upgrades on the one hand and acquisi- the next year to take the steps we have opportunity to evaluate whether these tion programs on the other? Is this an discussed here today. reductions are in the national interest. expansion of core functions that will be I yield the floor. This second provision is an important required to be performed in the public The PRESIDING OFFICER. The Sen- addition. Third, in any year in which sector with an adverse impact on the ator from Arizona. the President seeks reductions in the defense industrial base? Mr. KYL. Mr. President, let me speak nuclear stockpile, he must first seek Third, the new language changes the to some of the provisions of the Na- from the Commander of U.S. Strategic wording of the exclusion for commer- tional Defense Authorization Act espe- Command a net assessment on the re- cial items. Is this a change to the ex- cially concerning nuclear moderniza- ductions, which, of course, puts the isting exclusion or merely a recodifica- tion and the implementation of the Commander of STRATCOM in a crucial tion? Will it impact maintenance re- New START treaty. This is in the con- position, and to provide that assess- quirements for commercial derivative text of the omnibus appropriations ment to Congress unchanged. And, fi- aircraft and other major defense sys- bills that we will consider later this nally, the President must provide to

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.040 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8644 CONGRESSIONAL RECORD — SENATE December 15, 2011 Congress any changes to the Nation’s said, ‘‘To be blunt, there is absolutely I think it’s tremendously shortsighted if nuclear war plan and provide access to no way we can maintain a credible de- they reduce the funds that are absolutely es- certain Members of Congress to these terrent and reduce the numbers of sential for modernization. . . . If we aren’t weapons in our stockpile without ei- staying ahead of it, we jeopardize the secu- plans. rity of this country. So for that reason, I cer- These are all important provisions, ther resorting to testing our stockpile tainly would oppose any reductions with re- but without the House language, the or pursuing a modernization program.’’ gards to the funding for [modernization]. Of course, we have not resumed test- possibility remains that we will draw Likewise, General Kehler, the com- ing, which meant our only alternative down our warheads under START with- mander of U.S. Strategic Command, was this modernization program which out adequate funding to ensure our re- told Congress that, due to the impend- we then all agreed to. What is the link- maining stockpile meets our require- ing NNSA budget cuts, ‘‘we’ve got age between modernization and the re- ments. As I said, this is quite unfortu- some near-term issues that will impact ductions in warheads called for under nate. us in terms of life-extension programs Let’s recall why this modernization the START treaty? Well, it is pretty clear. As the President’s National Se- for aging weapons.’’ of our nuclear weapon program was What are life extension programs? curity Advisor wrote to me in April of necessary. The modernization program These are the ways in which we can 2010, ‘‘Support for the nuclear complex was painstakingly worked out, first take the nuclear warheads that need is fully consistent with and, indeed, an within the Department of Defense, and working and extend their life by refur- enabler of the nuclear reductions we the Department of Energy, our na- bishing them or replacing some of the seek to implement—a direct connec- tional laboratories, and then between components and doing other things the administration and Senators at the tion, in other words. So critical was the need to reverse that generally the scientists under- time of the New START treaty. It re- stand are critical to maintain the safe- sulted in a 10-year $200 billion work the decline in our nuclear weapon en- terprise that the Senate included in its ty, the surety, and the reliability of plan to renovate our national labora- those weapons over the period of time tories, to extend the life of our nuclear resolution of ratification for the New START treaty a condition No. 9, which in which they are needed. weapons, to maintain their safety, the stated: We all understand that the appro- security and effectiveness of those war- priations committees were under im- The United States is committed to pro- heads, and to sustain the moderniza- ceeding with a robust stockpile stewardship mense budget pressures, especially tion of the triad of our nuclear delivery program, and to maintaining and modern- after the Budget Control Act of 2011. systems, the ICBMs, bombers, and nu- izing the nuclear weapon production capa- Full funding for nuclear moderniza- clear submarine force. bilities and capacities that will ensure the tion, though, was a priority brought The plan was updated last November safety, reliability, and performance of the about by this Nation’s pledge, made in after a very thorough review by the De- United States nuclear arsenal at the New the New START treaty, to reduce the partment of Defense and the Depart- START Treaty levels and meet requirements levels of U.S.-deployed nuclear weap- ment of Energy, bringing the total 10- for hedging against possible international developments or technical problems. ons. As such, it should have superseded year funding figure to about $213 bil- other budgetary considerations. It lion. There was little disagreement at The condition also stipulated that if appropriations are enacted that fail to should have been fully funded. the time about the need to modernize Few things are more important than meet the requirements set forth in the our nuclear facilities or about this ensuring that our Nation’s nuclear de- President’s 10-year plan, then the amount which represented the cost terrent is effective and reliable, espe- President must tell Congress how he over the 10-year period. cially as those forces are reduced to proposes to remedy the resource short- Indeed, between fiscal year 2005 and lower levels by the START treaty arms fiscal year 2010, the National Nuclear fall and whether the United States should remain a party to the treaty in control agreement. Indeed, this was the Security Administration, or NNSA, view of the House and Senate Armed had lost about 20 percent of its pur- light of such funding shortfalls. That commitment to modernization Services Committees, which fully au- chasing power due to funding cuts. was made explicit by the chairman and thorized the President’s request for nu- This, without the changes rec- ranking members of the Senate Appro- clear modernization. ommended in the 1251 report, would priations Committee and its Energy Senior DOD officials worked to se- have been devastating to its mod- and Water Development Subcommit- cure adequate funding for the Presi- ernization plan. Incredibly, funding for tee, who wrote to the President on De- dent’s 10-year commitment to nuclear stockpile surveillance activities—these cember 6, 2010, to express support for modernization. Among other things, are activities which are necessary for ‘‘ratification of the New START treaty the President submitted the budget the President to annually certify the and full funding for the modernization that requested the full amount of fund- safety and effectiveness of our nuclear of our nuclear weapons arsenal, as out- ing called for in the 1251 report, and warheads and bombs—had declined by lined by your updated report that was the Department initially transferred 27 percent during this period of time. mandated by section 1251 of the De- $8.3 billion in budget authority to In other words, our ability to actually fense Authorization Act for Fiscal Year NNSA for weapons activities over a 5- even understand what was going on in 2010.’’ year period, which, unfortunately, is these weapons and determine whether Despite this commitment, we are not fully reflected in the fiscal year changes had to be made was being de- now faced with a reduction of some $400 2012 Energy and Water appropriations graded substantially. The situation million below the President’s $7.6 bil- bills. was so dire that in February 2010, Vice lion request for nuclear weapon activ- In this case, the customer, the De- President BIDEN gave a major address ity. It depends on the outcome of the partment of Defense, was so concerned on the subject at the National Defense appropriations process, but based upon that the Energy Department could do University and penned an op-ed in the the bill that was filed in the House last this work that it transferred its own Wall Street Journal that stressed: night, this appears to be the amount of budget authority to accomplish it. Yet The slow but steady decline in support for reduction. some of that money was drained away our nuclear stockpile and infrastructure— Senior officials from our national for other purposes. And then noting that again— labs, the Department of Defense, and Some of the $400 million shortfall For almost a decade, our laboratories and NNSA have all warned that cuts of this could possibly be mitigated, however, facilities have been underfunded and under- magnitude will delay construction ac- if the Secretary of Defense exercises valued. tivities for critical nuclear processing the transfer authority that is going to He concluded by observing that facilities, postpone critical life exten- be granted in this fiscal year 2012 De- ‘‘Even in a time of tough budget deci- sion programs for our nuclear war- fense authorization bill to transfer up sions, these are investments we must heads, and could jeopardize our ability to $125 million to NNSA for weapons make for our security.’’ to certify the nuclear stockpile with- activities. This is a very small amount Secretary of Defense Gates had ear- out testing. of money for four critical top priorities lier drawn attention to the neglect of In the words of Defense Secretary Pa- identified by the Department of De- our nuclear weapon complex. In 2008 he netta: fense; therefore, if it can find the

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.041 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8645 funds, it can utilize the transfer au- Fourth, this funding reduction will prosecuted terrorists, and I believe—in thority that has been granted in this trigger the reporting requirement con- fact, I know—our system has been suc- legislation and get that money to the tained in Condition 9 of the New cessful. NNSA to do the work that is absolutely START resolution of ratification, re- The professionals whom I just men- critical next year. I will be working quiring the President to explain the tioned, who are in charge of waging with the Department of Defense and impact of the resource shortfall on the this battle to keep us safe, agree that my colleagues in Congress to ensure safety, reliability, and performance of the detainee provisions are of real con- that this happens. our nuclear forces. We know what that cern. That includes the Secretary of I express my appreciation to the report is going to say. It is serious. The Defense, the Director of National Intel- chairman and ranking members of the President must also propose how he ligence, and the Directors of both the committees and the conference com- plans to resource the shortfall and, in FBI and CIA. mittee who saw to it that this lan- light of the shortfall, whether and why In speaking to these same concerns guage to allow the Defense Department it remains in the national interest of that I continue to hold, along with the to transfer these funds was included. the United States to remain a party to people just mentioned, the administra- Finally, let me mention what the New START. As a result, Members of tion has stated: consequences of the $400 million reduc- Congress may seek to ensure, through We have spent 10 years, since September tion could mean in the future. First, it annual defense authorization legisla- 11, 2001, breaking down the walls between in- could send a message to OMB that Con- telligence, military, and law enforcement tion, that any future New START-man- professionals; Congress should not now re- gress no longer considers itself bound dated reductions in the nuclear stock- to the 10-year modernization funding build those walls and unnecessarily make pile are tied to successful execution of the job of preventing terrorist attacks more plan. This would be a huge mistake; it the planned modernization program. difficult. would be wrong. OMB then might di- Finally, this funding reduction, I know many agree, especially Colo- rect less funding in the future for nu- which could well be a precursor to fur- radans, who have contacted me in very clear weapons in fiscal 2013 and fol- ther cuts in the future, will dampen impressive and large numbers. They be- lowing years than originally prescribed the enthusiasm of Senators to agree to lieve, as I do, that these detention pro- in the 1251 plan, which would be very any future arms control agreement. visions could endanger our national se- wrong. But the problem is that any di- Senators who voted for New START on curity and that we ought to take a vergence between what was deemed the basis of the 10-year modernization hard look at where we are heading. necessary over the next 10 years and program will not be so easily swayed I strongly objected to these detention what is actually appropriated by Con- by such promises in the future. provisions back in the summer when gress will continue to grow—maybe to I look forward to taking up and vot- the Armed Services Committee first the point where it becomes difficult to ing on the Defense authorization con- considered them. In fact, I was the only certify on an annual basis that the nu- ference report. It has a lot of good member of the committee who cast a clear stockpile is safe, reliable, and ef- things in it and some things that aren’t ‘‘no’’ vote during the committee mark- fective. as good. This report, as I said, is not as up. I felt a little lonely at that point in Referring to such reductions, NNSA strong as was the House language, but time, but I think my judgment has Administrator Tom D’Agostino re- it will contain some important provi- been recognized by the outpouring of ported this to Congress on November 2: sions the Congress will try to enforce concern about where we may be head- This is the work to make sure these tech- ed. nologies are the ones that allow us to certify to ensure that the modernization of the stockpile on an annual basis without un- our nuclear weapons continues on Let me talk about what they do. The derground testing. Reductions in these areas schedule for the next 10 years, which is provisions could authorize the indefi- will have a direct impact on the President something that is critical to our future nite military detention of American today in the ability to certify the stockpile national security. citizens who are suspected of involve- without underground testing. The PRESIDING OFFICER. The Sen- ment in terrorism, without charge, For those who remain so opposed to ator from Colorado. even those captured in the United underground testing, you cannot have Mr. UDALL of Colorado. Mr. Presi- States. The point I have tried to make it both ways. You cannot both oppose dent, I rise to speak on the National over and over again is that this con- underground testing and prevent the Defense Authorization Act conference cerns each and every one of us. If these Department from getting the money it report we will be voting on later today. provisions deny American citizens needs to modernize the stockpile. We First, I wish to acknowledge that their due process rights under a nebu- have to do one or the other. We are Chairman LEVIN and Ranking Member lous, new set of directives, it would not now $400 million below where we need MCCAIN have worked tirelessly to craft only make us less safe, but it would to be. the Defense authorization bill to pro- serve as an unprecedented threat to A second impact: Life extension pro- vide our Armed Forces with the equip- our constitutional liberties. grams for nuclear warheads, already ment and services they need to keep us Senator GRAHAM, my friend from facing very tight schedules because of safe. I thank them, their staffs, and all South Carolina, has stated that if an the delays over the years, would be fur- my colleagues for their diligence and American citizen takes up arms ther delayed and exacerbated. War- dedication to this important work. against the United States, he or she heads that are not refurbished in time I also come to the floor because I could be treated as an enemy combat- are not going to be available for de- want to share, as I have over the last ant. I agree. However, the dangerous ployment. This would have serious con- few weeks, the concerns that many part of that proposition is as follows: sequences for the readiness of our nu- Americans—and especially the people I How do we go about determining who clear deterrent at a future date, which, represent in Colorado—have expressed those individuals are? No matter how of course, could have serious implica- over the last few weeks about the de- serious the charge may be, the Con- tions for the credibility of our nuclear tainee provisions that have been in- stitution requires us to provide our guarantees to our allies and partners. cluded in the Defense authorization citizens with due process before they Third, the revitalization of nuclear bill. I wish to make it clear that I still are incarcerated—especially indefinite labs—including expensive but very nec- have very strong concerns about these incarceration. If we start labeling our essary construction projects—will be provisions, especially because they citizens as enemies of the United further delayed, and, of course, costs have been presented as a solution to al- States without any due process, I think will go up even more. Funding for leged gaps that exist in our counterter- we will have done real damage to our science will be curtailed to support rorism policy. system of justice in our country, which higher priority programs, thus starving It is my strong belief that our mili- is admired all over the world. the labs of important innovation and tary men and women, law enforcement My colleagues and I all agree that we perhaps hampering recruitment of the officials, and counterterrorism profes- have to take every action necessary to scientists and engineers necessary to sionals have done an outstanding job keep our Nation safe. But what sepa- maintain the long-term viability of the since 9/11 to keep our Nation safe. For rates us—what makes America excep- nuclear weapons complex. 10 years we have killed, captured, and tional—is that even in our darkest

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.043 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8646 CONGRESSIONAL RECORD — SENATE December 15, 2011 hours, we ensure that our constitution ster Al Qaeda’s recruiting efforts, it also ety of techniques to gather the infor- prevails. would make it nearly impossible to transfer mation we need—techniques, by the We do ourselves a grave disservice by 88 men (of the 171 held there) who have been way, that fit within the Bill of Rights allowing for any citizen to be locked up cleared for release. We should be moving to and the Uniform Code of Military Jus- shut Guanta´ namo, not extend it. indefinitely without trial, no matter Having served various administrations, we tice. Some of my colleagues believe how serious the charges against them. know that politicians of both parties love that intelligence will be lost if a sus- Doing so may make us feel safer, it this country and want to keep it safe. But pect receives a Miranda warning, but may be politically expedient, but we right now some in Congress are all too will- now we may be jeopardizing entire risk losing the principles of justice and ing to undermine our ideals in the name of cases by adding new layers of bureauc- liberty that have kept our Republic fighting terrorism. They should remember racy and questionable legal processes. strong, and it does, frankly, nothing to that American ideals are assets, not liabil- These detention provisions, even as make us safer. No terrorist, no weapon, ities. they are amended, will present numer- no physical threat is powerful enough Mr. UDALL of Colorado. Mr. Presi- ous constitutional questions that the to destroy who we are as a people, and dent, these generals put it right to the courts will inevitably have to resolve, that is why we have to remain diligent point we all need to hear: Our ideals and the provisions will present in ensuring we hold true to the prin- are assets, not liabilities. In that spir- logistical problems that our national ciples that make our country great. it, interestingly enough, we had a very security experts will have to wade I took note of this very principle in a robust debate about these detention through. It sure feels to me as though powerful piece written by two retired provisions, and it bolstered my faith these changes are being forced on an four-star Marine Corps generals, Gen- we could continue to have great and already nimble and effective counter- eral Krulak and General Hoar. substantive debates in this body. Be- terrorism community against their Mr. President, I ask unanimous con- cause of the concerns that were raised warnings, and I remain unconvinced of sent to have printed in the RECORD the and serious questions that were pre- their benefit. I continue to believe the article written by these two generals. sented about the provisions, we were best course of action would be to sepa- There being no objection, the mate- able to secure some improvements that rate these detention provisions from rial was ordered to be printed in the may reduce some of the grave concerns the Defense authorization bill so we RECORD, as follows: I have outlined here. can take our time, speak to experts in [From the New York Times, Dec. 12, 2011] I see my good friend from Illinois, the field, and make sure we are effec- who I know is going to speak and who GUANTA´ NAMO FOREVER? tively balancing our counterterrorism shares some of my concerns, so let me (By Charles C. Krulak and Joseph P. Hoar) needs and the constitutional freedoms touch on a couple of the adjustments of American citizens. Most impor- In his inaugural address, President Obama that have been made. called on us to ‘‘reject as false the choice be- tantly, we need to understand and we tween our safety and our ideals.’’ We agree. Senator FEINSTEIN’s amendment need to ensure we are not damaging Now, to protect both, he must veto the Na- clarified that detainee provisions are our national security. That is why I tional Defense Authorization Act that Con- not to be interpreted ‘‘to affect exist- made it clear in signing the conference gress is expected to pass this week. ing law or authorities relating to the report that I do not support the two HOBBLING THE FIGHT AGAINST TERRORISM detention of United States citizens.’’ flawed detention provisions, sections This budget bill—which can be vetoed I was a member of the conference 1021 and 1022. without cutting financing for our troops—is committee on this bill, and during the All of that said, the Senate has a sol- both misguided and unnecessary: the presi- conference committee negotiations re- emn obligation to our men and women dent already has the power and flexibility to sulted in a clarification that was made in uniform to pass a Defense Author- effectively fight terrorism. to ensure these provisions are not to be ization Act. As a proud member of the One provision would authorize the military interpreted to ‘‘affect the existing to indefinitely detain without charge people Senate Armed Services Committee, I suspected of involvement with terrorism, in- criminal enforcement and national se- understand the importance of this bill cluding United States citizens apprehended curity authorities of the FBI or any for our military and for their families, on American soil. Due process would be a other domestic law enforcement agen- and while I continue to have serious thing of the past. Some claim that this pro- cy.’’ These were helpful changes and, reservations about the detention provi- vision would merely codify existing practice. hopefully, will prevent the under- sions and sought to separate them from Current law empowers the military to detain mining of our constitutional liberties the Defense authorization bill, we face people caught on the battlefield, but this and the disruption of domestic counter- a single vote on the entirety of the De- provision would expand the battlefield to in- terrorism efforts. clude the United States—and hand Osama fense bill, which includes the amended bin Laden an unearned victory long after his However, while I was pleased my col- detention provisions. That is not how I well-earned demise. leagues were willing to acknowledge wanted to proceed, but that is the A second provision would mandate mili- the language presented serious prob- choice in front of us. tary custody for most terrorism suspects. It lems and left many questions unan- For those who joined me in voicing would force on the military responsibilities swered, I still remain concerned about opposition to the detention provisions, it hasn’t sought. This would violate not only the detention provisions. Making I thank you. We fought to ensure that the spirit of the post-Reconstruction act lim- changes to the law that have serious the rights of American citizens are not iting the use of the armed forces for domes- tic law enforcement but also our trust with ramifications for our Constitution and trampled with ease, and we joined the service members, who enlist believing that our national security deserve serious counterterrorism community to de- they will never be asked to turn their weap- thought and deliberation. Yet to this mand the full use of existing tools to ons on fellow Americans. It would sideline day we have not had a single hearing fight the enemy. We showed that such the work of the F.B.I. and local law enforce- on these matters. Hearings would allow a debate was worth having and secured ment agencies in domestic counterterrorism. us to understand and mitigate the con- revisions to the language that will now These agencies have collected invaluable in- cerns of national security experts such help us continue the important work of telligence because the criminal justice sys- as FBI Director Mueller. Director ensuring that both our Constitution tem—unlike indefinite military detention— gives suspects incentives to cooperate. Mueller testified yesterday in front of and our national security remain pro- Mandatory military custody would reduce, the Senate Judiciary Committee and tected. if not eliminate, the role of federal courts in said that because of the requirements Although I intend to vote for final terrorism cases. Since 9/11, the shaky, un- of this language, ‘‘the possibility looms passage of the conference bill, I want tested military commissions have convicted that we will lose opportunities to ob- to make clear I do not fully support only six people on terror-related charges, tain cooperation from the persons in the bill. I sincerely believe this debate compared with more than 400 in the civilian the past that we’ve been fairly success- is not over and there is much work left courts. ful in gaining.’’ to do. Over the coming months and A third provision would further extend a ban on transfers from Guanta´ namo, ensuring One of our primary goals in these years, as a member of the Senate that this morally, and financially expensive cases is to gain actionable intelligence, Armed Services Committee, I intend to symbol of detainee abuse will remain open and the FBI is very good—in fact, they hold this administration, and any fur- well into the future. Not only would this bol- are unbelievably good—at using a vari- ther administration, accountable in

VerDate Mar 15 2010 05:09 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.045 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8647 the implementation of these provi- al-Qaida, including those captured The PRESIDING OFFICER. Without sions. within the United States. As I pre- objection, it is so ordered. I will also push the Congress to con- viously mentioned, military and Fed- (See exhibit 1.) duct the maximum amount of over- eral law enforcement officials have ar- Mr. BINGAMAN. It is unfortunate sight possible as it relates to these pro- gued that this provision will hamper that Congress continues to put in place visions. We must apply a heightened their ability to bring suspected terror- restrictions preventing the transfer of level of scrutiny to ensure that what ists to justice by limiting the flexi- inmates and the closure of the facility. passes the Senate today does not deny bility of civilian law enforcement and I believe our Nation’s handling of de- U.S. citizens their due process rights creating a completely new and untest- tainees will not be viewed kindly by and does not impede our counterterror- ed framework for dealing with sus- history, and I look forward to the day ism efforts by hamstringing our mili- pected terrorists. we are able to close this regrettable tary, the FBI, the CIA, or others who Proponents of this provision have ar- chapter. keep us safe. If these provisions stray gued that this section will not inter- I supported an amendment offered by in any way from that standard, I will fere with the ability of civilian law en- Senator MARK UDALL to remove all of be the first to demand hearings and forcement to do their job. They point the detainee provisions from the Sen- changes to the law. to the fact that the President may ate bill. Unfortunately, the measure In conclusion, I believe we owe it to waive the requirement and that the was not adopted. It was my hope that our men and women in uniform to pass President must draft procedures within these matters would be dealt with as a Defense authorization bill, but we 60 days to mitigate any problems asso- the legislative process moved forward, also owe the American people a full ciated with implementing this section. and I am disappointed that efforts to and honest debate about our national First, with regard to the waiver, if ci- adequately address these concerns were security strategy that keeps us both vilian law enforcement agents capture unsuccessful. I will continue to support safe and protects this document—the a suspected terrorist, the need to ob- efforts to revise these provisions as Constitution—we all have taken an tain a Presidential waiver for contin- Congress discusses detainee matters in oath to uphold. ued civilian detention could disrupt in- the future. With that, I yield the floor. terrogations and intelligence gath- EXHIBIT 1 Mr. BINGAMAN. Mr. President, I rise ering. Second, if there is an acknowl- [From the New York Times, Dec. 10, 2011] edgement that the statute could inter- today in strong opposition to several BEYOND GUANTA´ NAMO, A WEB OF PRISONS FOR sections of the fiscal year 2012 Depart- fere with Federal law enforcement’s TERRORISM INMATES ment of Defense authorization bill re- ability to interrogate and prosecute a (By Scott Shane) suspected terrorist, it would seem more lating to detainees. WASHINGTON.—It is the other Guanta´ namo, I have serious concerns regarding the appropriate to just address the under- an archipelago of federal prisons that detention provisions included in the lying problems with the statute rather stretches across the country, hidden away on final conference report. When this leg- than task the administration with back roads. Today, it houses far more men islation was being discussed in the Sen- coming up with procedures to deal with convicted in terrorism cases than the ate, the Secretary of Defense, the Di- these shortfalls. shrunken population of the prison in Cuba Just yesterday, the Director of the that has generated so much debate. rector of National Intelligence, and the An aggressive prosecution strategy, aimed Director of the Federal Bureau of In- FBI, Robert Mueller, in testimony be- fore the Senate Judiciary Committee, at prevention as much as punishment, has vestigation clearly stated that these sent away scores of people. They serve long provisions would undermine the ability stated that the revised language did sentences, often in restrictive, Muslim-ma- of the government to bring suspected not fully address his concerns about jority units, under intensive monitoring by the negative impact the military de- terrorists to justice. The language in prison officers. Their world is spare. tention provision would have in inter- Among them is Ismail Royer, serving 20 the bill also raises significant issues fering with the work of investigators. years for helping friends go to an extremist regarding civil liberties, including the The bottom line is that this section training camp in Pakistan. In a letter from applicability of the indefinite deten- muddies the water and is completely the highest-security prison in the United tion provision to American citizens. unnecessary. The administration al- States, Mr. Royer describes his remarkable Section 1021 of the conference report ready has the discretion to prosecute neighbors at twice-a-week outdoor exercise provides the U.S. military with the au- sessions, each prisoner alone in his own wire foreign terrorists in civilian court or in thority to indefinitely detain, without cage under the Colorado sky. ‘‘That’s really military tribunals. We should maintain the only interaction I have with other in- trial, an individual suspected of in- this flexibility to ensure the govern- volvement in hostilities against the mates,’’ he wrote from the federal Supermax, ment is able to aggressively pursue ter- 100 miles south of Denver. United States. The ability to detain rorists in the forum that is the most There is Richard Reid, the shoe bomber, the person without charges could last effective in each specific case. Mr. Royer wrote. Terry Nichols, who con- until the ‘‘end of hostilities’’—a com- Lastly, I would like to briefly com- spired to blow up the Oklahoma City federal pletely undefined period of time con- ment on the various provisions in the building. Ahmed Ressam, the would-be ‘‘mil- sidering that we are confronting a conference report aimed at limiting lennium bomber,’’ who plotted to attack Los Angeles International Airport. And Eric Ru- long-term conflict with groups, such as the ability of the administration to al-Qaida, who will never sign a peace dolph, who bombed abortion clinics and the close the detention facility in Guanta- 1996 Summer Olympics in Atlanta. treaty ending the hostilities. namo Bay. It has been about 10 years In recent weeks, Congress has reignited an The final language does include an since the Bush administration estab- old debate, with some arguing that only amendment offered by Senator FEIN- lished the facility and its closure is military justice is appropriate for terrorist STEIN that states that the provision long overdue. suspects. But military tribunals have proved should not be construed as affecting ex- As a recent article by Scott Shane of excruciatingly slow and imprisonment at isting law with respect to the deten- the New York Times pointed out, the Guanta´ namo hugely costly—$800,000 per in- tion of U.S. citizens, but this language government spends around $800,000 a mate a year, compared with $25,000 in federal simply restates that the law is what prison. year to house each of the 171 remaining The criminal justice system, meanwhile, the law is. The problem is that the law prisoners at the military facility at has absorbed the surge of terrorism cases is unsettled. If Congress is going to Guantanamo. This is despite the fact since 2001 without calamity, and without the enact provisions authorizing the indefi- that our Federal prison system has a international criticism that Guanta´ namo nite detention of a person without a strong record of safely holding individ- has attracted for holding prisoners without trial, frankly, I believe the sensible ap- uals convicted of terrorism-related of- trial. A decade after the Sept. 11 attacks, an proach is to be very clear about wheth- fenses—there are currently 362 of these examination of how the prisons have handled er or not it is the intent of Congress to individuals within the custody of the the challenge of extremist violence reveals some striking facts: include American citizens within this Bureau of Prisons. —Big numbers. Today, 171 prisoners re- category. Mr. President, I ask unanimous con- main at Guanta´ namo. As of Oct. 1, the fed- Another problematic provision is sec- sent that the article be printed in the eral Bureau of Prisons reported that it was tion 1022, which mandates that the CONGRESSIONAL RECORD following my holding 362 people convicted in terrorism-re- military detain suspected members of remarks. lated cases, 269 with what the bureau calls a

VerDate Mar 15 2010 05:09 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.046 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8648 CONGRESSIONAL RECORD — SENATE December 15, 2011 connection to international terrorism—up by Ismail. Before 9/11, he was a young Is- He expressed frustration that the Bureau from just 50 in 2000. An additional 93 inmates lamic activist with the Council on Amer- of Prisons appears to view him as an extrem- have a connection to domestic terrorism. ican-Islamic Relations and the Muslim ist, despite what he describes as his cam- —Lengthy sentences. Terrorists who plot- American Society, meeting with members of paign against extremism in discussions with ted to massacre Americans are likely to die Congress and visiting the Clinton White other inmates and prison sermons at Friday in prison. Faisal Shahzad, who tried to set House. Prayer, ‘‘which they surely have recordings off a car bomb in Times Square in 2010, is Today he is nearly eight years into a 20- of.’’ serving a sentence of life without parole at year prison sentence. He pleaded guilty in ‘‘I have gotten into vehement debates, not the Supermax, as are Zacarias Moussaoui, a 2004 to helping several American friends go to mention civil conversations, with other Qaeda operative arrested in 2001, and Mr. to a training camp for Lashkar-e-Taiba, an inmates from the day I was arrested until Reid, the shoe bomber, among others. But extremist group fighting Indian rule in Kash- today, about the dangers and evils of extre- many inmates whose conduct fell far short of mir. The organization was later designated a mism and terrorism,’’ Mr. Royer wrote in a outright terrorism are serving sentences of a terrorist group by the United States—and is yearlong correspondence with a reporter. decade or more, the result of a calculated blamed for the Mumbai massacre in 2008— ‘‘Can they not figure out who I am?’’ prevention strategy to sideline radicals well but prosecutors maintained in 2004 that the A SCORCHED-EARTH APPROACH before they could initiate deadly plots. friends intended to go on to Afghanistan and In 2004, prosecutors believed they knew —Special units. Since 2006, the Bureau of fight American troops alongside the Taliban. who Mr. Royer was: one of a group of young Prisons has moved many of those convicted Mr. Royer had fought briefly with the Bos- Virginians under the influence of a radical nian Muslims against their Serbian neigh- in terrorism cases to two special units that cleric, Ali al-Timimi, whose members played bors in the mid-1990s, when NATO, too, severely restrict visits and phone calls. But paintball to practice for jihad and were on a backed the Bosnians. He trained at a in creating what are Muslim-dominated path toward extremist violence. After Sept. Lashkar-e-Taiba camp himself. And in 2001, units, prison officials have inadvertently fos- 11, federal prosecutors took a scorched-earth he was stopped by Virginia police with an tered a sense of solidarity and defiance, and approach to any crime with even a hint of a set off a long-running legal dispute over lim- AK–47 and ammunition in his car. But he adamantly denies that he would terrorism connection, and judges and juries its on group prayer. Officials have warned in ever scheme to kill Americans, and there is went along. court filings about the danger of In the Virginia jihad case, for instance, no evidence that he did so. Before sen- radicalization, but the Bureau of Prisons has prosecutors used the Neutrality Act, a little- tencing, he wrote the judge a 30-page letter nothing comparable to the deradicalization used law dating to 1794 that prohibits Ameri- admitting, ‘‘I crossed the line and, in my ig- programs instituted in many countries. norance and phenomenally poor judgment, cans from fighting against a nation at peace —Quiet releases. More than 300 prisoners broke the law.’’ In grand jury testimony, he with the United States. Prosecutors com- have completed their sentences and been expressed regret about not objecting during bined that law with weapons statutes that freed since 2001. Their convictions involved a meeting, just after the Sept. 11 attacks, in impose a mandatory minimum sentence in a not outright violence but ‘‘material support’’ which his friends discussed joining the strategy to get the longest prison terms, for a terrorist group; financial or document Taliban. with breaks for some defendants who cooper- fraud; weapons violations; and a range of ‘‘Unfortunately, I didn’t come out and ated, said Paul J. McNulty, then the United other crimes. About half are foreign citizens clearly say that’s not what any of us should States attorney overseeing the case. and were deported; the Americans have be about,’’ he said. ‘‘We were doing all we could to prevent the blended into communities around the coun- Prosecutors call Mr. Royer ‘‘an inveterate next attack,’’ Mr. McNulty said. try, refusing news media interviews and liar’’ in court papers in another case, assert- ‘‘It was a deterrence strategy and a show of avoiding attention. ing that he has given contradictory accounts strength,’’ said Karen J. Greenberg, a law —Rare recidivism. By contrast with the of the meeting after Sept. 11. Mr. Royer says professor at Fordham University who has record at Guanta´ namo, where the Defense he has been truthful. overseen the most thorough independent Department says that about 25 percent of Whatever the facts, he is paying the price. analysis of terrorism prosecutions. ‘‘The at- those released are known or suspected of His 20-year sentence was the statutory min- titude of the government was: Every step subsequently joining militant groups, it ap- imum under a 2004 plea deal he reluctantly you take toward terrorism, no matter how pears extraordinarily rare for the federal took, fearing that a trial might end in a life small, will be punished severely.’’ prison inmates with past terrorist ties to term. His wife divorced him and remarried; About 40 percent of terrorism cases since plot violence after their release. The govern- he has seen his four young children only the Sept. 11 attacks have relied on inform- ment keeps a close eye on them: prison intel- through glass since 2006, when the Bureau of ants, by the count of the Center on Law and ligence officers report regularly to the Jus- Prisons moved him to a restrictive new unit Security at New York University, which Ms. tice Department on visitors, letters and in Indiana for inmates with the terrorism Greenberg headed until earlier this year. In phone calls of inmates linked to terrorism. label. After an altercation with another in- such cases, the F.B.I. has trolled for radicals Before the prisoners are freed, F.B.I. agents mate who he said was bullying others, he was and then tested whether they were willing to typically interview them, and probation offi- moved in 2010 to the Supermax in Colorado. plot mayhem—again, a preemptive strategy cers track them for years. He is barred from using e-mail and per- intended to ferret out potential terrorists. Both the Obama administration and Re- mitted only three 15-minute phone calls a But in some cases prosecutors have been ac- publicans in Congress often cite the threat of month—recently increased from two, a move cused of overreaching. homegrown terrorism. But the Bureau of that Mr. Royer hopes may portend his being Yassin M. Aref, for instance, was a Kurdish Prisons has proven remarkably resistant to moved to a prison closer to his children. His immigrant from Iraq and the imam of an Al- outside scrutiny of the inmates it houses, letters are reflective, sometimes self-crit- bany mosque when he agreed to serve as wit- who might offer a unique window on the ical, frequently dropping allusions to his om- ness to a loan between an acquaintance and problem. nivorous reading. His flirtation with violent another man, actually an informant posing In 2009, a group of scholars proposed inter- Islam and his incarceration, he says, have as a supporter of a Pakistani terrorist group, viewing people imprisoned in terrorism cases not poisoned him against his own country. Jaish-e-Muhammad. The ostensible purpose about how they took that path. The Depart- ‘‘You asked what I think of the U.S.; that of the loan was to buy a missile to kill the ment of Homeland Security approved the is an extraordinarily complex question,’’ Mr. Pakistani ambassador to the United Nations. proposal and offered financing. But the Bu- Royer wrote in one letter consisting of 27 Mr. Aref’s involvement was peripheral—but reau of Prisons refused to grant access, say- pages of neat handwriting. ‘‘I can say I was he was convicted of conspiring to aid a ter- ing the project would require too much staff born in Missouri, I love that land and its rorist group and got a 15-year sentence. time. people, I love the Mississippi, I love my fam- That was a typical punishment, according ‘‘There’s a huge national debate about how ily and my cousins, I love my Germanic eth- to the Center on Law and Security, which dangerous these people are,’’ said Gary nic heritage and people, I love the English has studied the issue. Of 204 people charged LaFree, director of a national terrorism language, I love the American people—my with what it calls serious jihadist crimes study center at the University of Maryland, people. since the Sept. 11 attacks, 87 percent were He said he believed some American foreign who was lead author of the proposal. ‘‘I just convicted and got an average sentence of 14 policy positions had been ‘‘needlessly an- think, as a citizen, somebody ought to be years, according to a September report from tagonistic’’ but added, ‘‘Nothing the U.S. did studying this.’’ the center. justified the 9/11 attacks.’’ Federal officials say the government’s The Bureau of Prisons would not make any Mr. Royer rejected the notion that the zero-tolerance approach to any conduct officials available for an interview with The United States was at war with Islam. ‘‘Con- touching on terrorism is an important rea- New York Times, and wardens at three pris- flict between the U.S. and Muslims is neither son there has been no repeat of Sept. 11. ons refused to permit a reporter to visit in- inevitable nor beneficial or in anyone’s in- Lengthy sentences for marginal offenders mates. But e-mails and letters from inmates terest,’’ he wrote. ‘‘Actually, I suppose it is have been criticized by some rights advo- give a rare, if narrow, look at their hidden in the interest of fanatics on both sides, but cates as deeply unfair—but they have sent an world. their interests run counter to everyone unmistakable message to young men drawn PAYING THE PRICE else’s.’’ He added an erudite footnote: ‘‘ ‘Les to the rhetoric of violent jihad. Consider the case of Randall Todd Royer, extre´mite´s se touchent’ (the extremes The strategy has also sent scores of Mus- 38, a Missouri-born Muslim convert who goes meet)—Blaise Pascal.’’ lim men to federal prisons.

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\A15DE6.012 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8649

SPECIAL UNITS was named and there appears to be no public interest in protecting the public from ter- After news reports in 2006 that three men evidence for the assertion. rorism,’’ he wrote, ‘‘and that in this post-9/11 imprisoned in the 1993 World Trade Center Mr. Twitty, working for a home improve- environment, it must take all reasonable bombing had sent letters to a Spanish ter- ment company and teaching at a Washington precautions.’’ rorist cell, the Bureau of Prisons created two mosque since his release in January, said he Today, Mr. Royer’s only battle is to serve special wards, called Communication Man- believed the real reason was to quash his out his sentence in a less restrictive prison agement Units, or C.M.U.’s. The units, which complaints about what he believed were mis- nearer his children. In what he called in a opened at federal prisons in Terre Haute, calculations of time off for good behavior for letter ‘‘a heroic sacrifice,’’ his parents, Ray Ind., in 2006 and Marion, Ill., in 2008, have set numerous inmates. ‘‘They had to shut me and Nancy Royer, moved from Missouri to off litigation and controversy, chiefly be- up,’’ he said. Virginia to be close to their son’s children, cause critics say they impose especially re- Another former inmate at the Marion now aged 8 to 12. ‘‘I found it necessary to be a surrogate fa- strictive rules on Muslim inmates, who are C.M.U., Andy Stepanian, an animal rights ther,’’ said Ray Royer, 70, a commercial pho- in the majority. activist, said a guard once told him he was tographer by trade, in an interview at the re- The C.M.U.’s? You mean the Muslim Man- ‘‘a balancer’’—a non-Muslim placed in the tirement community outside Washington agement Units?’’ said Ibrahim Hooper, a unit to rebut claims of religious bias. Mr. where he and his wife now live. When his son, spokesman for the Council on American-Is- Stepanian said the creation of the predomi- who still goes by Randy in the family, con- lamic Relations. nantly Muslim units could backfire, adding verted to Islam at the age of 18, his parents The units currently hold about 80 inmates. to the feeling that Islam is under attack. did not object. Later, when he headed to Bos- The rules for visitors—who are allowed no ‘‘I think it’s a fair assessment that these nia, they chalked it up to his active social physical contact with inmates—and the men will leave with a more intensified belief conscience. ‘‘Religion is a personal thing,’’ strict monitoring of mail, e-mail and phone that the U.S. is at war with Islam,’’ said Mr. the elder Mr. Royer said. ‘‘He’d never been in calls are intended both to prevent inmates Stepanian, 33, who now works for a Prince- trouble.’’ from radicalizing others and to rule out plot- ton publisher. ‘‘The place reeked of it,’’ he Ray Royer was at his son’s Virginia apart- ting from behind bars. said, describing clashes over restrictions on ment in 2003 when the F.B.I. knocked at 5 A Bureau of Prisons spokeswoman, Traci prayer and some guards’ hostility to Islam. a.m., put him in handcuffs and took him L. Billingsley, said in an e-mail that the Yet Mr. Stepanian also said he found the away. Now, years later, he alternates be- units were not created for any religious ‘‘family atmosphere’’ and camaraderie of in- tween defending his son and expressing dis- group but were ‘‘necessary to ensure the mates at the unit a welcome change from the may at what Randy got himself into. safety, security and orderly operation of cor- threatening tone of his previous medium-se- curity prison, where he said prisoners with- ‘‘He did help his buddies get to L.E.T.,’’ or rectional facilities, and protection of the Lashkar-e-Taiba, the Pakistani militant public.’’ out a gang to protect them were ‘‘food for the sharks.’’ When he arrived at the C.M.U., group later designated as a terrorist organi- An unintended consequence of creating the zation. ‘‘He admitted to it. He should pay the C.M.U.’s is a continuing conflict between he said, he found on his bed a pair of shower slippers and a bag of non-animal-based food price.’’ Still, he added, ‘‘maybe he deserved Muslim inmates and guards, mainly over the five years or so. Not 20.’’ inmates’ demand for collective prayer be- that Muslim inmates had collected after hearing a vegan was joining the unit. Ray Royer sat at his home computer one yond the authorized hourlong group prayer recent evening, looking through a folder on Fridays. The clash is described in hun- He was wary. ‘‘I thought they were trying to indoctrinate me,’’ he said. ‘‘They never called ‘‘Randy Pics’’—photographs tracing dreds of pages of court filings in a lawsuit. In his son’s life from childhood, to fatherhood, one affidavit, a prison official in Terre Haute tried.’’ The consensus of the inmates, he said, ‘‘was that 9/11 was not Islam.’’ ‘‘These to prison. describes ‘‘signs of radicalization’’ in the ‘‘He loved his family,’’ the father said of guys were not lunatics,’’ he said. ‘‘They unit, saying one inmate’s language showed his son. ‘‘Why would he put this cause ahead wanted to be back with their families.’’ ‘‘defiance to authority, and a sense of being of his family? I still don’t really know what incarcerated because of Islam.’’ REFLECTION happened. I’m still trying to figure it out.’’ One 2010 written protest obtained by The It may be too early to judge recidivism for Mr. WHITEHOUSE. Mr. President, I New York Times, listing grievances ranging those imprisoned in terrorism cases after rise today to highlight important pro- from the no-contact visiting rules to guards Sept. 11; those who are already out are most- ‘‘mocking, disrespecting and disrupting’’ Fri- ly defendants whose crimes were less serious visions of the National Defense Author- day Prayer, was signed by 17 Muslim pris- or who cooperated with the authorities. Jus- ization Act conference report that will oners in the Terre Haute Communication tice Department officials and outside experts counter the serious and growing prob- Management Unit. They included members could identify only a handful of cases in lem of counterfeit goods entering the of the so-called Virginia jihad case of which which released inmates had been rearrested, military supply chain. Mr. Royer was part; the Lackawanna Six, a rate of relapse far below that for most fed- Section 818 of the conference report, Buffalo-area Yemeni Americans who trav- eral inmates or for Guanta´ namo releases. which includes these provisions, re- eled to a Qaeda camp in Afghanistan; Kevin For example, Mohammed Mansour flects the leadership of Chairman James, who formed a radical Muslim group Jabarah, a Kuwaiti Canadian who plotted LEVIN and Ranking Member MCCAIN of in prison and plotted to attack military fa- with Al Qaeda to attack American embassies cilities in Los Angeles; and John Walker in Singapore and Manila, pleaded guilty in the Senate Armed Services Committee. Lindh, the so-called American Taliban. 2002 and began to work as an F.B.I. inform- I applaud their work to keep counter- An affidavit signed by Mr. Lindh, who is ant. But F.B.I. agents soon discovered he was feit parts out of the military supply serving 20 years after admitting to fighting secretly plotting to kill them—and he was chain. As I have said before, our Nation for the Taliban, complained that a correc- sentenced to life in prison. asks a lot of our troops. In return, we tional officer greeted male Muslim inmates Nearly all of these ex-convicts, however, must give them the best possible equip- with ‘‘Good morning, ladies.’’ (‘‘No ladies lie low and steer clear of militancy, often ment to fulfill their vital missions and were in the area,’’ Mr. Lindh writes.) Prison under the watchful eye of family, mosque officials say in court papers that Mr. Lindh and community, lawyers and advocates say. come home safely. We must ensure the has repeatedly challenged guards and vio- A dozen former inmates declined to be inter- proper performance of weapon systems, lated rules. viewed, saying that to be associated publicly body armor, aircraft parts, and count- Unlike those at the Supermax, inmates in with a terrorism case could derail new jobs less other mission-critical products. the segregated units have access to e-mail, and lives. As for Mr. Royer, he is approach- Section 818 goes a long way toward pro- and some were willing to answer questions. ing only the midpoint of his 20-year sen- tecting our troops from the dangers of Mr. Lindh, whose father, Frank Lindh, said tence. counterfeit parts and the decreased his son believed the news media falsely la- Did he get what he deserved? Chris combat effectiveness they cause. beled him a terrorist, was not. In reply to a Heffelfinger, a terrorism analyst and author I am particularly glad that section reporter’s letter requesting an interview, he of ‘‘Radical Islam in America,’’ did a de- sent only a photocopy of the sole of a tennis tailed study of the Virginia jihad case, and 818 includes a provision I introduced to shoe. Since shoe bottoms are considered of- concluded that Mr. Royer’s sentence was per- increase criminal penalties for traf- fensive in many cultures, his answer ap- haps double what his crime merited. But he ficking in counterfeit military goods. peared to be an emphatic no. said the prosecution was warranted and That provision, introduced as the Com- There is some evidence that the Bureau of probably prevented at least some of the men bating Military Counterfeits Act of Prisons has assigned Muslims with no clear Mr. Royer assisted from joining the Taliban. 2011, S. 1228, was reported without ob- terrorist connection to the C.M.U.’s. Avon ‘‘I think a strong law enforcement re- jection by the Senate Judiciary Com- Twitty, a Muslim who spent 27 years in pris- sponse to cases like this is appropriate nine mittee. It was cosponsored by Senators on for a 1982 street murder, was sent to the times out of 10,’’ Mr. Heffelfinger said. Mr. Terre Haute unit in 2007. When he challenged Royer himself, in his long presentencing let- GRAHAM, LEAHY, MCCAIN, COONS, KYL, the assignment, he was told in writing that ter to Judge Leonie M. Brinkema, said he BLUMENTHAL, HATCH, KLOBUCHAR, and he was a ‘‘member of an international ter- understood why he had been arrested. ‘‘I re- SCHUMER. I was very grateful that rorist organization,’’ though no organization alize that the government has a legitimate Chairman LEVIN and Ranking Member

VerDate Mar 15 2010 05:09 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\A15DE6.014 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8650 CONGRESSIONAL RECORD — SENATE December 15, 2011 MCCAIN included it in their terfeit military parts entering our tional security authorities of the Fed- anticounterfeiting amendment to the fighter jets, weapons, ships, and count- eral Bureau of Investigation or any NDAA, and I greatly appreciate their less other mission-critical products. other domestic law enforcement agen- leadership in ensuring that the provi- I am glad to have the opportunity to cy,’’ provisions that give the President sion remained in the conference report. vote in favor of these important provi- additional discretion over implementa- I would also particularly like to thank sions. I look forward to the future re- tion, and a transfer of the waiver au- Chairman LAMAR SMITH of the House duction in the number of dangerous thority from the Secretary of Defense Judiciary Committee, who introduced counterfeit military products that are to the President. In its totality, these comparable language in the House. It currently putting our troops’ safety at changes led the White House to state was a pleasure working with him on risk and reducing combat effectiveness. that the ‘‘the language does not chal- the language included in section 818(h). Mr. KERRY. Mr. President, I am vot- lenge or constrain the President’s abil- I am very grateful that he was able to ing to pass the conference report for ity to collect intelligence, incapacitate clear the provision on the House side, the National Defense Authorization dangerous terrorists, and protect the thereby enabling its inclusion in the Act for Fiscal Year 2012, NDAA. American people, and the President’s conference report. This is not a perfect piece of legisla- senior advisors will not recommend a Prosecutors will be able to employ tion. But it contains important hard- veto.’’ section 818(h) to deter criminals from fought provisions that I am unwilling Given all this, as well as the fact trafficking in military counterfeits. to jeopardize or risk denying to the that the detention-related provisions of This will help protect our national se- brave men and women defending our the bill have been improved from a curity and the safety of our troops. The Nation, and their families. Specifi- civil liberties perspective, and in light U.S. Sentencing Commission also has a cally, this bill represents the year’s of the other urgent priorities contained role to play. It should update relevant last opportunity to pass a 1.6 percent in the overall bill, I am voting in favor sentencing guidelines to ensure that across-the-board pay raise for our men of the conference report. they reflect the seriousness of these and women in the military. The bill Mr. HARKIN. Mr. President, as a U.S. reprehensible crimes. I would particu- also includes a bipartisan provision Senator, I have no greater responsi- larly note that the Obama administra- Senator COLLINS and I have been work- bility than to work to ensure our Na- tion has called for an increase of the ing on for over a year to get passed: an tion’s security. In that regard, I believe minimum base offense level for traf- effort to protect victims of sexual as- our Armed Forces must have all the ficking in counterfeit military goods to sault in the military. As a veteran, I tools they need to keep our country 14. I trust that the Sentencing Com- have been deeply troubled by what Sen- safe. That is why I support the vast mission will give this recommendation ator COLLINS and our colleague in the majority of the provisions in the Na- substantial weight when it reconsiders House, Representative TSONGAS, have tional Defense Authorization Act. the guidelines in light of the changes heard about the alarming incidences of The bill takes some small steps to- section 818(h) makes to the Criminal sexual assault in the military—which wards reining in runaway defense Code. As the administration has ex- is why we worked so hard through this spending, which has nearly doubled in plained, a minimum offense level of 14 bill to strengthen support for sexual the past decade. This bill authorizes for trafficking in counterfeit military assault prevention, legal protection for $26.6 billion less than requested at the products would mean that a first-time victims of sexual assault, and assist- beginning of the year, providing more offender with no criminal history ance for victims. than enough to defend our interests, would face at least a 10- to 16-month There are, however, problems with while chipping away at the Pentagon’s guideline range without any other ag- this bill which still concern me. When nonstop growth. It also lays the gravated conduct, after taking into ac- the bill was on the floor, I fought for groundwork for reevaluating outdated count a reduction for acceptance of re- amendments that would have stripped Cold War-era overseas deployments in sponsibility. Such penalties should be troubling detainee provisions out of Europe and the Pacific that are both the bare minimum for offenses that put the bill entirely. I also voted for other costly and increasingly unnecessary. All of these provisions I support and our troops’ safety at risk. amendments that would have signifi- believe are important. However, be- I also would like to highlight a sec- cantly narrowed the scope of the de- cause I believe this bill infringes on ond provision within section 818 of the tainee provisions. Unfortunately, not- critical constitutional values, I must conference report. Our colleagues on withstanding my votes, those amend- oppose final passage. I believe we can the Finance and Judiciary Committees ments were not adopted by the Senate. do a better job of protecting our na- have been working diligently to clarify The conferees, with our urging, and tional security without compromising that Customs and Border Protection with the President’s veto threat, made these important values. agents can share sufficient information some progress in improving that part This Nation has long been a beacon with trademark holders to ensure that of the bill. I commend the conferees for of liberty and a champion of rights counterfeit products are stopped at the working to address concerns of mine throughout the world. Yet, since 9/11, border. Chairman LEAHY, for example, and many other Senators, senior ad- in the name of security, we have re- amended his PROTECT IP Act to that ministration officials, and the public peatedly betrayed our highest prin- end. Section 818(g) includes comparable over the detention-related provisions ciples. The past administration be- language, and I applaud the conferees in the NDAA. While the provisions in lieved it could eavesdrop on Americans for recognizing the importance of this the conference report are an improve- without a warrant or court order. It provision. It reaffirms the executive ment over their counterparts in the utilized interrogation techniques long branch’s authority to share necessary bill that the Senate passed last week, considered immoral, ineffective, and il- information with rights holders with- we need to continue to examine deten- legal, regardless of laws and treaties. out fear of violating the Trade Secrets tion law and policy to ensure that the And, it intentionally sought to put de- Act. It thereby will enable Customs treatment of detainees is consistent tainees beyond the rule of law. Thank- and Border Protection to fulfill its re- with our national security and with fully, the current administration has sponsibility to stop military counter- core American values. ended the worst abuses of these prac- feits at the border. Under this provi- The progress made in conference on tices, despite the efforts of some of my sion, they will be able to share the the detention-related provisions is sig- colleagues to stymie these efforts. same photographs and samples they nificant enough that I am comfortable However, I am deeply concerned that currently share but with the serial voting for the bill, and the White the conference report continues us on a numbers and other identifying infor- House has lifted its veto threat. Spe- dangerous path, which sacrifices long- mation shown, not redacted. This sim- cifically, the conference report in- held and durable principles at the altar ple change in practice should be imple- cludes several changes to the detainee of fear and short-term expediency. mented immediately, without the provisions, including a new paragraph To begin, this bill fails to make clear delay of unnecessary regulatory proc- that clearly states that nothing in the that under no circumstance can an esses. Now is the time to protect our bill ‘‘shall be construed to affect the American citizen be detained indefi- troops from the risk of dangerous coun- existing criminal enforcement and na- nitely without trial. I simply do not

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.036 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8651 believe that a person should be seized support for our armed services, but this opinion in Hamdi v. Rumsfeld, Justice on American soil and indefinitely de- legislation will be remembered for rea- Sandra Day O’Connor stated unequivo- tained without charges and without sons both bad and good. I regret the de- cally: ‘‘We have long since made clear due process of law. cision of the House and Senate con- that a state of war is not a blank check Second, it mandates, for the first ferees to include unnecessary and po- for the President when it comes to the time, that non-American terrorist sus- tentially harmful provisions related to rights of the Nation’s citizens.’’ It is pects arrested in the United States will the detention of terrorist suspects. stunning to me that sponsors of the un- be detained by the military rather than However, I strongly support measures derlying Senate bill argued for the in- civilian law enforcement. Throughout in the conference report that will em- definite detention of U.S. citizens at our history, there has been a clear di- power the National Guard within the Guantanamo Bay. We must make clear vide between our military—which Department of Defense, enhance pro- that our laws do not stand for such a fights wars abroad—and law enforce- tections for military victims of sexual proposition. We are a nation of laws, ment in the United States, and that di- violence, increase transparency by lim- and we must adhere vigilantly to the vide has worked. For example, since iting unnecessary exclusions from the principles of our Constitution. I urge 9/11, over 400 terrorists have been suc- Freedom of Information Act, improve all Senators to support this bipartisan cessfully convicted in article III, not mental health outreach to members of effort to protect American values and military, courts. For persons in this the National Guard and Reserves, and cosponsor the Due Process Guarantee country, it is a dangerous precedent to make many other changes to strength- Act. I am also deeply troubled by the not only authorize but actually require en our national defense and take care mandatory military detention require- military custody. of our men and women in uniform. Finally, the bill would make it much I continue to strongly oppose the de- ments included in section 1022 of this conference report. In the fight against more difficult to close the detention tention related provisions in this con- al-Qaida and other terrorist threats, we center at Guantanamo Bay. There sim- ference report, which I believe are un- should give our intelligence, military, ply is no compelling reason to keep the wise and unnecessary. These provisions and law enforcement professionals all facility open and not to bring these de- undermine our Nation’s fundamental the tools they need, not limit those tainees to maximum security facilities principles of due process and civil lib- tools. But limiting them is exactly within the United States. The deten- erties and inject operational uncer- what this conference report does. Sec- tion center is a recruiting tool for tainty into our counterterrorism ef- retary Panetta has stated unequivo- those who wish to cause us harm and forts in a way that I believe harms our cally that ‘‘[t]his provision restrains been a stain on our Nation’s honor. I national security. the Executive Branch’s options to uti- agree with former Secretary of State I strongly oppose section 1021 of this lize, in a swift and flexible fashion, all Colin Powell, who said that ‘‘we have conference report, which statutorily the counterterrorism tools that are shaken the belief that the world had in authorizes indefinite detention. I am now legally available.’’ Requiring ter- America’s justice system by keeping fundamentally opposed to indefinite rorism suspects to be held only in mili- [the detention center at Guantanamo detention and certainly when the de- tary custody and limiting the available Bay] open. We don’t need it and it’s tainee is a U.S. citizen held without options in the field is unwise and un- causing us far more damage than any charge. Indefinite detention con- necessary. good we get for it.’’ tradicts the most basic principles of Supporters of the conference report In the immediate aftermath of 9/11, law that I subscribed to when I was a claim that concerns about the manda- the administration declared a broad prosecutor, and it severely weakens tory military detention section are and open-ended ‘‘war on terror.’’ I have our credibility when we criticize other ‘‘red herrings.’’ They claim that they always considered this a flawed de- governments for engaging in similar have modified the legislation in ways scription of the challenge that con- conduct. that give the President the flexibility fronted us after the 9/11 attacks. After Supporters of this measure will argue he needs to apply the provisions with- all ‘‘terror’’ is an endlessly broad and that this language simply codifies the out impeding investigations or under- vague term. And a ‘‘war on terror’’ is a status quo. That is not good enough. I mining operations in the field. The war that can never end because ter- am not satisfied with the status quo. changes are totally inadequate. The rorism and terrorists will always be Under no circumstances should the Statement of Administration Position, with us. Because of the never-ending United States of America have a policy SAP, calls the mandatory military de- nature of this so-called war on terror, of indefinite detention. I fought tention section ‘‘unnecessary, untest- it offers a rationale for restricting civil against Bush administration policies ed, and legally controversial.’’ The liberties indefinitely. This is not that left us in the situation we face SAP goes on to state that ‘‘applying healthy for our democracy or for our now, with indefinite detention being this military custody requirement to ability to inspire other countries to the de facto administration policy. And individuals inside the United States abide by democratic principles. I strongly opposed President Obama’s . . . would raise serious and unsettled Mr. President, we will not overcome executive Order on detention when it legal questions and would be incon- terrorism with secret prisons, with tor- was announced last March because it sistent with the fundamental American ture, with degrading treatment, with contemplated, if not outright endorsed, principle that our military does not pa- individuals denied basic rights; rather, indefinite detention. trol our streets.’’ we shall overcome it by staying true to This is not a partisan issue for me. I Some supporters of the conference re- our highest values and by insisting on have opposed indefinite detention no port also claim that the national secu- legal safeguards that are the very basis matter which party holds the keys to rity waiver provision is ‘‘a mile wide’’ of our system of government and free- the jailhouse. I fought to preserve ha- and provides the administration with dom. Today is the 220th anniversary of beas corpus review for those detained sufficient flexibility. The intelligence the ratification of the Bill of Rights. at Guantanamo Bay because I believe professionals who work every day to The values embodied in that remark- that the United States must uphold the keep our Nation safe disagree. The Di- able document have bound our Repub- principles of due process and should rector of National Intelligence, James lic together for over 200 years and can only deprive a person of their liberty R. Clapper, wrote to Senator FEINSTEIN bind us for 200 more if we hold them subject to judicial review. that the ‘‘detention provisions, even close. Today, I joined Senator FEINSTEIN, with the proposed waivers, would intro- Mr. LEAHY. Mr. President, the Sen- Senator LEE, and others to introduce a duce unnecessary rigidity at a time ate today will pass the National De- bill titled the Due Process Guarantee when our intelligence, military, and fense Authorization Act for the coming Act. This bill will make clear that nei- law enforcement professionals are fiscal year. This vote is historic as ther an authorization to use military working more closely than ever to de- Congress has enacted a national de- force nor a declaration of war confer fend our nation effectively and quickly fense authorization act every year for unfettered authority to the executive from terrorist attacks.’’ the past half century. I commend the branch to hold Americans in indefinite As chairman of the Judiciary Com- Senate for maintaining this steadfast detention. In the 2004 Supreme Court mittee, I am particularly concerned

VerDate Mar 15 2010 06:55 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.059 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8652 CONGRESSIONAL RECORD — SENATE December 15, 2011 that this provision fails to acknowl- committee was consulted about these contentious provisions in the bill, but I edge or appreciate the vital role that provisions in July when the legislation nevertheless believe that these provi- law enforcement and the courts play in was first considered by the Armed sions will set the stage for dramatic our counterterrorism efforts. In light Services Committee, nor was either changes to our military force structure of the hundreds of successful prosecu- committee consulted earlier this in the years to come. tions of terrorism defendants in Fed- month when it was modified. I also can Beginning in May, a new national se- eral courts, why would we want to re- see no reason why these provisions curity consensus quietly formed in move this option from the table? As were rushed through the committee Congress around an issue at the core of Jeh Johnson, the Pentagon’s top law- without the input of the Defense De- our national security. Seventy-one sen- yer, said recently, the Federal courts partment and Federal intelligence and ators from both parties steadily added are ‘‘well equipped to handle the pros- law enforcement agencies that will be their support to S. 1025, the bill that ecution of dangerous domestic and directly affected if this language is en- Senator GRAHAM and I called Guard international terrorists,’’ and ‘‘the acted. On issues of such national sig- Empowerment II. The provisions of our military is not the only answer.’’ I nificance, the American people deserve bill built upon the first Guard em- could not agree more. an open and transparent process. powerment bill that I introduced with The implementation procedures re- Supporters of the detention provi- Senator Kit Bond of Missouri. That quired in the legislation are simply not sions in the conference report continue measure became law in 2008 and ele- enough to alleviate the potential for to argue that such measures are needed vated the Chief of the National Guard problems in the field. As Secretary Pa- because, they claim, ‘‘we are a nation Bureau to the rank of four-star gen- netta stated in his recent letter to Sen- at war.’’ That does not mean that we eral. This year’s bill had as its ator LEVIN, this provision may ‘‘need- should be a nation without laws or a headlining provision an effort to make lessly complicate efforts by frontline nation that does not adhere to the the Chief a statutory member of the law enforcement professionals to col- principles of our Constitution. We Joint Chiefs of Staff. Despite the vocif- lect critical intelligence concerning op- should prosecute those who commit erous opposition of Active component erations and activities within the crimes and terrorist acts and sentence generals in the Pentagon—including all six sitting Joint Chiefs of Staff—a bi- United States.’’ No one in the military, them to long terms in prison. The De- partisan congressional consensus intelligence community, or law en- partment of Justice has prosecuted formed around S. 1025 and Guard em- forcement has asked for this provision, more than 440 terrorists since Sep- powerment. I was pleased that the Sen- and rather than strengthening our na- tember 11, 2001. We have a very strong ate included its provisions in our tional security, it makes us less safe. record and nothing to fear from choos- version of the National Defense Au- During floor debate over the Senate ing a course that upholds American thorization Act late last month and bill, FBI Director Mueller wrote that values and the rule of law. That is why that the conferees retained a majority the mandatory military provision I also oppose some of onerous funding of those provisions in the conference would adversely affect the Bureau’s and certification restrictions that ability to conduct counterterrorism in- report. make it virtually impossible to trans- The new consensus on the National vestigations and inject ‘‘a substantial fer individuals out of Guantanamo or Guard comes as the budget debates of element of uncertainty’’ into its oper- to prosecute individuals detained there this Congress have fractured the Cold ations. He argued that the provision in Federal courts. War national security consensus of the fails to take into account ‘‘the reality I also strongly oppose section 1029 of last half century. While those fractures of a counterterrorism investigation.’’ the conference report, which requires were an inevitable outcome of the end The conference report modified the the Attorney General to consult with of the Soviet empire, what will replace mandatory military detention section the Director of National Intelligence the Cold War consensus remains un- to preserve the existing law enforce- and Secretary of Defense before seek- clear. Some Members of Congress argue ment and national security authorities ing an indictment of certain terrorism for diplomatic and military retrench- of the FBI, but the effect of that new suspects. This provision was not con- ment from every corner of the globe language remains unclear. At our Judi- sidered or debated by the Senate and back to Fortress America. Others be- ciary Committee hearing on December certainly not by the Senate Judiciary lieve that we must expand, not shrink, 14, the FBI Director stated that the Committee, which I chair. I oppose this our international footprint. Yet nearly modified text ‘‘does not give me a clear provision because it needlessly under- everyone agrees that budgetary factors path to certainty as to what is going to mines the authority of the Attorney must mean a change in the way the happen when arrests are made in a par- General and is an unprecedented in- Pentagon does business—and that ticular case.’’ The FBI Director is par- fringement on the prosecutorial inde- change cannot wait. ticularly concerned with how the legis- pendence of the Department of Justice. The seeds of that change were sown a lation will affect the Bureau’s ability Regrettably, the detention language decade ago. In the days and weeks fol- to gain the cooperation of suspects. in this conference report remains fun- lowing 9/11, the former ‘‘strategic re- The FBI has a long and successful damentally flawed. The detainee provi- serve’’ became, of necessity, fully oper- track record in the cultivation and use sions will codify a practice of indefi- ational. The National Guard and Re- of cooperating witnesses. But as Direc- nite detention that has no place in the serve components, once a Cold War tor Muller stated, ‘‘The possibility justice system of any democracy. They failsafe, were called into regular rota- looms that we will lose opportunities will cause further damage to our rep- tion in the wars in Iraq and Afghani- to obtain cooperation from the persons utation as a nation that respects the stan. Our country simply could not in the past that we’ve been fairly suc- fundamental right of due process, harm field the forces we needed without call- cessful in gaining.’’ I cannot under- the efforts of intelligence and law en- ing on the Guard and Reserve. Simulta- stand why the authors of this con- forcement officials in the field, and neously, America experienced domestic ference continue to insist upon lan- may limit their ability to track down disasters on an unprecedented scale. In guage that will undermine the FBI in terrorists and bring them to justice. each situation, the President called on its use of this critical counterterrorism My support for the Defense bill should the National Guard as the military authority. not be construed as support for its de- first responders to help citizens in The language in the detention sub- tention provisions, which I oppose in need. Today, the metamorphosis from a title of this conference report is the the strongest possible terms. strategic reserve to an operational re- product of a process that has lacked Instead, my support for the bill re- serve is complete. transparency from the start. These flects the inclusion of the National Yet entrenched bureaucratic inter- measures directly affect law enforce- Guard Empowerment Act, a bill I draft- ests still resist what most Americans ment, detention, and terrorism matters ed with Senator LINDSEY GRAHAM, as now accept as an accomplished fact. that have traditionally been subject to an amendment to its underlying text. The Joint Chiefs fought our efforts to the jurisdiction of the Senate Judici- The Guard empowerment provisions bring the Chief of the Guard Bureau ary Committee and the Senate Select have been understandably over- into the ‘‘Tank’’ not because they mis- Committee on Intelligence, but neither shadowed by the debate on other, more understand the value of the Guard and

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.060 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8653 Reserve, but precisely because they serve officers be considered for these taining to detainee treatment fail to fear that value proposition may threat- positions whenever they are vacant. strike the appropriate, important bal- en the size and budget of their Active Section 1085, ‘‘Use of State Partner- ance between national security, due components in the years to come. ship Program Funds for Certain Pur- process, and civil liberties. Sections Nevertheless the Active component poses,’’ includes a limited authoriza- 1021, 1022, and 1023 are the latest in a must shrink, both as a consequence of tion of the State Partnership Program series of legislative proposals that pro- our current budgetary reality and to which is the major vehicle for the Na- vide ever-narrowing latitude for deal- reflect the constitutional vision the tional Guard of the States to partici- ing with terrorism suspects, whether in Framers had of a small standing Army pate in international security assist- the U.S. or abroad. augmented by a larger cadre of citizen ance and capacity building missions at I am concerned, that these provisions soldiers. Simultaneously, the Guard the request of the State Department take us one small, but significant, step and Reserve must grow so that those chief of mission and geographic com- down the road towards a state in which cuts to the Active force can be quickly batant commander. ordinary citizens live in fear of the and easily reversed if the cir- Last but certainly not least, section military, rather than the free society cumstances demand it. Just a year ago, 1080A, ‘‘Report on Costs of Units of the that has marked this great nation no one predicted our operations to oust Reserve Components and the Active since the Bill of Rights was ratified 220 Muammar Qadhafi. In a world where Components of the Armed Forces,’’ in- years ago, in 1791. military needs change day by day, we stitutes the ‘‘similar unit’’ cost report The new detention authorities thrust must not hollow out the force. To proposed by S. 1025 with some added de- upon our military in this bill are an as- sault on our civil liberties and do not avoid that outcome in a period of aus- tail and while retaining the Comp- belong on our books. They were not re- tere budgets, we must depend more and troller General evaluation of the De- quested by the Pentagon, in fact they more on the National Guard and Re- partment’s report. That last require- have been resisted by the President, serve. ment is important to keep the Depart- To that end, the conferees included ment of Defense honest in its assump- the Secretary of Defense, the Attorney General, and the directors of National section 512 in this Defense bill which tions and analysis leading to conclu- Intelligence and the FBI. They do not adds the Chief of the National Guard sions about the relative cost of Active make us safer and, to the contrary, Bureau to the Joint Chiefs of Staff. It and Reserve units. they will create dangerous confusion also reinforces the duties and respon- The Reserve component cost report within our national security commu- sibilities of the Chief as listed in 10 will undergird efforts by the Senate National Guard Caucus in the years to nity. U.S.C. § 10502 in accordance with the Under these sections, a terrorism come. While it has long been common listing of responsibilities of the Chief suspect must be remanded to U.S. mili- knowledge that the National Guard already in that section. This provision tary custody, even when that suspect is historic and will dramatically im- and Reserves are cheaper to maintain presents no imminent threat to public prove the advice that the President and in dwell than Active-Duty Forces, the safety and is being held under sus- Secretary of Defense receive on mat- report will prove that colloquial wis- picion of committing a U.S. crime. The ters of national security and the de- dom and bolster the arguments of the suspect may be held indefinitely. In- fense budget. Congress in a future push to reduce the deed, if the suspect is transferred to Section 511, ‘‘Leadership of the Na- size of the Active component as we Guantanamo, it may be a practical re- tional Guard Bureau,’’ reestablishes draw down from Iraq and Afghanistan ality that the suspect must be held in- the Vice Chief of the National Guard while growing the size of the Reserve definitely, thanks to the onerous cer- Bureau as a lieutenant general and ex- components. tification requirements contained in cludes the positions of the Chief and I am also pleased that the conferees Section 1023. If not sent to Guanta- the Vice Chief of the National Guard included my language to narrow the namo, the suspect may be rendered to Bureau from limitations on the number Freedom of Information Act, FOIA, ex- a foreign power, where he may be sub- of general and flag officers in the De- emption in the bill for Department of ject to coercive interrogation, torture, partment of Defense. Reinstating the Defense critical infrastructure security or death. Or, the individual may simply Deputy position at the National Guard information. This improvement adds a remain in custody of our own military, Bureau will give the Chief flexibility at public interest balancing test requiring waiting for the cessation of an endless a time when he sorely needs it and pro- that the Secretary of Defense consider conflict against an idea. viding a third star for the position will whether the public interest in the dis- As my colleagues from Vermont and give it more institutional clout. closure of this information outweighs Oregon, from Colorado and California, Section 515 implements the outcomes the government’s need to withhold the have already said so eloquently, these of a negotiation between the Council of information when evaluating FOIA re- provisions reflect an unfortunate and Governors and the Department of De- quests. The addition of this measure to unwise shift away from the current fense by authorizing the President to the National Defense Authorization law, in which the criminal justice sys- order the Federal Reserve component Act will help ensure that FOIA remains tem is presumed to be sufficient for to Active Duty to provide assistance in a viable tool for access to Department those who commit crimes on U.S. soil. response to a major disaster or emer- of Defense information that impacts No system is perfect, but the federal gency. In addition to authorizing a Re- the health and safety of the American criminal justice system is considered serve forces callup for domestic disas- public. by many around the world to be the ters and emergencies, it codifies the As I said at the outset, this National gold standard for fairness, trans- dual-status title 10 and title 32 com- Defense Authorization Act will be re- parency and reliability. Since 9/11, the mander as the usual and customary membered both for changing our proc- civilian criminal process has been suc- command relationship for military op- ess of detaining and prosecuting sus- cessful in securing convictions and erations inside the United States, a pected terrorists and for empowering lengthy sentences against hundreds of key victory for Federal-State integra- the National Guard. I continue to op- terrorism suspects. tion of military command and control. pose the changes the act will make to This is compared to just six convic- Section 518, ‘‘Consideration of Re- our counterterrorism legal regime. But tions in military tribunals, and two of serve Component Officers for Appoint- I nevertheless support how the act will these individuals are walking free ment to Certain Command Positions,’’ improve the sourcing and fielding of today. A third, Ibrahim al Qosi, was is a modified version of a provision of military forces in the years to come. I convicted of being a Taliban fighter. S. 1025 which would have reserved the will look to fix the former and further Under his sentence of 2 years, he would positions of commander, Army North, improve the latter in future legisla- be due to be released next summer. But and commander, Air Force North, for tion. when he serves his sentence, he likely National Guard officers with an empha- Mr. COONS. Mr. President, today I will not be released. Instead, he will be sis on the consideration of current and rise to express my deep concern that detained until our undefined hostilities former adjutants general. Instead, the the 2012 National Department of De- against Islamic extremism and ter- section requires that Guard and Re- fense Authorization Act provisions per- rorism conclude. In other words, he

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.060 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8654 CONGRESSIONAL RECORD — SENATE December 15, 2011 will be detained indefinitely. Criminal not help us in 2001, and will not help us ings, usually targeting police officers process like this is little better than no in 2021. These new authorities do noth- or civilians. In 1901, an anarchist assas- process at all. It ought to be reserved ing to change that and will not make sinated President McKinley. In the for the rarest cases where the civilian us any safer. The only effective com- First Red Scare during the early part criminal justice system is not suitable. prehensive model for national security of the century, a plot was uncovered to It should not be made the new stand- is one that strengthens both our law bomb 36 leaders of government and in- ard. enforcement and military to fight dustry. During the 1960s and 70s, the If we are going to short-circuit the threats within their respective areas of Weather Underground declared as its criminal justice system, we ought to at expertise. mission to overthrow the U.S. govern- least have good reason to do so. At a Another deeply concerning aspect of ment. Members planted bombs in the minimum, I would expect the Presi- the detainee provisions in the Defense Capitol, the Department of State and dent, the Attorney General, the Sec- Authorization bill is what they say the Pentagon. retary of Defense, or the Director of about the ability of the military to de- Each of these threats, and others, has National Intelligence to make the case tain U.S. citizens. Section 1021 expands before placed an existential fear in the that military custody is the only way the 2001 Authorization of the Use of minds of Americans. We have not al- to appropriately handle terrorists. But Military Force to include the authority ways acted well. The Sedition Act of that is not what happened here. No one to detain and hold indefinitely any per- 1918, the internment of Japanese Amer- is calling for these new powers. They son, even a U.S. citizen, if the military icans during the Second World War, are being thrust upon our military. suspects that such a person has sup- and the House Un-American Activities President Obama has said that these ported any force associated with al- Committee and Hollywood blacklisting provisions will hinder his ability to Qaeda. following the war are three notable ex- prosecute the campaign against terror- While I believe it acceptable for le- amples of action, taken in the face of ists. The Attorney General and the Di- thal military actions to be taken severe threat, which now the vast ma- rector of National Intelligence have against U.S. citizens abroad who have jority of Americans look back upon said that these provisions threaten to clearly taken up arms against this Na- with deep regret. undermine the collection of intel- tion, I am concerned about the slow As technology has advanced, so has ligence from suspected terrorists. but steady creep of the military into the ability of the government to reach They don’t want these authorities. areas that traditionally have been re- into our lives, whether through unseen The military does not want them ei- served for civilian law enforcement. drones and hidden electronic surveil- ther. The Secretary of Defense has said Testifying yesterday before the Judici- lance, omnipresent cameras and ad- that the provisions will unnecessarily ary Committee, FBI Director Robert vanced facial recognition programs, or complicate its core mission of pro- Mueller said he has serious concerns unfettered access to our telephone and tecting our nation and projecting mili- about the potential future ramifica- Internet records. tary force abroad. These provisions do tions of introducing military forces The advance of technology, however, not make sense as a matter of defense into the criminal justice process. is not justification for the retreat of policy, and, because the meaning of At the local level, it is often difficult liberty, especially not when we have at some of the key terms is deliberately to distinguish whether an individual in our disposal a criminal justice system unclear, we can not even predict the possession of bomb-making compo- that is up to the task of keeping us precise impact that they will have. nents is a hardened terrorist coordi- safe. In the best-case scenario, we will end nating with al-Qaeda; is a troubled, I plan to vote for the Conference Re- up in a situation with minor changes dangerous, but affiliated teenager; or is port of the National Defense Author- to an existing detainee policy that has completely innocent of any crime at ization Act because I agree with much already proven to inspire and sustain all. In the rush to ‘‘repel borders’’ at of what is within it. During a time of this and the next generation of extrem- the early stages of investigations, mis- war, we cannot allow our military to ists who wish to destroy this country. takes will be made. We need to make go unauthorized. We cannot allow our In the worst-case scenario, we make sure that these mistakes do not over- troops to go unpaid. The NDAA pro- several significant changes that hinder run the constitutional protections we vides oversight of and spending limita- our ability to find and destroy this cur- all enjoy as Americans. tions for the military. It elevates the rent generation of extremists. It is true, as supporters of these pro- head of the National Guard to the I do not accept the underlying as- visions have argued, that Section 1021 Joint Chiefs level, which is necessary sumption of these unnecessary new contains a limitation that the author- to ensure that military leadership ade- provisions that the threat the United ization of force does not include the quately considers the unique reserve States faces is one that can be defended right to hold citizens in violations of capacity role now filled by the Guard. by more guns, taller walls, and deeper their constitutional rights. That is The bill will also begin to address the holes that we ‘‘disappear’’ people into. some comfort, but not enough. As I sat inability of Customs and Border Patrol In fact, defense from the threats of in the presiding chair during debate agents to share information necessary today and tomorrow called ‘‘asym- over this bill, I heard my colleagues to identify military and other counter- metric’’ because they do not attempt argue that we are in a time of war and feits at our borders. to meet us on the battlefield with that, during times of war, U.S. citizens Though we were not able to remove equal capabilities requires a new para- have no constitutional protections the dangerous and counterproductive digm, the concept of defense in depth. against being treated as a prisoner of provisions contained in Sections 1021, To address asymmetric threats, includ- war. Even if there was broad agreement 1022 and 1023 from the NDAA today, we ing networks of extremists determined about the constitutional protections are not done trying. I will continue to to carry out acts of terrorism, law en- citizens enjoy against extrajudicial work with my colleagues to ensure forcement and the Defense Department killing or indefinite detention, who that we maintain the balance between must work cooperatively to protect will enforce them? Under this bill, that security and liberty. U.S. interests using their respective task would seem to be left to the Presi- The PRESIDING OFFICER. The Sen- strengths in authorities and levels of dent and to the military. Were my life ator from Illinois. response. or liberty at stake, I would want the Mr. DURBIN. Mr. President, I ask Instead of strengthening our ability benefit of an independent judiciary. So, unanimous consent that the time for to confront asymmetric threats, these too, I think would the vast majority of debate on the conference report to ac- unwelcome new authorities reinforce my fellow citizens. company H.R. 1540 be extended until 4 the philosophy that the military is the Mr. President, we are in conflict p.m., with all other provisions of the only preeminent institution of national against terrorists. I do not doubt or previous order remaining in effect; fur- security, with law enforcement rel- dispute that. But this is not the first ther, that at 4 p.m., the Senate proceed egated to a limited support role. That time that has been the case. During the to a vote on the adoption of the con- may have been an appropriate philos- beginning part of the last century, an- ference report; that upon the disposi- ophy for the world in 1961, but it did archists committed a string of bomb- tion of the conference report and H.

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.061 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8655 Con. Res. 92, the Senate resume execu- ends. It also provides our men and enough for many Members of the Sen- tive session and the consideration of women in uniform with a much de- ate. They are still bound and deter- the Christen nomination, as provided served pay increase, which is impera- mined to push more of them into the under the previous order. tive in light of their heroic service and military tribunal system for no good The PRESIDING OFFICER. Without the state of our economy today. reason. These people who have been objection, it is so ordered. I must say, though, there are provi- tried successfully when accused of ter- Mr. DURBIN. Mr. President, with sions within this bill which still con- rorism have been safely incarcerated in this agreement, there will be two votes cern me relative to the treatment and the Federal penitentiaries across at 4 p.m. The first will be on the adop- detention of terrorism suspects. America, including in my home State tion of the Defense authorization con- First, we need to agree on the start- of Illinois at the Marion Federal Pris- ference report and the second vote on ing point, and the starting point should on. Not one suggestion has been made the confirmation of the nomination of be clear on both sides of the aisle. that the communities surrounding Morgan Christen to be U.S. Circuit There are those who threaten the these prisons nor the prisoners them- Judge for the Ninth Circuit. United States, those who would use selves are under any threat. What we Mr. President, I rise today to discuss terrorist tactics to kill innocent peo- have instead is this presumption that the National Defense Authorization ple, as they did on 9/11. We are fortu- isn’t borne by the facts or by our expe- Act conference report now pending be- nate, through the good leadership of rience. fore the Senate. President George W. Bush and Presi- I voted for the Senate version of this I thank my colleague from Colorado, dent Obama, that we have been spared bill with the hope that the Members of Senator UDALL, as well as my colleague another attack since 9/11, but vigilance the Senate and House who were negoti- from California, Senator FEINSTEIN, for is required if we are to continue to ating the final bill would remove some engaging in a spirited and important— keep this country safe. That is a bipar- of the detainee provisions that concern perhaps historic—debate during the tisan mission. It is shared by every me. I want to acknowledge that the consideration of this authorization bill Member of Congress, regardless of their conference committee did make some on the floor of the Senate. I especially political affiliation. positive changes. But I continue to thank Senator FEINSTEIN. It was a We salute the men and women in uni- have serious concerns because provi- pleasure to work with her to insert lan- form, first, for all the work and brav- sions in the bill would limit the flexi- guage which I think moved us closer to ery they have put into that effort, but bility of any President in combatting a position she and I both share con- quickly behind them we will add so terrorism, create uncertainty for law cerning the language in this important many others in our law enforcement enforcement, intelligence, and defense bill. community; for example, those individ- officials regarding how they handle I have the highest respect for the uals at every level—Federal, State and suspected terrorists, and raise serious chairman and the ranking member of local—who are engaged in keeping constitutional concerns. I am especially concerned about sec- this committee, Senators LEVIN and America safe. We salute the executive tion 1022 in the conference report. This MCCAIN, who have worked diligently branch in its entirety, including the provision would, for the first time in and hard on a bill which has become a Department of Homeland Security, the American history, require our military hallmark of congressional activity White House, the National Security to take custody of certain terrorism each and every year, particularly in Advisors, and all of those who have suspects in the United States. Our the Senate. It takes a special effort for made this a successful effort. most senior defense and intelligence of- them to produce an authorization bill The obvious question we have to ask ficials have raised serious concerns of this complexity and challenge. They ourselves is this: If for 10 years we have about this provision. FBI Director Rob- do it without fail and they do it in a bi- been safe as a nation, why is this bill ert Mueller strongly objects to the partisan fashion. changing the way we detain and treat military custody requirement. For For those critics of Congress—and terrorism suspects? those who need reminding, Robert there are many—who look at this bill, I will tell you there has been an on- Mueller served as a Federal judge in you can see the best of the Senate in going effort by several members of this California and was appointed to this terms of the effort and the profes- committee and Senate to change the position as head of the FBI by Repub- sionalism these two gentlemen apply, basic approach to dealing with ter- lican President George W. Bush. He has along with the entire committee, in rorism, to create a presumption that been retained in that office by Demo- bringing this bill to the floor. terrorist suspects would be treated This bill does a number of good cratic President Barack Obama. I be- first subject to military detention and lieve he is a consummate professional things for our troops and for my home their cases then considered before mili- who has dedicated his life, at least in State of Illinois, and I am thankful to tary tribunals. the last 10 years-plus, to keeping the chairman and the ranking member This, in and of itself, is not a bad America safe. I trust his judgment. I for those provisions. There is impor- idea. It could be right, under certain respect his integrity. tant language about public-private circumstances, but it does raise a ques- In a letter to the Senate, Director partnerships regarding the U.S. Army tion: If to this point in time we have Mueller says the bill will ‘‘inhibit our that will have special value at the been able to keep America safe using ability to convince covered arrestees to Rock Island Arsenal, where some of the the Department of Justice, law en- cooperate immediately, and provide most dedicated and competent civilian forcement, and the courts of our land, criminal intelligence.’’ individuals continue to serve this coun- together with military tribunals, why He was asked after the conference re- try’s national security, meeting the are we changing? port whether the changes absolved any highest levels of standards and conduct The record is pretty clear. Since 9/11, of his concerns, and he said he was still and performance. They will have a more than 400 terrorism suspects have concerned. I will go to that in a mo- chance to continue to do that work, been successfully prosecuted in the ment. Director Mueller concluded that and it is important they continue to courts of America. These are individ- the provision I am raising ‘‘introduces have that chance in this weak economy uals who have been subjected to FBI a substantial element of uncertainty as when so many people are struggling to investigation, they have been read to what procedures are to be followed find jobs. their Miranda rights, they have been in the course of a terrorism investiga- The legislation provides the Chief of tried in our courts in the same manner tion in the United States.’’ the National Guard with an equal seat as those accused of crimes are tried Considering the source of this con- at the table with the Joint Chiefs of every single day, and they have been cern, the Director of the Federal Bu- Staff to ensure the needs of our brave found guilty—400 of them—during the reau of Investigation who has been re- Army and Air National Guard per- same interval that 6—6—have been sponsible ultimately for the successful sonnel are heard at the highest levels. tried by military tribunals. prosecution of 400 suspected terrorists, It makes it easier for reserve units to Overwhelmingly, our criminal court we should take his concerns to heart. access mental health services by pro- system has been successful in keeping The Justice Department, which then viding that access during drill week- America safe, but that is not good prosecutes terrorism suspects, shares

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.047 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8656 CONGRESSIONAL RECORD — SENATE December 15, 2011 Director Mueller’s concerns. Here is That, in and of itself, should give tion provides clearly that the govern- what they said: pause to every member of the Senate. ment may not construct or modify any Rather than provide new tools and flexi- When we consider this objection from facility in the United States for the bility for FBI operators and our intelligence the Director of the Federal Bureau of purpose of holding a Guantanamo Bay professionals, this legislation creates new Investigation, the lead official charged detainee. procedures and paperwork for FBI agents, in- with combatting terrorism in the Let me bring this closer to home. We telligence lawyers and counter-terrorism United States, shouldn’t we take Direc- have offered for sale in the State of Il- prosecutors who have conducted hundreds of tor Mueller’s concerns to heart? Do we successful terrorism investigations and pre- linois a prison built by our State that vented numerous attacks inside this country want the FBI to have uncertainty the has not been used or opened in its en- over the past decade. next time they stop and detain a sus- tirety. The Federal Bureau of Prisons The supporters of this legislation pected terrorist in the United States? has stated they are interested in pur- I want to address another provision, have responded to these concerns by chasing it because of the overcrowded section 1021. I was very concerned that pointing to the fact that the bill allows conditions in many Federal prisons. We the original version of the legislation the Secretary of Defense to waive the would, of course, like to see that would, for the first time in history, au- military custody requirement. But the done—not just for the revenue that thorize indefinite detention in the Justice Department says the adminis- would come to the State of Illinois but United States. But we have agreed, on trative burdens of obtaining a waiver because it would create jobs in my a bipartisan basis, to include language could hinder ongoing counterterrorism State. in the bill offered by Senator FEINSTEIN operations. Here is how they explained In the course of deliberating it, con- that makes it clear this bill does not it: troversy arose as to whether Guanta- change existing detention authority in namo detainees would be placed in this While the legislation proposes a waiver in any way. What it means is, the Su- certain circumstances to address these con- prison. Initially, the administration cerns, this proposal inserts confusion and bu- preme Court will make the decision said they would, and I supported them. reaucracy when FBI agents and counter-ter- who can and cannot be detained indefi- But ultimately it became clear that rorism prosecutors are making split-second nitely without trial, not the Senate. there was opposition to going forward decisions. In a rapidly developing situation— I believe the Constitution does not with this purchase of the Illinois prison like that involving Najibullah Zazi traveling authorize indefinite detention in the if there was any likelihood Guanta- to New York in September 2009 to bomb the United States. Some of my colleagues namo detainees would be incarcerated subway system—they need to be completely see it differently. They claim the focused on incapacitating the terrorist sus- at this prison. We have now made it Hamdi decision upheld indefinite de- clear—and I wish to make it clear for pect and gathering critical intelligence tention. It didn’t. Hamdi was captured about his plans. the record—that despite my personal in Afghanistan, not in the United The authors of this legislation say views on this issue, I believe the law is States. Justice O’Connor, the author of clear that the Thomson Prison, once they made changes to the military cus- the opinion, carefully stated the Hamdi tody requirement to respond to these under Federal jurisdiction, will not decision was limited to ‘‘individuals house Guantanamo detainees. That has concerns raised by Director Mueller who fought against the United States and the Department of Justice. But in been a stated policy. It is now going to in Afghanistan as part of the Taliban.’’ be a matter of law in this Defense au- my view, these changes don’t go nearly Some of my colleagues also cited the thorization. Regardless of my personal far enough. They continue to create Padilla case, claiming it is a precedent feelings on the subject, it is the gov- uncertainty and impose administrative for the indefinite detention of U.S. citi- erning law, and I will not try to change burdens on our counterterrorism pro- zens captured in the United States. But the situation of Thomson in any way as fessionals whom we depend on to keep look at what happened in the Padilla long as I serve in the Senate when it us safe. case. Padilla is a U.S. citizen who was comes to this important issue. The changes in the legislation do not placed in U.S. custody. The Fourth Cir- change the fundamental premise. They cuit Court of Appeals, one of the most Unfortunately, some of my col- create a presumption that a terrorism conservative in the land, upheld his leagues—whom I disagree with—are de- suspect arrested in the United States military detention. But then, before termined to keep Guantanamo open at should be transferred to military cus- the Supreme Court had the chance to all costs. I disagree. When we consider tody, despite the fact—despite the review the Fourth Circuit’s decision, the expense of detention at Guanta- fact—that the Federal Bureau of Inves- George W. Bush’s administration trans- namo and the reputation of that facil- tigation has kept America safe since ferred him out of military custody, ity, I believe the President was right, 9/11. prosecuting him in an article III crimi- initially, when he talked about the fact I am not alone in my feelings. This nal court. To this day, the Supreme that we needed to, at some point, bring morning, an editorial in the Wash- Court has never ruled on the question detention at Guantanamo to a close. ington Post said: of whether it is constitutional to in- My feelings are not only shared by the [These provisions]—while less extreme— definitely detain a U.S. citizen cap- President but also by GEN Colin Pow- are still unnecessary and unwise. . . . tured in the United States. That deci- ell; former Republican Secretaries of [L]awmakers have . . . introduced confusion sion must be decided by the Supreme State James Baker, Henry Kissinger, in the form of directives that threaten to Court, not by the Senate, thanks to the and Condoleezza Rice; former Defense bollix up law enforcement and military per- Secretary Robert Gates; ADM Mike sonnel when they most need to be decisive. Feinstein amendment. I support the inclusion of the Fein- Mullen; and, GEN David Petraeus. Why in the world would we create un- stein amendment in this bill. I con- There is great irony here. For 8 long certainty and bureaucracy when, with tinue to believe there is no need for years during the previous Republican every second that ticks away, Amer- this provision overall and that it administration, Republicans on the ican lives can be in danger? floor argued time and again that it was Just yesterday in the Senate Judici- should have been removed. I also continue to oppose provisions inappropriate—some said even uncon- ary Committee, FBI Director Robert in the conference report that limit the stitutional—for Congress to ask basic Mueller testified he is still deeply con- administration’s ability to close the questions about the Bush administra- cerned about section 1022, despite the Guantanamo Bay detention facility. tion’s policies on issues such as Iraq, changes made in this conference re- Section 1027 of this legislation provides torture, waterboarding, and port. Here is what Director Mueller that no detainee held at Guantanamo warrantless wiretapping. Time and said: can be transferred to the United States again, we were told Congress should Given the statute the way it is now, it does even for the purpose of holding him in- defer to President Bush, our Com- not give me a clear path to certainty as to carcerated for the rest of his life in a mander in Chief. Let me give one ex- what is going to happen when arrests are ample. made in a particular case. The possibility Federal supermaximum security facil- looms that we will lose opportunities to ob- ity. My friend Senator LINDSEY GRAHAM tain cooperation from the persons in the past There is absolutely no reason for this of South Carolina, on September 19, that we’ve been fairly successful in gaining. prohibition. Section 1026 of this legisla- 2007, said:

VerDate Mar 15 2010 06:55 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.080 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8657

The last thing we need in any war is to FEDERAL BUREAU OF INVESTIGATION Year 2012. If you have any questions or would have the ability of 535 people who are wor- AGENTS ASSOCIATION, like to discuss the FBIAA’s views on this ried about the next election to be able to Arlington, VA, December 7, 2011. issue, please do not hesitate to contact me. micromanage how you fight the war. This is Hon. CARL LEVIN, Sincerely, not only micromanagement, this is a con- Chairman, Senate Armed Services Committee, KONRAD MOTYKA, Washington, DC. President. stitutional shift of power. Hon. JOHN MCCAIN, Mr. DURBIN. Mr. President, I have a With a Democratic President, obvi- Ranking Member, Senate Armed Services Com- press report that was released today mittee, Washington, DC. ously some of my colleagues have had relative to the testimony of Director Hon. HOWARD P. MCKEON, a change of heart. They think it is not Chairman, House Armed Services Committee, Robert Mueller of the FBI, which I ref- only appropriate but urgent for Con- Washington, DC. erenced in my speech. So that his gress to limit this President’s author- Hon. ADAM SMITH, statement will be reported more fully ity to combat terrorism, despite the Ranking Member, House Armed Services Com- at this point, I ask unanimous consent mittee, Washington, DC. success we have had since 9/11 under to have printed in the RECORD the press DEAR CHAIRMEN AND RANKING MEMBERS: On report from Politico. President Bush and President Obama behalf of the more than 12,000 active duty There being no objection, the mate- and retired FBI Agents who are members of keeping America safe. This is a clear rial was ordered to be printed in the political double standard. It is unneces- the FBI Agents Association (‘‘FBIAA’’), I write today to express our concerns about RECORD, as follows: sary. Look at the track record. Section 1032 of S. 1867, the National Defense [From www.politico.com, Dec. 14, 2011] Since 9/11, our counterterrorism pro- Authorization Act for Fiscal Year 2012. Sec- ON NATIONAL DEFENSE AUTHORIZATION ACT, fessionals have prevented another at- tion 1032 requires that persons detained in ROBERT MUELLER NOT SATISFIED connection with incidents of terrorism be (By Josh Gerstein) tack on the United States, and more held in military custody and leaves critical than 400 terrorists have successfully operational details unresolved. Like many in FBI Director Robert Mueller said Wednes- been prosecuted and convicted in Fed- the federal law enforcement and intelligence day said he remains concerned that a defense bill containing provisions about military eral courts. Here are just a few of communities, the FBIAA is concerned that this language undermines the ability of our custody for terrorism suspects could inter- them: Umar Faruk Abdulmutallab, the counterterrorism experts to conduct effec- fere with the FBI’s ability to investigate ter- Underwear Bomber; Ramzi Yousef, the tive investigations, Accordingly, we urge the rorist incidents and interrogate those be- mastermind of the 1993 World Trade conferees working to reconcile H.R. 1540 and lieved responsible. On Monday, a House-Senate conference Center bombing; Omar Abdel-Rahman, S. 1867 through the conference process to re- ject Section 1032. committee announced a revised version of the so-called Blind Sheik; the 20th 9/11 Section 1032 establishes a presumption for the National Defense Authorization Act that hijacker, Zacarias Moussaoui; and military custody for individuals detained in lawmakers said addressed many of the con- Richard Reid, the Shoe Bomber—all connection with acts of terrorism against cerns that led White House officials to prosecuted in the criminal courts of the United States. While Section 1032 in- threaten a veto. However, at a Senate Judi- cludes some exceptions and waivers to the ciary Committee hearing Wednesday morn- this land successfully and safely incar- military custody requirement, they are lim- ing, Mueller said he remains worried about cerated in our Federal prisons. Some- ited in scope and could create additional lay- aspects of the bill. thing which many on the other side ers of bureaucracy at critical points in our ‘‘The drafters of the statute went some dis- refuse to acknowledge, and argue is im- investigations. Injecting this level of uncer- tance to resolving the issue related to our tainty and delay into terrorism investiga- authority but the language did not really possible, has, in fact, happened over tions could undermine law enforcement ef- fully address my concerns. . . .’’ Mueller said and over again over 400 times. fectiveness. To truly fight terrorism, all of during questioning by Sen. Dianne Feinstein Why do we want to change this sys- the nation’s law enforcement assets should (D-Calif.), who opposes the detainee-related be deployed and enabled to act nimbly. This language in the bill. ‘‘I was satisfied with tem when it is working so well to keep can only be accomplished if our laws pre- part of it with regard to the authority, I still America safe? serve flexibility and prevent unnecessary bu- have concerns and uncertainties that are The fact that these detainee provi- reaucracy from hampering law enforcement raised by the statute.’’ activities. Mueller said he fears that the legislation sions have caused so many disagree- As part of the nation’s counterterrorism would muddle the roles of the FBI and the ments and such heated debate dem- strategy, FBI Agents work in the United military. onstrates the danger of enacting them States and abroad as an integral part of the The bill ‘‘talks about not interrupting in- into law. We shouldn’t impose this intelligence-gathering and interrogation terrogations, which is good but gaining co- process. These interrogations are often in- operation is something different than con- kind of uncertainty on law enforce- strumental in obtaining information that is tinuing an interrogation,’’ Mueller said. ‘‘My ment, defense, and intelligence who are essential to efforts to thwart subsequent concern is that . . . you don’t want to have working to protect America. We should acts of terror. The interrogation of detained FBI and military showing up at the scene at not limit the flexibility of the adminis- persons, however, must be adapted to each the same time on a covered person (under tration to respond to suspected terror- specific individual and circumstance in order the law], or with a covered person there may to be effective. Obtaining cooperation or in- be some uncovered persons there, with some ists in the most effective way, and we formation requires a mix of patience, lever- uncertainty as to who has the role and who’s should not raise serious constitutional age, and relationship-building that is incon- going to do what.’’ questions by requiring the military to sistent with the language in Section 1032, Mueller said later that he worries confu- detain people in the United States. which under a presumption of military cus- sion caused by the legislation could affect tody would require a waiver early in the the FBI’s ability to build rapport with sus- I have a letter from the Agents Asso- process. FBI Agents already work closely pects. ciation of the Federal Bureau of Inves- with the military and prosecutors to conduct ‘‘Given the statute the way it is now, it tigation, dated December 7, 2011, rais- effective investigations, and interjecting a does not give me a clear path to certainty as requirement to obtain waivers from the Sec- to what is going to happen when arrests are ing many of the same issues which I retary of Defense, while well-intentioned, made in a particular case. And the facts are have raised. I will say we contacted the risks delays and miscommunications that gray as they often are at that point,’’ the Agents Association after the con- would not serve the goal of conducting effec- FBI director said under questioning by Sen. ference and asked them their reaction, tive investigations, Chris Coons (D–Del.) ‘‘The possibility looms The FBIAA shares the goal of enacting and that we will lose opportunities to obtain co- and they said they still stood behind adopting policies that protect Americans operation from the persons in the past that their statements of December 7, 2011. I from terrorism, and we appreciate the dif- we’ve been fairly successful in gaining.’’ ask unanimous consent to have printed ficult task before the conferees working to Backers of the defense bill say it will im- in the RECORD this letter. reconcile H.R. 1540 and S. 1867. To this end, prove intelligence collection by making we urge the rejection of any language that military custody the default for certain ter- There being no objection, the mate- risks unnecessarily limiting the flexibility rorism suspects. President Barack Obama rial was ordered to be printed in the that is essential to adapting our investiga- has established civilian custody and courts RECORD, as follows: tions to the circumstances of each investiga- as the default for terrorism cases, with the tion. In the interest of national security, option to direct them to military commis- please reject Section 1032 in the final Na- sions when the Justice and Defense depart- tional Defense Authorization Act for Fiscal ments deem it appropriate.

VerDate Mar 15 2010 06:55 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.081 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8658 CONGRESSIONAL RECORD — SENATE December 15, 2011 Since the conference bill was unveiled That is what this legislation would ac- And the Due Process Guarantee Act Monday, the White House has been mute complish, so I look forward to working will clarify that citizens and lawful about whether the changes to the bill are with my colleagues, especially Chair- permanents cannot be detained with- enough to win Obama’s signature or whether man LEAHY on the Judiciary Com- out charge or trial if they are appre- he plans to carry through with the veto threat. mittee, to move this bill forward. hended domestically. I note the Senator from Illinois, Sen- I interpret current law to permit the Mr. DURBIN. I yield the floor. ator KIRK, is on the floor of the Senate detention of U.S. citizens as ‘‘enemy The PRESIDING OFFICER. The Sen- to speak about this bill as well. combatants,’’ consistent with the laws ator from California is recognized. Our current approach to handling of war, only in the very narrow cir- Mrs. FEINSTEIN. Mr. President, I these suspects in Federal criminal cumstance of a citizen who has taken thank the Senator from Illinois for his courts has produced a strong record of an active part in hostilities against the very eloquent remarks; also, the Sen- success since the 9/11 attacks. We United States and is captured outside ator from Colorado, Mr. UDALL, whom I would be wise to follow the saying, ‘‘If the United States in an area of ‘‘active had the pleasure of hearing from my of- it ain’t broke, don’t fix it.’’ combat operations,’’ such as the battle- fice. I think they have encapsulated Our system is not broken. We thwart- fields of Afghanistan. This was the Su- the situation we find ourselves in very ed attempted terrorist acts. We have preme Court’s narrow holding in Hamdi well. captured terrorists, interrogated them, v. Rumsfeld in 2004. Mr. President, I wish to follow up on retrieved actionable intelligence from I am sorry to say that Hamdi has the detention authorities in the De- them, prosecuted them, and locked been mischaracterized in this body. fense Authorization bill and announce them up for lengthy sentences—in Whether Congress should grant the that today I am introducing legislation most cases for the rest of their lives. President more expansive powers of de- to clearly state that citizens appre- Both Senator UDALL and Senator tention or act to curtail the powers hended in the United States shall not DURBIN pointed out Director Mueller’s identified by the Supreme Court in be indefinitely detained by the mili- testimony before the Judiciary Com- Hamdi is a question that Congress will tary. mittee yesterday. This is relevant be- continue to debate in the future. And This new legislation is called the Due cause it had been said that the Direc- we introduced the Due Process Guar- Process Guarantee Act of 2011. I am tor of the FBI was satisfied with the antee Act to help clarify current law: joined by Senator LEAHY, the chairman language of the conference report of that citizens and lawful permanents of the Judiciary Committee, to which the Defense authorization bill. When cannot be detained without charge or this bill will go, Senator LEE, a mem- Director Mueller was asked the ques- trial if they are apprehended domesti- ber of that committee, Senator KIRK, tion yesterday, Are you satisfied with cally. Senator MARK UDALL, Senator PAUL, the language, in so many words, he I would like to point out the errors in Senator COONS, and Senator GILLI- said, not quite. To quote him, Director the legal analysis by those who would BRAND. I thank them for being original Mueller said: interpret current law, or this Defense cosponsors of this bipartisan legisla- Given the statute the way it is now, it Authorization Act, to authorize the in- tion. doesn’t give me a clear path to certainty as definite detention of U.S. citizens with- In sum, the Due Process Guarantee to what is going to happen when arrests are out charge or trial, irrespective of Act we are introducing will add to an- made in a particular case. where they are captured or under what other major law called the Non-Deten- He warned: circumstances. tion Act of 1971, which clearly stated: The possibility looms that we will lose op- Let’s turn to the Supreme Court’s No citizen shall be imprisoned or otherwise portunities to obtain cooperation from the 2004 opinion in Hamdi v. Rumsfeld, detained by the United States except pursu- persons in the past that we’ve been fairly which has been incorrectly cited by successful in gaining. ant to an act of Congress. others for the proposition that the 2001 I am concerned about how these pro- The new legislation we intend to in- AUMF permits indefinite detention of visions will be implemented once they troduce will amend this Non-Detention American citizens regardless of where are enacted into law, so I will be Act to provide clearly that no military they are captured. watching carefully to ensure that they authorization authorizes the indefinite Hamdi involved a U.S. citizen, Yaser do not jeopardize our national security. detention without charge or trial of Esam Hamdi, who took up arms on be- Finally, I want to explain, as the U.S. citizens who are apprehended do- half of the Taliban and was captured on sponsor of the Feinstein compromise mestically. It also codifies a ‘‘clear the battlefield in Afghanistan and amendment, No. 1456, that the Defense statement rule’’ that requires Congress turned over to U.S. forces. The Su- authorization bill should not be read to to expressly authorize detention au- preme Court’s opinion in that case was authorize indefinite detention of U.S. thority when it comes to U.S. citizens a muddled decision by a four-vote plu- citizens captured inside the United and lawful permanent residents for all rality that recognized the power of the States or abroad, lawful resident aliens military authorizations and similar au- government to detain U.S. citizens cap- of the United States captured inside thorities. tured in such circumstances as ‘‘enemy our country or abroad, or any other We cannot limit the actions of future combatants’’ for some period, but oth- persons who are captured or arrested in Congresses, but we can provide that if erwise repudiated the government’s the United States. broad assertions of executive authority they intend to limit the fundamental On page 655 of the conference report, to detain citizens without charge or rights of U.S. citizens, they must say the compromise amendment, No. 1456, so clearly and explicitly. trial. that passed the Senate by a vote of 99 In particular, the Court limited its I am very pleased to add that Sen- to 1, reads this way, and this is in the ator DURBIN will also cosponsor this holding to citizens captured in an area conference report of the Defense au- of ‘‘active combat operations’’ and con- legislation. thorization bill: Lawful permanent residents are in- cluded that even in those cir- Nothing in this section shall be construed cluded in this bill we will introduce be- cumstances, the U.S. Constitution and to affect existing law or authorities relating the due process clause guarantees U.S. cause they have the same due process to the detention of United States citizens, or protections as citizens under the Con- lawful resident aliens of the United States, citizens certain rights, including the stitution. In this bill, the protections or any other persons who are captured or ar- ability to challenge their enemy com- for citizens and lawful permanent resi- rested in the United States. batant status before an impartial dents is limited to those ‘‘apprehended What does this mean? This means we judge. The plurality’s opinion stated: in the United States,’’ excluding citi- have agreed to preserve current law for It [the Government] has made clear, how- zens who take up arms against the the three groups specified, as inter- ever, for the purposes of this case, the United States on a foreign battlefield. preted by our Federal courts, and to ‘‘enemy combatant’’ that it [the Govern- ment] is seeking to detain is an individual I strongly believe constitutional due leave to the courts the difficult ques- who, it alleges, was ‘‘part of or supporting process requires that U.S. citizens ap- tions of who may be detained by the forces hostile to the United States or coali- prehended in the United States should military, for how long, and under what tion partners’’ in Afghanistan, and who ‘‘en- never be held in indefinite detention. circumstances. gaged in an armed conflict against the

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\A15DE6.024 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8659 United States’’ there. Brief for Respondents Padilla’s case, but its analysis turned his detention, Padilla was ultimately 3. entirely on disputed claims that transferred out of military custody and That was all a quote from the plu- ‘‘Padilla associated with forces hostile tried and convicted in a civilian court. rality opinion, and it continues: to the U.S. Government in Afghani- Padilla, a U.S. citizen, was arrested We therefore answer only the narrow ques- stan’’ and, ‘‘like Hamdi,’’ and this is a in Chicago on May 8, 2002 on suspicion tion before us: whether the detention of citi- quote, ‘‘Padilla took up arms against of plotting a dirty bomb attack in the zens falling within that definition is author- United States forces in that country in United States. He was initially de- ized. the same way and to the same extent tained pursuant to a material witness The opinion goes on to say at page as did Hamdi.’’ warrant based on the 9/11 terrorist at- 517: To help resolve this apparent dispute tacks. We conclude that the AUMF is explicit between the circuits, I believe we need On June 9, 2002, two days before a congressional authorization for the deten- to pass the Due Process Guarantee Act Federal judge was to rule on the valid- tion of individuals— that my cosponsors and I are intro- ity of continuing to hold Padilla under And here it is— ducing today. the material witness warrant, Presi- in the narrow category we describe. . . . And I would like to add Senator BILL NEL- dent Bush designated him an ‘‘enemy the narrow category they describe is one who SON of Florida as a cosponsor. combatant’’ and transferred him to a is part of forces hostile to the U.S. on the The PRESIDING OFFICER (Mrs. military prison in South Carolina for battlefield of Afghanistan. Indeed, the plu- MCCASKILL). Without objection, it is so detention pursuant to the law of war rality later emphasized that it was dis- ordered. without charge or trial. cussing a citizen captured on the battlefield. Mrs. FEINSTEIN. This is important. Padilla subsequently filed a petition In responding to Justice Scalia’s dissenting We spent about half a day on this floor for a writ of habeas corpus in Federal opinion, the plurality opinion says: discussing this with Senator LEVIN, Justice Scalia largely ignores the context court challenging the legality of his with Senator MCCAIN, in the cloak- of this case: a United States citizen captured continued detention and an extended in a foreign combat zone. room with Senators LEE and PAUL, as series of appeals ensued. well as with a whole host of staff both Facing an impending Supreme Court The plurality italicized and empha- from the Armed Services Committee as sized the word ‘‘foreign’’ in that sen- challenge and mounting public criti- well as the Intelligence and Judiciary cism for holding a U.S. citizen arrested tence. Committees. Here is the conclusion: I, Thus, to the extent the Hamdi case inside the U.S. as an enemy combatant, and many of my colleagues and legal permits the government to detain a President Bush ordered Padilla trans- scholars, believe neither the AUMF nor ferred to civilian custody to face crimi- U.S. citizen until the end of hostilities, the provisions of the National Defense it does so only under a very limited set nal conspiracy and material support Authorization Act that we are consid- for terrorism charges in Federal court. of circumstances; namely, citizens tak- ering today constitute such an express ing an active part in hostilities who The criminal charges against Padilla authorization to detain American citi- were not, however, related to Padilla’s are captured in Afghanistan and who zens. are afforded certain due process protec- alleged involvement in a dirty bomb As I previously mentioned, I spon- plot, which had been the basis for his tions, at a minimum. sored compromise amendment No. 1456 It is also worth noting that amid lin- prior detention as an enemy combat- to the Defense bill when it passed the ant. gering legal uncertainty regarding Senate and that amendment has now whether the government had the au- Padilla was subsequently convicted become section 1021(e) of the con- and sentenced to 17 years in prison. thority to detain Hamdi, the Govern- ference report specifically to prevent ment—this was the Bush administra- That 17-year sentence has since been misrepresentations from providing vacated and is under reconsideration. tion—saw this and released Hamdi to Congressional intent to support the de- Saudi Arabia on the condition that he Thus, the Padilla case is at best incon- tention of Americans. clusive as to the President’s authority relinquish his U.S. citizenship. Ex parte Quirin is a 1942 Supreme As a result, I don’t regard the Su- to detain a citizen captured inside the Court case that upheld the jurisdiction United States as an ‘‘enemy combat- preme Court’s decision in Hamdi as of a U.S. military tribunal that tried ant.’’ More likely, it evidences the providing any compelling support for several German saboteurs captured in- folly of such overreaching assertions of broad assertions of legal authority to side the United States during World detain U.S. citizens without trial. Cer- Executive power. War II and brought to stand trial be- Despite my longstanding opposition tainly, the case provides no support for fore the hastily convened military tri- to the detention provisions in this bill, the indefinite detention of citizens cap- bunal. I will be voting yes on this important tured inside the United States. One of the saboteurs, Herbert Hans legislation. The main reason I support Let me go back to something. In 1971, Haupt, was a U.S. citizen. However, the the defense authorization bill is be- the Congress passed, and Richard question at issue in Quirin was not cause it ensures our troops deployed Nixon signed into law, a Non-Detention whether a U.S. citizen captured inside around the world—especially those in Act to preclude this very possibility. the United States could be held indefi- Afghanistan—have the equipment, re- That act was intended in large measure nitely under the laws of war without sources, and training they need to de- to put the wrongs of Japanese intern- trial, but rather, whether such an indi- fend this Nation. ment during World War right. It pro- vidual could be held in detention for a I wish to sum up by quoting Justice vides simply: matter of weeks pending trial by mili- Sandra Day O’Connor, writing for the No citizen shall be imprisoned or otherwise tary commission. plurality in Hamdi. Here is what she detained by the United States except pursu- Haupt was, in fact, tried, convicted wrote: ant to an act of Congress. and sentenced to death within weeks As critical as the Government’s interest I very much agree with the Second after his capture. Moreover, the Quirin may be in detaining those who actually pose Circuit Court of Appeals, which held in opinion predates the Geneva Conven- an immediate threat to the national security the case of Padilla v. Rumsfeld that: tions, a milestone of rather substantial of the United States during ongoing inter- [W]e conclude that clear congressional au- significance in the development of the national conflict, history and common sense thorization is required for detentions of law of war, and the decision also pre- teach us that an unchecked system of deten- American citizens on American soil because dates the Non-Detention Act of 1971. tion carries the potential to become a means . . . the Non-Detention Act . . . prohibits As Justice Scalia said in his dissent for oppression and abuse of others who do such detentions absent specific congressional in Hamdi: ‘‘[Quirin] was not [the Su- not present that sort of threat. authorization. preme] Court’s finest hour.’’ This is what Senator KIRK, Senator The Second Circuit went on to say The only recent case of a U.S. citizen LEE, Senator PAUL, and those of us on that the 2001 AUMF ‘‘is not such an au- captured inside the United States and the Democratic side who have worked thorization and no exception to [the held as an enemy combatant under the on this truly believe. What about the Non-Detention Act] otherwise exists.’’ law of war is that of Jose Padilla. person captured on the corner who The Fourth Circuit came to a dif- However, amid considerable legal looks a certain way, who gets picked ferent conclusion when it took up controversy regarding the legality of up and put into detention? Does that

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.085 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8660 CONGRESSIONAL RECORD — SENATE December 15, 2011 person have the right to a charge and tary jurisdiction. But with regard to which is fully under the fourth and to a trial? Our system of due process U.S. citizens and resident aliens on sixth amendments of our constitu- and the Constitution of the United U.S. soil, I would argue that the entire tional protection. We have an extraor- States say, simply, yes. point of the Department of Defense is dinarily able FBI, ATF, DEA, et cetera, I look forward to working with my to defend our constitutional rights and the whole panoply of Federal law en- colleagues to pass the due process to make sure they are honored. If you forcement, which, quite properly, is guarantee bill. read the Constitution—and I would not under the administration of the I wish to defer to the distinguished urge all Members in this battle to Pentagon but is instead under the ad- Senator from Illinois, Senator KIRK. reread it; it is only 5,000 words long— ministration of the Department of Jus- The PRESIDING OFFICER. The Sen- you will see that the rights provided tice. We have a vast array of State and ator from Illinois. are without qualification and are part local law enforcement all dedicated to Mr. KIRK. Madam President, I wish of your birthright. protecting the United States but, most to rise in support of the Feinstein- What is the first thing a U.S. Sen- importantly, to uphold the very oaths Leahy-Lee legislation. We are taking ator, a Member of Congress, or the they also take in their first minute as up the Defense authorization bill with President does? They swear an oath to law enforcement officers to protect the the controversial provisions in it, the Constitution of the United States. U.S. Constitution. somewhat protected already by the What is the first act any American or So on this day that we pass the Feinstein language. But this legisla- resident alien joining the U.S. military NDAA, which has a murky provision tion locks in a fundamental truth that does? They don’t swear allegiance to a regarding this—somewhat protected by I think is important for our country, President or a leader or a territory; the Feinstein legislation—it is very and that is as a U.S. citizen inside the they swear allegiance to the U.S. Con- important for us then to rally behind territory of the United States, you stitution, and that is the mission the further legislative protections have inalienable rights under our Dec- which they are undertaking to protect. here. I think this is strong, bipartisan laration of Independence. We are pro- We see a number of cases cited—as I legislation. I commend Senator FEIN- tected pursuant to the U.S. Constitu- noted, Ex parte Quirin, the German STEIN, Chairman LEAHY, and Senator tion. spy, or U.S. nationals who landed in LEE for bringing it forward. No. 1, this Our Constitution says all crimes, and Long Island and were summarily exe- will help protect the U.S. military prosecution thereof, shall be pursuant cuted under U.S. military justice. I from missions that it should not under- to a grand jury indictment. There is no would say at least they were part of a take. No. 2, we will make sure there is exception in the Constitution for that. foreign military and trained in that clear delineation between the Depart- The Constitution grants a U.S. citizen mission and trying to carry out that ment of Justice, Homeland Security, a trial in the State in which the crime mission when that rough justice was and its whole panoply of agencies, and was committed, I think clearly envi- put in place. our military, which protects our rights sioning a civilian trial. We, as Ameri- With regard to Jose Padilla, he was a from threat overseas. But, most impor- cans, have a right to a speedy trial, not U.S. citizen—sometimes when I was at tantly, No. 3, to defend the U.S. Con- indefinite detention. the State Department, people would stitution, your birthright as an Amer- We as Americans have a right to a ask me who our Ambassador to Puerto ican citizen to have these rights to jury of our peers, which I would argue Rico was. Puerto Rico is part of the make sure we do not subject any U.S. is not enlisted or military personnel United States. He was a full member of citizen apprehended inside the United sitting in a jury. You cannot search the country, with U.S. citizenship. He States to indefinite detention under our persons or our places of business or was arrested at O’Hare Airport, but U.S. military authority, knowing they homes without probable cause under pursuant to executive action was im- have inalienable birthrights that were the Bill of Rights. You cannot be de- mediately taken into military custody granted to them by the U.S. Constitu- prived of your freedom or your prop- and held in a brig. I regard all of his tion. erty without due process of law, and constitutional rights were then vio- With that, I commend the Chair. that, I would say, is not indefinite de- lated. In the subsequent litigation, I Mr. KIRK. I suggest the absence of a tention. All due process guarantees think eventually the Bush administra- quorum. under law are granted to you by the tion realized they were about to lose The PRESIDING OFFICER. The 14th amendment. I would actually this case, which is why they kicked clerk will call the roll. argue that no statute and no Senate him back into civilian court. The assistant bill clerk proceeded to and no House can take these rights In the Hamdi case, which is so often call the roll. away from you. cited, even there we at least had a for- Mr. KIRK. Madam President, I ask It is very important to pass this leg- eign connection, foreign training as unanimous consent that the order for islation to prevent needless litigation part of another battlefield. What we the quorum call be rescinded. against constitutional rights, which I are talking about here is very narrow, The PRESIDING OFFICER. The Sen- regard already as your birthright as an to make sure at the very least that ator from Illinois. American citizen. It is very important you, as a U.S. citizen in U.S. territory, Mr. KIRK. Madam President, we have to talk about what the Feinstein legis- are not going to be subjected to indefi- two other provisions that are in the lation does and does not do. I think it nite military detention and military National Defense Authorization Act is very narrowly crafted to defend the justice, that all of your constitutional that I want to briefly mention. rights of American citizens and resi- rights are adhered to. First, we have a modified Brooks dent aliens inside the United States. I would simply ask this—also as a re- amendment in the conference report We agree that aliens who are engaged serve naval officer—what U.S. military that says if there is any plan to deliver or captured on foreign battlefields can officer wants the duty to roll in, for ex- classified missile defense data to the be subjected to rough justice, battle- ample, to Peoria, IL, and arrest an Russians, the administration has to field outcomes, or detention and pros- American citizen for actions that cit- have a 60-day clock expire and then ecution by the U.S. military. izen has only done in the United certify to the Congress that none of We even agree that a U.S. citizen States, not connected to a foreign mili- this data could end up in the hands of such as Anwar al-Awlaki, who took up tary or training, and then to put that third parties, particularly the Iranians arms against the United States from person through military detention and or Syrians. I wish to put the adminis- his terrorist base, Yemen, is then the justice? I would say for the long-term tration on notice that that certifi- proper subject of U.S. military action, interest of the U.S. military and to cation probably cannot be made. and he received that proper attention. protect the U.S. military, we do not Dmitry Rogozin, the lead negotiator on Illegal aliens, even inside the United want to give that mission to our the missile defense for their govern- States—we are not engaging on that Armed Forces. A point of common ment, has a close and continuing rela- subject. If they are part of jihad or sense should prevail here as well. tionship with Iran. He is going to Iran other warfare against the United We spend billions of dollars on the next month. When we see the intel- States, they can be subjected to mili- Department of Homeland Security, ligence sharing and cooperation on

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.086 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8661 missiles and on other weaponry, but es- was sentenced to 90 lashes, later sus- We have to ask ourselves: The events pecially discussions about a second nu- pended, for simply appearing in an Aus- of 9/11, were they acts of war or were clear reactor in Iran, I think we should tralian film without a head dress. they a crime against our country? I all realize that any classified data on The time for action on Iran is now. firmly believe we are at war with mem- U.S. missile defense going to the Rus- With the passage of the National De- bers of al-Qaida; that what happened sians would be given to the Iranians. fense Authorization Act and the signa- on September 11 was an attack against Remember, in missile combat be- ture that we now expect from the the United States of America. Innocent tween enemies of the United States and President, a set of clocks begins, 60- Americans were killed not because of ourselves, everything would be over po- and 180-day clocks. I will be teaming what they did but because of what we tentially in a matter of hours. If the with Senator MENENDEZ and others—in believe in and what we stand for as a Russians accomplish by diplomacy fact, with the entire U.S. Senate that country. what they have failed to do by espio- supported this—to make sure we have So when I hear some of my col- nage, which is getting critical details the toughest action possible to collapse leagues suggest there are problems of U.S. missile defense, and especially the Central Bank of Iran, which the with the detainee compromise that was missile defenses of Poland and other Treasury Department noted is the cen- achieved on a bipartisan basis in this key allies, we give only a few minutes tral money launderer for that govern- body—because we have basically said, to a few hours to the U.S. commander ment to support terror and nuclear if a foreign member of al-Qaida comes to be able to diagnose the problem, un- proliferation. to the United States of America, seeks derstand how he has been penetrated or With that, I yield the floor. Actually, to commit another 9/11 against us, fooled, and to correct that. I think that I yield to my colleague from New seeks to attack our country or its citi- weakens the defenses of the United Hampshire. zens, that the presumption will be mili- States significantly. The PRESIDING OFFICER. The Sen- tary custody. That those provisions are I had a hold on the nominee for the ator from New Hampshire. misguided in some way deeply troubles U.S. Ambassador to Moscow, Michael Ms. AYOTTE. Madam President, I me. If this wasn’t an act of war, then I McFaul. Because of the passage of the rise today in support of the National don’t know what is. We need to make modified Brooks amendment and a Defense Authorization Act. In par- sure we treat enemies of our country written letter of assurances given to ticular, I wish to speak briefly about for who they are and make sure they me by the administration, I have now the detainee provisions contained in are not read their Miranda rights. lifted that hold. I will be supporting his the conference report. So in this bipartisan compromise we nomination also because he will be I have spoken many times over the said there is a category of individuals— good in working with the opposition last few months about this issue, but members of al-Qaida or associated and human rights communities in Rus- due to the importance of these issues— groups—who want to come to America sia. and I think because of some of the un- to attack us or our allies and for But I think everyone is now on no- fortunate mischaracterizations we whom, yes, there is a presumption of tice that we should not move forward have heard about the bipartisan com- military custody. That way they don’t with any plan to provide classified mis- promise that passed this body already have to be read their Miranda rights or sile defense data to Russia because it overwhelmingly and came out of the be provided the rights of our civilian will be shared with the Islamic Repub- Armed Services Committee overwhelm- system. lic of Iran, and that is one of the prin- ingly—I wanted to come to the floor to We also address the administration’s cipal threats for which the U.S. and make some closing points on this. concerns by giving them a national se- curity waiver, by allowing our law en- NATO missile defenses are arrayed I would like to start with this propo- forcement officials the flexibility to against. sition: No member of al-Qaida, no ter- A second provision which is in the rorist, should ever hear the words ‘‘you come up with the procedures on how to National Defense Authorization Act have the right to remain silent.’’ That implement the provisions of this bill. I wish to address what I heard from concerns Iran itself. Senator MENENDEZ fundamental principle is at the heart of FBI Director Mueller yesterday, just to and I teamed up on an amendment that the issue we confronted in the Armed be clear on the record, because yester- also says: If you do business with the Services Committee in addressing the day FBI Director Mueller raised con- Central Bank of Iran, you may not do detainee provisions that are contained cerns about these detention provisions business with the United States. But within the Defense authorization re- saying there is a possibility that looms we provided critical flexibility to the port. The central issue is, how do we that we will lose opportunities to ob- administration. The amendment is not best gather intelligence to protect our tain cooperation from individuals we country from future attacks? imposed for weeks, if not months, and have been able to obtain cooperation It is common sense that if we tell a two critical waivers are put in the from in the past. amendment which say, No. 1, if we find terrorist they have the right to remain Well, I am concerned because when a critical shortage in oil markets be- silent, they may exercise that right. FBI Director Mueller came to a group cause of Iran’s leading role, sanctions What if they do so and they have addi- of us, including the chairman of the could be delayed if not suspended. Also, tional information about future at- Armed Services Committee and Rank- tacks on our country or, as in the case there is a general national security ing Member MCCAIN, he raised oper- waiver put in if something unexpected of the so-called Underwear Bomber— ational concerns about this provision, happens. But, in general, the rule goes which, unfortunately, in my view, has and we said we want to address those forward that we are moving forward on been cited by some of my colleagues as concerns. So in the final conference re- a comprehensive plan to collapse the a success—if that event had been part port there is language that was given Central Bank of Iran. of a series of events such as the events to us by the FBI to address their oper- Despite Secretary Geithner opposing that occurred on 9/11 where we were at- ational concerns. It was included in the Menendez-Kirk amendment, this tacked on our own soil, what would we this bill without a comma changed. body voted 100 to 0 to support that have lost? After 50 minutes, the so- So it makes me concerned when we amendment because we know of the called Christmas Bomber was told he put their language in to address their International Atomic Energy Agency’s had the right to remain silent and he concerns, saying nothing in this sec- report that they may be getting close exercised that right and we did not get tion shall be construed to affect the ex- to having enough fissile material for a to question him again until 5 weeks isting criminal enforcement and na- nuclear weapon. We know of Iran’s sup- later, after law enforcement officials tional security authorities of the Fed- port for Hezbollah and Hamas. We tracked down his parents in another eral Bureau of Investigation or any know of their oppression of minorities, country and convinced him to cooper- other domestic law enforcement agen- especially 330,000 Baha’is, who have ate. That is not a good policy to gather cy with respect to a covered person re- been prohibited from contracting with intelligence to protect our country, gardless of whether such covered per- the Iranian Government. Kids are not and that is at the heart of what we are son is held in military custody. allowed to be in university. We even trying to address on a bipartisan basis So I say to Director Mueller: We put know of one poor Iranian actress who in the Defense authorization bill. your language in directly, and it makes

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.087 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8662 CONGRESSIONAL RECORD — SENATE December 15, 2011 me concerned when I hear, in my view, we think al-Qaida operatives, citizens citizens and tourists alike—is very what are political viewpoints rather or not, are not common criminals. We real. than what is the reality of what is in think they are crazy people, warriors, What this legislation does is it says this bill, which will allow the FBI to bent on our destruction, who would from the Congress’s point of view we continue its work and will allow for us blow themselves up just as quickly as recognize the person who is aligned to hold in military custody those who they would blow you up, and they don’t with al-Qaida is not a common crimi- are seeking to attack our country and care if they blow themselves up. The nal, that we expressly authorize the in- will ensure that Miranda rights do not only reason the Christmas Day Bomber definite detention of someone who has have to be given if that is the best in- didn’t kill a bunch of people is because joined al-Qaida operations. vestigative way to go forward to pro- his shoe didn’t go off. The only reason Why is that important? Don’t you tect our country. the Times Square Bomber didn’t kill a think most Americans, I say to the I see my colleague, the Senator from bunch of people is because the bomb Senator, would be offended if after the South Carolina, on the floor. I wish to didn’t go off. person who went on a rampage in the ask him a question about the bill and If you are an American citizen and Capital to kill American citizens, to the detainee provisions, particularly you want to help al-Qaida kill Ameri- kill people in America, was captured, about the authorization for the use of cans and destroy your own country, we could not question them about: Is military force. I have heard some peo- here is what is coming your way. If you there somebody else coming? We would ple on the floor of the Senate—includ- happen to be listening to this debate, have to say: You have the right to re- ing the Senator from Colorado, the please understand the law as it is today main silent. Here is your lawyer. Senator from Illinois, and the Senator and as it is going to be after this bill is What we should do with that person from California—express concerns passed: We are at war. The authoriza- who went to Pakistan and got about the fact that this bill reaffirms tion to use military force passed by the radicalized and wants to come back the authority of the President of the Congress right after the attacks and kill us all is hold them in military United States to detain an American against this Nation designates al-Qaida custody, as we have done in every citizen who has joined with al-Qaida as a military threat, not a common other war, and find out all we can and who has, as a member of al-Qaida criminal threat, so we apply the law of about future attacks and what they or an associated force, joined arms war. There are two legal systems at know. Because we are not fighting a against our country and sought to kill play: domestic criminal law that well crime; we are fighting a war. That has Americans. serves us as a nation to deal with been the law, according to the Supreme I wish to ask the Senator from South crime—even the worst person, the Court, for decades, and all we are doing Carolina about this provision and why worst child abuser gets a lawyer and is in Congress is saying, statutorily: We it is important for our country. presumed innocent. Believe it or not, recognize the authority of this Presi- Mr. GRAHAM. I thank the Senator war criminals get lawyers and are pre- dent and every other President to hold from New Hampshire who has been a sumed innocent. an enemy combatant for intelligence- great leader on this issue. I am proud of both systems, but the gathering purposes indefinitely, wheth- Let me just tell my colleagues what law enforcement model doesn’t allow er they are captured at home or drives my thinking. I think we are at us to hold someone for a period of time abroad, because that only makes log- war—I don’t think it, I believe it. I to gather intelligence. Under the law ical sense. The idea of criminalizing hope my colleagues believe it too, and enforcement model, once we capture the war and not being able to gather I know America is part of the battle- someone, we have to start reading intelligence will put our country at field because the enemy would like to them their rights and providing them risk. destroy our country. with a lawyer. Under the law of war Let me say this about the system: No If we capture an al-Qaida operative model, we can hold someone who is one can be held as an enemy combatant overseas, does anybody in this body part of the enemy force and gather in- under the law we have constructed suggest that we should give them a telligence. without having their day in Federal lawyer or read them their rights? In This is not the first war where Amer- court. So do not worry about going to World War II, if we had captured a Nazi ican citizens have sided with the a tea party or a moveon.org rally or an soldier overseas and started saying enemy. In the In re Quirin case, a Occupy Wall Street rally and somebody they had the right to remain silent and World War II case where American citi- holding you as a political prisoner we would give them a lawyer, even zens aided Nazi saboteurs, here is what under this law. The only people who though Miranda didn’t exist at the the Court said: There is no bar to the can be held under military custody for time, people would have run us out of Nation holding one of its own citizens an indefinite period are ones who have town. as an enemy combatant. That has been been found to have associated with al- So if we believe we can kill an Amer- the law for decades. Qaida in an overt way, and the govern- ican citizen who has joined al-Qaida— So if it made sense to hold an Amer- ment has to prove that to a Federal the Awlaki case, where the President ican citizen who was helping the Nazis judge. If the Federal judge does not be- of the United States made an executive under military authority because they lieve the government has made their decision under the rule of the law, not were helping a military enemy of the case, the person is released. If the Fed- through a court decision, to target an Nation to gather intelligence, why in eral judge says to the U.S. Govern- American citizen who had aligned the world wouldn’t it make sense to ment: You have convinced me that the themselves with the enemy—then if we hold somebody who has joined with al- person in front of me is cooperating can kill them, which is pretty indefi- Qaida to gather intelligence about the and has joined al-Qaida and is overtly nite, why can’t we capture and hold next attack? engaged in hostilities against the them? Let me give an example of what we United States. I hereby authorize to Now, that would be the dumbest may face. Homegrown terrorism is on you to hold that person to gather intel- thing in the history of the world for a the rise. The Internet is out there. It is ligence, how long can you hold them? nation to say: We all acknowledge the a good thing and a bad thing. But the As long as it takes to make us safe. executive branch’s power to target an idea of people getting radicalized and Here is what the law does. Every American citizen who has aligned turning against their own country is a year, the person being held as an themselves with the enemy. We can growing threat. enemy combatant has an annual review kill them overseas, we can capture So the likelihood in the future of process where the experts in our gov- them overseas, we can interrogate someone getting radicalized—an Amer- ernment look at the threat this person them about what they know about fu- ican citizen here at home going to possesses, whether we have more intel- ture attacks, but when they get here Pakistan, getting educated in one of ligence to be attained, and there is a we have to treat them as a common these extremist madrassas, coming legal process to review ongoing deten- criminal. back home, getting off the plane at tion. I think what we share, I say to the Dulles Airport, coming down to the Here is what some of my colleagues Senator from New Hampshire, is that Mall and starting to shoot American would say: Wait a minute. You cannot

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.054 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE December 15, 2011 CONGRESSIONAL RECORD — SENATE S8663 do that. We are going to say, as a Mem- would have suggested in 1942 that the said on the floor of the Senate: We re- ber of Congress, that at an artificial American citizen helping the Nazis ject the Supreme Court holdings that date you have to let that person go or commit sabotage against the United allow the American Government to try them? A lot of these cases will be States had a special status and could hold someone as an enemy combatant based on intelligence that may not go not be treated in the fashion of a mili- when they have joined the enemy to an article III court. We may have to tary threat to the country, they would forces at home or abroad. compromise our national security. We have run you out of town. So those of us who are voting for can prove to a judge they are a member So we are 10 years out from the at- this, we are saying we accept the prop- of al-Qaida, but we are not going to tacks of 9/11, and here is what we are osition that if you join al-Qaida, you take them to the criminal court be- rejecting: We are rejecting the crim- can be killed, you can be captured, you cause that is not in our national secu- inalization of the war, but we are doing can be interrogated. I am willing to ac- rity interest. it in a smart way. We are not telling cept the heat for making that decision. The key fact is, no one is held as an the executive branch they have to go Because if we cannot kill them and we enemy combatant without judicial re- into a law-of-war detention system. We cannot capture them and we cannot in- view. Once you are determined to be an are just saying that is available to terrogate them, we have made a huge enemy combatant, then we are going to them. We are not telling the executive mistake because these people hate us. apply the law of war, as we have for 200 branch they have to try people in mili- They hate who we are. They hate what years. The law of war says: No nation tary commissions. We are just saying we stand for. They would kill us all if has to let an enemy prisoner go or to them that is available for nonciti- they could. They are out there, and prosecute them—because we are not zens. What we are telling the executive some of them are among us who have fighting a crime; we are fighting a war. branch is that we believe we are at the title of ‘‘American citizen.’’ If you are an al-Qaida operative, you war, and that narrow group of people— But let me tell you about that title. could get killed, even if you are an thank God it is a narrow group—who Not only does it have rights, it has re- American citizen, by assisting the join al-Qaida do not have special privi- sponsibilities. Our courts have said enemy at home or abroad. So do not leges when it comes to destroying our there is nothing in our law or our Con- join al-Qaida because you could lose homeland; that if they make it to stitution that prevents us from holding your life. If you do get captured, you America, the closer they get to us, the one of our own when they join the can be held indefinitely under the law more tools we should have available to enemy. Because when they join the of war because you have committed an protect ourselves. enemy, they have not committed a act of war. So we are on record—at least I am crime; they have turned on the rest of Ms. AYOTTE. Would the Senator and I think the body as a whole. Sen- us, and they should accept the con- from South Carolina yield for a ques- ator LEVIN has been terrific. The ad- sequences of being at war with Amer- tion? ministration has been great to work ica. Being at war with America is Mr. GRAHAM. I am pleased to. with. Finally, after 10 years, the Con- something they should fear, and if they Ms. AYOTTE. Isn’t it true that in- gress of the United States, through do not fear being at war with America, cluded within the Defense authoriza- this legislation, is going to make the we have made a huge mistake. tion language in the detainee provi- simple statement, simple proposition I believe in due process. No one is sions is that: that under the law of war, you can be going to prison without a Federal Nothing in this section is intended to limit held as an enemy combatant indefi- judge’s oversight. No one stays in pris- or expand the authority of the President or nitely to protect this Nation. Because on indefinitely without an annual re- the scope of the Authorization for Use of when you join al-Qaida—the enemy of view. But, my God, we are not going to Military Force. us all—we are not worried about arbitrarily say: You have to go. You In other words, what is the law whether we are going to prosecute you have to be let go because of the passage today—as you just described it—we are right away. We are worried about what of time and we are not going to crim- reaffirming in this bill. But we are not you know about the next attack com- inalize this war—because it is a war. adding or subtracting from the Presi- ing. As sure as I am standing here talking dent’s authority that he has, as the Let me tell you why we need this today, we are going to be wrong once. Commander-in-Chief of our country, to flexibility. The Christmas Day Bomb- We have to be right every time, I say protect our country against members er—the bomb did not go off, thank God; to the Senator. We have been lucky, of al-Qaida. it was just luck—was read his Miranda and our men and women in uniform Mr. GRAHAM. The Senator is cor- rights within 45 minutes. Five weeks and our intelligence community and rect. later, his parents convinced him to co- our FBI agents are doing a wonderful But here is what we are doing. Here operate. What we are suggesting is job. They are working night and day to is what LINDSEY GRAHAM is doing, and there is another way that has been protect us. The threats are growing. CARL LEVIN, and an overwhelming used in other wars, that the U.S. intel- They are not lessening. There will number of the Members of this body ligence community, law enforcement come a day, I am sad to say, when we are about to do. We are about to pass a community, and military have an op- are going to get hit again. But when defense authorization bill that in- tion available to them. that day comes, we are going to make creases military pay, that has a lot of We could grab this person who has sure we have the tools to deal with it great things. But we are about to say just tried to blow up an airplane over in terms of what it is: an act of war. as a Congress: We believe we are at Detroit—American citizen or not—and We are going to have the tools avail- war, and we reject the idea—the Liber- we can hold them without telling them able to this country to rein in the con- tarian idea; who are great Americans— they have a right to a lawyer and read- sequences because we are going to have that if you get to America somehow, it ing them their Miranda rights. Because the tools available to find out where is is no longer a war. we are trying to find out is another air- the next attack coming from. I think the Libertarians agree that if plane coming and what do they know We are not going to criminalize the you catch an al-Qaida operative, in- about the enemy and what were they war. We are going to fight it within our cluding an American citizen, overseas, up to and where did they train. values. We are going to provide robust we do not have to read them their If we take that option off the table, due process. But we are going to ac- rights, and we do not have to give them we will have diminished our national knowledge as a body in Congress that a lawyer. But somehow, the perverse security. We will have overturned what our Chief Executive and those men and logic is, if they make it to America to every other time of war has been women in uniform, law enforcement attack us, whether they are a citizen about. We would be the first Congress agents, CIA agents—that they have our or not, somehow they get a special in the history of the country to reject blessing to do their job, and we are deal. the idea that we can hold someone who going to acknowledge that they have All of us who are voting for this bill is collaborating with the enemy under the tools available in this war that say that is crazy; we are at war. For no the law of war. Let’s reverse this. This were available to other like people in other war has that been the case. If you is the first time in history people have other wars.

VerDate Mar 15 2010 04:21 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.055 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE S8664 CONGRESSIONAL RECORD — SENATE December 15, 2011 Ladies and gentlemen, if there was relating to the detention of United States The PRESIDING OFFICER. Are there ever a war where it was important to citizens.... any other Senators in the Chamber de- know what the enemy was up to and I urge people to read our conference siring to vote? hit them before they hit us, it is this reports read the Senate bill, before The result was announced—yeas 86, war. They could care less about losing they accept some of the arguments nays 13, as follows: their lives. The only way we will be which have been made against this con- [Rollcall Vote No. 230 Leg.] safe is to gather intelligence, and we ference report. YEAS—86 cannot gather intelligence, in my view, Madam President, I ask unanimous consent that the statement of the Akaka Graham Mikulski by locking down America to ‘‘Dragnet’’ Alexander Grassley Murkowski standards. This is not a TV show. This Press Secretary for the President that Ayotte Hagan Murray was issued yesterday on behalf of the Barrasso Hatch Nelson (NE) is a real-world event that changes as I Baucus Heller speak. President be printed in the RECORD, in- Nelson (FL) cluding this line: Begich Hoeven Portman To Senator LEVIN, to Senator Bennet Hutchison [W]e have concluded that the language Pryor AYOTTE, and to all those who have Bingaman Inhofe does not— Reed tried to create a compromise to enjoy Blumenthal Inouye Reid The language in the conference re- Blunt Isakson Roberts bipartisan support—to the administra- Boozman Johanns port— Rockefeller Boxer Johnson (SD) tion—thank you all. To the critics, Rubio challenge or constrain the President’s Brown (MA) Johnson (WI) some of your criticism has been un- Schumer ability to collect telling intelligence, Brown (OH) Kerry founded. But you have the right to be a Sessions Burr Kirk critic. You live in the State called incapacitate dangerous terrorists, and Shaheen protect the American people— Cantwell Klobuchar ‘‘Live Free or Die.’’ Carper Kohl Shelby Let me remind everybody, being a And the key words for many people— Casey Kyl Snowe Stabenow critic and being able to speak your and the President’s senior advisors will not Chambliss Landrieu recommend a veto. Coats Lautenberg Tester mind sometimes means people have to Thune There being no objection, the mate- Cochran Leahy die. Collins Levin Toomey What I am—— rial was ordered to be printed in the Conrad Lieberman Udall (CO) The PRESIDING OFFICER. The time RECORD, as follows: Coons Lugar Udall (NM) Corker Manchin Vitter STATEMENT FROM THE PRESS SECRETARY ON for the Senator from New Hampshire Cornyn McCain Warner has expired. THE NDAA BILL Enzi McCaskill Webb Mr. GRAHAM. Madam President, We have been clear that ‘‘any bill that Feinstein McConnell Whitehouse could I ask for 30 seconds? challenges or contrains the President’s crit- Gillibrand Menendez Wicker ical authorities to collect intelligence, inca- The PRESIDING OFFICER. Is there NAYS—13 any objection? pacitate dangerous terrorists, and protect the Nation would prompt the President’s Cardin Franken Risch Mr. LEVIN. Madam President, re- senior advisers to recommend a veto.’’ After Coburn Harkin Sanders serving the right to object—and I, of intensive engagement by senior administra- Crapo Lee Wyden course, will not—how much time is left tion officials and the President himself, the DeMint Merkley Durbin Paul before our vote? Administration has succeeded in prompting The PRESIDING OFFICER. One the authors of the detainee provisions to NOT VOTING—1 minute. make several important changes, including Moran the removal of problematic provisions. While Mr. GRAHAM. I will do this in 15 sec- The conference report was agreed to. onds. we remain concerned about the uncertainty that this law will create for our counterter- MR. LEVIN. Madam President, I Mr. LEVIN. If the Senator will save move to reconsider the vote by which me 30 seconds, I would appreciate it. rorism professionals, the most recent changes give the President additional discre- the conference report was agreed to. Mr. GRAHAM. Absolutely. tion in determining how the law will be im- Mr. MENENDEZ. I move to lay that The PRESIDING OFFICER. Without plemented, consistent with our values and motion on the table. objection, it is so ordered. the rule of law, which are at the heart of our The motion to lay on the table was Mr. GRAHAM. This idea of civil lib- country’s strength. This legislation author- agreed to. erties and the American way of life—if izes critical funding for military personnel we do not fight for it, we are going to overseas, and its passage sends an important f lose it. We are under siege and we are signal that Congress supports our efforts as under attack. So let’s fight back with- we end the war in Iraq and transition to Af- ghan lead while ensuring that our military CORRECTING THE ENROLLMENT in our values. This bill allows us to can meet the challenges of the 21st century. OF H.R. 1540 fight back, and I am very proud of the As a result of these changes, we have con- product. cluded that the language does not challenge The PRESIDING OFFICER. Under I thank Senator LEVIN for being such or constrain the President’s ability to col- the previous order, the Senate will pro- a good leader for the Nation at a time lect intelligence, incapacitate dangerous ter- ceed to the consideration of H. Con. when we need good leaders. rorists, and protect the American people, Res. 92, which the clerk will report. I yield the floor. and the President’s senior advisors will not The legislative clerk read as follows: recommend a veto. However, if in the process The PRESIDING OFFICER. The Sen- A concurrent resolution (H. Con. Res. 92) of implementing this law we determine that directing the Clerk of the House of Rep- ator from Michigan. it will negatively impact our counterter- resentatives to correct the enrollment of the Mr. LEVIN. Madam President, let me rorism professionals and undercut our com- bill H.R. 1540. first thank Senators GRAHAM and mitment to the rule of law, we expect that AYOTTE for their contributions this the authors of these provisions will work The PRESIDING OFFICER. Under afternoon and long before this after- quickly and tirelessly to correct these prob- the previous order, the concurrent res- noon on this subject. lems. olution is agreed to, and the motion to The best answer to some of the criti- Mr. LEVIN. Again, I want to thank reconsider is considered made and laid cism we have heard this afternoon—the all of my colleagues who participated upon the table. FBI has been successful. Why change in this debate. it?—read the law, read the conference I yield the floor. f report. The PRESIDING OFFICER (Ms. KLO- BUCHAR.) The question is on agreeing to Nothing in this section shall be construed EXECUTIVE SESSION to affect the existing criminal enforcement the conference report. and national security authorities of the Fed- Mr. LEVIN. I ask for the yeas and eral Bureau of Investigation. . . . nays. The PRESIDING OFFICER. Is there a NOMINATION OF MORGAN CHRIS- It is flatout explicit in the law. sufficient second? There is a sufficient Something else we have heard: We TEN TO BE UNITED STATES CIR- second. CUIT JUDGE FOR THE NINTH are doing something for the first The clerk will call the roll. time—long-term custody for American The bill clerk called the roll. CIRCUIT—Continued citizens. Read the conference report: Mr. KYL. The following Senator is The PRESIDING OFFICER. Under Nothing in this section shall be con- necessarily absent: the Senator from the previous order, the Senate will pro- strued to affect existing law or authorities Kansas (Mr. MORAN). ceed to executive session to resume

VerDate Mar 15 2010 06:55 Dec 16, 2011 Jkt 019060 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\CR\FM\G15DE6.056 S15DEPT1 jbell on DSK7SPTVN1PROD with SENATE