To modify requirements applicable to the limitation on designation of critical habitat of conservation of protected species under the provision on military readiness and conservation of protected species.

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2004

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 1050, which the clerk will
report.
The legislative clerk read as follows:

A bill (S. 1050) to authorize appropriations for fiscal
year 2004 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe
personnel strengths for such fiscal year for the Armed
Forces, and for other purposes.

Pending:

Reed amendment No. 751, to modify the scope of the
prohibition on research and development of low-yield nuclear
weapons.
Warner amendment No. 752 (to amendment No. 751), in the
nature of a substitute.

[[Page S6790]]

The ACTING PRESIDENT pro tempore. Under the previous order, there are
now 20 minutes equally divided for consideration of amendments Nos. 571
and 572, with the time controlled by the Senator from Virginia, Mr.
Warner, or his designee, and the Senator from Rhode Island, Mr. Reed,
or his designee.
Who seeks time?
The Senator from the great State of Colorado.

Amendment No. 752 to Amendment No. 751

Mr. ALLARD. Mr. President, I rise in support of the Warner second-
degree amendment to the Reed amendment in the form of a substitute.
The amendment would strike the Reed-Levin amendment, thereby
retaining the repeal of the ban on research and development of low-
yield nuclear weapons that is in the committee bill. The amendment
would also require that the Department of Energy receive an
authorization from the Congress for engineering development, and all
subsequent phases of weapons development, before commencing with such
activities. This amendment would make it absolutely clear that it is
the prerogative of Congress to decide on the funding necessary for the
administration to proceed with engineering development of a low-yield
nuclear weapon, but it will not stop the military planners and weapon
designers from considering and proposing such development.
Even after repealing the ban, as we did in the committee bill, the
administration is still required to specifically request funding at
each phase of research and development, as required by the National
Defense Authorization Act for fiscal year 2003. With this amendment,
the Department of Energy would be required to receive an authorization
from Congress before commencing with the engineering development of
low-yield nuclear weapons. Congress would have another opportunity to
review such activities if they are requested by the administration.
This amendment provides for appropriate congressional review and
oversight without incurring the disadvantages of an outright ban on
some portions of research and development. Retaining a ban on
development, acquisition, and deployment of low-yield nuclear weapons,
would continue the ``chilling effect'' on exploration of certain
advanced nuclear weapons concepts because few will choose to work on
these concepts if their development or production is prohibited. Also,
the Department of Defense will not spend precious research dollars on a
weapon type they have little chance of fielding.
I urge support of this amendment. I believe this amendment addresses
in a serious way the concerns expressed by some of my colleagues. This
amendment would provide all the transparency required to ensure the
administration can proceed with research and development of low-yield
nuclear weapons, but not until Congress has an opportunity to review
the request and affirmatively authorize engineering development
activities.
I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from the great State of
Rhode Island.
Mr. REED. Mr. President, I ask unanimous consent that Senator
Feinstein be added as a cosponsor of my amendment.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. REED. Mr. President, I rise in opposition to the Warner amendment
and support of the underlying amendment which I proposed. I will make
several points.
First, the notion of low-yield nuclear weapons is something of a
misnomer. Indeed, it is misleading. These are nuclear weapons with
horrific blasts and radiation effects. As I said yesterday, it is
probably more accurate to say not low yield but small Apocalypses
because, when we use nuclear weapons, we go beyond--except for one
occasion in the history of warfare--what most military people
contemplate as the appropriate use of force.

There is no military requirement for these weapons. Ambassador
Brooks, the head of NNSA was asked, Is there a requirement? His answer
succinctly and conclusively: No. Yet we are eliminating the ban on the
research, development, production, and testing of these low-yield
nuclear weapons.
Once again, low yield is a misnomer. These weapons are 5 kilotons or
less. The weapons used against Japan in World War II were 14 to 21
kilotons with devastating effects. These small weapons are a third that
size--still horrendous weapons.
Now, unless we act today, this approach will not simply result in
research. It will result inevitably, inexorably, in the development and
the testing and the fielding of these weapons. That is essentially what
was said by Ambassador Brooks when he testified before the committee.
His words: I have a bias in favor of something that is the minimum
destruction. That means I have a bias in favor of that which might be
usable.
This is not just research. This is creating weapons that will be
used. His comments were echoed with respect particularly to the robust
nuclear earth penetrator when Fred Celec, Deputy Assistant to the
Secretary of Defense for Nuclear Matters, is quoted: If we can develop
a system that can crack through the rock and detonate a hydrogen
weapon, in his words, it will ultimately get fielded.
To field an atomic weapon it first must be tested. And we are walking
down a path of testing and fielding that I think we will all regret.
There is a presumption that arms control does not matter, it does not
work. Why did three nations--Belarus, Kazakhstan, and Ukraine--turn
over voluntarily their nuclear weapon and join the nonproliferation
regime? Why? Because there is an international norm that nuclear
weapons should not be used. In fact, there should be efforts to
eliminate their existence. These efforts and these norms are being
undermined by the abolition of this ban.
This ban is more powerful than simply saying that the Congress will
approve it. Why believe a scientist will say: I won't work on research
unless I can produce and blow something up, an atomic weapon. If those
are the scientists we have working, then perhaps we should look around
for some other scientists. They, more than many other people,
understand the power and the devastating effect of these weapons.
If we are really talking about research, let's make it research, not
the back door to testing, development, and deployment. My amendment
makes it much clearer that is what we are talking about. Indeed, my
colleagues came to the floor yesterday and said this has nothing to do
with deployment; it is all just science; we have to raise these issues;
we have to ask these questions; intellectual curiosity and honesty must
be respected in this realm as elsewhere.
Indeed, yesterday, Secretary Rumsfeld was asked: Are you pursuing
nuclear weapons? His response: To pursue? I think it is a study. It is
not to develop--his words--it is not to deploy, it is not to use, it is
to study.

That is what the Reed amendment says. Essentially it says we will
allow the scientists who operate in phase 1 through 2A of our well-
defined process--research, development--but at the third phrase, that
is where they stop. And similarly, if they are modifying a weapon
rather than developing one from scratch, you would stop at phase 6.3.
It is clearly defined.
The Warner amendment suggests we eliminate all of these prohibitions
and we simply say: If you are going over here, come back to us and ask
for permission. Functionally, in both amendments the Department of
Energy and the Department of Defense would have to come to us. But
there is a much more powerful, much more forceful, much more effective
symbol if this moratorium is retained.
A few weeks ago, the Government of Pakistan offered to go nuclear
free. They said: We would like to eliminate nuclear weapons on the
subcontinent. The Indians would have to agree. That is a very
interesting and very positive approach. The problem is, how do we
reinforce that effort when we are not talking about going nuclear free?
We are talking about new nuclear weapons, more sophisticated weapons
that can be used. That will not encourage the Pakistanis to give up
weapons, or the Indians. I think it will encourage their scientists to
start looking at more and new technology.
We can make a difference if we maintain this ban by allowing what
everyone says. That is all we want. We just

[[Page S6791]]

want the opportunity to research. The Reed amendment gives that
opportunity.
I yield the floor and I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. WARNER. What is the balance of time remaining?
The ACTING PRESIDENT pro tempore. The Senator from Virginia has 7
minutes and the Senator from Rhode Island has 3 minutes 10 seconds.
Mr. REED. Mr. President, I yield the ranking member, the Senator from
Michigan, 2 minutes.
The ACTING PRESIDENT pro tempore. The Senator from Michigan is
recognized.
Mr. LEVIN. I thank the Senator from Rhode Island for this very
important amendment. The bill before the Senate, unless this amendment
passes or the Warner amendment passes, removes a 10-year prohibition we
have had on research and development of new nuclear weapons that could
lead to their production.
Yesterday, we were assured by speaker after speaker who supports
removal of that prohibition that all that is intended is to remove the
prohibition of research. So the amendment of Senator Reed says, let us
put that, then, clearly, into this bill; that what will be prohibited
will be the development of new nuclear weapons.
What is very disturbing and why this amendment is so essential, the
administration's position is reflected by the Deputy Assistant to the
Secretary of Defense for Nuclear Energy, a man named Fred Celec, who
says that if a hydrogen bomb can be successfully designed to survive a
crash through hard rock, it will get fielded.
We have been assured by the opponents of the prohibition that, no,
this is just research we are talking about. So the amendment of Senator
Reed puts that clearly into law that what we are now allowing is
research; that the prohibition on development will stay. That is a very
important, clear message to the rest of the world. We are telling North
Korea we do not want you to go there. We may militarily act to prevent
you from going to the development and the production of new nuclear
weapons. So it is essential that this body send a clear statement that
we still have a prohibition on development, although now research would
be permitted.
I thank, also, Senator Warner. Even though I think the Reed amendment
is clearly better, and the message stronger that we are not removing
the prohibition on development by allowing the research, Senator
Warner's second-degree amendment is also a constructive addition to
this debate and would be surely better than not acting at all.
Mr. WARNER. Mr. President, I thank both colleagues, the Senator from
Rhode Island and the Senator from Michigan. I pick up on the statement
of my working partner here for so many years, the distinguished ranking
member.
What the Senator from Virginia is endeavoring to do today is much
like what the Senator from Michigan was endeavoring to do during the
markup.
Let us quietly try to assist our colleagues as they formulate their
decisions as to what position to take. The Senate spoke yesterday to
the effect that we are not going to impose a ban on research. I say to
the Senate, that was a wise decision. We should continue with the basic
theme that we are not going to impose a ban on this Nation with respect
to this system or any other system which may be needed for the defense
of this Nation--hopefully, never in terms of weapons of mass
destruction--but we cannot send a message to the world that we are just
going to ignore the fact that they exist in many parts of the world. We
have to maintain a credible inventory ourselves as a deterrent against
others who might threaten us. So we should not have a ban. But what we
should have is in place a law which is clearly understandable.

Now my colleagues go back and try to revise the existing law which
has been in effect since 1994, which I say, with no disrespect to my
colleagues. But when it was written--it is very convoluted, it is very
difficult to understand because it says: ``LIMITATION--The Security of
Energy may not conduct, or provide for the conduct of, research and
development''--now they strike those words and put in their own--
``which could lead to the production by the United States of a low-
yield nuclear weapon. . . .''
Now, I have here a list of the seven steps followed in the life of a
nuclear system. The first three--the concept study, the feasibility
study, the design definition and cost study--have been authorized by
the Senate as of yesterday in this amendment.
So we are at this juncture, as my colleague from Rhode Island points
to his chart, where the balance of these steps toward the full
implementation of a nuclear system should be put in control of whom?
And I say it should be put in control of the Congress of the United
States, with very clear language.
The statute, I say to my friend from Rhode Island, which you are
trying to amend simply says, ``The Secretary . . . may not conduct, or
provide for the conduct of'' this next step, full-scale engineering
development.
Theoretically, if you are so distrustful of the executive branch--
whether it is this one or a subsequent--they could jump over that--not
easily but they could jump over and go on to the other steps. So the
way this thing is written, it is very awkward. It says it only stops
one step.
So I say that is a bad way to go about it. I say the better, wiser
way, as Senator Levin said, is the constructive way, as he pointed out
in my amendment. It simply says we are not going to point to one step,
we are going to point to all the steps and say as follows: ``The
Secretary of Energy may not commence the engineering development
phase''--that is the one you are endeavoring to block by amending this
old statute--but I go on: ``or any subsequent phase, of a low-yield
nuclear weapon unless specifically authorized by Congress.''
That language is as clear as crystal. This language is very awkward
to interpret and read. It has a flaw in it, that you could literally
jump over the one step that you are blocking and proceed, in some
manner, albeit not the best, but proceed to the other steps.
My amendment stops it. It is like a stop sign that says: We will not
proceed as a nation until this body, the Congress of the United States,
acts to authorize and appropriate the funds.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Mr. REED. Mr. President, how much time do I have remaining?
The ACTING PRESIDENT pro tempore. The Senator has 1 minute remaining.
Mr. REED. Mr. President, this is not an issue of drafting or clarity
of language. The amendment I propose is very clear. It simply takes the
existing ban and walks it back from phase 1, phase 2, and phase 2-A to
phase 3. If this language was unclear, then the Department of Energy
and the Department of Defense would have leaped over these barriers a
long time ago because they would have ignored the first phase and gone
to the third, fourth, and fifth phase.
This is about whether we are going to begin a new but different
nuclear arms race. Last week, President Putin announced that Russia is
beginning to develop new weapons. His words:

I can inform you that at present the work to create new
types of Russian weapons, weapons of the new generation,
including those regarded by specialists as strategic weapons,
is in the stage of practical implementation.

Most analysts interpret that as meaning they are going to develop
low-yield nuclear weapons. With those remarks in the Russian Duma,
initiating a reversal of history, of the beginning of a new arms race,
the Duma applauded. I hope we do not applaud here today.
The ACTING PRESIDENT pro tempore. The Senator from Virginia.
Mr. WARNER. Mr. President, how much time remains on our side?
The ACTING PRESIDENT pro tempore. The Senator has 2 minutes.
Mr. WARNER. Mr. President, in the spirit of fairness, I am going to
read, once again, the Warner amendment, which says: ``The Secretary of
Energy may not commence the engineering development phase''--that is
the phase blocked--``or any subsequent phase, of a low-yield nuclear
weapon unless specifically authorized by Congress.''

[[Page S6792]]

Where in the old statute is there any phrase as clear as the one in
the Warner amendment which says: Mr. Secretary, you cannot do anything
until you are authorized by the Congress?
Mr. REED. Will the Senator yield?
Mr. WARNER. Yes.
Mr. REED. I do not have the statute before me but the----
Mr. WARNER. Let me provide it to you.
Mr. REED. Let me tell you this: The original moratorium said: The
Secretaries of Energy and Defense may not initiate research and
development leading to the production of a low-yield nuclear weapon. We
have replaced the term ``research and development'' with the
development definition ``development engineering'' leading to the
production of a nuclear weapon.
Essentially, what we have done, Mr. Chairman, is we have taken the
existing ban, which the DOE says restricts their efforts to do any
meaningful research, and simply said do the research.
Mr. WARNER. Mr. President, I reclaim my time.
The ACTING PRESIDENT pro tempore. The Senator from Virginia does have
the floor.
Mr. WARNER. You cannot point to any language which speaks to this
issue with clarity, so it can be understood the world over, as does the
Warner amendment. It is as simple as that.
Mr. REED. Mr. Chairman, with all due respect, if I may have a moment,
I think the world is pretty clear as to what is taking place. Your
amendment strikes the ban. We used to have a prohibition against low-
yield nuclear weapons development. Your amendment strikes that. In
place, you say you have to come back to Congress.
Mr. WARNER. Mr. President, the Senate did that yesterday.
Mr. REED. My amendment leaves the ban in place.
The ACTING PRESIDENT pro tempore. The Senator's time has expired. All
time has expired.
The question is on agreeing to the second-degree amendment.
Mr. WARNER. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. The yeas and nays have already been
ordered.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards), the Senator from Florida (Mr. Graham), and the Senator from
Massachusetts (Mr. Kerry) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``nay''.
The PRESIDING OFFICER (Mr. Graham of South Carolina). Are there any
other Senators in the Chamber desiring to vote?
The result was announced--yeas 59, nays 38, as follows:

[Rollcall Vote No. 187 Leg.]

YEAS--59

Alexander
Allard
Allen
Bayh
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Chambliss
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Kyl
Landrieu
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (NE)
Nickles
Pryor
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner

NAYS--38

Akaka
Baucus
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Chafee
Clinton
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kohl
Lautenberg
Leahy
Levin
Mikulski
Murray
Nelson (FL)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden

NOT VOTING--3

Edwards
Graham (FL)
Kerry
The amendment (No. 752) was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WARNER. Mr. President, if I could address the Senate----
The ACTING PRESIDENT pro tempore. The question is on the underlying
amendment.
Mr. WARNER. This amendment is in the nature of a substitute. However,
in fairness to my colleagues, last night the distinguished ranking
member and I made an agreement that we would vote once again because
there could be colleagues who wish to now join in supporting this
amendment.
The yeas and nays have been ordered. Am I correct?
The ACTING PRESIDENT pro tempore. That is correct.
Mr. WARNER. Perhaps we could have a 10-minute vote.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. REID. Mr. President, I ask unanimous consent that be the case.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. REID. Mr. President, how long did the last vote take?
The ACTING PRESIDENT pro tempore. Thirty minutes.
Mr. REID. Mr. President, if we are going to finish the bill and if
Members want to do it in the next day or two, I suggest that we should
have some constraint on the time we are voting.
The ACTING PRESIDENT pro tempore. The question is on agreeing to the
amendment of the Senator from Rhode Island. The yeas and nays have been
ordered and the clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards), the Senator from Florida (Mr. Graham), the Senator from
Massachusetts (Mr. Kerry), and the Senator from Connecticut (Mr.
Lieberman) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``yea''.
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 96, nays 0, as follows:

[Rollcall Vote No. 188 Leg.]

YEAS--96

Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carper
Chafee
Chambliss
Clinton
Cochran
Coleman
Collins
Conrad
Cornyn
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Harkin
Hatch
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Pryor
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
Wyden

NOT VOTING--4

Edwards
Graham (FL)
Kerry
Lieberman
The amendment (No. 751) was agreed to.
Mr. WARNER. I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, how long did that vote take?
The PRESIDING OFFICER. Thirty-two minutes.
Mr. REID. We have been approached in the minority on several
occasions today asking when could we finish this bill. We are doing our
best. We have people who want to offer amendments. We have wasted at
least a half hour this morning on people not being here for votes. I
personally believe, for Democrats and Republicans, if they are not here
at a reasonable time, the vote should be cut off. This is not fair. We
have Senator Dorgan who has waited all morning. Senator Collins is
here.

[[Page S6793]]

I am not going to elaborate further, but this is not good for the
Senate. I hope the majority leader will call these votes more quickly.
We get the hue and cry to speed things up. If we waste all time during
the votes, there is nothing to speed up.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I share the sentiments of my distinguished
colleague, but I do observe that the delay on this vote, while it was
the last vote on this side, there was a vote on the Democratic side not
more than 5 minutes before. We share equally the burdens of the need to
move forward on both sides of the aisle.
Mr. REID. I say to my most distinguished friend, I said in my
statement, this applies to Democrats and Republicans.
Mr. WARNER. Right.
Mr. REID. Mr. President, the problem we have over here is we cannot
say the vote is over. The Senator's side can call the votes. I hope
they do it more quickly. If people start missing votes, then fewer
people will have to wait around in the future.
Mr. WARNER. Mr. President, I will speak with my distinguished leader
and ask if he will give me that unfortunate authority to exercise. If
he does, I will exercise it appropriately.
Mr. REID. Mr. President, Senator Dorgan last night said he would
agree to 45 minutes. We have a unanimous consent request the
distinguished manager of the bill will offer. It is my understanding
that prior to his starting, there is going to be 5 minutes for the
Senator from Maine on an amendment that has been agreed to.
Mr. WARNER. I thank our distinguished leader. May I propound the UC
first on the time? Then we will recognize the Senator from Maine for
not to exceed 5 minutes. Then the distinguished Senator from North
Dakota can proceed under the time agreement; is that agreeable?
Mr. REID. Of course.
Mr. WARNER. Mr. President, I ask unanimous consent that there be 90
minutes equally divided for the debate in relation to the Dorgan low-
level yield amendment prior to a vote in relation to the amendment, and
that no amendments be in order to that amendment prior to the vote.
The PRESIDING OFFICER. Is there objection?
Mr. DORGAN. Mr. President, my amendment is not a low-level yield
amendment.
Mr. WARNER. The Senator is correct. There is a misstatement in the
written text handed to the manager. I apologize. I read it. The Senator
is correct. It is the other subject. I ask that the UC be amended
accordingly to the statement by the Senator.

The PRESIDING OFFICER. Is there objection?
Mr. TALENT. Reserving the right to object, since I understand this
follows the Collins amendment and I think the Senator had mentioned 5
minutes for that, there are three of us here to speak on the amendment.
We want to see if we can get another couple of minutes so we have some
time to actually say something. If this UC is dependent on that, I
raise that issue.
Mr. WARNER. I think it is a fair issue to be raised. I was unaware
there were additional speakers. If the Senator will give me a moment.
Mr. REID. Mr. President, if I may interrupt my friend from Virginia,
how much time?
Mr. WARNER. Ten minutes allocated? I ask the distinguished Senator
from North Dakota. Mr. President, I will make a deal, I will yield 10
minutes of my time under this UC request to take that up. How about
that?
Mr. REID. We accept that.
Mr. WARNER. I thank the Senator.
Mr. TALENT. I thank the chairman.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Maine.

Amendment No. 757

Ms. COLLINS. Mr. President, on behalf of myself, Senator Talent,
Senator Hutchison, and Senator Snowe, I send an amendment to the desk
and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Maine [Ms. Collins], for herself, Mr.
Talent, Mrs. Hutchison, and Ms. Snowe, proposes an amendment
numbered 757.

Ms. COLLINS. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To amend title 10, United States Code, to restrict bundling
of Department of Defense contract requirements that unreasonably
disadvantages small businesses)

On page 222, between the matter following line 12 and line
13, insert the following:

SEC. 866. CONSOLIDATION OF CONTRACT REQUIREMENTS.

(a) Amendment to Title 10.--(1) Chapter 141 of title 10,
United States Code, is amended by inserting after section
2381 the following new section:

``Sec. 2382. Consolidation of contract requirements: policy
and restrictions

``(a) Policy.--The Secretary of Defense shall require the
Secretary of each military department, the head of each
Defense Agency, and the head of each Department of Defense
Field Activity to ensure that the decisions made by that
official regarding consolidation of contract requirements of
the department, agency, or field activity, as the case may
be, are made with a view to providing small business concerns
with appropriate opportunities to participate in Department
of Defense procurements as prime contractors and appropriate
opportunities to participate in such procurements as
subcontractors.
``(b) Limitation on Use of Acquisition Strategies Involving
Consolidation.--(1) An official of a military department,
Defense Agency, or Department of Defense Field Activity may
not execute an acquisition strategy that includes a
consolidation of contract requirements of the military
department, agency, or activity with a total value in excess
of $5,000,000, unless the senior procurement executive
concerned first--
``(A) conducts market research;
``(B) identifies any alternative contracting approaches
that would involve a lesser degree of consolidation of
contract requirements; and
``(C) determines that the consolidation is necessary and
justified.
``(2) A senior procurement executive may determine that an
acquisition strategy involving a consolidation of contract
requirements is necessary and justified for the purposes of
paragraph (1) if the benefits of the acquisition strategy
substantially exceed the benefits of each of the possible
alternative contracting approaches identified under
subparagraph (B) of that paragraph. However, savings in
administrative or personnel costs alone do not constitute,
for such purposes, a sufficient justification for a
consolidation of contract requirements in a procurement
unless the total amount of the cost savings is expected to be
substantial in relation to the total cost of the procurement.
``(3) Benefits considered for the purposes of paragraphs
(1) and (2) may include cost and, regardless of whether
quantifiable in dollar amounts--
``(A) quality;
``(B) acquisition cycle;
``(C) terms and conditions; and
``(D) any other benefit.
``(c) Definitions.--In this section:
``(1) The terms `consolidation of contract requirements'
and `consolidation', with respect to contract requirements of
a military department, Defense Agency, or Department of
Defense Field Activity, mean a use of a solicitation to
obtain offers for a single contract or a multiple award
contract to satisfy two or more requirements of that
department, agency, or activity for goods or services that
have previously been provided to, or performed for, that
department, agency, or activity under two or more separate
contracts smaller in cost than the total cost of the contract
for which the offers are solicited.
``(2) The term ``multiple award contract'' means--
``(A) a contract that is entered into by the Administrator
of General Services under the multiple award schedule program
referred to in section 2302(2)(C) of this title;
``(B) a multiple award task order contract or delivery
order contract that is entered into under the authority of
sections 2304a through 2304d of this title or sections 303H
through 303K of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253h through 253k); and
``(C) any other indeterminate delivery, indeterminate
quantity contract that is entered into by the head of a
Federal agency with two or more sources pursuant to the same
solicitation.
``(3) The term `senior procurement executive concerned'
means--
``(A) with respect to a military department, the official
designated under section 16(3) of the Office of Federal
Procurement Policy Act (41 U.S.C. 414(3)) as the senior
procurement executive for the military department; or
``(B) with respect to a Defense Agency or a Department of
Defense Field Activity, the official so designated for the
Department of Defense.
``(4) The term `small business concern' means a business
concern that is determined by the Administrator of the Small
Business Administration to be a small-business concern by
application of the standards prescribed under section 3(a) of
the Small Business Act (15 U.S.C. 632(a)).''.

[[Page S6794]]

(2) The table of sections at the beginning of such chapter
is amended by inserting after the item relating to section
2381 the following new item:

``2382. Consolidation of contract requirements: policy and
restrictions.''.

(b) Data Review.--(1) The Secretary of Defense shall revise
the data collection systems of the Department of Defense to
ensure that such systems are capable of identifying each
procurement that involves a consolidation of contract
requirements within the department with a total value in
excess of $5,000,000.
(2) The Secretary shall ensure that appropriate officials
of the Department of Defense periodically review the
information collected pursuant to paragraph (1) in
cooperation with the Small Business Administration--
(A) to determine the extent of the consolidation of
contract requirements in the Department of Defense; and
(B) to assess the impact of the consolidation of contract
requirements on the availability of opportunities for small
business concerns to participate in Department of Defense
procurements, both as prime contractors and as
subcontractors.
(3) In this subsection:
(A) The term ``consolidation of contract requirements'' has
the meaning given that term in section 2382(c)(1) of title
10, United States Code, as added by subsection (a).
(B) The term ``small business concern'' means a business
concern that is determined by the Administrator of the Small
Business Administration to be a small-business concern by
application of the standards prescribed under section 3(a) of
the Small Business Act (15 U.S.C. 632(a)).
(c) Applicability.--This section applies only with respect
to contracts entered into with funds authorized to be
appropriated by this Act.

Ms. COLLINS. Mr. President, I ask unanimous consent that the 10
minutes we have been allocated be allocated among the three of us as
follows: 3 minutes for the Senator from Maine, 3 minutes for the
Senator from Missouri, 3 minutes for the Senator from Texas, and 1
final minute for the Senator from Maine.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. I thank the Chair.
Mr. President, our amendment addresses an increasing practice in the
Department of Defense to bundle contracts to award a larger contract.
The problem with that is it disadvantages smaller companies that cannot
bid on a giant contract but would be perfectly able to responsibly
perform the work if the contract were broken up into smaller segments.
Contract bundling has become increasingly prevalent in recent years.
In fact, it has reached record levels. Contract bundling is up by 19
percent since 1992, and the result of this is the shutout of many small
firms from doing business with the Federal Government.
Our amendment would require that the Department of Defense perform
rigorous analysis on bundled contracts in excess of $5 million. It
would require that alternatives to bundling be considered and that a
determination be made that the benefits of bundling the contracts
substantially exceed the benefits of identified alternatives.
We have focused on DOD because the Small Business Administration
indicates that ``bundling is rooted at the Department of Defense.''
The Collins-Talent-Hutchison-Snowe amendment is necessary because
bundling has had an unfortunate effect on the U.S. Government
contractor base. According to the Office of Federal Procurement Policy
Administrator Angela Styles:

This issue is a dramatically reduced contractor base, and
the mounting lost opportunity cost of choosing among fewer
firms with fewer ideas and innovations to deliver products
and services at lower prices.

She noted:

The negative effects of contract bundling over the past 10
years cannot be overestimated. . . . Not only are there fewer
small businesses receiving Federal contracts, but the Federal
Government is suffering from a smaller supplier base . . .
when small businesses are excluded from Federal opportunities
through contract bundling, our agencies, small businesses,
and taxpayers lose.

That is exactly the case. When contracts are bundled so that only a
few large firms can bid on them, the United States does not get as good
a deal. The United States Government is not taking advantage of the
many innovative small firms that are capable of doing the work for the
Federal Government if the contract was awarded in smaller amounts.
This is a matter of making sure we have a healthy industrial base,
that we have as many firms competing as vigorously as possible to do
work for the Federal Government, and of making sure our smaller
companies have a fair shot at competing for Federal contracts. This
amendment will make a real difference for our small businesses.
I yield to the Senator from Missouri.
Mr. TALENT. I yield to the Senator from Texas.
The PRESIDING OFFICER. The Senator from Texas.
Mrs. HUTCHISON. Mr. President, I thank Senators Collins, Talent, and
Snowe for bringing up this subject in the Defense bill. I have small
business advisory committees in my State and just last week hosted an
African American leadership summit. The major complaint these small
businesses have is bundling. They would like to have an opportunity to
bid, but they are frozen out by this process.
I vowed I would try to help open the door because it is good for
small business. Small business is the economic engine of America. That
is where the jobs are created and it will be good for taxpayers, as the
Senator from Maine has said, to have competition, to have more people
working to get into Federal contracting, bringing something different
to the table. So this is a very important part of our strong national
defense, getting the best deal for taxpayers, but it is also very
important that we help our small businesses have access to the biggest
contracts that are made in America. Government contracts are the
biggest and small businesses have something to offer. Where they are
proven and where the 8A program has come in to help our minority-owned
businesses get those opportunities, getting the backup they need to be
reliable minority contractors, that is what we need in this country.
We need to open that door. The 8A program does open the door and it
creates that level playing field that allows them then the platform to
get some of the larger contracts.
I appreciate the Senators working with all of us to try to bring
about this result. I vowed I would do it. I think if we can do it in
the Department of Defense, later we can then use that as a model for
all of the Federal agencies in our country. We will do a better job for
the taxpayers and we will help the small businesses of this country
that are creating the jobs. We want more jobs in our economy. That is
the bottom line. It is a win for everyone.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. TALENT. Mr. President, I too thank the Senator from Maine for her
advocacy on this issue, not just this year but in past years. I also
thank our distinguished chairman and ranking member because I
understand they have cleared this amendment and will accept it.
There is not anything more important we can do for small business in
a procurement issue than what we are doing with this amendment. I do
not think there is very much more we can do that is important to
taxpayers and important to quality in defense procurement than this
issue.
Bundling is choking small business. It is hurting the taxpayer. It is
hurting quality. This amendment is a major step forward to limiting it
to cases where it is truly appropriate.
From 1992 through 2001, 44.5 percent of DOD procurement dollars were
in bundled contracts and therefore essentially off limits to small
business competition. So in each one of those, there were fewer
competitors. There was a tendency to have higher price and poorer
quality for the taxpayers. And small businesses, which are supposed to
have preferences under the statutes, actually were foreclosed from
bidding.
The kind of contract I am talking about is this, and this is an
engineering contract that was recently let: Indefinite delivery,
indefinite quantity. This means whoever wins this contract has to be
able to be prepared to provide any or all of the following in
indefinite amounts in terms of services at any time the Government
wants it: Planning, environmental services, inspections, operations,
maintenance, family housing services, relocatable facilities and
structures, public works supply management, demolition, architecture,
and engineer and task order management.
The Government says, yes, we are very open to small business. You can
bid on this if you are a small business. You just have to be able to
provide all of that at any time we want it in whatever quantity we need
it.

[[Page S6795]]

Naturally, small business is cut off. It is hurting the taxpayer. It
is hurting the small businesspeople. It has a disproportionately
negative impact on minority small business. It needs to be stopped.
The Senator from Maine quoted Angela Styles from the Office of
Federal Procurement Policy. It cannot be said better than she said it:

When small businesses are excluded from Federal
opportunities through contract bundling, our agencies, small
businesses, and the taxpayers lose.

That is the short of it. I am glad this amendment is evidently going
to go into this bill. I hope it stays in in conference. I thank the
Senator from Maine for her advocacy.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. I thank the Senator from Missouri for his hard work. He
has been an advocate for attacking this problem for some time and it
has been a pleasure to work with him.
One woman business owner really summed up what this is all about. She
said, bundling is a shield that keeps large companies from having to
compete with smaller firms.
Such a state of affairs is ultimately unhealthy for the Federal
procurement system. We rely on a vigorous competition to keep prices
low and to ensure we are purchasing high quality goods and services.
This amendment is going to make a difference in our procurement system
and a difference for small businesses. For that reason, it has been
strongly endorsed by the National Federation of Independent Businesses
and the National Black Chamber of Commerce.
I end my remarks by thanking the distinguished chairman of the
committee and the ranking member for their cooperation and assistance.
I ask for the adoption of the amendment.
Ms. SNOWE. Mr. President, today I rise in support of the contract
bundling amendment offered by Senators Collins, Talent, and Hutchison.
As the new Chair of the Committee on Small Business, I am pleased to
join with my colleagues to create a policy specifically for the
Department of Defense, DOD, on the issue of contract bundling and to
place restrictions on the Department's ability to bundle Government
contracts to the detriment of small businesses in this country.
In fiscal year 2001, the Federal Government awarded close to $235
billion in Federal contracts. Yet, small businesses still received less
than their fair share. As a result, the Federal Government failed to
achieve the goal that we established for Federal agencies to ensure
that at least 23 percent of Federal contracts go to small enterprises.
Even more troubling is the fact that over the past 10 years, there has
been a steady decline in the number of small business contractors
receiving new contract awards.
Despite our efforts over the past several years to focus on concrete
measures and legislation to increase small business access to the
Federal marketplace, we have instead seen a disturbing trend in the
opposite direction. America's small businesses are being eroded by the
practice of contract bundling by Federal agencies.
In pursuing operational efficiencies, Federal agencies are making
contract bundling decisions that block small business access to the
opportunity to compete for Federal contracts. According to the Small
Business Administration's Office of Advocacy, for every 100 bundled
contracts awarded, small businesses lose an average of 60 contracts,
and for every $100 awarded on a ``bundled'' contract, there is a $33
decrease to small business. At $109 billion in fiscal year 2001,
bundled contracts cost small business $13 billion.
The Small Business Act provides that small firms shall have the
maximum practicable opportunity to compete for these valuable Federal
contracts. This policy was adopted because it is good for small
business, good for the purchasing agencies, and good for the taxpayer
who pays the bills.
Small businesses benefit from having access to a stable revenue
stream and to a marketplace for new products and services. In turn,
these small vendors to the Federal Government contribute to business
development, job creation and economic stimulation in our local
communities.
Federal agencies also benefit when small businesses participate in
the Federal marketplace. Many of the most innovative solutions to our
problems--such as new technologies in defense readiness--come from
small firms, not large businesses, where complex chains of command, the
need to consult with corporate headquarters, and repetitive sign-offs
on a new idea that have to be cleared with accounting, human resources,
and marketing, can stifle innovation and creativity. The absence of all
these obstacles can increase the agility of a small business to deliver
new innovative products at lower costs. Agencies trying to carry out
their governmental functions can take advantage of these innovations
and deliver better quality products and services to our constituents.
Finally, the taxpayer wins when small businesses compete for
contracts. Small business means more competition, lower prices and
higher quality.
Contract bundling, however, threatens these benefits. To simplify the
contracting process, agencies take several smaller contracts and roll
them into one massive contract. The result is a contract that a small
business could not perform, due to its complexity or its obligation to
do work in widely disparate geographic locations. This practice is
particularly prevalent at the Department of Defense, which is the
Federal Government's largest purchaser of goods and services.
In light of this practice, it comes as little surprise when I hear a
small business owner say all too often that ``I could not perform the
contract, even if I won it. So I won't even bid.'' When that happens,
we all lose.
If small businesses create the majority of new jobs in America, which
they do, and they account for half the output of the economy, which
they do, then, they clearly deserve every possible chance to compete
for the business of the nation's largest consumer--the Federal
Government.
For these reasons, I called a hearing 2 months ago in the Small
Business Committee to examine the continuing threat of contract
bundling to small business and to identify positive, constructive
changes to ensure that the Federal Government continues to provide
contracting opportunities for small businesses.
The 1997 Small Business Administration reauthorization legislation
established a definition of bundling and created an administrative
process to review instances of bundling. By its terms, agencies are
supposed to make a determination whether a proposed bundle is
``necessary and justified.'' Yet at the March 2003 hearing, witnesses
testified that instead of making a good faith effort to determine the
costs and benefits of a proposed bundling, Federal agencies, and
Defense agencies in particular, have found ways to evade these
``necessary and justified'' determinations by identifying loopholes in
the definition of bundling.
As the largest agency in terms of contracting dollars spent,
accounting for about two-thirds of the Federal Government's total
spending, it is time to hold the Department of Defense accountable for
these bundling determinations--to make sure they include small
businesses in the Federal procurement process, and to make sure they
follow the law.
The amendment offered today provides a first step in our efforts to
achieve positive constructive change to ensure the Department of
Defense continues to provide contracting opportunities for small
business. It closes loopholes and strengthens the bundling definition
for the Department of Defense contract requirements. It also requires
the Department of Defense to perform rigorous analysis on bundled
contracts; to discuss alternative acquisition strategies; and, to make
a determination that the benefits of bundling ``substantially exceed''
the benefits of the identified alternatives. This marks a higher level
of scrutiny than exists under current law.
I appreciate my colleagues' willingness to work together to establish
legislation that counters the effects of contract bundling on small
business. And, continuing in the spirit of cooperation, I look forward
to building on this very positive language to address the issue more
broadly and make this policy governmentwide as we move forward with
legislation to reauthorize the Small Business Administration and its
programs later this summer.
Mr. KERRY. Mr. President, I applaud the efforts of Senator Susan
Collins,

[[Page S6796]]

Senator Jim Talent, and my colleague from the Small Business and
Entrepreneurship Committee, Senator Carl Levin, for their efforts today
on behalf of small businesses. Their amendment to S. 1050, the
Department of Defense reauthorization bill, is a step in the right
direction towards ending the deleterious effect contract bundling is
having on small businesses.
Bundled contracts, while seemingly an efficient and cost-saving means
for Federal agencies to conduct business, are anticompetitive and
antismall business. Further, they will result in increased costs over
time. When a Federal agency bundles contracts, it limits small
businesses' ability to bid for the new bundled contract, thus limiting
competition and the Government's ability to receive better and cheaper
goods and services. Small businesses are consistently touted as more
innovative, more flexible and responsive to an agency's needs than
their larger counterparts. But when forced to bid for megacontracts, at
times across large geographic areas, few, if any, small businesses can
be expected to compete. This deprives the Federal Government of the
benefits of competition and our economy of possible innovations brought
about by small businesses.
This amendment attempts to close one of the loopholes used by
agencies to pool like-kind contracts that were previously awarded to
small businesses. The amendment requires the Department of Defense to
conduct market research, identify alternative contracting approaches,
and determine if the ``consolidation'' is necessary and justified for
any ``consolidated contract'' above $5 million.
The amendment does not go far enough, however. It only applies to the
Department of Defense, is only applicable for 1 year, and still allows
a loophole that will allow bundling regardless of quantifiable dollar
amounts. I have introduced legislation, S. 633, that would take the
necessary steps to further limit the practice of contract bundling. I
look forward to obtaining its Senate passage in cooperation with the
Senators who advocated on behalf of this amendment and all those who
are determined to remove the barriers to small business development
created by contract bundling.
Ms. COLLINS. Mr. President, our amendment addresses a practice known
as ``contract bundling,'' which has become increasingly prevalent in
recent years. An October 2002 report for the Small Business
Administration that measured the trends and impact of bundling over the
last decade concluded that: the number and size of bundled contracts
issued by federal agencies has reached record levels; small businesses
are receiving disproportionately small shares of the work on bundled
contracts; although only 8.6 percent of contracts were bundled, bundled
contracts accounted for 44.5 percent of the money spent through
contracts from 1992-2001; large firms won 67 percent of all prime
contract dollars and 75 percent of bundled contract dollars; and small
firms won only 18 percent of prime contract dollars and 13 percent of
bundled contract dollars.
Moreover, the problem is getting worse. In 2001, 29,000 contracts
were bundled government-wide, up eight percent from 2000 and 19 percent
since 1992.
Our amendment would require that DOD perform rigorous analysis on
bundled contracts in excess of $5 million. It would require that
alternatives be considered and that a determination be made that the
benefits of bundling ``substantially exceed'' the benefits of the
identified alternatives. Savings in administrative or personnel costs
alone would not constitute a sufficient justification for consolidation
``unless the total amount of the cost savings is found to be
substantial in relation to the total cost of the procurement.''
Our amendment focuses on DOD where, the SBA report notes, ``Bundling
is rooted.'' Although bundling rates occur at levels as high or higher
at the General Services Administration, Department of Health and Human
Services, Social Security Administration, and Treasury, ``the high
level of spending by the Army, Navy, Air Force and the Office of the
Defense Secretary focus attention on defense contracts as the primary
source of bundling.''
This amendment is about more than just allowing small businesses to
compete for contracts on a level playing field; it is about preserving
our government's contractor base.
According to Office of Federal Procurement Policy Administrator
Angela Styles the issue is a dramatically reduced contractor base,
which has created a lost opportunity cost caused by choosing among
fewer firms with fewer ideas and innovations to deliver products and
services at lower prices.
Further, she notes that when small businesses are excluded from
federal opportunities through contract bundling everyone, including our
agencies, small businesses, and the taxpayers lose.
Our amendment sets in place a higher level of scrutiny than exists
under current law and will be a good start in beginning to reverse a
problem that has been building up over the last decade. For that
reason, small business advocates such as the National Federation of
Independent Business and the National Black Chamber of Commerce support
it.
This amendment will make a real difference for small business. One
small business owner wrote to me in support of my amendment because,
she said, bundling had made contracts of the size they could hope to
obtain disappear. She had, she wrote, been knocking on the doors at the
Department of Defense for years, without any success due to bundling.
Another small business owner wrote to me that bundling had
essentially created a monopoly in his line of business. Even small
businesses that have a federal preference in contracting under various
programs have seen the beneficial effects of the preferences all but
wiped out due to bundling. One woman business owner pointed out in a
letter to me what bundling truly is: a shield that keeps large
companies from having to compete with smaller firms.
Such a state of affairs is ultimately unhealthy for a federal
procurement system that relies primarily upon vigorous competition to
keep prices low and the quality of goods and services high.
I am pleased that our amendment has received the support of the
distinguished chairman and ranking member, and that it will become part
of the defense bill the Senate passes today or tomorrow.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. I likewise encourage the adoption of the amendment. I
think it is cleared on both sides. I commend the sponsors of this
amendment for their hard work.
The PRESIDING OFFICER. The time has expired on the amendment.
Mr. LEVIN. I ask unanimous consent that I be permitted to proceed for
1 minute.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Michigan.
Mr. LEVIN. Mr. President, I will indicate our strong support for this
amendment. A few years ago, we actually made an effort to get this
amendment, or something very close to it, adopted. In fact, it was in
our bill. It went to conference, where we ran into a real roadblock.
We are going to give it a go again. In addition to the usual
suspects, we have the two Senators from Maine and Missouri who will be
with us in conference, and I am very hopeful that this time, with their
support, we will be able to get it over the goal line with the House,
because that is where the impediment was a few years ago.
It is an important amendment. I very much support it. In fact, I ask
unanimous consent that I be listed as a cosponsor to the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I note that Senator Kerry has been working very hard in
this area. I want to make that clear for the record, because of his
strong interest and support for this approach.
Again, I very much thank the Senator from Maine and the Senator from
Missouri for their strong initiative in this area.
The PRESIDING OFFICER. All time having expired, the question is on
agreeing to the Collins-Talent amendment.
The amendment (No. 757) was agreed to.
Mr. WARNER. I move to reconsider the vote.

[[Page S6797]]

Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WARNER. Under the order, my understanding is now we go to the
amendment of the Senator from North Dakota, with 90 minutes equally
divided.

Amendment No. 750

Mr. DORGAN. The amendment numbered 750 is at the desk for
consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from North Dakota [Mr. Dorgan] proposes an
amendment numbered 750.

Mr. DORGAN. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To prohibit the use of funds for a nuclear earth penetrator
weapon)

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

SEC. 3135. PROHIBITION ON USE OF FUNDS FOR NUCLEAR EARTH
PENETRATOR WEAPON.

(a) In General.--Effective as of the date of the enactment
of this Act, no funds authorized to be appropriated or
otherwise made available for the Department of Energy by this
Act or any other Act may be obligated or expended for
development, testing, or engineering on a nuclear earth
penetrator weapon.
(b) Prohibition on Use of Fiscal Year 2004 Funds for
Feasibility Study.--No funds authorized to be appropriated or
otherwise made available for the Department of Energy for
fiscal year 2004 by this Act or any other Act may be
obligated or expended for a feasibility study on a nuclear
earth penetrator weapon.

Mr. DORGAN. Mr. President, we are debating the question of whether
this country ought to begin developing new nuclear weapons, an
important debate, as about important a debate we will have in this
Senate in a while. The press gallery is empty because this is not some
sex scandal. It does not have sensational aspects to it. It is not a
murder investigation. It is about whether this country ought to decide
now to begin producing additional nuclear weapons.
I regret this is not debated and reported as a major national
initiative so that the American people can be part of this discussion
in our democracy. But it is not. I feel very strongly that where we are
headed at the moment is in the wrong direction.
I told my colleagues before about a fellow from North Dakota I have
always kind of enjoyed watching. He is called the flying farmer from
Makoti. Some have heard me tell about it. The flying farmer from
Makoti, a guy in a small town of 80 people, Makoti, ND, who drives a
car, goes to county fairs and builds himself a ramp and jumps over
cars, kind of a dare devil. His name is John Smith. He is actually in
the Guiness Book of Records because he drove a car in reverse 500 miles
averaging 36 anywhere. That is the claim to fame of the flying farmer
from Makoti.
I think to myself, he has nothing over the Senate, especially on this
issue. We are fixing to go in reverse a good long ways, with pretty
aggressive speed, on the issue of nuclear policy.
We have had in this country an understanding that with respect to
nuclear weapons, we have them as a deterrent. We do not have them to
use; we have them as a deterrent. We now have people walking around
this town engaged in policy discussions, talking about ``usable''
nuclear weapons. Nuclear weapons? It is just another weapon. In fact,
let's talk about not just nuclear weapons, let's talk about low-yield
nuclear weapons. Programs, they say, are mininuclear weapons or
micronuclear weapons, usable nuclear weapons. Let's do designer nuclear
weapons, they say. Let's now build a new nuclear weapon as a bunker
buster nuclear weapon. I have no idea what they are thinking about.
In the paper today we have statements in this debate. We have to go
ahead and develop new nuclear weapons because we do not want to tie the
hands of our military. If we would not allow additional nuclear weapons
to be developed, we would be the only country in the world that cannot
produce new nuclear weapons. What on Earth are we thinking about?
Here is the nuclear stockpile for those who cannot sleep at night.
There are some apparently who cannot sleep because we do not have
enough nuclear weapons. I want to give you a sedative. We have roughly
30,000 nuclear weapons in the world--roughly. No one knows exactly, but
these are the best estimates. North Korea, we think, has two or three.
Pakistan has some, India has some, United Kingdom has more than a few,
Israel, France, China, the United States, 10,600 nuclear weapons--we
think, strategic and theater nuclear weapons--and Russia, 18,600
nuclear weapons.
Now, I mentioned yesterday that about a year and a half ago following
September 11 there was a threat. Our intelligence community assessed a
threat against this country. The threat was that someone has to have
stolen a nuclear weapon from the Russian arsenal. Terrorists had stolen
a nuclear weapon from the Russian arsenal and was preparing to detonate
that nuclear weapon in this country in either New York or Washington,
DC. The intelligence threat picked up, deemed perhaps credible, who
knew, and so for a period of time it did not hit the press. For a
period of time there was a seizure that terrorists might have a nuclear
weapon, might detonate it in the middle of an American city. And then
we are not talking 3,000 deaths, we are talking hundreds of thousands
of deaths. It was determined a couple of months later that was not a
credible threat, and we moved on.

But interestingly enough, the lesson from it was that it was
perfectly plausible, to most, that a weapon could have been stolen in
Russia, and it was plausible that a terrorist having stolen a nuclear
weapon in Russia could have detonated it, had the capability to
detonate it. Perfectly plausible.
We have discussed before the command and control of these nuclear
weapons in Russia. We know they do not have the safeguards we would
like. We know there are three-ring binders with hand notations about
inventories of nuclear weapons; 30,000 of them exist in this world. We
had a seizure about one being stolen, one being stolen and everyone is
greatly concerned, as they should be.
So today we come to the Senate with a bill that says the following:
We are not strong enough. We are not secure enough. We are worried
about our future. What we need to do is build more nuclear weapons. We
need to build low-yield nuclear weapons.
What is a low-yield nuclear weapon? That is one-third the size of the
one in Hiroshima. And we need to do bunker buster nuclear weapons,
earth penetrating bunker buster nuclear weapons. That is my amendment.
It strikes the $11 million in this bill, prevents the opportunity to
continue a design, a development, or manufacturer of bunker busting
nuclear weapons, development testing, engineering, no funds authorized
for feasibility study on the nuclear earth penetrator weapon.
So the question for the Senate in this amendment is very simple. Do
you think you cannot sleep at night because we do not have enough
nuclear weapons and the only way you will get a good night's rest is if
you can build an earth penetrator bunker buster nuclear weapon?
Is that what you think? If so, then vote against my amendment. Katy
bar the door. Let's develop another nuclear weapon. We are saying to
the rest of the world with this nonsense, we have the right of
preemption. We will now renounce the doctrine of first use. We believe
there are ``usable'' nuclear weapons, and we need to build low-yield
nuclear weapons--new ones. We reserve the right to build nuclear
weapons despite the fact that we have had a moratorium for a decade. We
believe we ought to have a bunker buster nuclear weapon. You know what
the message is to India, to Pakistan, and to other countries that want
nuclear weapons: That this country doesn't think we ought to prevent
the spread of nuclear weapons, or that we ought to prevent the use of
nuclear weapons but that we need to bulk up and build new ones, and
that we believe they are potentially usable in some future conflict.
That is exactly the wrong message this country ought to be sending to
anybody in the rest of the world. What we ought to be telling the rest
of the world is we have 10,600, roughly, nuclear weapons and the means
to deliver them as a deterrent against anyone who would threaten our
liberty.

[[Page S6798]]

We don't need more. To build more is simply a green light to every
other country in the world that wants to become part of the nuclear
community.
I come from a State that understands defense. I support a strong
defense. My votes in the Congress will show that. I support a very
strong, robust defense system in this country. We have two air bases in
the State of North Dakota. One is for K-135 tankers, and the other has
both the Minuteman Missile with Mark 12-A warheads, as well as B-52
bombers.
Some have said that if the State of North Dakota seceded from the
Union, it would be the third most powerful country in the world.
I know a little something about this. I have seen a nuclear weapon
close up. I have studied what they do and what the impact of nuclear
weapons are. I have tried to understand deterrent capability.
All of us know that with a world full of nuclear weapons we have been
very blessed that we have not had a war with nuclear weapons. All of us
know that. As I said yesterday, I have kept in my desk for some long
while pieces of material that remind us that the proper approach to
dealing with this threat is the approach we have used under Nunn-Lugar
and other arms control and arms reduction treaties. This is a piece of
metal taken from the shaft of an S-24 missile that had a warhead aimed
at the United States. Where that missile was buried in the Soviet Union
are now sunflowers. There is no missile. The warhead is gone. There are
sunflowers at the place.
How that happened is we paid for the destruction of that missile. We
didn't shoot it down. We destroyed it with American taxpayer dollars
under arms control agreements.
This is copper metal from a ground-up Russian submarine. We didn't
sink the submarine. We destroyed it under Nunn-Lugar and arms control
reduction. We paid to have the submarine destroyed.
I also have a metal piece in my desk from a wing flap from a Soviet
bomber. We didn't shoot it down. We paid to have the wing sawed off,
and that bomber was destroyed with arms reductions and arms control
money from Nunn-Lugar.
The fact is we know what succeeds. We know what has reduced tensions
and reduced delivery systems. Yet we are told today that America will
only be safer in this new day and in this new age of terrorism if we
begin building new types of nuclear weapons. We are told by people in
positions of significant responsibility in this town with policy roles
and responsibility that it is not unthinkable for us to talk about
``usable'' nuclear weapons. In fact, such discussions have occurred in
the pages of our Nation's major newspapers with respect to both
Afghanistan and Iraq.

Let me talk for a moment about the so-called bunker buster or earth
penetrator nuclear weapons. This is about whether we should begin the
research in this new weapon. They are talking about a bunker buster. I
assume they are talking bunker busters because of Afghanistan. I went
to Afghanistan. I flew over the mountains where deep in the caves of
Afghanistan this twisted, sick, demented murderer named Osama bin Laden
with his people plotted the murder of innocent Americans. I understand.
They have caves there. I understand it was not easy for us to deal with
those caves.
The result is that we have people saying we need an earth penetrating
bunker buster nuclear weapon. They are talking the size of a bunker
buster up to nearly 70 times larger than Hiroshima. Hiroshima was 15
kilotons.
It seems to me that if you build a 1-megaton nuclear weapon as a
bunker buster you are going to bust a whole lot more than a bunker. I
am guessing you bust a mountain, you bust the territory for miles and
miles and miles around, and you bust any living creature. So I don't
know. If the bigger the explosion, the safer we are, the more security
we have, then be my guest; I guess this would be your weapon. But the
question at this moment in time, at this intersection in America
history is, Is this what we want to do?
If today the trucks are moving in North Korea taking spent fuel rods
from the nuclear plant, if today those trucks are moving in a way that
takes that material to be produced in a nuclear weapon to be sold to
terrorists, in a way that has a nuclear weapon showing up 14 months
from now in a major American city, is our first responsibility in the
Congress and in this country to say what we really need are more
nuclear weapons? We have 10,600. Is that really our response? Or ought
we decide that there are bigger issues and more important issues for us
to be talking about with North Korea and the rest of the world?
Those issues include stopping the spread of nuclear weapons now. I
mean stopping the spread now. We have so many countries and so many
groups that want access to nuclear weapons. Our job is to be the world
leader. We are the superpower. We have the largest economic engine in
the world, and we are the military superpower in the world. We,
unfortunately or fortunately, have the responsibility and the mantle on
our shoulders to stop the spread of nuclear weapons. It is on our
watch. It is our job. It is not someone else's job.
How do we stop the spread of nuclear weapons and decide to send the
signal to the rest of the world that nuclear weapons cannot be used in
this world of ours? Once you start moving nuclear weapons back and
forth in anger, this Earth as we know it is gone.
Those people who talk about ``survivable'' nuclear weapons are nuts,
just nuts. They still think about tank wars. You have 200 tanks; we
have 100 tanks. Then we have a battle. Who has how many tanks
remaining? Or if we have 200 and you have 100, that is not the way
nuclear war will exist on the face of this Earth.

The only opportunity we have for our children and grandchildren is to
prevent the use of nuclear weapons--not to talk about the use of
nuclear weapons, which some are now doing. It is in their minds
practical to talk about this new day and new age of threat security
issues, and to talk about the potential of use of nuclear weapons.
It is interesting to me that in the middle of all of this
discussion--even in this bill--I mentioned yesterday that we are going
to have $9 billion in this bill for a national missile defense system
to intercept an ICBM sent to us by either a rogue state or a terrorist.
First, terrorists and rogue states aren't going to get ICBMs. It is
very unlikely. Their delivery of choice is going to be in a container
on a tanker ship. It is not going to come in at 18,000 miles an hour.
It will come in at 3 miles an hour to a dock in a major American city.
The lowest threat on the threat meter in this country we are spending
the most money on is national defense, and the highest threat has the
least expenditure. Regrettably, that is the appetite for these programs
in the Senate. But when you talk about threat, the threat, it seems to
me, is that this country will decide that it makes a U-turn on public
policy here with respect to nuclear policy and decide it says to the
rest of the world, here is a green light. The green light is to build
additional nuclear weapons. We want to build so-called low-yield
nuclear weapons, which is an oxymoron. There is no such thing as a low-
yield nuclear weapon. We want to build them. Guess what Russia will be
saying. We want to build some, too, then. There you go. We want to
build earth penetrator bunker buster nuclear weapons. So will others.
So we spark a new arms race. Instead of reducing the number of nuclear
weapons and making this world a safer place, we will increase the
number of nuclear weapons and will actually have other countries
understanding that it is our country that talks about the potential use
of nuclear weapons in future conflicts.
I think this is the most Byzantine thing I have witnessed in all the
years I have served in the Congress. I do not have the foggiest idea
how this is not met with the reaction by the American people: What on
Earth could you be thinking about? Or aren't you thinking at all? I
just do not understand it.
I likely will lose this amendment. It is a small amendment. The
amendment deals with a relatively small amount of money but a
critically important principle. I am just trying to take one piece out
of this bill, the piece that says: Let's start the research to move
toward an earth penetrating bunker buster nuclear weapon. Let's just
start. Let's just take the first step.
I am saying: Let's not.
If you cannot sleep at night because we have 10,600 nuclear weapons,
you are

[[Page S6799]]

not going to sleep better at night because you have a bunker buster
high-yield jumbo buster nuclear weapon. That is not going to make you
sleep better. Take some sleeping pills.
Mr. WARNER. Will the Senator yield for a question on my time?
Mr. DORGAN. I am happy to yield.
Mr. WARNER. I listened very carefully to your statements. You say
let's see if we can't stop taking the first step. Am I correct in that?
Mr. DORGAN. That is correct.
Mr. WARNER. Am I not correct, last year the Congress of the United
States spoke to that issue and took that first step and initiated that
program? The first step has been taken.
Mr. DORGAN. I am sorry, I do not understand your question. Would you
rephrase the question.
Mr. WARNER. Last year the Congress in the military authorization bill
took the first step on this program, and put money in the bill. The
research has already commenced.
I think the point of reference, to be accurate, I would say to my
good friend--you are not taking the first step. In other words, this
program is ongoing. In this bill are simply the funds to continue what
the Congress authorized last year after debate and vote.
Mr. DORGAN. For purposes of the Senator from Virginia, giving him
comfort, let me say my amendment will end the second step. If his point
is the research for the bunker buster nuclear weapon was last year a
first step, then let me suggest to you my amendment will withhold the
money so we do not take the second step.
However, I think the larger point the Senator from Virginia
understands. The step this country wants to take, to say there are
usable nuclear weapons, that there are designer nuclear weapons that
can be produced with lower and higher yields for special kinds of uses
is a very dangerous step and exactly the wrong step for those of us who
believe our leadership responsibility is both to stop the spread of
nuclear weapons and to reduce the number of nuclear weapons. I think
the larger point the Senator from Virginia understands. But if he is
more comfortable with my saying we will stop the second step rather
than the first step, we will stop whatever steps are taken in the wrong
direction, in my judgment.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. I just think accuracy on these very important subjects is
absolutely vital to establish credibility among our colleagues. I read
from the report language. It says:

This amount includes $21 million for advanced concepts, of
which $15 million is authorized to continue the feasibility
study on the robust nuclear earth penetrator.

So the Senator was incorrect in his representation that he was
endeavoring as if to say I am going to stop it now before it gets
started. I think that is fair, to let the Congress know, and
particularly the Senate, this thing was authorized last year and voted
upon, approved, funded. This is a second tranche of funds for research.
Essentially the amendment of the Senator is to establish a total ban
on this entire program.
If I may say on my own time, of course, it is the intention of the
Senator from Virginia, again in total fairness to our colleagues, to
incorporate in this legislation, in this bill, a provision which is
identical in purpose to the one we just voted on, the Warner amendment.
It will say: The Secretary of Energy may not commence the engineering
development phase, that's the next phase, or any subsequent phase of
the nuclear earth penetrator program unless specifically authorized by
Congress.
So into this legislation--it had been my intent to put it on in the
second degree, but the time agreement understandably precluded that. It
may well be other Senators will join us. But this is the intention of
the Senator from Virginia. I wish to represent to all colleagues I will
endeavor, and I have every reason to believe there is going to be
support on the other side, to incorporate this language which will put
Congress entirely in control of this program, entirely in control, just
as I amended the previous legislation to put Congress entirely in
control of every step as it goes along.
Mr. DORGAN. If I may use the word credibility, as the Senator from
Virginia did, let me say to those who might listen to this debate or
watch this debate, it is incredible to believe Congress will be in
charge of every step of the development of this program. That is
preposterous. That is not the case on any defense system of which I am
aware.
My amendment is very simple, I say to the Senator from Virginia. My
amendment prohibits the use of these funds. You did not talk about
prohibiting funds. You want to fund it. You want to authorize it. You
want to move ahead with it. That is fine. We have a disagreement about
that. But there is no credibility issue here.
The question is whether this country wants, with this legislation, to
say to the rest of the world, By the way, we have embarked on a new
venture here and with this new venture, whether it is last year or this
year, it is decided we need new nuclear weapons including bunker
busting nuclear weapons.
If the answer to that is yes, that's what we want to do, then the
answer is we vote with my colleague from Virginia. If you believe it is
moving in exactly the wrong direction, it is driving 500 miles in
reverse like the flying farmer from Makoti, if you really believe this
is stepping backward, as I do, and dangerous for the rest of the world,
you vote no. You vote to strip the money.
Look, money is money, as you know. This $11 million, $15 million is
probably not a lot of money to some. But my amendment strips that money
to say let's stop this. We do not need earth penetrating bunker busting
nuclear weapons. Does the Senator from Virginia believe at this moment
we can't sleep because we don't have bunker busting earth penetrating
nuclear weapons?

Mr. WARNER. The distinguished chairman of the subcommittee is here. I
asked him to address the strategic implications and the necessity. The
Chairman of the Joint Chiefs just yesterday, when I was consulting with
him, said there is now a proliferation of effort by nations which have
interests antithetical to ours, going deep into the ground to establish
facilities to manufacture poison weapons, biological weapons, gas
weapons, and possibly nuclear weapons. I think it is prudent that our
arsenal of defense deterrence have in it weapons, if I may finish, both
nuclear and conventional.
Mind you, there is an ongoing effort parallel to this one to
determine whether or not we can achieve the same strategic goals of
destruction of deep underground facilities with conventional weapons,
which would certainly be used prior to the use of any nuclear weapon.
So it is a parallel program of conventional and nuclear.
But I respect my colleague whose views are different than mine. His
amendment bans forever this type of weapon--research, development,
everything. It stops it cold.
Mr. DORGAN. I am sorry, if the Senator wants to talk about
credibility, let me correct the Senator, if you do not mind. On page 2
of my amendment it prohibits it for the year 2004, because that's all I
can do, with respect to 2004.
Mr. WARNER. That is correct.
Mr. DORGAN. And for the year 2004 it says: No funds authorized or
appropriated or otherwise made available, et cetera, for a feasibility
study.
Mr. WARNER. Which study was authorized, I say to my colleague, last
year.
Mr. DORGAN. Let me finish my point. If we are going to be completely
accurate here.
The PRESIDING OFFICER. The Senator will suspend. The Chair will
advise the Senator from North Dakota has the floor. All conversations
are being charged against his time.
Mr. WARNER. Mr. President, I think I said when I took the floor, it
would be charged to the Senator from Virginia. It is in the nature of a
colloquy which takes place, so statements on my behalf are charged
against my time, statements by the Senator from North Dakota on his
time.
Mr. DORGAN. That was my understanding.
The PRESIDING OFFICER. Without objection, the time will be so
charged.
Mr. DORGAN. Let me just make this point because I think it is
important. I, too, want to be accurate. I want to be accurate on my
side and your side. My amendment prohibits the use of funds

[[Page S6800]]

for the earth penetrator weapon to be ``obligated or expended for
development, testing, or engineering on a nuclear earth penetrator
weapon.'' That is perpetual. And ``(b) Prohibition on Use of Fiscal
Year 2004 Funds'' deals only with this fiscal year.

So to be perfectly accurate, the question of the withholding of funds
with respect to the feasibility study only applies to this fiscal year.
It is not permanently banning that funding because I can only ban it
for this year. So I just want to make that point.
I am happy to yield and happy to engage in this colloquy, but I think
the issue is quite simple actually: Either one believes we ought to
have new nuclear weapons, earth penetrating bunker busters--and I don't
remember exactly who showed up to testify yesterday; someone from the
Joint Chiefs, I guess, and they have told us that somewhere around the
world, somebody is auguring deep into the earth, God forbid, and we
might well need a nuclear weapon to go get them.
I would say to people who come around here with those stories: Go get
some fresh air. Put some sugar on your cereal. I don't, for the life of
me--there are people around here, I swear to you, who, if told our
adversaries were creating a cavalry, would be on the floor trying to
buy horses. I don't understand this notion that there is a rumor that
somebody is doing something, so let's create a new nuclear weapon.
The reason I offer this specific amendment, I say to the Senator from
Virginia, is that I know they talked about this in Afghanistan, in
Iraq. And they talked about the issue of ``usable'' nuclear weapons.
They talked about the difficulty in caves. I have flown over those
mountains. I have seen those mountains and the caves. But for us to
come back here and say: Oh, by the way, our new global strategy is to
create a new class of nuclear weapons--I think that has profound
implications with respect to the stability and the spread of nuclear
weapons around the world.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. I readily state you have one position on the concept of
whether this Nation should, you said, start up--but I think you agree
with me now, it is ongoing--so stop where it is, this program. You make
your point. I make my point.
What I am trying to do is to clarify, for the benefit of our
colleagues, precisely what I understand your amendment does. What this
Senator, or perhaps joined by others, intends to do is, namely, make
the effect of the amendment parallel to what we have done three times
now. Three times this body has voted not to ban research on a nuclear
system. You are asking for a ban.
I draw your attention to your first sentence: ``Effective as of the
date of the enactment of this Act, no funds authorized to be
appropriated or otherwise made available for the Department of Energy
by this Act or any other Act may be obligated or expended for
development, testing,'' and so forth.
Does that not capture the existing funds that were appropriated last
year?
Mr. DORGAN. No, it does not.
First of all, read the last words, ``development, testing, or
engineering,'' and then compare that to (b) in which I am talking about
the feasibility study. I am withholding the funds from the feasibility
study. I was attempting to make that distinction for you.

Mr. WARNER. But if your amendment would pass, wouldn't it be the
effect to the Department of Defense: Why waste last year's money if you
are prohibited from spending another nickel?
Mr. DORGAN. I am all for that statement: Why waste money? I am all
for that. If the proposition is, what I am trying to do is tell the
Defense Department, don't waste money, then sign me up and count me in.
Mr. WARNER. I think we have clarified this situation as best we can.
But I wish to state to my colleagues, it is the intention of this
Senator--I hope to be joined by others; and, indeed, one on the other
side of the aisle--to put in legislation, as a part of the
consideration of this subject of the penetrator, the exact language we
had and voted on very strongly here just 15 minutes ago.
Mr. DORGAN. I have deep respect for my colleague from Virginia. We
are friends. We disagree on this issue.
Let me make a final point. I know others want to speak on this
matter. We are now in a new environment in which the language about the
nuclear threat has changed dramatically. We have people who say we
really need to begin nuclear testing once again. We have people who say
we ought not forswear the first use of nuclear weapons; first use might
in some circumstances be perfectly plausible. We have some who say
nuclear weapons are ``usable'' as tactical issues, as strategic issues
on the battlefield, they are usable nuclear weapons we ought to be
considering. There are people who say we need new kinds of nuclear
weapons--bigger ones, the jumbo ones, which is the earth penetrator,
and smaller ones, the smaller, mininuclear weapons that would be one-
third the size of Hiroshima, which certainly is not mini, but that is
what they say.
We have people saying all these things in this country, some of them
in very responsible policy positions. I think the rest of the world
sees all that, listens to that, looks at bills such as this, and says:
You know what, the United States has 10,600 nuclear weapons in its
arsenal. And they say they need more? And they say they have a right to
use them? They will not renounce first use.
They say they want specific, more designer kinds of weapons for
battlefield use.
They are saying: You know, the United States has changed. It used to
be the United States did everything conceivable in its power to say:
Never shall a nuclear weapon be used. Our nuclear weapons are
deterrents, deterrents so they never can be used against us and never
used against others. But now it has all changed, and there are people
who think it is perfectly plausible, it is just another weapons
program, just part of our weapons system.
Well, in 2003, with what is happening around the world--terrorists,
India, Pakistan, North Korea--I cannot think of a more destructive
piece of public policy than to continue with this kind of nonsense. It
is not just wrong, it is dangerously wrong, in my judgment.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. LEVIN. Mr. President, may I just have 3 minutes from the Senator
from North Dakota?
Mr. DORGAN. I am happy to yield the time to the Senator.
The PRESIDING OFFICER. The Senator is recognized for 3 minutes.
Mr. LEVIN. Mr. President, I support the amendment offered by the
Senator from North Dakota. I think for the reasons he gives, we should
not walk down a road which tells both our people and the rest of the
world that we are going to consider the development of what was called
the bunker buster, which, as a matter of fact, is from 28 to 70 times
the size of the Hiroshima bomb.
What we decided last year was we would put a fence around the first
year's study and we would get, indeed, a report before that money was
spent. It is a report which is totally unsatisfactory.
So there was a lot of doubt--a lot of doubt--in this body about
whether we should proceed down a road which considers the utilization
of nuclear weapons in new forms that are 28 to 70 times the size of
Hiroshima.
Now we are also told, this morning, that now there may be some
chemical and biological sites that could be underground for which these
weapons would be used.
Well, first of all, conventional weapons are perfectly adequate to
close entrances and holes. But putting that aside for a minute, just
think about it. The intelligence community said they had identified 590
suspect sites in Iraq--590 sites, according to Secretary Rumsfeld. Now,
that used to be a classified number, but apparently the other day it
was just declassified by Secretary Rumsfeld, so I will use that number.
The intelligence community said 590 sites over there in Iraq are
suspect chemical and biological weapons sites.
We are going to drop a nuclear weapon on those sites based on the
intelligence of the CIA? Are we kidding? Do we know what we are dealing
with when we are talking about nuclear weapons 28 to 70 times the size
of Hiroshima? Those are the weapons being considered for modification
for the so-called bunker buster. They are not

[[Page S6801]]

bunker busters. These are world peace destroyers. These are city
destroyers. These are nation destroyers.
For us to casually--and I think it is casual--talk about, ``Let's go
down this road, we are not talking about development here, we are only
talking about research,'' we have the person who is the top person in
the Defense Department as the adviser to the Secretary of Defense on
nuclear matters, Fred Celec, who says, ``If a hydrogen bomb could be
successfully designed to survive a crash through hard rock, it will
ultimately get fielded.''
Now, that is not one of the supporters of the Dorgan amendment who is
saying that. That is the top adviser to the Secretary of Defense who is
saying: If we can show that it will work, and design it, it will be
fielded.
The rest of the world does not ignore what we do here. What we are
doing here is marching down a road which is dangerous and reckless in
terms of world peace and security. And we should not do it.
This is not just simply a study. This is a step--a very important
step--down a road, in a direction which, apparently, according to Fred
Celec, who is the Deputy Assistant Security of Defense for Nuclear
Matters, will be ultimately fielded.
I support the amendment of the Senator from North Dakota. I do point
out that there was a fence around last year's money. It was not as
though last year we decided to proceed. There were some conditions
which were attached. As far as I am concerned, when you read that
report, it is very unsatisfactory, very general, and not at all
sufficient to justify moving to the next $15 million.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, that fence was met. The Department
submitted its report. On receipt of that report, the program, as
authorized last year, commenced. It is an ongoing program.
Mr. LEVIN. The Senator is correct. But it is important to point out
that there was so much concern about step 1, there was a fence or a
condition attached to the expenditure of the money. It is incumbent
upon all of us to read the report and ask, does that satisfy us that we
ought to take the next step?
Mr. WARNER. Mr. President, the use of fences is quite common in a
number of areas in the Defense authorization process.
Mr. LEVIN. It is, indeed.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. ALLARD. Mr. President, how much time remains on our side?
The PRESIDING OFFICER. Twenty-seven minutes.
Mr. ALLARD. Mr. President, I rise in opposition to the Dorgan
amendment. Before I make any more comments, right at the very start, I
want to make one thing clear: We are not building new nuclear weapons.
We are modifying existing nuclear weapons. Somehow the other side is
trying to imply that we are building new nuclear weapons, and we are
going to continue to add to the number of nuclear warheads we have. We
are continuing to reduce the number of nuclear warheads under the
Moscow Treaty.
The Senate bill includes an authorization of $15 million to continue
a 3-year feasibility study on the robust nuclear penetrator. I repeat,
to continue the feasibility study. This is not a new issue for the
Congress to consider. In the National Defense Authorization Act for
fiscal year 2003, the Congress authorized $15 million for the first
year of the feasibility study on the robust nuclear earth penetrator
which is now under way.
This bill authorizes only the continuation of the feasibility study.
It does not authorize the production or deployment of such a
capability.
The RNEP for feasibility--referring to the robust nuclear earth
penetrator--will determine if one of two existing nuclear weapons can
be modified to penetrate into hard rock in order to destroy a deeply
buried target. That is the challenge we face. Our potential enemies are
trying to avoid any vulnerability to targets by going deeper and deeper
underground. In order to destroy deeply buried targets that could be
hiding weapons of mass destruction or command and control assets, this
new technology needs to be an option, not that we are necessarily going
to use it.
The Department of Energy has modified nuclear weapons in the past to
modernize their safety, security, and reliability aspects. We also
modify existing nuclear weapons to meet new military requirements. The
B-61-11, one of the nuclear weapons being considered for the RNEP
feasibility study, was also modified once before to serve as an earth
penetrator to hold specific targets at risk. At that time, the
modification was to ensure the B-61 would penetrate frozen soils. The
RNEP feasibility study is attempting to determine if the same B-61 or
another weapon--for example, the B-83--can be modified to penetrate
hard rock or reinforced, underground facilities. Authorizing research
on both options, nuclear and conventional--and we hope we will never
have to use the nuclear; we hope we can continue to advance the
conventional technology so that would be the preferred method of choice
to go after these deep underground hardened targets--for attacking such
targets is a responsible step for our country to take
Again, we are not producing new nuclear weapons. We are doing a
modification. It is a continuing modification. We have modified the B-
61 before. We are looking at the B-83 to see if perhaps we can't do a
modification on that.
The sponsor of the amendment made the comment that the United States
is setting an example for the rest of the world. We are continuing to
set the example for the rest of the world by reducing the number of
nuclear warheads. The problem is countries such as Afghanistan and
Pakistan don't care what we are doing. Despite our best efforts to set
an example, they are continuing to develop nuclear warheads. They are
doing more than we are today as far as the triggering mechanism for
nuclear warheads. If that continues, where will that put us as far as
the defense of this country is concerned?

I commend President Bush. He has taken the lead in reducing the
number of nuclear warheads. It is great that we are able, through these
kind of programs, to take covert silos, as my friend from North Dakota
mentioned, and we are planting sunflower seeds. We are still doing that
today as a result of the Moscow Treaty. Even before the treaty, the
President announced that he would take down the Peacekeeper which is
buried in silos in Wyoming, Nebraska, and Colorado. That effort is
moving forward. We are continuing to do that. The point is, we need to
have some flexibility. Times are changing. Our targets are changing. We
need to have new technology. We need to study. That is what this
provides, a feasibility study of these various options. We simply
cannot afford to be caught shorthanded. Too much is at risk. America is
at risk.
ADM James Ellis, Commander of U.S. Strategic Command, confirmed in
testimony before the Strategic Forces Subcommittee, on April 8, 2003,
that not all hardened and deeply buried targets can be destroyed by
conventional weapons. That is his view. Many nations are increasingly
developing these hardened, deeply buried targets to protect command and
communications and weapons of mass destruction production and storage
assets. It is prudent to authorize the study of potential capabilities
to address this growing category of threat.
What the Senate bill authorizes is simply the second year of the 3-
year feasibility study and nothing more. Should the National Nuclear
Security Administration determine through this study that the robust
nuclear earth penetrator can meet the requirement to hold a hardened
and deeply buried target at risk, NNSA still could not proceed to full-
scale weapons development, production, or deployment without an
authorization and appropriation from Congress.
We do the study. Say the study says there is a feasible alternative.
Still they cannot move forward until they have the authorization for
development and production through authorization and appropriation from
the Congress.
We should allow our weapons experts to determine if the robust
nuclear earth penetrator could destroy hardened and deeply buried
targets to assess what would be collateral damage associated with such
a capability. Then Congress would have the information it

[[Page S6802]]

would need to decide whether development of such a weapon is
appropriate and necessary to maintain our Nation's security.
I urge my colleagues to join me in opposing the Dorgan amendment as
it now stands. This is an important issue. We are talking about the
defense of this country. A lot is at stake. I think we need to keep in
mind that despite the fact we are doing a lot today to reduce the
number of nuclear weapons in our arsenal, other countries are
continuing to test. I put in the Record yesterday a whole page of tests
that have occurred since we quit testing underground. Other countries
are continuing to develop their weapons. We need to continue to use our
technology to make sure we have the proper defenses and the wherewithal
to protect our troops in the field, to protect America, and to protect
freedom.

Madam President, I reserve the remainder of my time.
The PRESIDING OFFICER (Ms. MURKOWSKI). Who yields time?
Mr. ALLARD. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DORGAN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 750, As Modified

Mr. DORGAN. Madam President, I have sent a modification to the desk,
a technical modification. I ask to have the modification agreed to.
Mr. ALLARD. There is no objection on this side.
The PRESIDING OFFICER. Without objection, the amendment is so
modified.
The amendment (No. 750), as modified, is as follows:

(Purpose: To prohibit the use of funds for a nuclear earth penetrator
weapon)

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

SEC. 3135. PROHIBITION ON USE OF FUNDS FOR NUCLEAR EARTH
PENETRATOR WEAPON.

(a) In General.--Effective as of the date of the enactment
of this Act, no funds authorized to be appropriated or
otherwise made available for the Department of Energy by this
Act may be obligated or expended for development, testing, or
engineering on a nuclear earth penetrator weapon.
(b) Prohibition on Use of Fiscal Year 2004 Funds for
Feasibility Study.--No funds authorized to be appropriated or
otherwise made available for the Department of Energy for
fiscal year 2004 by this Act may be obligated or expended for
a feasibility study on a nuclear earth penetrator weapon.

Mr. KENNEDY. Madam President, I urge the Senate to support this
amendment to strike funding for nuclear bunker busters. What sense does
it make for the Nation to do all it can to prevent the proliferation of
nuclear weapons, and then start proliferating them ourselves?
``More has changed on proliferation than on any other issue.'' CIA
Director George Tenet made this statement not too long ago to the
Senate Armed Services Committee. He wasn't talking about the United
States but he should have been. As we have seen already in this debate,
the Bush administration's policy would make the United States the
biggest nuclear weapons proliferator of all. They want to
``nuclearize'' as many of our conventional weapons as possible.
But nuclear weapons are different. The unique destructive power of
these weapons gives them the capacity to threaten the very survival of
humanity. That is why nuclear weapons have always been kept separate
from other weapons as part of our strong commitment to do all we can to
see that they are never used again. Only in the most dire circumstances
should the use of nuclear weapons be considered--only if the very
survival of our Nation is threatened.
It makes no sense to break down the firewall we have always
maintained between nuclear weapons and other weapons. This policy has
worked for over half a century in preventing nuclear war. Other nations
have complied with the basic principle, too. A nuclear weapon is not
just another item in our Nation's arsenal. We don't need to start
building mini-nukes when our state-of-the-art, high-tech conventional
weapons can do the same job. And we don't need to go nuclear with our
conventional bunker buster weapons, either.
I was 13 years old on that fateful day in August 1945, when a B-29
bomber flying high over Hiroshima dropped the first nuclear weapon,
``Little Boy.'' More than 4 square miles of the city were instantly and
completely devastated. Over 90,000 people died instantly. Another
50,000 died by the end of that year. Three days later, another B-29
dropped ``Fat Man'' over Nagasaki, killing 39,000 people instantly and
injuring 25,000 more.
Since then, no nuclear weapon has ever been used in any war. There
have been close calls in the past half century but this weapon was
never used. In 1948, the Soviet Union began the Berlin Blockade, and we
considered the use of tactical nuclear weapons if the conflict
escalated. We also considered the use of nuclear weapons in the Korean
war. In 1957, the Soviets launched Sputink, and it became clear that
two oceans could not protect us from a nuclear attack at home.
In 1958, President Eisenhower declared a moratorium on all nuclear
testing--with the understanding that the Soviet Union would also honor
the moratorium. But testing resumed in 1961, and after negotiations
with the Soviet Union, we issued a Joint Statement of Agreed Principles
for Disarmament Negotiations--the so-called McCloy-Zorin accords--which
outlines a program for general and complete disarmament.
In the work of the Cuban missile crisis, President Kennedy pushed
forcefully for a treaty to limit the development of nuclear weapons.
The result was in the Partial Nuclear Test Ban Treaty in August 1963,
prohibiting tests of nuclear weapons in the atmosphere.
In February 1967, a treaty prohibited nuclear weapons in Latin
America.
In July 1968, the Treaty on the Non-Proliferation of Nuclear Weapons
was signed in Moscow, London, and Washington, and entered into full
force in March 1970. That same year brought the beginning of the first
round of Strategic Arms Limitation Talks in Vienna. The SALT agreement
was signed 2 years later in 1972 and placed restrictions on the number
and size of nuclear warheads in the Soviet and American arsenals.
In the 1970s, we made further progress in limiting the threat of
nuclear war. The Senate approved treaties to prohibit the placement of
nuclear weapons in the ocean and to limit underground testing. We
almost reached an agreement on the second round of Strategic Arms
Limitation Talks, or SALT II, but the Soviet invasion of Afghanistan in
1970 took that agreement off the table.
In 1987, the Soviet Union and the United States signed the
Intermediate Range Nuclear Forces Treaty. In 1991, using pens made from
melted down missiles, President Bush and President Gorbachev signed the
Strategic Arms Reduction Treaty START I.
Six months later both nations committed to further nuclear program
reductions and eliminations. Soviet leader Gorbachev initiated a
moratorium on nuclear testing in October 1991, and President Bush
canceled the Midgetman Missile Program and stopped production of
advanced cruise missiles in January 1992. That summer, the Senate voted
for a 9-month moratorium on nuclear weapons testing beginning in
October 1992, with a final cutoff of all testing by September 1996.
In 1993, Presidents Bush and Yeltsin signed START II, reducing U.S.
and Soviet arsenals of longer range nuclear weapons and eliminating all
land-based missiles with multiple warheads over the next 10 years.
After we finalized this testing moratorium, France and China stopped
testing, and Russia continued its own moratorium. But now, after many
difficult years of this progress toward preventing nuclear war, the
Bush administration wants to change direction and go the other way.
Last year, it requested $15.5 million to study the feasibility of
adding a nuclear bunker buster to our arsenal. They say they need it to
destroy hardened and deeply buried targets, and they want $15 million
more this year to continue the project.
They say they need it to destroy hardened targets buried deeply
underground, but the scientific community has raised serious questions
about the effectiveness and need for these weapons. A nuclear explosion
in a bunker could spew tons of radioactive waste into the atmosphere.
Obviously, trying

[[Page S6803]]

to develop nuclear weapons for this mission distracts from developing
conventional alternatives to do the job.
According to Dr. Sidney Drell, of Stanford University: Currently, we
don't have the capability of digging down more than 50 feet to reach
deeply buried hardened targets. If we detonate just 1 kiloton between
20 and 50 feet down, a million cubic feet of dirt would have
radioactive contamination, and a crater the size of the crater at the
World Trade Center would be created.
Imagine what would happen if one of these weapons was a nuclear
weapon with a yield of 400 kilotons and was detonated. Is it even
possible to imagine a crater 400 time the size?
It makes no sense to start down this road. No country should be
making weapons like that. It is wrong for this administration to start
developing new types of nuclear weapons that have no plausible military
purpose and that can only encourage even more nations to go nuclear.
Mrs. BOXER. Madam President, I am very concerned that the fiscal year
2004 Defense Authorization Act provide $15 million of funding for the
continued study into the feasibility of developing a robust nuclear
earth penetrator.
The robust nuclear earth penetrator is a bomb designed to bury itself
deep into the ground before it explodes. This is not a low-yield
nuclear weapon. According to reports, this weapon would be five times
more powerful than the device detonated at Hiroshima--and would have an
even greater impact because a nuclear weapon's force is multiplied when
its shock wave penetrates the crust of the Earth.
The aim of those who support this research into the robust nuclear
earth penetrator believe that a usable nuclear weapon will be able to
destroy deeply buried targets with few casualties and little fallout.
Unfortunately, science is not on their side.
Last year, a number of scientists, including Sidney Drell of the
Stanford Linear Accelerator Center wrote, ``an earth-penetrating
warhead with a yield sufficient to destroy a buried target cannot
penetrate deeply enough to fully contain the nuclear explosion; it
would necessarily produce an intense and deadly radioactive fallout.
Thus, it is not technically possible to use nuclear weapons to destroy
deeply buried targets without at the same time causing significant
radioactive contamination and collateral damage if used in an urban
area.''
Another argument pushed by those in favor of these nuclear weapons is
that they would be useful in destroying stockpiles of biological and
chemical weapons.
While a nuclear weapon could, in fact, incinerate biological and
chemical weapons if the nuclear blast is nearby, it is unlikely that we
will ever have perfect intelligence about the location of these
weapons. Our continued inability to find weapons of mass destruction in
Iraq is a perfect illustration.
In addition, the Union of Concerned Scientists points out that the
robust nuclear earth penetrator could actually disperse biological and
chemical weapons by spreading them into the resulting crater and
surrounding air. These weapons are not usable weapons.
Finally, our continued development of new uses for nuclear weapons
will only spurn other nations to do the same.
As Rose Gottemoeller, the former Deputy Secretary of Energy, has
said, ``I think people abroad will interpret this as part of a really
enthusiastic effort by the Bush administration to renuclearize. And I
think definitely there's going to be an impetus to the development of
nuclear weapons around the world.''
The war in Iraq showed our Nation has overwhelming superiority when
it comes to conventional forces. It doesn't make any sense to promote
the development of nuclear weapons and signal to the world that weapons
of mass destruction have other uses other than a means of last resort.
I urge the passage of the Dorgan amendment.
Mr. ALLARD. Madam President, I ask unanimous consent that we vote at
12:30 relative to the Dorgan amendment; that our time be equally
divided between both sides; and that after the vote, Senator Byrd be
allowed to speak for 20 minutes.
Mr. WARNER. Is this a UC request?
Mr. ALLARD. It is my understanding Senator Reid discussed this with
the chairman and it was agreed that Senator Byrd would have an
opportunity to speak for 20 minutes after the vote.
Mr. WARNER. That's correct. If I may add a word or two to this. In
the course of my colloquy with the Senator from North Dakota, it was
indicated there would be an effort to place in this bill language
comparable to what was in the amendment that was voted on immediately
prior to this one to give a consistency in the manner in which we are
treating these very serious questions. So I will put this on the desk
and I will represent to our colleagues that this language will be
forthcoming and a part of this bill.
Mr. REID. Reserving the right to object, that doesn't mean we are
going to have two votes, or does it?
Mr. WARNER. I have indicated to the ranking member that this
language, I think, could be voice-voted because I think there is
consensus on both sides in an effort to make parallel and to put the
Congress clearly into play.
Mr. REID. Madam President, it is also my understanding that Senator
Lautenberg would be willing to offer an amendment following the
statement of the Senator from West Virginia. He also indicated he would
agree to a time limit.
Mr. WARNER. We are prepared to enter into that now.
Mr. REID. I haven't had a chance to talk about the time with him. I
just wanted to alert people of that. Shortly after Senator Lautenberg
offers his amendment, there would be a vote.
Mr. WARNER. It is my hope that in the course of Senator Byrd's 20
minutes, if that decision could be made, Senator Byrd would certainly
understand the need to maintain the momentum.
Mr. ALLARD. Madam President, I renew my request.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. DORGAN. Madam President, let me conclude with a few comments and
indicate, as I should have, that Senator Feinstein of California,
Senator Byrd, and Senator Bingaman are all cosponsors of my amendment.
Let me conclude by saying I understand there is a difference of opinion
about what defending America really is. I don't think it is defending
our interests or providing greater national security to be involved in
the creation of new nuclear weapons.
I believe the best way to defend our country, especially in a new day
and age of terrorism, is to understand we must find ways to prevent
terrorists from ever acquiring nuclear weapons, for they surely will
use them. We saw what they did with a low-tech weapon, with jet
airplanes full of fuel. That was a low-tech weapon.
The ability to acquire nuclear weapons will be a devastating
consequence, especially for us in the United States, because terrorists
will surely want to use them. It seems to me our job is to stop the
spread of nuclear weapons, do everything conceivably possible to stop
the spread of nuclear weapons and provide no green lights, no go signs
for anybody in the world to believe that we think it is acceptable for
the use of nuclear weapons; that we believe nuclear weapons are
``usable'' in battlefield circumstances; that we believe we ought to
build additional nuclear weapons, understanding that others will as
well. If we want to do low yield, they will also want to. If we want to
do penetrating bunker busters, they will want to do them.
Our job, it seems to me, is to say the only success we will be able
to claim in the future is that we prevented the spread of nuclear
weapons and prevented their use and, over a long period of time, began
to reduce the number of nuclear weapons.
Thirty thousand nuclear weapons exist on this earth. The detonation
of one will represent the greatest calamity, or potentially represent
the greatest calamity in the history of the world. The detonation of
one relatively small nuclear weapon in the middle of a major American
city could likely cause hundreds of thousands of deaths.
This is a big issue. This is very important. I think people walking
around this town talking about usable nuclear weapons, beginning to
test nuclear weapons once again, building new designer nuclear weapons,
is a terrible mistake. It is sending a signal to the

[[Page S6804]]

rest of the world that nuclear weapons are like other weapons. They are
not. They are not like other weapons. The only value of a nuclear
weapon for us has been as a deterrent to prevent others from using
them.
We must, it seems to me, from this day forward, with the world
populated by 30,000 nuclear weapons, find a way to keep them out of the
hands of the wrong people, to stop the proliferation, and to begin to
reduce their number. That ultimately represents our security. That is
the way to defend this country: to stop the spread of nuclear weapons,
not to build more.
I suspect we will see on this amendment, as we have on the previous
amendments, that I will come up short on the vote. I regret that very
much. I so strongly believe this country is sending a terrible signal
to the rest of the world--Russia, China, Pakistan, India, you name it.
I think this is a dreadful mistake. It does not strengthen this
country. In my judgment, it makes this country more vulnerable in the
long term.
Let me finish as I started. I have been the strongest supporter of
this country's system of defense. I voted for the Defense bills. I
worked on weapons systems. I think this country needs a robust, strong
defense. I have always felt that way. I come from a State with two
military airbases and the best Air National Guard in the country. I
understand B-52s, KC-135 tankers, and Minuteman missiles.
I support a strong, robust defense. Nuclear weapons are different.
They are different. They threaten the very existence of the world as we
know it, and that is why it must be dealt with differently. That is why
I offer this amendment.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. Without objection, the clerk will call the
roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Madam President, I move to table the Dorgan amendment and
ask for the yeas and nays.
The PRESIDING OFFICER. That motion is not in order while time remains
for debate.
Mr. WARNER. I yield back the time on our side. It is my understanding
they will be yielding back time on their side.
Mr. DORGAN. Madam President, I yield back the remainder of my time.
Mr. WARNER. All time having been yielded back, I ask for the yeas and
nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
Mr. WARNER. I move to table the amendment.
The PRESIDING OFFICER. The question is on agreeing to the motion. The
clerk will call the roll.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards), the Senator from Florida (Mr. Graham), and the Senator from
Massachusetts (Mr. Kerry) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``nay''.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 56, nays 41, as follows:

[Rollcall Vote No. 189 Leg.]

YEAS--56

Alexander
Allard
Allen
Bayh
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Chambliss
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Kyl
Lieberman
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner

NAYS--41

Akaka
Baucus
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Chafee
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Mikulski
Murray
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden

NOT VOTING--3

Edwards
Graham (FL)
Kerry
The motion was agreed to.
Mr. WARNER. Madam President, we will consult with the proponent of
the underlying amendment. But for the moment, the Senate has tabled
this matter.
It is my hope we could proceed to the Nelson amendments. I thank our
distinguished colleague from Florida for his cooperation. We can do
both by voice vote, it is my hope.
On the one amendment, I would like to be associated with you because
I represented throughout the vote, to my side, that the language be
incorporated. I yield the floor.
The PRESIDING OFFICER. At this time there is a previous order to
recognize the Senator from West Virginia.
The Senator from Nevada.
Mr. REID. Madam President, we have spoken to the Senator from West
Virginia. He has no objection to the two managers of the bill disposing
of the two Nelson amendments.
If I could just be heard briefly? We have several people on our side
who want to offer amendments. I hope those people who want to offer
amendments would contact the two managers of the bill. We are running
out of names of people to offer amendments. Both leaders have indicated
they want to complete this bill as quickly as possible. We are not
going to be able to work late into the night tonight.
Mr. WARNER. Madam President, if I could bring some new information on
that subject? The majority leader had a conversation with me just a
minute ago. I have not had a chance to share it.
I intend to stay here, as will other Members on my side, tonight. The
majority leader is open to having votes, if necessary, at about 9:30
tonight.
Mr. REID. Madam President, this is an excuse so he doesn't have to go
to this dinner.
Mr. WARNER. As we say in the law, I plead nolo contendere.
Mr. LEVIN. What dinner would we also be missing?
Mr. REID. We are not invited.
Mr. LEVIN. We are not invited.
Mr. REID. I would say then there is a possibility we could complete
this legislation tonight.
Mr. WARNER. If we get the cooperation and Senators call--we are right
here on the floor--and indicate that you desire to have an amendment,
we will see if we can accept it. If we cannot, we will proceed to put
it in line.
I say to the leadership that we are going to hear from the
distinguished senior Senator from West Virginia. Following that, I know
of one amendment on this side by Senator Hutchison, the Senator from
Texas. And we have the amendment by the Senator from New Jersey.
Is that my understanding?
Mr. LEVIN. That is correct.
Mr. WARNER. Could we put those in order now, but maybe not lock them
in?
Mr. REID. That would be good, if Senator Hutchison could go first
before Senator Lautenberg.
Mr. WARNER. I think I can make those arrangements.
Mr. REID. How long will she take?
Mr. WARNER. Fifteen minutes, or less. We may be able to accept it
without requiring a vote.
Mr. REID. Senator Lautenberg would be 1:45, and he will take one-half
hour. He probably will not use the whole one-half hour. I would be
happy to ask unanimous consent that Senator Hutchison from Texas be
allowed to offer her amendment, followed by the Senator from New
Jersey.
Mr. WARNER. I am agreeable to that unanimous consent request.
The PRESIDING OFFICER. Is there objection?
Mr. HARKIN. If the Senator will yield, I have an amendment on which I
will not take much time, if I could just have 15 minutes. I do not know
if it will be accepted or not. I ask for 15 minutes.

[[Page S6805]]

Mr. WARNER. How soon would the Senator be willing to share the text
of the amendment with the managers?
Mr. HARKIN. Right now.
Mr. LEVIN. Will the Senator be able to go immediately after the
disposition of the Lautenberg amendment, which would be about 2
o'clock, or 1:30 or 2?
Mr. HARKIN. Yes. Around 1:30. Yes, I can do that.
Mr. LEVIN. It may be later than 2.
Mr. REID. He is not going to start until quarter to 2.
Mr. LEVIN. It would be about 2:30 or quarter to 3. Would the Senator
from Iowa be able to do it in that time period?
Mr. HARKIN. I will make time to do it.
Mr. WARNER. We thank the Senator from Iowa for that cooperation
because, frankly, we don't know of many more amendments. We are nearing
the end.
Mr. REID. Following Senator Lautenberg, could I modify my request for
him to be next in order?
Mr. WARNER. There is no objection on this side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. I appreciate the patience of the Senator from Florida.
The PRESIDING OFFICER. The Senator from Florida.
Mr. NELSON of Florida. Madam President, I thank the two leaders of
our committee who have been so accommodating and so gracious to work
this out.

Amendment No. 766

Mr. NELSON of Florida. Madam President, I send an amendment to the
desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Florida [Mr. Nelson], for himself and Mr.
Warner, and Mr. Levin, proposes an amendment numbered 766.

Mr. NELSON of Florida. Madam President, I ask unanimous consent that
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To require a specific authorization of Congress for the
commencement of the engineering development phase or subsequent phase
of a Robust Nuclear Earth Penetrator)

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

SEC. 3135. REQUIREMENT FOR SPECIFIC AUTHORIZATION OF CONGRESS
FOR COMMENCEMENT OF ENGINEERING DEVELOPMENT
PHASE OR SUBSEQUENT PHASE OF ROBUST NUCLEAR
EARTH PENETRATOR.

The Secretary of Energy may not commence the engineering
development phase (phase 6.3) of the nuclear weapons
development process, or any subsequent phase, of a Robust
Nuclear Earth Penetrator weapon unless specifically
authorized by Congress.

Mr. NELSON of Florida. Madam President, this amendment brings
symmetry to the bill by our action earlier this morning. Senator Warner
had an amendment agreed to which said the Congress should authorize the
production of a low-yield nuclear weapon. In other words, the Congress
was going to have to step in if we were going to make a major step in
the production of a new nuclear weapon from our present policy of years
standing and of not producing any new kinds of nuclear weapons. That
was agreed to earlier with regard to a low-yield nuclear weapon under
the philosophy recognizing that the United States is trying to keep
proliferation of nuclear weapons down, and that once you start letting
that nuclear genie out of the bottle, it is very hard to reverse. That
was the theory upon which the earlier amendment was agreed to.
So, too, the amendment I sent to the desk, cosponsored by the two
leaders of our committee, will require the Congress to authorize any
production of a robust nuclear earth penetrator. A nuclear weapon would
have to be modified to go into this new robust earth penetrator. That
is a decision reserved to the Congress and its authorization for such a
weapon to go from the research stage to the production stage.
I urge adoption of the amendment.
Mr. WARNER. Madam President, I join in this amendment. It had been my
intention to add the second-degree amendment to the amendment we just
voted on. I so indicated to my colleagues on this side, recognizing I
think it is a benefit for the amendment to originate by our
distinguished colleague and member of the committee from Florida on
this side of the aisle. This makes ``parallel'' almost to the exact
word treatment of both of these initiatives with regard to nuclear
weapons in the current 2004 authorization bill.
I commend the Senator. I urge its adoption.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I very much support this effort on the
part of the Senator from Florida. It is a very precise,
straightforward, and short amendment. The language has great meaning.
The Secretary of Energy is not allowed, under this language, to
commence the engineering development phase of a robust nuclear earth
penetrator without specific authority of the Congress. Each word has
meaning. There are not a lot of words in this amendment. It is one of
the shortest amendments we have seen around here. But every single word
in that amendment has meaning.
I thank not just my good friend from Florida but also the Senator
from Virginia because they have really made a constructive contribution
to this entire debate by supporting this approach. It is not as strong
as some of us would have liked, but it nonetheless is very clear and
very specific and says you may not proceed to engineering development
unless Congress specifically authorizes that action. It is a
significant improvement of the bill.
Mr. WARNER. Madam President, the modesty of my distinguished
colleague sometimes is overwhelming. The concept of this language which
he described and written in the King's English originated with him in
the course of the markup of our bill. I then plagiarized it for the
purpose of earlier legislation. I don't know whether the Senator from
Florida has plagiarized it. But we owe him a great debt. I am so glad
we had the early discussion today about the clarity of certain statutes
and that the Senator recognized this one speaks with great clarity.
That is why it prevailed on our side.
I urge its adoption.
Mr. LEVIN. I thank the Senator for his generosity. His mind works
extremely clearly and extremely quickly. However, the good Senator from
Florida deserves much of the credit because he has been taking the lead
in a whole lot of these areas. I thank both of them.
The PRESIDING OFFICER (Mr. Chambliss). Is there further debate? If
not, the question is on agreeing to the amendment.
The amendment (No. 766) was agreed.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Florida.

Amendment No. 767

Mr. NELSON of Florida. Mr. President, I send an amendment to the
desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Florida [Mr. Nelson], for himself and Mr.
Warner, and Mr. Levin, proposes an amendment numbered 767.

Mr. NELSON of Florida. Mr. President, I ask unanimous consent that
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To require a study on the application of technology from the
Robust Nuclear Earth Penetrator Program to conventional hard and deeply
buried target weapons development programs)

At the appropriate place in Title XXXI in the bill add the
following new section:

SEC.--

(a) Findings.--Much of the work that will be carried out by
the Secretary of Energy in the feasibility study for the
Robust Nuclear Earth Penetrator will have applicability to a
nuclear or a conventional earth penetrator, but the
Department of Energy does not have responsibility for
development of conventional earth penetrator or other
conventional programs for hard and deeply buried targets.
(b) Plan.--The Secretary of Energy and the Secretary of
Defense shall develop, submit to Congress three months after
the date of enactment of this act, and implement, a

[[Page S6806]]

plan to coordinate the Robust Nuclear Earth Penetrator
feasibility study at the Department of Energy with the
ongoing conventional hard and deeply buried weapons
development programs at the Department of Defense. This plan
shall ensure that over the course of the feasibility study
for the Robust Nuclear Earth Penetrator the ongoing results
of the work of the DOE, with application to the DOD programs,
is shared with and integrated into the DOD programs.

Mr. NELSON of Florida. Mr. President, basically we have in the
authorization bill the ability to conduct this study that has been
ongoing for the last year and a half about the robust nuclear earth
penetrator. There is a certain sum of money in the underlying bill that
allows the conduct of that study to continue.
What we raised in the committee was the fact that a robust earth
penetrator may well be in the interest of the United States, that it
contain a conventional weapon as opposed to a nuclear weapon. So the
attempt of this amendment is to clarify that the research that will be
conducted by the Department of Energy, with regard to the modification
of a nuclear weapon that would go in the earth penetrator, that the
research will be coordinated with the Department of Defense in their
conduct and research of an earth penetrator that includes a
conventional weapon.
I urge adoption of the amendment, Mr. President.
The PRESIDING OFFICER. Is there further debate?
Mr. WARNER. Mr. President, I wish to endorse the amendment because it
has a very sound predicate, a very sound philosophy; namely, that we
should do everything possible to channel all of our scientific efforts
toward not using a nuclear weapon, and this does just that.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I very much support the amendment for the
reasons given by the Senator from Virginia. I commend our good friend
from Florida for his initiative.
The PRESIDING OFFICER. Is there any further debate?
There being none, the question is on agreeing to the amendment.
The amendment (No. 767) was agreed to.
Mr. LEVIN. I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WARNER. Mr. President, we thank our colleague from West Virginia.
He has shown us the usual senatorial courtesy to allow the managers to
move timely amendments.
The distinguished Senator from West Virginia is recognized now for a
period of 20 minutes. I thank him very much.
The PRESIDING OFFICER (Mr. Coleman). The Senator from West Virginia.
Mr. BYRD. Mr. President, I thank the two managers of the bill, Mr.
Warner and Mr. Levin, for the very professional, highly dignified
manner in which they have conducted their work on this bill. I thank
them for the many hours they spend in the committee, which they so ably
chair and act within as ranking member.
Mr. WARNER. Mr. President, could I just say, I appreciate the
expression of those remarks by our senior colleague. Senator Levin and
I are in our 25th year--that is a quarter of a century--in the Senate.
Throughout that period of time, the Senator from West Virginia has been
a tutor, and we have learned much. To the extent we may have progressed
in our learnings, it is owing in part to his teachings. I thank the
distinguished Senator from West Virginia.
Mr. BYRD. Mr. President, I am deeply grateful for those unmerited and
highly charitable remarks from the distinguished Senator from Virginia.
Mr. LEVIN. Mr. President, I hate to interrupt our dear friend and
mentor from West Virginia but I must do so just to tell him that those
remarks of our dear friend from Virginia were merited, indeed.
Mr. BYRD. Mr. President, I thank the distinguished Senator from
Michigan.

Iraq

Mr. President:

Truth, crushed to earth, shall rise again,
The eternal years of God are hers;
But Error, wounded, writhes in pain,
And dies among his worshippers.''

Truth has a way of asserting itself despite all attempts to obscure
it. Distortion only serves to derail it for a time. No matter to what
lengths we humans may go to obfuscate facts or delude our fellows,
truth has a way of squeezing out through the cracks, eventually.
But the danger is that at some point it may no longer matter. The
danger is that damage is done before the truth is widely recognized and
realized. The reality is that, sometimes, it is easier to ignore
uncomfortable facts and go along with whatever distortion is currently
in vogue. We see a lot of this today in politics. I see a lot of it--
more than I ever would have believed--right on this Senate floor.
Regarding the situation in Iraq, it appears to this Senator that the
American people may have been lured into accepting the unprovoked
invasion of a sovereign nation, in violation of long-standing
international law, under false premises.
There is ample evidence that the horrific events of September 11 have
been carefully manipulated to switch public focus from Osama bin Laden
and al-Qaida who masterminded the September 11 attacks, to Saddam
Hussein who did not. The run up to our invasion of Iraq featured the
President and members of his Cabinet invoking every frightening image
that they could conjure, from mushroom clouds, to buried caches of germ
warfare, to drones poised to deliver germ laden death in our major
cities. We were treated to a heavy dose of overstatement concerning
Saddam Hussein's direct threat to our freedoms. The tactic was
guaranteed to provoke a sure reaction from a nation still suffering
from a combination of post traumatic stress and justifiable anger after
the attacks of 9/11. It was the exploitation of fear. It was a placebo
for the anger.
Since the war's end, every subsequent revelation which has seemed to
refute the previous dire claims of the Bush administration has been
brushed aside. Instead of addressing the contradictory evidence, the
White House deftly changes the subject. No weapons of mass destruction
have yet turned up, but we are told that they will in time. And perhaps
they yet will. But, our costly and destructive bunker busting attack on
Iraq seems to have proven, in the main, precisely the opposite of what
we were told was the urgent reason to go in. It seems also to have, for
the present, verified the assertions of Hans Blix and the inspection
team that he led, which President Bush and company so derided. As Blix
always said, a lot of time will be needed to find such weapons, if they
do, indeed, exist. Meanwhile bin Laden is still on the loose out there
somewhere and Saddam Hussein has come up missing.
The administration assured the U.S. public and the world, over and
over and over again, that an attack was necessary to protect our people
and the world from terrorism. It assiduously worked to alarm the public
and to blur the faces of Saddam Hussein and Osama bin Laden until they
virtually became one.
What has become painfully clear in the aftermath of war is that Iraq
was no immediate threat to the United States, and many of us here said
so before the war. Ravaged by years of sanctions, Iraq did not even
lift an airplane against us. Saddam Hussein could not even get an
airplane off the ground. Iraq's threatening death-dealing fleet of
unmanned drones about which we heard so much morphed into one prototype
made of plywood and string. Their missiles proved to be outdated and of
limited range. Their army was quickly overwhelmed by our technology and
our well trained troops.
Presently our loyal military personnel continue their mission of
diligently searching for weapons of mass destruction. They have so far
turned up only fertilizer, vacuum cleaners, conventional weapons, and
the occasional buried swimming pool. They are misused on such a mission
and they continue to be at grave risk. I am talking about the sons and
daughters of the American people. The Bush team's extensive hype of WMD
in Iraq as justification for a preemptive invasion has become more than
embarrassing. It has raised serious questions about prevarication and
the reckless use of power. Were our troops needlessly put at risk? Were
countless Iraqi civilians--women, children--killed and

[[Page S6807]]

maimed when war was not really necessary? Was the American public
deliberately misled? Was the world?
What makes me cringe even more is the continued claim that we are
``liberators.'' Vice President Cheney, 3 days before the war, said we
will be welcomed as liberators. The facts don't seem to support the
label we have so euphemistically attached to ourselves. True, we have
unseated a brutal, despicable despot, but ``liberation'' implies the
followup of freedom, self-determination and a better life for the
common people of the invaded country. In fact, if the situation in Iraq
is the result of ``liberation,'' we may have set the cause of freedom
back 200 years.
Despite our high-blown claims of a better life for the Iraqi people,
water is scarce, and often foul; electricity is a sometime thing; food
is in short supply; hospitals are stacked with the wounded and maimed.
Historic treasures of the region and of the Iraqi people have been
looted, and nuclear material may have been disseminated to heaven knows
where, while U.S. troops, on orders, looked on and guarded the oil
supply. That is what they were told to do.
Meanwhile, lucrative contracts to rebuild Iraq's infrastructure and
refurbish its oil industry are awarded to administration cronies,
without benefit of competitive bidding, and the United States
steadfastly resists offers of U.N. assistance to participate. Is there
any wonder that the real motives of the U.S. Government are the subject
of worldwide speculation and mistrust?
And in what may be the most damaging development, the U.S. appears to
be pushing off Iraq's clamor for self-government. Jay Garner has been
summarily replaced, and it is becoming all too clear that the smiling
face of the U.S. as liberator is quickly assuming the scowl of an
occupier. The image of the boot on the throat has replaced the
beckoning hand of freedom. Chaos and rioting only exacerbate that
image, as U.S. soldiers try to sustain order in a land ravaged by
poverty and disease. ``Regime change'' in Iraq has so far meant
anarchy, curbed only by an occupying military force and a U.S.
administrative presence that is evasive about if and when it intends to
depart.
Democracy and freedom cannot be force fed at the point of an
occupier's gun. To think otherwise is folly. One has to stop and
ponder. How could we have been so impossibly naive? How could we expect
to easily plant a clone of U.S. culture, values, and government in a
country so riven with religious, territorial, and tribal rivalries, so
suspicious of U.S. motives, and so at odds with the galloping
materialism which drives the western-style economies?
As so many warned this administration before it launched its
misguided war on Iraq, there is evidence that our crackdown in Iraq is
likely to convince 1,000 new bin Ladens to plan other horrors of the
type we have seen in the past several days. Instead of damaging the
terrorists, we have given them new fuel for their fury. We did not
complete our mission in Afghanistan because we were so eager to attack
Iraq. Now it appears that al-Qaida is back with a vengeance. We have
returned to orange alert in the U.S., and we may well have destabilized
the Mideast region, a region we have never fully understood. We have
alienated friends around the globe with our dissembling and our haughty
insistence on punishing former friends who may not see things quite our
way. The path of diplomacy and reason have gone out the window to be
replaced by force, unilateralism, and punishment for transgressions. I
read most recently with amazement our harsh castigation of Turkey, our
longtime friend and strategic ally. It is astonishing that our
Government is berating the new Turkish government for conducting its
affairs in accordance with its own Constitution and its democratic
institutions.
Indeed, we may have sparked a new international arms race as
countries move ahead to develop WMD as a last ditch attempt to ward off
a possible preemptive strike from a newly belligerent U.S. bully which
claims the right to hit where and when it wants. In fact, there is
little to constrain this President. This Congress, in what will go down
in history as its most unfortunate and spineless and thoughtless act,
gave away its power to declare war for the foreseeable future and
empowered this President to wage war at will, and not only this
President, but also future Presidents.
The amendment that I offered to sunset this nefarious handover of
power was rejected by the Senate and garnered only 31 votes. I was
amazed, and I am still amazed, that this Senate would reject an
amendment to sunset a thoughtless, nefarious, spineless act on the part
of this same Senate to hand over this power to declare war to this
President. I cannot believe that the Senate did that. Even now, I
cannot believe it. It is abhorrent that the Senate would have rejected
the sunset provision. So, as it is, there is no sunset. That power goes
on after this President. The next President will have the same power,
unless Congress steps in and changes the law. Of course, a President
can veto a change in the law and that veto, as students of the
Constitution will know, will require a two-thirds vote to override. It
is hard to believe that grown, sensible men and women would reject that
sunset provision--to say nothing of having voted to shift this power
over to any President, whether he is a Democrat or Republican.
As if that were not bad enough, members of Congress are reluctant to
ask questions which are begging to be asked. How long will we occupy
Iraq? We have already heard disputes on the numbers of troops that will
be needed to retain order. What is the truth? How costly will the
occupation and the reconstruction be? No one has given a straight
answer. How will we afford this long-term, massive commitment, fight
terrorism at home, address the serious crisis in domestic health care,
afford behemoth military spending, and give away billions in tax cuts
amidst a deficit which has climbed to over $340 billion for this year
alone? If the President's tax cut passes, it will be $400 billion. We
cower in the shadows while false statements proliferate. We accept soft
answers and shaky explanations because to demand the truth is hard, or
unpopular, or may be politically costly.
But I contend that, through it all, the people know. The American
people, unfortunately, are used to political shading, political spin,
and the usual chicanery they hear from public officials. They patiently
tolerate it up to a point. But there is a line. It may seem to be drawn
in invisible ink for a time, but eventually it will appear in dark
colors tinged with anger. When it comes to shedding American blood, and
when it comes to wreaking havoc on civilians, on innocent women, men,
and children, callous dissembling is not acceptable. Nothing is worth
that kind of lie--not oil, not revenge, not reelection, not somebody's
grand pipe dream of a democratic domino theory.
Mark my words, the calculated intimidation which we see so often of
late by the ``powers that be'' will only keep the loyal opposition
quiet for just so long because, eventually, like it always does, the
truth will emerge. And when it does, this house of cards, built of
deceit, will fall!
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas is recognized.
Mrs. HUTCHISON. Mr. President, I commend my colleagues who serve on
the Senate Armed Services Committee and their staffs for the superb
work done on the bill before us today. The bill comes to the floor of
the Senate at an important time in our Nation's history. We have been
at war for the past 20 months, ever since the devastating attacks on
September 11, 2001 brought the violence of terrorism to our own
country. We have come far since then, but we have much farther to go.
Our first goal in the war on terrorism was to topple the brutal
Taliban regime in Afghanistan, to destroy the camps where the al-Qaida
terrorists who attacked us trained. We have done that. Our Nation's
military, the finest in the world, successfully led that charge.
Today we see in Afghanistan the beginnings of a democracy. We will
continue to help in the future to make sure that order is kept in
Afghanistan and that it will be a part of the flourishing world
community.
Our second goal was to disarm the dangerous regime of Saddam Hussein
in Iraq before he could surface and use weapons of mass destruction
once more against innocent civilians. We have done that. Again, our
brave men and women in uniform successfully

[[Page S6808]]

achieved that important goal in an astounding 3 weeks. It was a charge
that was lightning fast in its speed and thunderous in its conclusion.
Now we are working with other nations and world bodies to guide the
Iraqi people toward stability. In our quest to unearth Saddam Hussein's
weapons of mass destruction, we are digging up mass graves of thousands
of innocent people whom Saddam Hussein put to death for opposing him.
Mr. President, we may not have found the weapons of mass destruction
yet, but we have found horrifying mass graves that show the world the
grim importance of our success in Operation Iraqi Freedom.
The bill before us provides our brave soldiers, sailors, airmen,
marines, and their families with the important tools they need to
continue the vital work they are doing.
Whether they are active duty or reservists or members of the National
Guard, they are the ones who must continue the global fight against
terrorism and against nations ruled by despots who develop or possess
weapons of mass destruction.
I commend my colleagues for authorizing a military pay raise in this
bill that provides a 3.7-percent across-the-board increase and for an
additional raise targeted for experienced midcareer personnel, ranging
from 5.25 to 6.25 percent.
I commend the committee for establishing incentive pay in the amount
of $100 per month for service members who are serving in the Republic
of Korea. One need look no further than the news headlines on any given
day to appreciate the stability our presence has on the Korean
peninsula to keep in check the totalitarian regime in North Korea.
I am also glad to see this bill increase family separation pay from
$100 to $225 per month and increased pay for imminent danger or hostile
fire from $150 to $225 per month. This is not enough, and anyone
listening or who will read this will say it is not enough. It is not.
But it is one more thing we can do to show people who are making these
sacrifices that we want to compensate them in every way we possibly can
for a debt we know we will never really be able to repay.
I was also pleased the committee agreed to continue the development
of the Joint Strike Fighter aircraft in the amount of $4.4 billion.
There is no question the Joint Strike Fighter is the fighter of the
future, and it will keep America preeminent in defenses for whenever we
may need them in whatever place and in whatever way.
I also thank my colleagues on the committee for including the
Bipartisan Commission on the Review of the Overseas Military Structure
of the United States. That is a long way of saying that we are going to
look at foreign bases, as well as American bases, as we are making the
transition for our Department of Defense into the security assessment
that we face today.
This is a bill I introduced with Senator Dianne Feinstein of
California. I am the chairman of the Military Construction Subcommittee
of the Appropriations Committee. Senator Feinstein is the ranking
member. In looking at military construction, as we have, and the issues
facing us with military construction for American bases versus foreign
bases, it occurred to us that the Department of Defense is in a huge
transition now, trying to assess the threats we have and the different
kinds of threats we have been seeing since 9/11, and we have not kept
up in military construction requests.
As we have seen in Afghanistan and Iraq, the cold war concept guiding
the overseas basing for the U.S. military is obsolete. Yet the number,
structure, and scope of our overseas bases is still largely alive with
the threat of Soviet aggression. The process of when, how, and why we
base troops abroad is in need of a thorough examination to assure that
our basing structure is adequate for the new security environment. This
legislation will assess every overseas installation.
During the cold war, our primary military mission was to defend our
Nation and our allies from the symmetric Soviet threat of aggression,
and ``boots on the ground'' in Europe and Asia allowed us to do that.
Even though the cold war has been over for a decade, our Nation still
has 112,000 troops in Europe, 37,000 in Korea, and 45,000 in Japan,
largely in installations designed, devised, and intended for the
threats of an earlier era.

Training constraints are evident on many of these bases. The threats
we face today are asymmetrical. They are terrorist groups or rogue
states gaining weapons of mass destruction. Events of the past decade,
especially since 9/11, have taught us that we not only need to maintain
a military presence abroad, but we need to be in a position to support
contingencies where we have no permanent bases, such as Kosovo,
Afghanistan, Africa, and throughout the Middle East.
In the final analysis, we may need more troops overseas, not fewer,
but clearly the needs are different than they once were, and it is
critical that the United States move beyond the cold war basing
concepts. This is not simply a matter of security, although that is a
sufficient concern, but also of assuring that taxpayers' dollars are
well and wisely spent.
The Defense Department has requested as of right now $174 million for
Korea and $284 million for Germany for new military construction next
year. That is a large bill for a model in transition. In South Korea,
our soldiers often serve on the same patches of ground U.S. troops
occupied when the Korean war ended in 1953.
Today, these training areas are inadequate to accommodate the
extended reach of our weapons and the rapid pace of modern maneuver
warfare. In fact, more than 7,000 U.S. troops are stationed at the
Yongsan Army Garrison which was built by the colonial Japanese Army
before World War II.
In Grafenwoehr, Germany, our troops train on tank and artillery
ranges used by the Bavarian Army over 100 years ago. The army has
poured hundreds of millions of dollars into the complex in the past
decade, even though the best training area consists of 18,000 acres of
land, a postage stamp compared to the 400,000 acres of maneuver area
and ranges available at the National Training Center in California, or
the more than 1 million acres at Fort Bliss's MacGregor Range on the
Texas-New Mexico border.
Further complicating matters, the Defense Department is preparing for
another round of domestic base closures in 2005. As we scrutinize
stateside military installations, we must take a look at our worldwide
structures as well.
To make sure we get the answers to these questions right, our
bipartisan legislation that Senator Feinstein and I introduced and is
included in this bill would create a congressional commission to take
an objective and thorough look at our overseas basing structure.
The commission will consider criteria to determine whether our bases
are prepared to meet our needs in the 21st century. It will be
comprised of national security and foreign affairs experts who will
provide a comprehensive analysis of our worldwide base and force
structure to the 2005 domestic Base Realignment and Closure Commission.
We certainly want to work with the Pentagon. This is a timely review.
Some in the Pentagon have suggested that the 2005 BRAC could result in
the closure of one in every four domestic bases. But if we are going to
reduce our presence overseas, we will certainly need stateside bases to
station returning troops.
It is senseless to close bases in the United States only to later
realize we made a costly and irrevocable mistake, a painful lesson we
learned in the last rounds of closures.
Our national security strategy is shifting to take on the new threats
facing our Nation. The position of U.S. troops around the globe must
reflect that thinking.

I appreciate what the committee did in including this legislation
that Senator Feinstein and I introduced. It will be a major component
of a future BRAC, and I hope a major part of the thinking at the
Pentagon about what our threats are and where we need troops to be able
to address those threats.

Amendment No. 763

Mrs. HUTCHISON. Mr. President, I have an amendment at the desk, No.
763, and I ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Texas [Mrs. Hutchison] proposes an
amendment numbered 763.

[[Page S6809]]

Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To add availability of family support services to the matters
required to be included in the report on the conduct of Operation Iraqi
Freedom in section 1023)

On page 273, between lines 17 and 18, insert the following:
(P) The results of a study, carried out by the Secretary of
Defense, regarding the availability of family support
services provided to the dependents of members of the
National Guard and other reserve components of the Armed
Forces who are called or ordered to active duty (hereinafter
in this subparagraph referred to as ``mobilized members''),
including, at a minimum, the following matters:
(i) A discussion of the extent to which cooperative
agreements are in place or need to be entered into to ensure
that dependents of mobilized members receive adequate family
support services from within existing family readiness groups
at military installations without regard to the members'
armed force or component of an armed force.
(ii) A discussion of what additional family support
services, and what additional family support agreements
between and among the Armed Forces (including the Coast
Guard), are necessary to ensure that adequate family support
services are provided to the families of mobilized members.
(iii) A discussion of what additional resources are
necessary to ensure that adequate family support services are
available to the dependents of each mobilized member at the
military installation nearest the residence of the
dependents.
(iv) The additional outreach programs that should be
established between families of mobilized members and the
sources of family support services at the military
installations in their respective regions.
(v) A discussion of the procedures in place for providing
information on availability of family support services to
families of mobilized members at the time the members are
called or ordered to active duty.

Mrs. HUTCHISON. Mr. President, as I have traveled across Texas and
visit military bases, I have met with many military members and their
families. The feedback I have received from the members and the spouses
was that the military services provided wonderful family support during
the conflict in Afghanistan and Iraq.
I also heard that some family members who were deployed, particularly
from the National Guard and Reserve, need better access to family
support resources at the nearest military base. Because many Guard and
Reserve personnel do not live where they serve, family members do not
get to develop the relationships with the nearest family support
service, and if it is provided by a different military service or
component, than their own, it is a special hardship.
To work toward ensuring that families of our Guard and Reserve
personnel are adequately served, I have introduced an amendment that
requires the Secretary of Defense to include in his report on the
conduct of Operation Iraqi Freedom a study of family support services
provided to the dependents of National Guard and other Reserve
components of the Armed Forces who are called to active duty.
This amendment requires the Secretary to address the extent to which
interservice cooperative agreements are in place to support dependents
of mobilized members, regardless of the member's service or if they are
a member of the National Guard or Reserve, and to outline what
additional outreach programs should be established to support
dependents in the region of an existing military base or post.
It also asks the Department of Defense to identify additional
resources necessary to ensure that adequate family support services are
available to dependents of mobilized members at the nearest military
installation to the residence of the dependents.
Family support access is one key lesson that we are learning from the
frequent and extended mobilization of members of the National Guard and
Reserve to help fight our ongoing wars. We never intended to use our
Guard and Reserve this much. It is important to note that their
families also serve through their sacrifices and commitment, and
approving this amendment is the least we can do to help them.
I ask for a vote on the amendment, but I also want to say that
because of the constraints put forward about the relevancy of
amendments, I ask the distinguished chairman and ranking member if they
would work with me in conference to give this amendment the direction
that it originally had. It is now part of a report. It would not cost
anything, but it would hopefully eventually direct the Department of
Defense to establish these communication systems so our Guard and
Reserve families will have the same access to support services when
they are on active duty that an active-duty person's family would have.
So I ask for that commitment from the distinguished chairman to work
with me in conference to give that direction and then I will ask for a
vote.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. I say to our distinguished colleague, I compliment her on
the need to have more focus on these very important subjects regarding
families. As I listened, I harkened back to my days and the composition
of the Armed Forces in World War II and Korea. Far less than half were
family. Today, three-quarters are family. The Army--and I expect other
services but I have certainly heard in the Army--today they call it a
family army. As we marched along this road to where, say, three-
quarters now are hopefully blessed by a strong family background, I
guess we have not kept apace with those matters which the Senator has
enunciated today.
So speaking for myself, I certainly indicate that I will work closely
with the Senator, and knowing the interest of my good friend and
colleague from Michigan in this area, I can assume we will work
together to strengthen the concepts in the report.

Mrs. HUTCHISON. I thank the chairman very much for that comment. I
think the Senator is right. People do not realize that the makeup of
our Armed Forces is much different today demographically than it was in
the past. There are more families. There are two-service families, and
it used to be mostly single people. So we have had to make
accommodations which I think the distinguished chairman and ranking
member and the committee have done in many areas, such as in health
care. We did not have to have pediatricians as a reliable component of
health care in the military so much in the past as we do now, or OB/
GYN, but those are the issues we must address today.
I am pleased the Senator is doing so, and I hope we will all work
together.
Mr. WARNER. Mr. President, I thank our colleague. Back in prehistoric
times when I joined the Marines, on the first day you were issued your
rifle and the second day they told you if you were contemplating a
wife, you bad better wait. The Marine Corps would issue that, too, at
the appropriate time. So things have changed.
Mrs. HUTCHISON. Things have changed for sure.
If the ranking member would also work with, that would be very much
appreciated.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I commend the Senator from Texas for this amendment. I
have, as recently as last weekend been reminded about the role of
families as I joined hundreds of families and family members in
welcoming home the National Guardsmen and Reserve officers from their
tour of duty in Iraq. I was in Battle Creek, MI, to receive back the
110th Tactical Fighter Wing. The contribution of our Guard and Reserve
is more and more relied upon, I agree with the Senator, to too great an
extent. We have to do something about that.
In the meantime, families are at the center of this effort and we
must do more for families. I know the chairman of our committee will
seek to protect the language we are adding and enhance it in
conference, and I will join him in that effort.
Mrs. HUTCHISON. I thank the Senator.
Mr. WARNER. Mr. President, as so many Members in the past few months,
we have experienced moments of joy and moments of sorrow, sorrow in
attending funerals for those who paid the ultimate price in our
engagements in Afghanistan and Iraq. Members have attended those
funerals and there we see the family in a way that brings to mind the
importance of, up until that moment did we give them the care they
deserved? And are we now giving them the care they need after the loss
of their uniformed member?

[[Page S6810]]

Mrs. HUTCHISON. Mr. President, I say to the distinguished chairman of
the committee, I think the committee went a long way toward exactly the
point we are making, and that is we will never be able to repay fully
those family members who have lost their loved ones.
I have talked to a mother who lost her only son, and she had lost her
husband. She has nothing else left in life. There are many stories like
that. But the chairman has gone a long way toward trying to compensate
in the only way Congress can, by adding money for support services,
adding money for the hardships, making sure health care is better,
doing what we can do in Congress, though we know from our hearts we
will never repay these people in totality. We cannot. We do want them
to know that with the monetary compensation and the benefits we are
giving, there is a deep respect for what they have done for our country
that will last throughout eternity.
Mr. WARNER. Mr. President, I thank our distinguished colleague. She
very much was active in the work of the committee. In years past, she
was on the committee. She has not left it in a sense because the
Senator gave us the encouragement to put in a number of these measures.
So I thank my colleague.
The PRESIDING OFFICER. Is there further debate on the amendment?
Mr. WARNER. I find that the Senate is heavily engaged in committee
meetings and briefings, and if it is agreeable to the Senator from
Texas, I suggest we do a voice vote. Is that acceptable?
Mrs. HUTCHISON. That would be acceptable.
Mr. WARNER. Would that be acceptable to the Senator from Michigan?
Mr. LEVIN. Yes.
The PRESIDING OFFICER. The question is on agreeing to the Hutchison
amendment No. 763.
The amendment (No. 763) was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from New Jersey.

Amendment No. 722

Mr. LAUTENBERG. Mr. President, I call up amendment No. 722 which is
at the desk.
I want to be sure we have an understanding as to the time
distribution. I ask the manager of the bill if an agreement has been
entered.
The PRESIDING OFFICER. No unanimous consent exists with respect to
time.
The clerk will report.
The legislative clerk read as follows:

The Senator from New Jersey [Mr. Lautenberg] for himself,
Mr. Jeffords, Mr. Akaka, and Mr. Lieberman, proposes an
amendment numbered 722.

Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To modify requirements applicable to the limitation on
designation of critical habitat for conservation of protected species
under the provision on military readiness and conservation of protected
species)

On page 48, beginning on line 16, strike ``if the Secretary
determines that'' and all that follows through page 48, line
20, and insert the following: ``if the Secretary of the
Interior determines in writing that--
``(1) the management activities identified in the plan will
effectively conserve the threatened species and endangered
species within the lands or areas covered by the plan; and
``(2) the plan provides assurances that adequate funding
will be provided for such management activities.

Mr. LEVIN. Will the Senator yield for a unanimous consent agreement
which I believe the Senator is interested in.
Mr. LAUTENBERG. I yield.
Mr. WARNER. I ask unanimous consent there be a time limitation of 60
minutes equally divided in the usual form with debate on the
Lautenburg-Jeffords amendment No. 722 prior to a vote in relation to
the amendment, and that no other amendments be in order prior to a vote
in relation to the amendment.
The PRESIDING OFFICER (Mrs. Dole). Without objection, it is so
ordered.
Mr. LAUTENBERG. I thank the managers.
The amendment is cosponsored by Senator Jeffords. I ask unanimous
consent also that Senators Akaka and Lieberman be added as cosponsors.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LAUTENBERG. Madam President, this bill would exempt the
Department of Defense from respecting critical habitat for endangered
species on its lands. This provision of the bill is flawed for three
reasons.
One, it would severely weaken our country's efforts to protect
endangered species. There is a lot of effort that has gone into
developing legislation in protecting endangered species. Seeing them
disappear is a painful recognition. We are now beginning to see species
disappear from our oceans, the Atlantic Ocean. The newspapers have been
featuring stories about the disappearance of species like cod, halibut,
and blue marlin. We have to be careful because each of these affects
the rest of the ecology. That could be disastrous.
Second, this action is simply not necessary to maintain our military
readiness. An example is the dispute over Vieques Island in Puerto
Rico, the territory off the mainland of Puerto Rico.
Third, it ignores the Defense Department's long record of
successfully balancing readiness and conservation. We want to do both.
Protecting critical habitat has long been an essential tool that
Federal, State, and local jurisdictions have used to protect endangered
species. When endangered species have no place to live, they perish.
The bill before the Senate would allow the Defense Department to ignore
the Endangered Species Act in favor of using something called the
Integrated Natural Resources Management Plan, called INRMP, for
threatened and endangered species. INRMPs are not subject to the same
strong standards as those under the Endangered Species Act.
Under this bill, no area could be designated a critical habitat on
DOD property. No matter how threatened the species, no matter what is
found on the land, it will not be strongly protected.
It is conceivable that the Defense Department could make this
decision under that program, even if it is not needed, for them to
conduct their exercises or their duties. The species have to be
protected.
My amendment is a reasonable approach. It adds two protections to
reinforce the effectiveness of the INRMP plans. First, the Secretary of
the Interior must determine that the plan would conserve a threatened
or endangered species, that it has to make sure we try our best to have
that species endure. Second, there must be sufficient funding to
implement these plans.
By applying this two-part standard, DOD could continue to maintain
its historical success, balancing conservation and military readiness.
This type of approach does work.
Only two species have gone extinct after being put on the endangered
species list, while over 600 species not on the list have gone extinct
during that time.
DOD has 25 million acres of land that are home to 300 federally
listed, threatened, and endangered species. The Department of Defense
has played a crucial role in preventing these species from sliding into
extinction. It is not suggested anywhere that they want these things to
happen, but we have a disagreement on what it will take to keep the
species alive.
Camp Pendleton in California is a good example of how the balance has
worked on the ground. Of 18 species listed as threatened and endangered
on the 125,000 acres, critical habitat has been recommended for only 5
of those threatened species. Yet using the flexibility built into the
Endangered Species Act, the Fish and Wildlife Service decided to
restrict less than 1 percent of all potential training areas from use
for training exercises.

In his testimony before the Armed Services Committee last March, GEN
Nyland, Assistant Commandant for the Marine Corps, agreed that
codifying an effectiveness test for the INRMPs would provide DOD with
greater certainty in its decisionmaking. That is the purpose of this
amendment.
The American people have also spoken on this issue. We should listen.
According to a recent Zogby poll, 85 percent of registered voters
believe the

[[Page S6811]]

Defense Department should follow the same environmental laws as
everyone else. The two-part test in my amendment will help assure that
DOD continues to do its part in conserving endangered species.
As I said before, I think they really want that to happen. The
question is what the approach is going to be. The issue is about
balancing national security with our environmental security and the
Pentagon has shown in the past that we can do it. I urge my colleagues
to support my amendment.
From our half hour of time, I yield 10 minutes to the Senator from
Vermont.
Mr. JEFFORDS. Like many of my colleagues, I am a veteran. I have the
greatest respect for those who serve this Nation. I served the Naval
Reserves for 30 years and was on active duty in the Navy in the 1950s.
My ship, the McNair, was the first U.S. military ship to navigate the
Suez Canal after the Egyptians took control of the canal in 1955. I am
a member of the Veterans of Foreign Wars, the VFW.
Like every Senator, I am concerned about our troops on our military
bases in the States and throughout the world. I want them to have every
advantage as they prepare for and engage in military conflict.
However, sweeping changes to environmental laws, even with changes
that are proposed during the time our country is at war, should be
considered by the Environment and Public Works Committee. Our committee
is charged with understanding the implications of change in these laws
as well as the need for change and to weigh the consequences to public
health and the environment.
As our distinguished colleague who chairs the Armed Services
Committee observed in a recent hearing in our Committee, these laws
have taken years to put in place.
However, Section 322 of S. 1050, the National Defense Authorization
Act for Fiscal Year 2004 contains a provision that would change how
critical habitat is designated under the Endangered Species Act, a law
within the jurisdiction of the Environment and Public works Committee.
Section 322 prohibits the Secretary of the Interior from designating
critical habitat on any Department of Defense lands that have an
integrated natural resources management plan, known as INRMP, prepared
under the Sikes Act, if the Secretary determines that the plan
addresses special management consideration, or protection.
The INRMP provisions of the Sikes Act were never intended to be a
substitute for the Endangered Species Act, but rather a complement to
it.
As a complementary conservation measure, INRMP is not subject to the
same rigorous implementation requirements as conservation measures
taken under the Endangered Species Act, such as being based on the
``best available science.''
INRMPs are often substandard compared to the ESA, and the required
INRMP components under the Sikes Act cannot be universally relied upon
to accomplish species conservation goals.
In addition, Section 7(j) of the Endangered Species Act already
allows the law's requirements to be waived, at the request of the
Secretary of Defense, when national security concerns outweigh those of
species conservation. To date, no Secretary of Defense has ever
utilized this flexibility in the Act. Granting a blanket exemption to
the ESA removes the ability for decisions to be made on a case by case
basis when national security concerns are real.
After hearings in the Environment and Public Works Committee both
last year and this year, on this issue and the other DOD proposals
within the jurisdiction of the EPW Committee, I do not believe the case
has been made to warrant these changes to existing law.
However, the bill before us contains a provision that would
substantially change the way critical habitat is protected on
Department of Defense lands.
The amendment offered by myself and Senators Lautenberg and Akaka
will help to ensure that important protections underlying the
Endangered Species Act will not be lost under the integrated natural
resource management plans developed under the Sikes Act and this
Defense Authorization bill.
The amendment would require that the Secretary of the Interior
determine in writing that the Integrated Natural Resources Management
Plan will effectively conserve the threatened and endangered species
covered by the plan and assure that adequate funding is provided for
the management activities.
This means that if land is needed for a species and military
training, the Secretary of the Interior will review the Defense
Department's plan for managing the lands and funding the management
activities to make sure that species will be adequately protected.
The Department of Defense and the Department of the Interior have
been working together to balance needs of the military for training
with the needs of endangered species for survival. This amendment
affirms that balance.
It is my hope that the two agencies will continue to work
cooperatively and I urge my colleagues to support this amendment.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. LAUTENBERG. Madam President, I yield to the Senator from Hawaii.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. AKAKA. Madam President, I rise today in support of the
Lautenberg-Jeffords amendment to establish minimum criteria for whether
an Integrated Natural Resource Management Plan or INRMP for a military
installation provides sufficient protection for endangered species to
make a critical habitat designation unnecessary. As I have previously
stated, I commend the chairman of the Readiness Subcommittee for the
manner in which he handled this difficult issue. We had two very good
hearings to address the Department's proposal.
I am particularly appreciative that the provision in this bill takes
a case-by-case approach to the Endangered Species Act instead of
providing the blanket exemption sought in the administration proposal.
I believe the provision fall short, however, of codifying the existing
case-by-case approach.
During the Committee's consideration of this bill, I offered an
amendment which would have codified the case-by-case approach by
including minimum criteria for INRMPs on military lands. Unfortunately,
my amendment was defeated. I am pleased to join Senators Lautenberg and
Jeffords in this amendment which, I believe, provides the necessary
criteria to be included in INRMPs for military lands in order for the
Secretary of the Interior to determine that the designation of critical
habitat is unnecessary.
As the ranking member of the Readiness Subcommittee, I remain
committed to the readiness of our military through proper training. We
have heard from the Joint Chiefs of Staff that our Armed Forces are
more ready today than they have been before. Our military has found
ways to comply with applicable laws by working with neighboring
communities, state and local officials. I firmly believe that this
approach provides the Department of Defense with the necessary tools
and assurances it needs to conduct training activities without
unnecessarily undermining environmental provisions. I urge my colleague
to support this amendment.
I yield back the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. JEFFORDS. Madam President, I have no further requests for time. I
see my chairman standing. I yield the floor.
Mr. INHOFE. Madam President, I yield myself such time as I consume.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Madam President, I have been listening with great
interest to the debate. I start out saying I have some similarities to
the previous speaker from Vermont. I am a veteran, I should say.
Also, the reference was made to the Environment and Public Works
Committee. I do agree with the Senator from Vermont that there is a
jurisdiction thing there in which we are interested. However, there is
also one having to do with the readiness, with the authorization bill
that is under consideration now.

[[Page S6812]]

I can't tell you how strongly I feel about this particular amendment.
This is something we have been discussing now, not for just days or
weeks but for years. We have actually had several hearings. Right now,
we have had some 12 hearings in the past 2 years on this subject. Some
of this was when I chaired the Readiness Subcommittee of the Senate
Armed Services Committee. We have had hearings there and, of course,
hearings in the Environment and Public Works Committee.
I share the compliments to Senator Ensign, in the way he has been
chairing this committee and spending the time on this very critical
subject.
Let me just remind everybody that when INRMP first came along, the
Integrated National Resource Management Plan, they came along not in a
Republican administration, they came along in the Clinton
administration. They recognized at that time the seriousness of proper
training and the fact that we have a very serious problem affecting
some of the environment encroachments on our limited land area. It is
something that is measured, not by cost of training, not by
effectiveness of training, as much as it is human lives.
The Senator from New Jersey talked about the Endangered Species Act.
I spent 3 years and lost trying to stop the prohibition of live-fire
training on a Navy range on land we own in Vieques. I have a
background, as does the Senator from Vermont, in having gone through
training. I am sure he would share this with me. When we went through
training and crawled under inert fire, it was quite a bit different
from crawling under live fire. This is the kind of training that I
think we had in Vieques--integrated training, which we don't have
today. In Kuwait, we lost five lives, four of whom were Americans. If
you read the accident report, it very clearly states that we lost those
lives because we didn't have adequate live-fire training. It was denied
us right before that time at the range in Vieques.
I am going to talk about Camp Pendleton.
Before I do so, the Senator from New Jersey had talked about Camp
Pendleton and how compatible everything has been in Camp Pendleton. He
suggests that in Camp Pendleton there are some 17 miles of shoreline.
We can only train in some 200 yards of that area. It is a very serious
matter.
I agree that we have very well-trained troops in the field. But I
also say we are not enjoying the state of readiness that our troops are
entitled to have--unlimited capability of training in a live and
integrated relationship.
The Lautenberg amendment would essentially gut the bill language
because it would impose an unachievable standard of recovering species
according to the legal definition of concern. DOD would be forced to
guarantee sufficient funding to accomplish species recovery while the
Department of Interior and Endangered Species Act have not been able to
recover species.
This is very important. We have had since 1973--30 years--the
Endangered Species Act. Yet no species have come off the list as a
result of operation of the Endangered Species Act. In other words, he
is putting on a test that cannot be fulfilled. In other words, we are
not going to be able to have this type of training.
This is the quote from a committee hearing which we had. This was the
Deputy General Counsel for Environment and Installations. It gets into
the question as to how this is going to affect the training:

With respect to the ESA, what our proposal seeks to do is
to codify a policy that was adopted during the Clinton
administration with respect to the INRMPs.

Then Craig Manson said:

I concur as to the ESA provision.

The amendment is very similar to the amendment that Senator Akaka
tried to get approved in committee. Normally, Senator Akaka and I agree
on these issues. During the years when I was chairman of the Readiness
Subcommittee of the Senate Armed Services Committee, and he was my
ranking member, and during the years he was chairman, I was his ranking
member, we normally agreed on these issues.
However, I believe the Lautenberg amendment goes much further than
the Akaka amendment went because it is an amendment that gets very
serious in terms of forcing something to come off the list.
The essential difference between Senator Akaka's failed amendment in
committee and Senator Lautenberg's amendment is a subtle but crucial
difference between ``provide conservation benefit for the species,''
which Senator Akaka wanted to do and which I can understand, and
provide a conservation benefit as Senator Lautenberg wants to do, which
is ``conserve the species.'' In other words, recover. Recovery is
something that can't happen. It has never happened. I will read to you
from the Endangered Species Act of 1973. It said in addressing the
terms ``conserving'' and ``conservation'' that it means ``to use and
use all methods and procedures which are necessary to bring any
endangered species or threatened species to the point at which the
measures provided pursuant to this act are no longer necessary. Such
methods and procedures include but are not limited to all activities
associated with scientific resources and management, such as research,
law enforcement, habitat acquisition and maintenance promulgation, live
trapping, transplanting,'' and it goes on and on.

It says you must be able to recover. As he said, never have we been
able to recover a species that was actually a result of the operation
of the ESA.
The Department of Defense opposes the amendment because, No. 1, the
language could have perverse and unintended consequences such as
depriving the Fish and Wildlife Service the flexibility to refine the
conditions in light of further experience or to tailor them more
specifically to diverse sites. The language would give rise to
litigation.
As the chart shows, again quoting Craig Manson:

In fact, the process of using the Integrated Natural
Resources Management Plan is a collaborative process that
requires the agreement of the Fish and Wildlife Service and
INRMP and cannot be approved without the agreement of the
Fish and Wildlife Service. The Service will continue to be
involved. Habitat will continue to be afforded the
protections that are necessary for the conservation of the
species.

I think most of us understand. That is the seriousness that we are
dealing with right now.
The next concern we have is the lawsuits which are now preventing
continuation of a policy started by the implementation of the Clinton/
Gore administration. And we are talking about the INRMP.
This is Jamie Irappaport Clark, the Clinton administration's Director
of the U.S. Fish and Wildlife Service. He said:

Do I believe that Integrated Natural Resource Management
Plans can provide the needs for conservation of listed
species? Absolutely.

This came from the Clinton administration--not from the current
administration. That was the Clinton Fish and Wildlife Director, Jamie
Clark, who initiated the practice and gave the testimony before our
committee.
The marine field training is rated ``not combat capable'' at Camp
Pendleton.
I am glad the Senator from New Jersey brought up Camp Pendleton. Camp
Pendleton is a good model to use as to what we don't want to do. Camp
Pendleton has all of these 17 miles of shoreline. We can only use some
200 yards. In fact, if you look at the shoreline, that 200 yards is so
small that it doesn't even show up on the map. This shows the proposed
critical habitat at the Marine Corps base at Camp Pendleton, 57
percent. That tells us what is happening to our training area.
What is the result of that? The encroachment impact of training
degradation at Camp Pendleton in the field of ``not combat capable'' is
fifty percent. Fifty percent of the training that takes place has that
category of T-4, which is ``not combat capable,'' and 69 percent is
``combat capable'' for only a low threat. That is what is happening.
How does that translate into lives? We don't know. As I mentioned, we
have lost lives because of a lack of training. This is one that is very
serious.
The Department of Defense set out to establish quantity of data on
encroachment selecting the Marine Corps base at Camp Pendleton as the
subject of the study and came to the conclusion that 50 percent of that
training would not be combat ready.

[[Page S6813]]

That is how serious this is.
More holistic than mere designation of critical habitat, the
management plan we are talking about, the INRMP approach, pioneered by
the Clinton-Gore administration, considers habitat, food, water,
predators, noise, and many more factors.
The Fish and Wildlife Service opposed the Lautenberg amendment.
Let me conclude by saying this is very serious. I could be talking
about ranges other than Pendleton. Pendleton I talked about because
that was brought up by the Senator from New Jersey. In the case of Camp
Lejeune, in the case of Fort Bragg in the southeastern part of the
United States, we are down now to just a small portion that can be used
for training.
I invite my colleagues to go down to Fort Bragg, go down to Camp
Pendleton, and look and see how they are inhibited from being able to
have the type of training that will really prepare them properly for
combat in harm's way to which we will be sending them.
I think it is very significant. There is not an issue in this bill
that is more significant now than trying to do what we can to provide
good training. It has been said before--and I would have to echo it--
that the military has been an excellent steward of the environment. And
that is part of the problem. If you go to Fort Bragg today, after
having been there 2 years ago, you see many more of these red ribbons
around areas precluding them from being able to train there because of
the urban sprawl and other encroachments on our training capabilities.
Our language is very good, and I would encourage us, at the time we
vote, to reject the Lautenberg amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Madam President, I thank our colleague from Oklahoma. I
also thank our distinguished colleague from this side. It looks as if
we are going to conclude this debate such that the Senate can turn to a
rollcall vote at about 2:45.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Madam President, how much time is left on this side on this
amendment that is now pending?
The PRESIDING OFFICER. Fourteen and a half minutes.
Mr. REID. Madam President, I ask my friend from Vermont, how much
time do you need?
Mr. JEFFORDS. About 5 minutes.
Mr. REID. Would that be appropriate?
Mr. WARNER. I do want our distinguished colleague from Nevada, who is
the chairman of the subcommittee----
Mr. REID. How much time does the Senator from Nevada need?
Mr. ENSIGN. Probably 7 or 8 minutes. I will try to cut it off by
2:45.
Mr. REID. Why don't we have the vote at 2:50?
Mr. WARNER. That would be helpful and enable Senators to speak.
Mr. REID. That would be 15 minutes, each having 7\1/2\ minutes.
Mr. WARNER. Fine.
Mr. REID. Madam President, while we are here, the Senator from
Virginia has also said he would agree that the next amendment in order
is Harkin. That is already the order, but the time on that will be one-
half hour evenly divided in the usual form regarding second-degree
amendments.
Mr. WARNER. Right.
Mr. REID. Following that amendment, Senator Bingaman has an amendment
on missile defense which Senator Warner has reviewed.
Mr. WARNER. Right.
Mr. REID. Senator Bingaman has agreed to a 30-minute time agreement
on that. That would be under the usual form relating to second-degree
amendments. I ask that in the form of a unanimous consent request.
Mr. WARNER. No objection on this side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. The reason we have done this is there is a briefing at 3
o'clock. We could stack the two votes, the Harkin and Bingaman votes,
at around 4 o'clock, thereabouts.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Vermont.
Mr. JEFFORDS. Madam President, I would like to talk just a minute
about the need for available space for training. I was in the Navy. I
was on board a destroyer. I was a gunnery officer. We were involved in
wartime activity in Lebanon. Our training and all was for shore-fire
bombardment. I understand what is needed and what is necessary, and I
know this bill is carefully crafted to ensure there will be adequate
space for the types of operations I participated in. I know our
military is pretty efficient and there are areas that are designated
that they cannot hit. There is always a chance they might, but they can
rearrange things to make sure those areas are not in their gun sights.
It is not anything that is of great difficulty to do. These are huge
areas.
So I think the arrangement we have under this amendment is very
reasonable and, from my own experience, quite possible to keep
everybody happy. So I disagree with the comments of my chairman.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Nevada.
Mr. ENSIGN. Madam President, as chairman of the subcommittee which
reviewed this proposal and included this proposal on the Endangered
Species Act, I want to spend a couple minutes to educate our colleagues
on why it is important to defeat this amendment that has been proposed.
First of all, we held two hearings--Senator Akaka and I did--and we
worked beautifully together. Senator Akaka is a wonderful person to
work with. Our staffs worked really well together. On several of the
proposals the administration had put up on the environment, we held
hearings. We brought in experts from both sides. Everybody was
represented. We had very fair hearings. I think everybody who was in
attendance would agree the hearings were fair and balanced.
Out of those hearings came a couple of findings: One is that over the
last 20 years the military has done a fabulous job with its ranges in
protecting habitat as well as endangered or threatened species. I think
there is no disputing that.
In the past, I think there certainly were some mistakes that were
made by the military. But in the last 20 years or so we have done a
really good job with our armed services protecting the habitat and the
species on these various ranges.
What has happened now is we are in a situation where the courts,
instead of allowing what has happened with some of these what are
called Integrated Natural Resource Management Plans, which are in place
and have done a great job protecting the species and the habitat--what
the courts are threatening to do, and it looks as if it is going to
happen, is those will no longer be able to be used. We will have to go
with much stricter definitions, much more costly ways of doing
business, and a lot of the ranges will be shut down.
I am the chairman of the Readiness Subcommittee. We are in charge to
make sure our armed services are ready when they are called upon to
defend the United States of America.
I have a letter I would like to have printed in the Record. I ask
unanimous consent that be the order.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Chairman of the

Joint Chiefs of Staff,

Washington, DC, May 21, 2003.
Hon. John Warner,
Chairman, Senate Armed Services Committee, U.S. Senate,
Washington, DC.
Dear Senator Warner: I would like to underscore the
critical importance of the Endangered Species Act language as
currently contained in S. 1050, the Defense Department
Authorization Bill.
The Department of Defense's primary mission is to maintain
our Nation's military readiness. We possess the most ready,
capable armed forces in the world; however, expanding trends
in environmental restrictions are significantly impacting
military training and operational readiness.
We need your continued support to restore needed balance
between environmental and national security concerns, and to
protect activities essential to prepare our men and women for
combat.
Thank you again for your strong leadership and concern for
America's military.
Sincerely,

Richard B. Myers,

Chairman of the
Joint Chiefs of Staff.

Mr. ENSIGN. This letter pretty much sums up what we try do in this
bill. We

[[Page S6814]]

are balancing environmental protections with military readiness.
Sometimes these are competing concerns.
We did not overreach in this bill. We struck a balance. We struck a
very delicate balance, but we think we have struck a balance.
If anybody has any questions, they just have to go visit our military
ranges in Southern California, in the Carolinas. Wherever you go across
the country, visit our ranges and you will see some of the most
pristine areas you can find, some of the best protected habitat you can
find, and these endangered and threatened species are flourishing.
It is not a question of this bill rolling back environmental
protections. We do not want the courts putting such limits on the
military that they cannot go forward in this balance in the future,
where we protect species and habitat and we ensure military readiness
for our armed services.
A couple of specific problems with this amendment: The INRMP sites
and the Endangered Species Act are complementary statutory frameworks
that together ensure protection of endangered and threatened species.
The Lautenberg amendment introduces an unnecessary and complicated
requirement, and we believe--the Department of Defense and the
Department of the Interior believe--it will lead to more lawsuits, not
less. We are trying to get away from the lawsuits and make sure we are
spending the money instead of fighting legal battles in protecting the
species and making sure we are ready for what our armed services are
called to do.

I ask our colleagues to seriously take a look at this. We just saw
the results of great readiness in Iraq. The arguments were made: We are
ready; there is not going to be a problem.
We were ready because our ranges were able to be used. If we roll
back the ability to use our ranges, we will not be ready. We will not
have the kind of military readiness we need in future conflicts. That
is why it is so important that we do as the language in the bill
suggests, protect the balance between environmental protection and
military readiness.
I reserve the remainder of my time.
Mr. LEAHY. Mr. President, it is opportune the Senate is considering
the National Defense Authorization Act for fiscal year 2004 just after
the successful military action in Iraq. Unfortunately, as is the case
with many of the efforts undertaken by this administration, there is an
attempt to bypass environmental regulations under the cover of some
national guise--in this instance military preparedness. In particular,
I am incensed by section 322, which would prohibit the Secretary of the
Interior from designating critical habitat on any Department of
Defense, DOD, lands that have an Integrated Management Natural
Resources Plan, INRMP.
The Sikes Act was never intended to be a substitute for the ESA but
rather a complement to it. The Sikes Act is clear that it does not
``affect any provision of a Federal law governing the conservation or
protection of fish and wildlife resources.'' As a complementary
conservation measure, INRMPs are not subject to the same rigorous
implementation requirements as conservation measures taken under the
ESA, such as being based on the ``best available science.'' In
addition, existing Fish and Wildlife Service policy allows the presence
of ESA requirements to function as an incentive to DOD land managers to
develop the best INRMPs possible. This policy encourages the
development of good INRMPs. A blanket exemption to critical habitat
designations would remove this incentive to practice the best
stewardship possible.
Why the need for such an exemption? The administration would have the
American public believe that environmental laws, in this instance the
Endangered Species Act, ESA, infringes upon the readiness of American
troops by drastically impeding training exercises. Yet there is even
discord within the administration. At an Environmental Protection
Agency, EPA, hearing held in the Senate earlier this spring, EPA
Administrator Christine Todd Whitman noted that she did not ``believe
that there is a training mission anywhere in the country that is being
held up or taking place because of an environmental protection
regulation.'' I have to wonder if it is statements like this, where
Administrator Whitman was speaking for the environment and not just
toeing the administration line, that helped lead to her recent
resignation. I hope the administration will fill her shoes with someone
that will make protecting the environment his or her first priority as
I believe Administrator Whitman did under very difficult circumstances.
Finally, it is absurd to provide such an exemption when the ESA
allows for the law's requirements to be waived, at the request of the
Secretary of Defense, when national security concerns outweigh those of
species conservation and other solutions cannot be found. To date, no
Secretary of Defense has ever utilized the flexibility in this act.
Granting a blanket exemption to the ESA removes the ability for
decisions to be made on a case-by-case basis and only when national
security concerns are real.
This administration's continued attack on over 30 years of
implementing environmental laws is in blatant disregard to the
sentiment of the American public. A recent poll showed that over one-
half of the American public felt that the U.S. Government was not doing
enough to protect the environment and three-quarters of those polled
wanted to see stronger enforcement of these laws. Yet, again and again,
whether allowing for future inclusion of wilderness into the Federal
lands, mining in protected grizzly bear habitat in Montana, or the
possible forfeiture of thousands of miles of road systems on Federal
lands, this administration continues to shut the American public out of
the debate over the protection of their environment. I call upon my
colleagues to stop this attack by the administration and strip section
322 from the National Defense Authorization Act.
Mr. DASCHLE. Mr. President, I rise to support the amendment offered
by Senators Lautenberg and Jeffords to the Department of Defense
authorization bill.
The bill before us would block any designation of critical habitat
under the Endangered Species Act on any Department of Defense lands.
The Department of Defense controls 25 million acres of land where
some of the best habitat remains for more than 300 threatened and
endangered plants and animals.
Since critical habitat designations would not be applied to military
lands, the Lautenberg-Jeffords amendment would add two simple
requirements to ensure that the Department of Defense develop
integrated natural resource management plans to protect species.
The amendment would also require the Secretary of the Interior to
ensure that a resource management plan conserves threatened and
endangered species and is adequately funded.
Critical habitat is an important component of the Endangered Species
Act and provides help to species near extinction by identifying areas
that are needed for species survival and recovery.
This provision in the bill is not necessary to maintain our military
readiness. According to a General Accounting Office report, issued on
June 2, 2002, on military training: ``training readiness, as reported
in official readiness reports, remains high for most units and that the
level of readiness does not support DOD's claims its readiness is being
hurt by environmental laws.'' The Department of Defense has a strong
record of balancing readiness and conservation.
I urge my colleagues to support this important amendment.
The PRESIDING OFFICER. Who yields time?
Mr. JEFFORDS. Madam President, I would like to reiterate that there
is plenty of room for the training. All we ask is to make sure before
that training is conducted there are studies done to make sure
endangered species can be saved and they can reorient where the
training is to accommodate them.
The GAO found the military has presented no evidence that the
Endangered Species Act has impaired training. If the DOD needs an
exemption from the Endangered Species Act, sections 7(j) and 4(b)(2)
provide relief from the designation of critical habitat. The DOD has
never sought an exemption under 7(j). How can we say the law needs to
be changed when the relief under current law has never been used?
I refer the attention of my colleagues to this quote:

[[Page S6815]]

The President has said that he wants the Federal Government
to be held to the same standards of environmental cleanup as
the private sector . . . so, we've [EPA] said you have got to
meet the same standards as the private sector.

That was Christine Todd Whitman on the Dianne Rehm show on May 21,
2003. And quoting again:

I don't believe that there is a training mission anywhere
in the country that is being held up or not taking place
because of the environmental protection regulations.

That is EPA Administrator Christine Todd Whitman's testimony before
the Senate Committee on Environment and Public Works on February 26,
2003.
This is a perfectly reasonable amendment. It will protect and not
interfere at all with the training requirements of our Nation. I
seriously counter the remarks made recently.
I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Nevada.
Mr. ENSIGN. In response to the EPA administrator's quotes we have
before us today, I spoke to the administrator. We had testimony from
the EPA following this to try to clear up any kind of confusion. As I
mentioned, we have not had problems with readiness up to this point
because the Integrated Natural Resource Management Plans have been
working well as a balance, making sure habitat and species are
protected, but also where readiness could go forward and be maintained
at a high level. What the military is concerned about is the court
decisions that look like they are going to go against the military to
where they will not be able to use the ranges in an effective manner.
The statement that was made by Administrator Whitman, 5 years from now,
whoever the EPA administrator would be at that time, would not be able
to be made.
People are very concerned that readiness will be severely affected if
the court decisions are allowed to go forward. This bill language says
to the courts, balancing environmental concerns with military readiness
is working. Let's keep with what is working instead of putting huge
requirements on to the military where they will not be able to use the
ranges.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator's time has expired. The Senator
from Vermont controls the balance of the time.
Mr. JEFFORDS. I yield to the ranking member of the committee.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. How much time does the Senator from Vermont have
remaining?
The PRESIDING OFFICER. Four-and-a-half minutes.
Mr. LEVIN. Madam President, I support the Lautenberg-Jeffords-Akaka
amendment. It has been said earlier in the debate that the DOD
spokesperson said all the Department wants to do is codify the Clinton
administration approach to this issue of endangered species on military
lands. That is precisely what the Lautenberg amendment does. If we want
to codify--as the opponents of the amendment say they want--what the
Clinton administration did relative to this issue, this is the way to
codify it. If we don't adopt this amendment, it is not in our code. It
is not codified.
I support the amendment and hope it can be adopted.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. JEFFORDS. Madam President, I yield back the remainder of my time.
Mr. ENSIGN. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ENSIGN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ENSIGN. Madam President, have the yeas and nays been ordered on
the amendment?
The PRESIDING OFFICER. They have not.
Mr. ENSIGN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to amendment No. 722. The clerk will call
the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards) is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 51, nays 48, as follows:

[Rollcall Vote No. 190 Leg.]

YEAS--51

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carper
Chafee
Clinton
Collins
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Graham (FL)
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Snowe
Specter
Stabenow
Wyden

NAYS--48

Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chambliss
Cochran
Coleman
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Kyl
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nickles
Roberts
Santorum
Sessions
Shelby
Smith
Stevens
Sununu
Talent
Thomas
Voinovich
Warner

NOT VOTING--1

Edwards

The amendment (No. 722) was agreed to.
Mr. DURBIN. Madam President, I move to reconsider the vote.
Mr. LAUTENBERG. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Under the previous order, what is the next?
The PRESIDING OFFICER. The Harkin amendment.
The Senator from Iowa.

Amendment No. 774

Mr. HARKIN. Madam President, I have an amendment I send to the desk
and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Iowa [Mr. Harkin] proposes an amendment
numbered 774.

Mr. HARKIN. Madam President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To prohibit the use of funds for acquiring for inventories of
the Department of Defense property in excess of the requirements for
the inventories)

On page 44, between lines 18 and 19, insert the following:

SEC. 313. INVENTORY MANAGEMENT.

(a) Limitation on Purchase of Excess Inventory.--(1)
Subject to paragraph (4), no funds authorized to be
appropriated by this Act may be obligated or expended for
purchasing items for a secondary inventory of the Department
of Defense that would exceed the requirement objectives for
that inventory of such items.
(2) The Secretary of Defense shall, within 30 days after
the date of the enactment of this Act, review all pending
orders for the purchase of items for a secondary inventory of
the Department of Defense in excess of the applicable
requirement objectives for the inventory of such items, and
shall ensure compliance with the limitation in paragraph (1)
with respect to such items.
(3) The Secretary shall, within 30 days after the date on
which a requirement objective for an item in a secondary
inventory of the Department of Defense is reduced, review all
pending orders for the purchase of that item and ensure
compliance with the limitation in paragraph (1) with respect
to that item.
(4) The Secretary may waive the limitation in paragraph (1)
in the case of an order for the purchase of an item upon
determining and executing a certification that compliance
with the limitation in such case--
(A) would not result in significant savings; or
(B) would harm a national security interest of the United
States.
(b) Reduction of Excess Inventory.--(1) No funds authorized
to be appropriated by

[[Page S6816]]

this Act may be obligated or expended after March 31, 2004,
to maintain or store an inventory of items for the Department
of Defense that exceeds the approved acquisition objectives
for such inventory of items unless the Secretary of Defense
determines that disposal of the excess inventory--
(A) would not result in significant savings; or
(B) would harm a national security interest of the United
States.
(2) Not later than January 1, 2004, the Secretary shall
establish consistent standards and procedures, applicable
throughout the Department of Defense, for ensuring compliance
with the limitation in paragraph (1).
(c) Report on Inventory Management.--(1) Not later than
March 31, 2004, the Secretary of Defense shall submit to
Congress a report on--
(A) the administration of this section; and
(B) the implementation of all recommendations of the
Comptroller General for Department of Defense inventory
management that the Comptroller General determines are not
fully implemented.
(2) The Comptroller General shall review the report
submitted under paragraph (1) and submit to Congress any
comments on the report that the Comptroller General considers
appropriate.

Mr. HARKIN. Is the time 15 minutes equally divided?
The PRESIDING OFFICER. It is 30 minutes equally divided.
Mr. HARKIN. Madam President, this amendment seeks to reduce the
wasteful buildup of unneeded inventory at the Department of Defense.
Based on the findings of the General Accounting Office, I believe this
amendment would save at least $2 billion annually.
Last year, as a member of the Defense Appropriations Subcommittee, I
requested that the GAO prepare a report on the inventory requirements
of the Department of Defense. That report has just been printed and
released dated May 2003. This is the newest in a series that I have had
GAO undertake in recent years on related topics.
Pentagon waste is not a new issue, nor is the issue addressed by my
amendment the only kind of waste that occurs within DOD. People have
pointed out numerous examples of waste in DOD over the years, some
quite spectacular.
Later in my statement I will talk about the other kinds of waste we
uncovered by past GAO reports that I requested. Much has been done to
reduce Pentagon waste, and I commend those efforts. The chairman and
ranking member, both, and when they have been in reversed positions,
have made a great effort in this regard. We have reduced Pentagon
waste.

However, the Department of Defense remains the largest purchaser of
goods in the Federal Government. The size of the bill continues to
increase, and we have an authorization bill of $400 billion. That
includes $75 billion for procurement. At those levels, we do need to be
vigilant and we need to perform an ongoing watchdog role. That is what
this amendment is aimed to ensure.
I am sorry to say, despite the long history of investigations and GAO
reports, many of the problems still have not been solved. That is why I
offer this amendment.
What the amendment addresses is, the Department of Defense routinely
purchases and keeps on hand, for the purpose of meeting the
Department's requirements, many items in a category it calls secondary
inventory. Secondary inventory means spare and repair parts for
weapons. It also includes clothing, medical, and many other items that
are not weapon systems themselves. Obviously, there is a large amount
of such supplies our military needs to keep on hand--over 2 million
items.
According to the GAO, the Pentagon has approximately $70 billion
worth of this secondary inventory. Unfortunately, out of the $70
billion worth of secondary inventory, there was about $38 billion in
excess or unneeded inventory. So we have $70 billion in secondary
inventory, much of which is needed; but GAO identified $38 billion in
what they call excess inventory, inventory that the Pentagon says they
do not even need. That is more than half of the secondary inventory
classified as excess. This is totally unacceptable. It is unacceptable
that DOD could find itself with more than half of its secondary
inventory above their own requirements. I am sure there are valid
explanations why some requirements are misjudged, but to end up with
$38 billion worth of unneeded inventory out of a total of $70 billion
of inventory seems to me to be a pretty good definition of waste.
It is worth pointing out that the Department of Defense generally
concurred with this GAO report. The Department did not disagree with
these findings.
But that is not all. Of the $38 billion in excess secondary
inventory, according to the GAO, $1.6 billion was still on order. In
other words, we are still paying contractors to make $1.6 billion worth
of stuff the Pentagon itself has acknowledged it does not even need. So
why weren't the orders canceled?
My amendment addresses this problem in two simple ways. First, it
requires the Pentagon to cancel those orders for unneeded items where
it makes sense; that is, unless the Secretary determines, one, that it
will not save money; or, two, the Secretary determines that it will
harm national security. Unless he finds either one of those, then the
Department must cancel orders for items it does not think it needs.
Second, my amendment requires the Pentagon to reduce the excess
inventory it already has on hand. Again, if the Secretary determines
that, (a), it will not save money or, (b), it will harm national
security, then the Department can keep right on storing these items.
Otherwise, they have to sell the stuff so we do not pay to keep storing
it. According to the GAO, that excess inventory on hand was worth about
$36 billion.

I believe these two simple steps should save taxpayers at least $2
billion annually without imposing burdensome requirements on the
Department of Defense and without compromising defense readiness.
I have requested GAO reports in the past, and many of those reports
also found significant waste in the Department of Defense. Reports on
inventory that the Army and the Navy ship from one location to another
found that each service loses track of at least $1 billion worth of
shipped items every year. Imagine that. They ship it, they do not know
if they shipped it, and they do not know if anyone got it. They lose
track of $1 billion a year in inventory.
Last July, another report revealed a complete breakdown in tracking
and control of Air Force inventory shipped to contractors. The Air
Force could not make sure that contractors had asked for items they
needed, they could not make sure they had received what was sent, and
they could not make sure they used what they got on Government
contracts, and they did not follow up on known problems. This was just
a report from last summer.
Other reports have found that the Pentagon pays too much for common
items and buys things we do not need, and on and on.
I believe we do have a serious problem in inventory control with the
Department of Defense. I half facetiously, a year or two ago when I
offered a similar amendment, said that the Government is now
contracting out a lot of functions, and the Bush administration seems
to be intent on contracting out, that maybe what we really ought to do
is contract out inventory control for the Department of Defense to Wal-
mart. I can guarantee that Wal-Mart does not lose $1 billion a year in
inventory. I guarantee when Wal-Mart orders items, they know if they
have been shipped and they know who gets it. I picked on Wal-Mart, but
I could name another company. But my point is made.
We have a huge bureaucracy, the Department of Defense. They are
buying billions of dollars' worth of items with taxpayers' money, and
in many cases they cannot account for it. We have the stockpiling of
excess items, and they keep right on buying items that they say they do
not even need.
Would someone please make sense of this to this Senator? Why is the
Department of Defense ordering items that it has already said it does
not need, yet keeps the orders going? That is what my amendment is
attempting to do.
Some of the past GAO reports have resulted in improvements. The Navy,
for example, claims to have accounted for $2.5 billion of inventory
discrepancies. But I am sorry to say the recommendations are frequently
not followed. Just on inventory issues, the GAO has more than 30 open
recommendations on using accurate data, setting consistent procedures
and following them, adopting commercial best

[[Page S6817]]

practices and modern inventory systems, taking timely actions, and many
more--30 open items the GAO has identified to which the Department of
Defense simply is not paying attention.
My amendment also requires that the Department of Defense report to
Congress on what the Department is doing to implement these open GAO
recommendations on defense inventory issues.
Again, this amendment is a modest step forward. It is needed because
the Department has either not been willing or not been able adequately
to address, by itself, past findings by the GAO of serious waste. I
have chosen to address the single, narrow area of secondary inventory
because that is the area where we have fresh information from the GAO,
information with which DOD generally concurs.
Now, while $2 billion may not be a large amount compared to the $400
billion authorized in this bill, it is still a lot of taxpayer money,
and it is being wasted. We ought to stop it. That is what my amendment
seeks to do.
I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Michigan.
Mr. LEVIN. Madam President, how much time is there on this amendment?
The PRESIDING OFFICER. Thirty minutes, evenly divided.
Mr. LEVIN. Madam President, first I thank and commend the Senator
from Iowa for this amendment. It is an amendment which raises a lot of
very significant issues about the Department of Defense inventory. It
is a subject I had quite a bit to do with many years ago, particularly
when we raised issues about the amount of the warehousing that exists
in the Department of Defense, the amount of purchases which were made
which contributed to that inventory, which was excessive.
We made some progress. This was a number of years ago, but
nonetheless we made some progress. I think we actually reduced the
number of warehouses at that time by about 40 percent. But it is
obvious we still have a problem and we are going to have a greater
problem if we do not address it because of the increased size of the
Defense budget and the purchases of the Defense Department.
The GAO has issued a report. It is a fairly new report. Frankly, we
have not had a chance to even analyze that report. Many years ago, when
we took up this subject and had hearings and made some progress on this
issue, we had some differences with the GAO over their approach, over
the way in which they measured things. I don't know whether that is
still a problem because, again, we have just not had a chance to review
this report. It is very recent. We have not had a chance to meet with
the GAO or the Senator from Iowa and his staff.
If the Senator is willing, I would make a commitment--I know the
chairman would join me in this commitment because I have spoken with
the chairman about this subject--to look into the GAO report and to do
so promptly, to review it, and then to meet with the Senator from Iowa
to review it and address those issues he thinks need to be addressed.
We will do that promptly. We are not trying to delay it because the
Senator has pointed out matters which could save us significant amounts
of money.
On the other hand, if we do it wrong, for instance, if we sell things
which are excess to inventory which will not be excess a few months
from now, if we bring the inventory down--for instance, if we have 2
years of inventory for things we only need a year and a half of, we may
not want to sell that extra 6 months; we may want to bring the
inventory down to a year and a half.
There are some complications. I have had a chance to talk with our
dear friend from Iowa. His heart is absolutely in the right place. His
head is in the right place. His staff is in the right place. We want to
try to be in the right place with him and join him in this effort and
have the opportunity which I have just described to review this GAO
report with him and take the appropriate action.
I urge he consider allowing that course to occur and not to press his
amendment at this time. I know the chairman of the committee has some
thoughts on the subject as well.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Madam President, I associate myself with the remarks of
my colleague from Michigan.
I say to the Senator from Iowa, really, in a way we appreciate what
you have done because you have identified an issue that has been of
concern to our committee for some many years. The Armed Services
Committee has held hearings and sponsored much of the GAO's best-
practices work. But there remain to be done some important aspects of
this problem.

DOD has made some progress but much more needs to be done. We
recognize that. I want to work with the Senator from Iowa and the
Senator from Michigan and other members of the committee to address the
inventory management problems at the Defense Department.
I thank the Senator.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Madam President, I thank both the chairman and the
ranking member for their attention, and their responses. I know the
Senators and their staffs, on both sides, have worked on this matter
going back some years. I appreciate that.
This seems like that whack-a-mole type thing; you keep hitting it and
something else pops up. From our side, the Defense Appropriations
Subcommittee side, I have been addressing this since 1995. GAO even
said here:

Since 1995, we have reported on imbalances in DOD's
inventory, and our current work shows that these imbalances
continue to exist.

I know the chairman and ranking member have a lot on their plate.
This is a big bill. There is a lot you have to pay attention to. But
somehow we just have to get our hands on this.
In response to what Senator Levin had said, we found in one of our
reports--I am sure the chairman is very familiar with it--where we had
at one point 100 years or more of inventory of some items. Of course
they are going to be long obsolete before that hundred years is out.
Some of that has been taken care of. I compliment the chairman and
ranking member, now and in the past, for attending to that, because a
lot of that has been reduced. I compliment you for that.
But we still have one problem here--well, one among others--of the
secondary inventory and the fact they keep buying, even though they
themselves say they do not need it.
So I appreciate what you said. I know you have not had a chance to
take a look at it. I look forward to my staff and your staff working
together and maybe coming up with some things so we can get them moving
in the right direction.
Mr. WARNER. Madam President, if I might say to my colleague, on a
personal note, he and I have reminisced many times how we have been
privileged to wear the uniform of our country. I am struck by the
hundred years. That parallels the commode scene we had hear some years
ago, if the Senator remembers.
People operating in the Department of Defense have good intentions,
be they in uniform or civilians. It is their country and their
taxpayers' money. What we have to do is provide them with the proper
direction when they need it to try to correct these things. But we have
always, being military persons ourselves, to remember readiness is
foremost. We have to err sometimes on the side of caution to maintain
the readiness needed, particularly in today's environment, where unlike
when you and I served there was time to get ready for military
operations.
World War II basically took a year to get cranked up and going. We
don't have that time anymore with these modern weapons and terrorism
and the like. We have to be ready because what is on the shelf and what
is in inventory is about all the men and women in the Armed Forces have
when they have to move out with such swiftness now to address the
threats of today.

I thank the Senator, but I just wanted to bring up that one note.
Mr. HARKIN. I appreciate my friend from Virginia mentioning that.
That is true. That is why I understand we have to have some of this
inventory. You are right, we should err on the side of caution in this
area. But with the tremendous buildup we have and the amount

[[Page S6818]]

of money we are talking about here, let's face it, big mistakes can be
made and things can happen.
I went back one time and I read a lot about the old Truman Commission
in World War II that was set up. Here we were, World War II, and we had
to respond, as the Senator knows, rapidly at that time. We had to go
almost from nothing to build up an Air Force and a Navy and an Army.
The enemy was at our gates. But at the same time, the Senate set up a
special Committee then under Senator Harry Truman of Missouri. That
commission did a number of things. Some people went to jail. Some
people paid fines. They saved the taxpayers literally--I don't know if
it was billions, at least hundreds of millions of dollars at that time,
which would translate into billions at today's inflated levels. They
did that in the midst of the Second World War.
I am just saying we need some more oversight, and we need some better
accounting practices and inventory control systems.
Maybe the chairman did not hear me when I said earlier, half
facetiously, a couple years ago maybe that when we are contracting out
we ought to contract out inventory control to Wal-Mart. They don't lose
much. They keep track of everything. As the chairman knows, there are
some new technologies out there that are coming on line that will allow
us to track----
The PRESIDING OFFICER. The time of the Senator from Iowa has expired.
Mr. HARKIN. I ask unanimous consent for a couple more minutes.
Mr. WARNER. There is no objection on this side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HARKIN. Maybe some of this new technology would be what would
help us get more control.
I thank the chairman.

Amendment No. 774 Withdrawn

Madam President, I ask unanimous consent to withdraw my amendment. I
look forward to working with the chairman and ranking member to try to
get a better handle on this.
Mr. WARNER. We thank our colleague very much.
The PRESIDING OFFICER. Without objection, the amendment is withdrawn.
Mr. LEVIN. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BENNETT. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Madam President, parliamentary inquiry: My understanding
is that the Bingaman amendment is the order at this point in time.
The PRESIDING OFFICER. That is the next amendment to be considered.
Mr. WARNER. Could that temporarily be set aside for 5 minutes so the
Senator may be recognized and then we will return to that?
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Utah.
Mr. BENNETT. Madam President, I thank the distinguished chairman and
my friends on the Democratic side for allowing me to make this
presentation.

Amendment No. 776

Mr. BENNETT. Madam President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Utah [Mr. Bennett], for himself, Mr. Reid,
and Mr. Allen, proposes an amendment numbered 776.

Mr. BENNETT. Madam President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To repeal the MTOPS requirement for computer export controls)

At the end of subtitle D of title X, add the following:

SEC. 1039. REPEAL OF MTOPS REQUIREMENT FOR COMPUTER EXPORT
CONTROLS.

(a) Repeal.--Subtitle B of title XII of, and section 3157
of, the National Defense Authorization Act for Fiscal Year
1998 (50 U.S.C. App. 2404 note) are repealed.
(b) Consultation Required.--Before implementing any
regulations relating to an export administration system for
high-performance computers, the President shall consult with
the following congressional committees:
(1) The Select Committee on Homeland Security, the
Committee on Armed Services, and the Committee on
International Relations of the House of Representatives.
(2) The Committee on Armed Services, the Committee on
Foreign Relations, and the Committee on Banking, Housing, and
Urban Affairs of the Senate.
(c) Report.--Not later than 30 days after implementing any
regulations described in subsection (b), the President shall
submit to Congress a report that--
(1) identifies the functions of the Secretary of Commerce,
Secretary of Defense, Secretary of Energy, Secretary of
State, Secretary of Homeland Security, and any other relevant
national security or intelligence agencies under the export
administration system embraced by those regulations; and
(2) explains how the export administration system will
effectively advance the national security objectives of the
United States.

Mr. BENNETT. Madam President, this amendment deals with the subject
which I have dealt with before. It has to do with the National Defense
Authorization Act which requires the President to use as a measure for
computer performance in setting export control thresholds a measurement
known as MTOPS, which stands for millions of theoretical operations per
second.
The interesting thing about MTOPS is that, like Topsy, which sounds
like they are named after, they are constantly growing, and the level
of MTOPS keeps growing from 4,000 to 8,000 to 16,000 to 56,000, and on
and on. Every time we set an MTOPS level as saying we can control the
exportation of supercomputers by insisting that this level not be
exceeded, technology catches up. Quite literally, the last time we
dealt with this, someone could go down to Toys-R-Us and buy a Sony
PlayStation and have a device with more MTOPS in it than we were
allowing to be exported in the name of protecting supercomputers from
falling into improper hands.
This matter has been discussed at some length. It has been decided
and confirmed by the GAO that the use of MTOPS as the measure for
controlling exports in this area is not productive and that MTOPS no
longer presents any kind of logical measure of what has happened.
Nonetheless, it is written into the law that MTOPS should remain as our
present measure.
My amendment would repeal that requirement in the law. It is
supported by virtually everyone who understands the reality of where we
are in the high-tech industry.
I would go on to debate the amendment at greater length and outline
its need, but I understand from conversations with the chairman's staff
and with the Parliamentarian that this amendment would not be
considered relevant to this bill at this time. For that reason, I will
withdraw the amendment.
Mr. REID. Madam President, will the Senator yield?
Mr. BENNETT. I am happy to yield.
Mr. REID. I appreciate very much the Senator offering this amendment.
He and I have worked on this matter through several Congresses. It is
an extremely important amendment. It is unfortunate that it is not
going to be relevant to this matter. I hope there is some way during
this Congress that we can expedite this most important amendment which
the Senator is talking about.
Talking about job creation, this is a way to create jobs--get rid of
this arbitrary rule that at one time may have had a little bit of
reason but now has absolutely no reason to be on the statutes of this
country.
Our current MTOPS metric measure which is used to regulate the export
of U.S.-made technology hardware is outdated, hurts our high-technology
industry, and should be better crafted to address our Nation's specific
security concerns.
If U.S. companies are to effectively compete outside the United
States in foreign markets, the current MTOPS metric measure must be
repealed.
Once repealed, the current MTOPS measure will remain applicable to
all export controls until the President, after consultation with the
Committee on Armed Services, the Committee on Foreign Relations, and
the Committee on Banking, Housing, and Urban Affairs of the Senate has
taken into consideration all relevant and necessary security concerns
to ensure that U.S.-developed technology cannot be abused for the
purposes of tyranny and terrorism.

[[Page S6819]]

The President shall also consult with the Secretary of Commerce,
Secretary of Defense, Secretary of Energy, Secretary of State,
Secretary of Homeland Security, and any other relevant national
security or intelligence agency under the export administration system
affected by the MTOPS provisions.
We must act now to protect our status as world leaders in technology
development.
In the interests of national security and economic productivity, we
must clear a path to reform the current MTOPS metric measure that is
unnecessarily restraining our high-technology industry.

Amendment No. 776 Withdrawn

Mr. BENNETT. Madam President, I thank my friend from Nevada. I will
tell him, there is a way this can be done this Congress. It is my
understanding an attempt will be made in the House to place this
amendment in the bill in the House where it does not run into the
relevancy difficulty I ran into here today.
I would hope our chairman and ranking member, when they get to
conference, if they find the language in the bill, would feel so
disposed to accept it as it becomes a conferenceable item.
Madam President, I withdraw my amendment.
The PRESIDING OFFICER. The amendment is withdrawn.
The Senator from New Mexico.

Amendment No. 765

(Purpose: To require a specific authorization of Congress before the
conduct of the design, development, or deployment of hit-to-kill
ballistic missile defense interceptors)

Mr. BINGAMAN. Madam President, I call up amendment No. 765 and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from New Mexico [Mr. Bingaman] for himself, Mr.
Dorgan, Mr. Reed, and Mr. Biden, proposes an amendment
numbered 765:
At the end of subtitle C of title II, add the following:

SEC. 225. REQUIREMENT FOR SPECIFIC AUTHORIZATION OF CONGRESS
FOR DESIGN, DEVELOPMENT, OR DEPLOYMENT OF HIT-
TO-KILL BALLISTIC MISSILE INTERCEPTORS.

No amount authorized to be appropriated by this Act or any
other Act for research, development, test, and evaluation,
Defense-wide, and available for Ballistic Missile Defense
Systems Interceptors (PE 060886C), may be obligated or
expended to design, develop, or deploy hit-to-kill
interceptors or other weapons for placement in space unless
specifically authorized by Congress.

Mr. BINGAMAN. Madam President, I offer this amendment on behalf of
myself, Senator Dorgan, Senator Reed, and Senator Biden. This is an
amendment I hope can be approved to clarify that this Congress, this
Senate, does not intend to be authorizing--by this bill, the language
we have before us here in the legislation--does not intend to be
authorizing the weaponization of space.
The amendment proposes to require specific authorization from
Congress if we are going to proceed to design or develop or deploy hit-
to-kill interceptors or other weapons we intend to have placed in
space.
This is an issue that has not had a great deal of debate in the
Senate in recent years. In fact, I think we discussed it some when the
former President Bush--not this President Bush, but the former
President Bush--had his proposal for the program called Brilliant
Pebbles. But there has not been a lot of discussion in the last few
years. I do not believe this issue was addressed, either, in the markup
of the Defense authorization bill in the Armed Services Committee. In
my view, it is a very important issue.
Specifically, within this program there is a new start for fiscal
year 2004 that is titled: ``Space-Based Interceptor Test Bed.'' This
program proposes to develop a test bed in outer space consisting of
several satellites that would deploy kinetic energy rounds to strike
missiles in their boost phase. They also, of course, could be used to
strike satellites as well.
I have great concern with this whole proposal. As all colleagues
know, as a nation this President chose to withdraw from the ABM treaty.
Now, the ABM treaty did contain a prohibition against deploying
antiballistic missile systems in space. As I see this new start that is
in the bill the administration has proposed to the Congress, we really
are seeing here a follow-on to our decision to withdraw from the ABM
treaty. In my view, it sends a very unfortunate signal to other
countries--to China, to Russia, to North Korea, to other countries--
that might have capability to follow our lead.
It essentially sends them the signal that we are beginning the
process of weaponizing space. This is not a signal I think this
Congress or this administration should be sending.
I note we have a longstanding policy, a policy that has been in place
since President Eisenhower was in the White House, not to put weapons
in space. There is a crucial distinction I want to make here between
using space for military purposes and actually putting weapons in
space. We do use space for military purposes. We use space for
reconnaissance. We use space to gather information in a great variety
of ways to support our defense needs. But we have never stepped over
the threshold and actually put weapons in space. I think for us to
choose to do so is a very important decision which should not be taken
lightly and should not be taken without great care.
This program that is in the bill contains a seed element which I
think should concern all Members. Under the Department of Defense so-
called Spiral Development Policy, initial test beds--which is what this
provision calls for--but initial test beds, such as the ground-based
test bed at Fort Greely, are seen as being used simultaneously, at
least for partial deployment of systems. It is my fear a similar result
could happen with regard to this space-based test bed; that is, the
initial fielded satellites would be converted, like the ground system
at Fort Greely, to a fielded weapons system in space.

For that reason, I think it is important we make clear--we in the
Congress make clear--we do not want that to happen, we do not want
funds in this bill used for design and development and deployment of
weapons in space unless Congress focuses on the issue and actually
authorizes that action to take place.
There is a great deal I could point to here that elaborates on what I
have been saying. I think the main point I want to make, again, is I do
not believe most Americans support the notion that the United States
should become the first country to deploy weapons in space. I do not
think a military need has been demonstrated. In particular, I do not
think the administration and the Congress should do so without a
thorough discussion and debate about the issue, so that we, in fact,
know what we are doing and the implications of what we are doing.
This is a very large step for us to take, to become the first nation
to proceed to put weapons in space, and I do not think this is
something that should be done lightly. This decision is one I think we
will hear about for a very long time, and I think it will have
repercussions for a very long time. I think this amendment I have
proposed tries to make it clear we do not want to make that decision
today, that the Congress has not debated this adequately, that the
Armed Services Committee has not debated this adequately, and we are
not prepared today to authorize--or at least we have not as yet, in my
view, taken the step of specifically authorizing the design and
development and deployment of weapons in space.
Mr. President, how much time remains?
The PRESIDING OFFICER (Mr. Cornyn). Eight minutes remain.
Mr. BINGAMAN. Mr. President, let me just talk about one other aspect.
The Pentagon's Missile Defense Agency, which oversees missile defense
research and development, did an interview in February talking about
their so-called space-based test bed, which is what I am addressing my
amendment to here.
The thrust of what they described in that interview was they intend
to field satellites armed with multiple hit-to-kill interceptors that
are capable of destroying a ballistic missile through a high-speed
collision shortly after it is launched.
This might be something we decide we have to do, but, to my
knowledge, that debate has not occurred in Congress, and I do not want
to see us proceeding down that road without the Congress having focused
on it, having actually specifically authorized it.

[[Page S6820]]

Therefore, my amendment tries to clarify that is, in fact, what is
required before we can proceed down that road.
There is funding also in this same program element, and that is the
PE 060886C. There is funding in there for the ground-based
interceptors, for their development.
Certainly that is a decision we have made as a country, and I am not
trying to revisit that. I do think we go a substantial additional step
when we decide we are also going to be designing, developing, and
deploying weapons in space. We will do so. We will begin that process
by setting up this so-called test bed in space. Those satellites will
be the beginning of that process.
I reserve the remainder of my time and yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Virginia.
Mr. WARNER. It is my understanding I have 15 minutes under my
control.
The PRESIDING OFFICER. The Senator is correct.
Mr. WARNER. I wonder if I may ask my colleague a question or two. For
many years you served on the Armed Services Committee. You have a
complete familiarity as to how we address issues. My recollection--and
I don't think it is to be disputed--of the markup in the subcommittee
is, when we looked at this line of funding, no one on your side of the
aisle or anyone else raised an issue. We went to full markup, and no
one raised an issue about it.
Essentially you are coming in, which you have a perfect right to do,
but you are coming in to kill a program. Am I not correct, this
amendment kills the program?
Mr. BINGAMAN. Let me respond that I am certainly not trying to kill
the development of any of the program that is ground based. I am
saying, however, that we should not proceed to establish, to design,
develop, and deploy a space-based weapons capability absent some debate
about it.
Mr. WARNER. Mr. President, that is quite clear.
Is the answer to my question, yes, you are trying to kill the
initiation of an element that could lead to space-based weapons? Isn't
that correct?
Mr. BINGAMAN. That is correct. I think that should not be done
without much more deliberation than we have given it.
Mr. WARNER. I just point out that on your side of the aisle,
participating actively in markup in the full committee, there was no
effort to examine it.
The next question I ask my colleague: Are you aware how much money
the taxpayers of this Nation put in previous programs for space-based
weaponry prior to when President Clinton--I don't say this in a
critical way; it is just a fact way--determined that we would not put
another dollar in space based?

Mr. BINGAMAN. Mr. President, in response to my colleague's question,
I am aware that we put substantial funding in and most of that funding
was for research.
Mr. WARNER. That is correct.
Mr. BINGAMAN. There is nothing in my amendment that would interfere
with research. What I am trying to head off is the actual design and
development and deployment of space-based weapons as part of this new
program start. But research has proceeded. We have funded it at a high
level. I have supported that.
Mr. WARNER. The Senator is on my time, and he is kind of getting into
it a little bit. I need a few minutes here.
We spent, as a nation, $1.8 billion on space-based intercepts from
1985 to 1993. This is for $14 million to go in and take a look at what
has taken place in years prior thereto, by virtue of an expenditure of
$1.8 billion, to determine the feasibility of whether this concept
should be resumed. Essentially you are stopping us from even taking a
look at this enormous investment which has been expended to determine
whether we should once again begin in a substantial way to look at
space-based interceptors. That is what is before the Senate, $14
million to go back and look at a program of $1.8 billion. It is for
that reason that we vigorously oppose the amendment.
I yield the floor at this time. I see the chairman of the
subcommittee.
The PRESIDING OFFICER. Who yields time?
Mr. LEVIN. How much time does each side have?
Mr. WARNER. Each side had 15 minutes. I am not sure for which side
the distinguished ranking member is speaking.
The PRESIDING OFFICER. The sponsor has 5 minutes 43 seconds
remaining.
Mr. LEVIN. How much time does the sponsor have remaining?
The PRESIDING OFFICER. Five minutes 43 seconds.
Mr. LEVIN. And the opposition?
The PRESIDING OFFICER. Ten and a half minutes.
Who yields time?
Mr. WARNER. I think it is important that we hear from the ranking
member because I have asked a question. We did not address this at all
in the subcommittee or full committee markup. I presumed, since it was
in our bill--I say respectfully to my colleague--I believe he was here
to support the bill as written. I come at somewhat of a surprise now on
exactly where my distinguished colleague from Michigan is on this
amendment.
Mr. LEVIN. Well, I certainly am not committed to the bill as written
because there are a number of provisions in the bill that I opposed in
committee and that I have opposed on the floor.
Mr. WARNER. But there was no opposition in the course of the markup,
either in subcommittee or full committee.
Mr. LEVIN. The chairman is correct. This issue was not brought to my
attention until the floor. But there are a number of issues which are
brought to our attention for the first time on the floor. I hope any of
us can support those issues when they are brought to the floor. We
ought to all feel free to do that.
Mr. WARNER. I will save this debate for another day.
I yield the floor.
The PRESIDING OFFICER. Who yields time to the Senator from Colorado?
Mr. WARNER. I yield.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. ALLARD. Mr. President, as chairman of the Strategic Subcommittee,
this is an issue on which we have held discussions. We have put
together the provisions that deal with many of the modernization
elements of the defense and Armed Forces of the country. This is an
amendment that did not get brought forward during deliberation in the
subcommittee, nor deliberation in the Armed Services Committee, as far
as I recall.
I am concerned about continued efforts on the floor of the Senate to
stymie our reaching out to new technology. We have had an amendment
concerning low-yield nuclear weapons that allows for a study to think
about what our alternatives might be. We have had amendments here
concerning robust nuclear earth penetrators, just to study the concept.
Here is another concept that the committee has decided we should
study. It seems to me that in a modern military, these are things we
should be looking at. Things are changing.
I commend the President's Secretary of Defense. He is trying to
modernize our military forces, get them to work together on the
battlefield more than we ever had before. We saw that happen in Iraq.
These are all issues that are part of a joint force effort.
I hope we can defeat the amendment. I oppose the Bingaman amendment.
Again, it prohibits us even taking the time to study the concept. After
you do the study, you list the pros and cons and then decide if this is
something you want to move forward, whether it is feasible. We need to
gather facts on actual costs. We may decide, after doing the study,
that it is too expensive. On the other hand, we may do the study and
look at the threats facing the country and say: This is something we
need to be doing.
It is foolhardy that we have amendments that continually keep coming
up that don't allow us to study our alternatives. We need to have the
studies. We need to be thinking about what kind of threats and what we
want the military to look like 10, 20, 30 years down the road.
I hope other Members of the Senate will join me in opposing this
amendment.
The PRESIDING OFFICER. The Senator from Michigan is recognized.

[[Page S6821]]

Mr. LEVIN. Mr. President, I wonder if I can get the attention of the
Senator from New Mexico, and Senator Allard as well. I ask the Senator
from New Mexico to yield me 1 minute.
Mr. BINGAMAN. I yield to the Senator as much time as he needs.
Mr. LEVIN. The Senator from----
Mr. WARNER. Mr. President, just a minute. In a conscientious effort
to resolve this, I ask unanimous consent that each side be given
another 5 minutes.
Mr. REID. No objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. The Senator from Virginia and the Senator from Colorado
have raised a point that there has been a significant amount of money
that has been invested in this item, and there should not be a
prohibition on reviewing the work, studying the work, on doing research
in this area. As I understand the language in the amendment of the
Senator from New Mexico, it is not intended to prevent studies or,
indeed, research. It is intended to say that before you get to the
design stage, which is beyond research and beyond studies, you come
back for specific authorization.
So the point being made is, if the Senator from New Mexico is not
intending to prevent a review of all the work, which was done
apparently in the 1980s, and is not intending to prevent studies or
even research under 6.0, 6.1, and 6.2, I wonder whether the Senator
from New Mexico would be willing to make that clear and explicit in
that amendment, if that addresses satisfactorily the issue raised by
the Senator from Virginia.
I have just talked to the Senator from New Mexico. There is no intent
in the language to prevent a study of previous work. All this language
says is that before you begin the design stage--that is beyond pure
research--before you begin the design and development stage, come back
and get specific authority. I don't think that is what is intended to
be done with this money this year, from what the chairman and Senator
Allard have said.
So I ask the question of the Senator from New Mexico whether the
Senator would be willing to add language to his amendment that nothing
in here is intended to prevent the study of the hit-to-kill capability,
or previous analyses, or research prior to the design stage?
Mr. BINGAMAN. Mr. President, in response to my colleague's question,
I think it is very clear what my amendment is trying to do, that the
Department of Defense cannot obligate or expend funds to design,
develop, or deploy hit-to-kill interceptors or other weapons for
placement in space, unless they get specific authorization.
So if they want to do more research or go back and look at previously
performed research or analyses, certainly I have no problem with that.
I think that is----
Mr. WARNER. I draw the Senator's attention to the first words:

No amount authorized to be appropriated by this Act for
research. . . .

It is right in there.
Mr. BINGAMAN. I think the operative language is on page 2, where I
say what this sentence is intended to mean: that no amount authorized
to be appropriated by this act for research, development, test, and
evaluation may be expended for design, development, or the deployment
of these types of weapons in space.

I think I have made it very clear we are trying to head off the use
of funds for designing weapons in space until Congress has a chance to
debate this issue and until there is a specific authorization required.
Mr. WARNER. Mr. President, I think there is some expression by our
colleague to amend the amendment. I take that in good faith. I believe
we need a little time to examine this proposal. The chairman of the
subcommittee, the Senator from Colorado, is prepared to sit down with
the Senator and see what we might be able to do to bridge the gap
because this is essentially another vote, as it is now written, to stop
the program cold, to put in a ban. We have been through a series of
votes on that now and, thus far, we have prevailed to not let bans be
put in place, and here is another one coming up.
So, in good faith, we will take a look at such amendments that the
Senator may wish. Therefore, I simply ask unanimous consent that this
amendment be laid aside for a period of time.
Mr. BINGAMAN. Prior to that, I yield 3 minutes to the Senator from
Rhode Island. He has been waiting to speak on this general issue, if
that is possible.
Mr. WARNER. We have no objection if the Senator takes some time to
speak.
Mr. BINGAMAN. We can postpone a vote until we visit.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. REED. Mr. President, I want to underscore the major issue that
the Senator from New Mexico is raising and that is the weaponization of
space. We have talked today earlier about different nuclear programs
and should we have low-yield weapons bans or robust nuclear earth
penetrator bans. But the realm of nuclear weaponry has been upon us now
for five decades.
To date, we have been successful in preventing weapons from being
deployed in space. So this is a completely different issue. This is not
the issue of shall we do more of what we have been doing for 50 years.
This is a threshold question: Do we want to introduce weapons into
space? And will this introduction come surreptitiously, innocuously by
research programs that put weapons in space for a test bed without
debate in the U.S. Congress on behalf of the American people and a
clear decision?
I think that is the Senator's amendment. He has identified
programmatic funding that could be stretched to inch our way--perhaps
through the back door, if you will--into placing weapons in space. I
think that is such a critical and important issue that we not only have
to debate it but we should decide it, not scientists and technologists
in the Department of Defense. I cannot think of any scientist who would
not like more permission to study more things.
So I urge, hopefully, the resolution of this amendment. If it is not
resolved and comes to a vote, I hope we can support the Senator from
New Mexico.
I yield back my time.
Mr. LEVIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I have spoken to the two managers of the
bill. They are both in agreement that we could set aside the Bingaman
amendment and move to the next amendment which would be offered, and
that is by Senator Dayton. Senator Dayton is offering an amendment on
buy America. He has agreed to 30 minutes equally divided. We would, of
course, have the normal agreement that no second-degree amendments will
be offered.
So I ask unanimous consent that we set aside Bingaman and move now to
the Dayton amendment, and that no second-degree amendments be in order
prior to the vote on the matter.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. It would be in the usual form in relation to any language
that might be stricken.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Minnesota.

Amendment No. 725

Mr. DAYTON. Mr. President, I call up amendment No. 725.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Minnesota (Mr. Dayton), for himself, and
Mr. Feingold, proposes an amendment No. 725.

Mr. DAYTON. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To strike section 833, relating to waiver authority for
domestic source or content requirements)

Strike section 833.

Mr. DAYTON. I ask unanimous consent that the Senator from Wisconsin,
Mr. Feingold, be added as a cosponsor to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S6822]]

Mr. REID. Mr. President, will the Senator from Minnesota yield?
Mr. DAYTON. I yield.
Mr. REID. Mr. President, Senator Warner, who has been so heavily
engaged in this legislation, allowed me to go forward with a unanimous
consent request. However, it was brought to our attention that there is
a Senator who wishes to offer a second-degree amendment, or might want
to offer a second-degree amendment to this matter. I have consent that
we go forward with the Dayton amendment but we would remove the time
agreement.
Mr. WARNER. And recognize that there could be a second degree.
Mr. REID. That is right. If that does not come to be, we will worry
about a time agreement at a subsequent time. The agreement is we are
setting aside Bingaman and moving to Dayton.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I appreciate the cooperation of the Senator
from Minnesota.
Mr. DAYTON. I know the Senator from Virginia and the Senator from
Nevada are working together on this and I am in good hands.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. DAYTON. Mr. President, I call up this amendment and point out
that at a time when millions of Americans are unemployed, looking for
jobs, unable to find jobs, and are suffering terrible emotional and
financial hardships as a result, it is astonishing to me that the
administration would seek in this bill to move more American jobs to
other countries. It is astonishing, but given this administration, it
is not surprising. It is well on its way to becoming the most anti-jobs
administration in our Nation's history.
Since President Bush took office 2\1/2\ years ago, 2.7 million jobs
have been lost throughout the United States of America. In the first 3
months of this year alone, 500,000 jobs disappeared. The only idea for
economic stimulus that the administration has is to cut taxes for the
Americans who are already rich, whether they work or not.
In this bill, the administration wants to gut the ``buy American,''
which is an existing law passed by the Congress in 1933, which for the
last 70 years, under Republican administrations, Democratic
administrations, has been a policy of this Congress--that we will
attempt to buy American.
The Berry amendment was enacted in 1941, at the onset of World War
II, applying specifically to the Department of Defense procurements. It
says, in pertinent part:

Provided: That no part of this or any other appropriation
contained in this Act shall be available for the procurement
of any article of food or clothing not grown or produced in
the United States or its possessions, except to the extent
that the head of the department concerned shall determine
that articles of food or clothing grown or produced in the
United States or its possessions cannot be procured of
satisfactory quality and in sufficient quantities and at
reasonable prices as when needed. . . .

That is not unreasonable. That is not onerous. It says you must buy
products grown or made or manufactured in the United States except when
the Secretary of Defense will determine, on his sole authority, that it
cannot be procured of satisfactory quality or sufficient times at
reasonable prices as and when needed. That is not even a ``buy
American'' requirement but ``try to buy American'' requirement, try to
buy American products.
This administration does not even want to try. They added into this
committee bill section 833 which, in pertinent part, says:

Waiver of domestic source or content requirements
(a) Authority--Except as provided in subsection (f), the
Secretary of Defense may waive the application of any
domestic source requirement or domestic content requirement
referred to in subsection (b) and thereabout authorize the
procurement of items that are grown, reprocessed, reused,
produced, or manufactured--
(1) in a foreign country that has a reciprocal defense
procurement memorandum or agreement with the United States.

That is 21 foreign countries. And it is not even so important that
the Secretary himself or herself has to make that determination.
It grants later that:

(A) may not be delegated to any officer or employee other
than the Under Secretary of Defense for Acquisition
Technology and Logistics.

If this bill passes with the current language, there will be 21 other
countries around the world which can be given equal priority as the
United States of America for contracts that provide jobs which are
being paid for by American tax dollars. Those dollars had been
appropriated and they will be spent on the U.S. Armed Forces, to clothe
them, feed them, and equip them with the best, which is what they
deserve because they are the best young men and women in the world and
they proved their courage, their valor, and skills once again in Iraq,
as they have before so many times and as they will probably be called
upon to do again. They deserve the best. They should get the best.
Congress has made clear in existing law that they will get the best and
they will get it when they need it.
Current law says whenever it is reasonably possible, however, to
supply those needs with goods and products and equipment that are
produced in this country, using materials that are made, where
feasible, in this country, then do so, recognizing that will provide an
additional public benefit for those expenditures of tax dollars of
creating or saving jobs for Americans. If it is not reasonably
possible, the law says, then don't, but at least try to buy American.
At least try to spend public funds in the United States rather than in
other countries. At least try to benefit the U.S. economy rather than
another nation. At least care enough to try.
For 70 years, every administration has been willing to make that
effort. But not this administration, evidently, because at their
request the language was inserted that says the Department of Defense
does not even have to try; they can buy in the United States or they
can buy in 21 other foreign countries, and the Secretary of Defense
does not even need to be bothered with those decisions. They evidently
do not consider it important enough to require him to do so. An Under
Secretary can handle it. These are decisions that will decide whether
some Americans keep their jobs and get new jobs. And they say it is not
that important.
My colleagues, that is the question before the Senate today. Should
we just give up at this point in time, right now especially, a 70-year
policy that creates or saves American jobs for American citizens, when
it is reasonably possible to do so? Or, no, no, it just really does not
matter?
It matters a great deal to millions of Americans who are looking for
work today. It matters a great deal to their husbands and their wives
and their children. It matters a great deal to me, which is why I
brought this amendment forward. If it matters to the Senate today,
Members will support my amendment. I urge my colleagues to do so.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. COCHRAN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COCHRAN. Mr. President, I commend President Bush for his
leadership in invigorating our Nation's missile defense programs. Just
yesterday, the President publicly released his vision and guidance to
provide for a ballistic missile defense system. National Security
Policy Directive 23 formalizes the administration's missile defense
policy, and it is consistent with the National Missile Defense Act of
1999, which is now Public Law 106-38. It was adopted during the 106th
Congress.
The National Missile Defense Act stated:

It is the policy of the United States to deploy as soon as
is technologically possible an effective National Missile
Defense system capable of defending the territory of the
United States against limited ballistic missile attack
(whether accidental, unauthorized, or deliberate) with
funding subject to the annual authorization of appropriation
and the annual appropriation of funds for National Missile
Defense.

With the President's leadership, our Nation is now moving forward to
provide the most technologically feasible defenses as soon as possible.
I commend the chairman of the Armed Services Committee and those who
have worked with him to craft this authorization bill. It carries
forward and builds upon the need for testing,

[[Page S6823]]

development, and deployment of adequate missile defense systems to
protect not only our homeland but our forces in the field and our
interests around the world.
Today, I am pleased to report that our national resolve and
technological superiority are being brought to bear in ways not
possible under the restrictions of the Anti-Ballistic Missile Treaty.
For the first time, our missile defense research and development
efforts are being integrated at all levels. As a result, our Nation
will benefit from deployed missile defense capabilities, while we
continue to test and field technologies in logical increments.
We are moving forward with one integrated program consisting of
several elements rather than separate programs linked in name only. In
short, the evolutionary and integrated approach to research and
development will allow defensive capabilities to be fielded years
before they otherwise might have.
Systems we are pursuing are capable of intercepting missiles
throughout the predicted flight path of various types of ballistic
missiles. The threat of these missiles to our Nation, to our deployed
Armed Forces, and to our allies exists today. It is prudent to continue
with the immediate testing and fielding of the variety of systems
needed to counter these challenging threats.
Testing to date has proven to be increasingly promising. Next year,
ground-based interceptors in Alaska and California will be activated
and will serve as a foundation upon which continental defenses may
later be expanded. Testing locations along a Pacific test-bed will
allow for near-term defense against rogue threats.
We will continue to develop and test incrementally. The plan is to
field systems as we go and build upon capabilities as they are tested
and proven.
Ground- and sea-based interceptors, additional Patriot, PAC-3, units,
and sensors based on land, at sea, and in space are planned for
operational use in 2004 and 2005. We will work with our allies to
upgrade key early-warning radars to help enhance capabilities.
Equally promising systems will be deployable much sooner, due to the
administration's incorporation of an aggressive research, development,
and testing regimen.
In developing defensive capabilities along the land, sea, air, and
space spectrum, our missile defense system will help protect our
homeland and international interests, as well as contribute to the
defense of our Allies.
The President has made clear that defending the American people
against the threats to our homeland and our sovereignty is the
administration's highest priority. I commend the President for this
leadership.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BINGAMAN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. COLLINS). Without objection, it is so
ordered.
Mr. BINGAMAN. Madam President, what is the business before the
Senate?
The PRESIDING OFFICER. The pending business is the Dayton amendment.
Mr. BINGAMAN. I ask unanimous consent that the amendment be set aside
and that we return to the amendment I offered, No. 765.
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. Reserving the right to object, how long will it take?
Mr. ALLARD. About 2 minutes.
Mr. McCAIN. I do not object.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 765, As Modified

Mr. BINGAMAN. Madam President, I send a modification of the amendment
to the desk.
The PRESIDING OFFICER. The Senator has the right to modify his own
amendment. The amendment is so modified.
The amendment, as modified, is as follows:
At the end of subtitle C of title II, add the following:

SEC. 225. REQUIREMENT FOR SPECIFIC AUTHORIZATION OF CONGRESS
FOR DESIGN, DEVELOPMENT, OR DEPLOYMENT OF HIT-
TO-KILL BALLISTIC MISSILE INTERCEPTORS.

(a) No amount authorized to be appropriated by this Act
for research, development, test, and evaluation, Defense-
wide, and available for Ballistic Missile Defense System
Interceptors (PE 060886C), may be obligated or expended to
design, develop, or deploy hit-to-kill interceptors or other
weapons for placement in space unless specifically authorized
by Congress.
(b) Of the amounts authorized to be appropriated for fiscal
year 2004 for Ballistic Missile Defense System Interceptors,
$14,000,000 is available for research and concept definition
for the space based test bed.

Mr. BINGAMAN. Madam President, let me explain to my colleagues what
we have done, both working with Senator Levin and Senator Allard and
Senator Warner and the various staff who have worked on this issue.
First, let me describe very briefly what my amendment does. The
language of the amendment I offered originally was fairly clear in that
we were trying to restrict the use of funds in a particular program
element so that they could not be used, obligated, or expended to
design, develop, or deploy hit-to-kill interceptors or other weapons
for placement in space unless there was specific authorization by
Congress. That is an important provision to try to get into the law.
And in order to do that, I have agreed to a modification of that which
Senator Allard recommended.
That modification would add a subsection (b) that would say:

Of the amounts authorized to be appropriated for fiscal
year 2004 for Ballistic Missile Defense System Interceptors,
$14,000,000 is available for research and concept definition
for the space based test bed.

As I see the effect of this modified amendment, the general provision
would be agreed to that there cannot be funds used for either design or
development or deployment of these weapons in space out of these funds,
with the only exception being that $14 million is available for
research and concept definition with regard to this space-based test
bed. That is an acceptable alteration and one that still keeps intact
the basic provision I intended with my amendment. On that basis, I have
agreed to modify it.
I yield to Senator Allard. I know he wants to describe the amendment.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. ALLARD. First, I thank the sponsor of the amendment, Senator
Bingaman, for working in this compromise language. We do maintain, out
of the ballistic missile defense system interceptors account, we have
the $14 million kept available for research and concept definition for
the space-based test bed. I thank Senator Levin and his contribution to
help us work out the compromise, as well as the chairman, Senator
Warner.
I am prepared to yield back the remainder of my time. The other side
is prepared to yield back the remainder of their time. Then we are
ready to voice vote.
The PRESIDING OFFICER. Is there further debate on the amendment?
If not, the question is on agreeing to amendment No. 765, as
modified.
The amendment (No. 765), as modified, was agreed to.
Mr. BINGAMAN. Madam President, I move to reconsider the vote.
Mr. ALLARD. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 783 To Amendment No. 725

The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, I send a second-degree amendment to the
desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Arizona [Mr. McCain] proposes an amendment
numbered 783 to the language proposed to be stricken by
amendment No. 725.

Mr. McCAIN. Madam President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To propose the insertion of matter in lieu of the matter
proposed to be stricken)

In lieu of the matter proposed to be stricken, insert the
following:

[[Page S6824]]

SEC. 833. WAIVER AUTHORITY FOR DOMESTIC SOURCE OR CONTENT
REQUIREMENTS.

(a) Authority.--Subchapter V of chapter 148 of title 10,
United States Code, is amended by adding at the end the
following new section:

``Sec. 2539c. Waiver of domestic source or content
requirements

``(a) Authority.--Except as provided in subsection (f), the
Secretary of Defense may waive the application of any
domestic source requirement or domestic content requirement
referred to in subsection (b) and thereby authorize the
procurement of items that are grown, reprocessed, reused,
produced, or manufactured--
``(1) in a foreign country that has a Declaration of
Principles with the United States;
``(2) in a foreign country that has a Declaration of
Principles with the United States substantially from
components and materials grown, reprocessed, reused,
produced, or manufactured in the United States or any foreign
country that has a Declaration of Principles with the United
States; or
``(3) in the United States substantially from components
and materials grown, reprocessed, reused, produced, or
manufactured in the United States or any foreign country that
has a Declaration of Principles with the United States.
``(b) Covered Requirements.--For purposes of this section:
``(1) A domestic source requirement is any requirement
under law that the Department of Defense satisfy its
requirements for an item by procuring an item that is grown,
reprocessed, reused, produced, or manufactured in the United
States or by a manufacturer that is a part of the national
technology and industrial base (as defined in section 2500(1)
of this title).
``(2) A domestic content requirement is any requirement
under law that the Department of Defense satisfy its
requirements for an item by procuring an item produced or
manufactured partly or wholly from components and materials
grown, reprocessed, reused, produced, or manufactured in the
United States.
``(c) Applicability.--The authority of the Secretary to
waive the application of a domestic source or content
requirements under subsection (a) applies to the procurement
of items for which the Secretary of Defense determines that--
``(1) application of the requirement would impede the
reciprocal procurement of defense items under a Declaration
of Principles with the United States; and
``(2) such country does not discriminate against defense
items produced in the United States to a greater degree than
the United States discriminates against defense items
produced in that country.
``(d) Limitation on Delegation.--The authority of the
Secretary to waive the application of domestic source or
content requirements under subsection (a) may not be
delegated to any officer or employee other than the Under
Secretary of Defense for Acquisition, Technology and
Logistics.
``(e) Consultations.--The Secretary may grant a waiver of
the application of a domestic source or content requirement
under subsection (a) only after consultation with the United
States Trade Representative, the Secretary of Commerce, and
the Secretary of State.
``(f) Laws Not Waivable.--The Secretary of Defense may not
exercise the authority under subsection (a) to waive any
domestic source or content requirement contained in any of
the following laws:
``(1) The Small Business Act (15 U.S.C. 631 et seq.).
``(2) The Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.).
``(3) Sections 7309 and 7310 of this title.
``(4) Section 2533a of this title.
``(g) Relationship to Other Waiver Authority.--The
authority under subsection (a) to waive a domestic source
requirement or domestic content requirement is in addition to
any other authority to waive such requirement.
``(h) Construction With Respect to Later Enacted Laws.--
This section may not be construed as being inapplicable to a
domestic source requirement or domestic content requirement
that is set forth in a law enacted after the enactment of
this section solely on the basis of the later enactment.
``(i) Declaration of Principles.--(1) In this section, the
term `Declaration of Principles' means a written
understanding between the Department of Defense and its
counterpart in a foreign country signifying a cooperative
relationship between the Department and its counterpart to
standardize or make interoperable defense equipment used by
the armed forces and the armed forces of the foreign country
across a broad spectrum of defense activities, including--
``(A) harmonization of military requirements and
acquisition processes;
``(B) security of supply;
``(C) export procedures;
``(D) security of information;
``(E) ownership and corporate governance;
``(F) research and development;
``(G) flow of technical information; and
``(H) defense trade.
``(2) A Declaration of Principles is underpinned by a
memorandum of understanding or other agreement providing for
the reciprocal procurement of defense items between the
United States and the foreign country concerned without
unfair discrimination in accordance with section 2531 of this
title.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such subchapter is amended by inserting after
the item relating to section 2539b the following new item:

``2539c. Waiver of domestic source or content requirements.''.

Mr. McCAIN. Madam President, this amendment narrows the numbers of
countries to six that would be eligible under the provisions of the
bill and would modify the pending amendment to remove the restrictions
that would be imposed by the pending amendment at least in the case of
six nations which are our closest allies.
Last week we passed an AIDS bill through the Senate, and there were
numerous amendments. One of them was a very interesting amendment
because it basically protected an industry in the United States of
America, thereby causing AIDS drugs to be only available at much higher
prices, which then had the obvious effect of reducing the number of
people who will be treated for AIDS. I forget the vote. I think it was
54 something to 40 something.
By protecting a major American industry, the pharmaceutical
industry--in the estimates of some--hundreds of thousands if not
millions of people will not be able to obtain a cure for AIDS because
the drug money is obviously finite.
I was embarrassed by that. I think the Senator from Minnesota voted
with the Senator from Massachusetts, Mr. Kennedy, in his amendment of
which I was a cosponsor. Basically what we are doing now is to set up
protection for other industries--primarily, the defense industries in
the United States--by prohibiting the United States from purchasing
military equipment that is manufactured in other countries which is the
effect of the Dayton amendment. It is rather remarkable because we just
came out of a conflict from which we suffered Americans dead and
wounded. One would think that the priority should be not where the
equipment is manufactured, whether it be in the United States or
England, Great Britain, one of our closest and most steadfast allies, a
friend whose men and women fought alongside of ours, but the question
should be, What kind of equipment can best secure victory as quickly as
possible with a minimum of casualties?
Believe it or not, there is equipment that is manufactured in other
countries which is superior to our own--defense equipment--not many,
because there is a tremendous imbalance between the amount and kinds of
equipment that is purchased by our NATO Allies as opposed to the
equipment that is purchased by the United States from our NATO
Allies. But there still is some. For example, body armor. Body armor is
used by the police departments, border patrol, and many law enforcement
agencies, but not by the American military, because it is prohibited
from doing so. Yet anyone who compares that manufactured in the U.S. to
that manufactured in the Netherlands will testify it is superior
equipment.

What is our priority here in the Dayton amendment? Is the priority to
protect an American industry, and not allow our closest allies and
friends to compete to sell their products, their defense equipment, to
the United States of America, as we do in their countries? Everything
from F-16s, to tanks, to incredible amounts of military equipment,
because of our superiority, is purchased by our NATO allies, but we are
going to be prohibited from purchasing any of theirs even if, in the
judgment of the men and women in the military who test these things and
make the judgments, and the Secretary of Defense--we are not going to
buy it even if it is better equipment because we want to protect an
industry in the United States of America? We have seen this
protectionism going on here in the textile industry, even though the
Caribbean countries are decimated because they cannot export their
product to the United States.
Here we are talking about the lives of the men and women in the
military. Can we not at least allow our military to look at equipment
made by our closest allies to see if it is superior; that we might want
to purchase it just as they purchase massive amounts of military
equipment from us? Is the Senator from Minnesota--who, unfortunately,
is not on the floor to respond--more interested in protecting an
industry or more interested in protecting the lives of the men and
women

[[Page S6825]]

fighting in the military? Don't they deserve the very best equipment we
can procure? I am sorry, you cannot have the following equipment which
is superior to that made in Minnesota because we want an industry in
Minnesota to be protected. I don't get it. Frankly, neither will the
men and women in the military who are unable to function in the most
effective fashion if they are deprived of the ability to procure the
most effective equipment.
We are talking about not every country in the world but our closest
allies; we are talking about our closest friends--those who supported
us in the war on Iraq and those who even sent troops, in the case of
the British, to fight alongside ours.
If the Dayton amendment is approved, no British manufacturer can
compete to sell equipment to the United States military. How do you
justify that if it happens to be superior equipment? In the name of
protectionism, we would deprive the men and women in the military of
the best equipment we can find for them to fight and risk their lives.
Well, I have a second-degree amendment that states this removal of
the Buy America equipment would not apply to our six closest Allies. I
hope my colleagues will see their way clear to vote in favor of it.
Let me also tell my colleagues one other practical effect. We now
tell these countries that we cannot, under any circumstances, buy their
equipment. These are the same countries that are buying billions of
dollars of our military equipment--F-16s, Abrams tanks, Apache
helicopters. The list goes on and on. If you are running a company and
you manufacture military equipment and you get the word that the United
States, under no circumstances, will purchase it from you, what would
you say about proposed purchases of American-made equipment? I think
the answer is obvious. These are all freely elected governments, all
governments that have to respond to their constituents. What will they
say?

So the effect of this Dayton amendment, if passed, would be some $5.5
billion, which is the difference between what we buy from these
countries and what they buy from us on an annual basis. I hope we will
be able to adopt the substitute.
I understand my colleague's dismay and unhappiness about the
performance of the French government and, to a lesser degree, the
Germans and the Belgians but I also remind my colleagues there was a
very large number of European countries that supported us, even in the
face of public opinion which was against the government policy of
supporting us in Iraq. So their support will now be rewarded by a
prohibition from buying any military equipment they manufacture in
their country. I don't think that is fair. I don't think it is right.
Most of all, I think it is wrong if we are not going to purchase the
best equipment no matter where it is produced in the world so our men
and women in the military can best function in the safest and most
efficient fashion.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada is recognized.
Mr. ENSIGN. Madam President, I applaud the senior Senator from
Arizona for offering this second-degree amendment in the nature of a
substitute. To characterize this amendment and this whole debate, we
are getting down to where this is truly a referendum on the people who
supported us in the recent war. Our closest allies--people we are going
to continue to go forward with in a very uncertain world--are they
people we are going to continue to work closely with when it comes to
times of conflict?
The waiver is only for those six countries that worked with us very
closely in the recent Iraq conflict. We are probably limiting it down
too far, but we are doing that to try to at least say to the people who
want the underlying Dayton amendment that we are going to at least
limit it to those six countries that worked with us most closely in the
last conflict.
Right now, we sell to them and they sell to us. We sell to them in
much greater numbers than they sell to us. Normally, when we are
talking trade around this body, most countries are selling more to us
than we are to them. Yet we are still trying to lower tariffs on a lot
of those countries to try to increase more trade back and forth. But in
this case, we dominate the defense industry in the world.
This amendment could threaten the domination we have of the defense
industry in the world. This amendment would say to our allies we want
to sell you our products, but we are not willing to buy your products.
This, in effect, sets up a trade war with our closest allies. Do we
want to do that? No one wins in a trade war. Everybody loses. This
would send a very poor message at exactly the wrong time to set up a
trade war.
Our closest allies worked with us, as we saw, in Iraq. They were
working so well together in training, with our equipment, so that when
we go into a conflict, our communications devices could talk to each
other. If we set up this kind of a trade war, we can threaten that type
of integration in our training.
I fully support this amendment the Senator from Arizona has proposed
today. I think the underlying amendment is faulty, and we need to have
this second-degree amendment in the nature of a substitute to make sure
we do not go down the wrong path.
I want to inform the rest of the Senators what we are trying to do
time-wise, as far as the schedule is concerned. We are trying to work
out a unanimous consent agreement now to have a vote, hopefully
somewhere around 6 o'clock, if that is possible tonight, on the
underlying amendment, and then possibly on the second-degree amendment,
and possibly after that have a side-by-side vote on the Dayton
amendment. We don't know whether or not that is possible. We are trying
to work that out and to alert people of the potential schedule for
tonight. There is no agreement worked out yet.
With that, Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Madam President, following the disposition of the matter
pending before the Senate--that is the Dayton amendment and the second-
degree amendment offered by the Senator from Arizona--I ask unanimous
consent that the Senator from Washington be recognized to offer an
amendment and make a statement and withdraw the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCAIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Madam President, we are waiting for the imminent return
of Senator Warner so we can start a vote on the second-degree
amendment. While we are waiting--F-16s: The Netherlands, Belgium,
Norway, Denmark, Singapore, United Arab Emirates; F-18s: Switzerland,
Finland, Canada, and Australia; Tomahawk missiles: United Kingdom,
Israel; F-15s and F-16s, AAMs, air to air missiles, 31 countries we
sell those to. All of that equipment is sold to these other countries,
and they are at least under the understanding that they can compete to
sell some of their equipment in our Nation.
It is remarkable. I would imagine that if the Dayton amendment goes
through, we will see cancellations of a number of those commitments to
buy that equipment from the United States of America. No other freely
elected government would do anything else.
I ask the Senator from Minnesota again the following question: If
there is a country that is a close ally of ours that can produce a
better piece of military equipment at a lower price, and our military
decides it is the best with which we can provide our men and women in
the military, would the Senator from Minnesota reject that?
Mr. DAYTON. Madam President, I would not, in answer to the Senator's
question, reject that. In fact, under

[[Page S6826]]

current law, that is permitted. The Secretary of Defense can determine
under his sole authority that the items in question can be bought.
Mr. McCAIN. Reclaiming my time, Madam President.
Mr. DAYTON. The Senator asked me a question.
The PRESIDING OFFICER. The Senator from Arizona has the floor.
Mr. McCAIN. The Senator from Minnesota ought to read his own
amendment because the effect of his amendment would be to prohibit
these countries from competing to sell their military equipment in the
United States of America. I think that is a great disservice to the men
and women in the military, and it is protectionism at its worst.
I would hope my colleagues will vote for the second-degree amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. DAYTON. Madam President, if I may respond to the Senator from
Arizona, I believe the Senator misunderstands my amendment. My
amendment strikes the language in the committee bill that would change
current law. My amendment returns us to existing law. It is a law that
has been on the books for 70 years. It is a law that has been followed
by Democratic and Republican administrations. It permits everything the
Senator described in terms of these various sales of equipment,
machinery, food, light clothing made by other countries when the
Secretary of Defense shall determine on his sole authority that it is
not reasonably possible to acquire those products made in the United
States. It just says try to buy American. It does not even require it.
It says try to buy American.
It is a law that was passed in 1933. The Barry amendment was added
specifically to the Department of Defense in 1941. The Senate committee
bill would change current law, and my amendment simply strikes that
change in the committee bill. It simply reverts us to current law,
which has been good enough for Republican and Democratic
administrations for 70 years and permits just what the Senator said.
I share the Senator's desire, absolutely. Our Armed Forces should
have the best--the best equipment, the best clothing, the best food,
the best of everything. They should get it as rapidly as possible. They
deserve it because they are the most courageous men and women anywhere
in the world, and they proved that once again in Iraq. Specifically,
for all these years, Congress has made clear in existing law that none
of that shall be sacrificed. Quality shall not be sacrificed, speed
shall not be sacrificed, nothing shall be sacrificed. But when all
things are equal and we have a choice, buy American because then those
public dollars are all going to have an additional benefit of providing
jobs or preserving jobs in the United States of America rather than
going to people overseas.
That is a secondary public purpose. It does not conflict with the
first, but when it can complement the first, Congress says do it that
way. I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, there is an old saying about everybody
is entitled to their opinion, but not everybody is entitled to their
facts. The Department of Defense, to whom we give the responsibility to
carry out the procurement of weapons, says:

These flexibilities--

Which are in the bill--

are needed to counter restrictions that severely impede the
ability of the Department of Defense to promote our national
security policy that calls for standardization and
interoperability of conventional defense equipment used by
U.S. armed forces and used by the armed forces of our allies
and coalition partners. The Department of Defense should have
authority to make exceptions to these restrictions in the
interest of national security comparable to the public
interest exception authorized by the Buy America Act. By
providing these flexibilities, Congress better enables the
Department of Defense to acquire the best equipment and
technology available, promotes improved readiness and
capabilities of the U.S. armed forces, strengthens coalition
warfighting capabilities, promotes competition in contracting
needs of the U.S. armed forces. . . .

Obviously, the Department of Defense has a very different view of the
impact of this legislation than the Senator from Minnesota. My
colleagues can decide where the expertise lies. I yield the floor.
Mr. WARNER. Madam President, I thank my distinguished colleague. We
are ready to vote.
Mr. DAYTON. Madam President, I would like to have one minute to make
a final comment, if I may.
Mr. WARNER. How much time does the Senator need?
Mr. DAYTON. One minute.
Mr. WARNER. Of course.
Mr. DAYTON. I thank the chairman.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. DAYTON. Madam President, I acknowledge this current
administration in charge of the Department of Defense is entitled to
its point of view. I point out my amendment returns us to current law.
That has worked and has given to Secretaries of Defense, including the
present one, discretion to do what the Senator from Arizona described
has already been enacted or put in effect in terms of defense
procurement.
It also, however, says that American jobs are important. At this
point in time when we have lost 2.8 million jobs in this country since
this administration took office, I think this is symptomatic of their
lack of awareness and concern for employing Americans and doing so
whenever possible or putting them back to work. For this Congress and
the Senate to take the position, with 2.8 million people out of work in
the last 2\1/2\ years looking for jobs, exhausting their unemployment
benefits because they cannot find jobs, to say we cannot even be
bothered to try to buy American before we go elsewhere I think is
shameful.
I yield the floor.
Mr. WARNER. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. WARNER. Before we commence the vote, I ask the distinguished
Democratic leader if he would be willing to agree to a firm time
agreement on this vote of 15 minutes to be followed immediately by a
second vote of 10 minutes.
The PRESIDING OFFICER. The Democratic minority whip.
Mr. REID. Reserving the right to object, Madam President, I ask the
Senator to modify his amendment so we would have a vote on the McCain
amendment; regardless of the outcome of the McCain amendment, that will
be followed by a vote on the Dayton amendment; that the McCain
amendment be 15 minutes in length and the Dayton amendment be 10
minutes in length.
Mr. McCAIN. Reserving the right to object, if the pending amendment
prevails, then it prevails. If the pending amendment fails, then we
would be agreeable to a voice vote.
Mr. REID. That may come later. At this stage, the Senator from
Minnesota wishes a recorded vote.
Mr. McCAIN. After his amendment has been second-degreed?
Mr. REID. Yes. The arrangement we worked out--and that is why we
modified the unanimous consent request of the distinguished Senator
from Virginia. Regardless of the outcome of the McCain amendment, we
have asked for a vote on the amendment of the Senator from Minnesota.
Mr. WARNER. That would be 10 minutes?
Mr. REID. That is right.
The PRESIDING OFFICER. Does the Senator from Virginia so modify his
unanimous consent request?
Mr. WARNER. So modified.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to amendment No. 783.
The yeas and nays have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from New Mexico (Mr.
Domenici) is necessarily absent.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards) is necessarily absent.
The PRESIDING OFFICER (Mr. Alexander). Are there any other Senators
in the Chamber desiring to vote?
The result was announced--yeas 50, nays 48, as follows:

[[Page S6827]]

[Rollcall Vote No. 191 Leg.]

YEAS--50

Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee
Chambliss
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeWine
Dole
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Kyl
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nickles
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Warner

NAYS--48

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carper
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Graham (FL)
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Voinovich
Wyden

NOT VOTING--2

Domenici
Edwards

The amendment (No. 783) was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. REID. Mr. President, I ask unanimous consent that the rollcall on
the Dayton amendment be vitiated.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Adoption of the McCain amendment makes the Dayton amendment moot.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, under the order, the Senator from Washington
is to be recognized.
I ask if my understanding is correct, that there will be no more
rollcall votes tonight? Senator Warner and Senator Levin are going to
work to see how much of the bill can be completed tonight--maybe all of
it.
Mr. WARNER. Mr. President, I think that is a bit strong. The
understanding on this side is that we would proceed on into the night.
Quite candidly, I say to colleagues, we are hoping to, one way or
another, either accept the amendments or stack votes tomorrow morning
which would be consistent with the Senator's representation that there
will no further rollcall votes tonight. But tonight many Senators are
going to participate on the floor in the proposal of these amendments
or action on them.
Mr. McCAIN. Mr. President, I ask the Senator from Nevada if we have
all of the amendments from that side which are going to be proposed?
Mr. REID. No. The minority has not offered all the amendments which
they intend to offer. I have kept in very close touch with the two
managers of the bill. They know which amendments we now have.
Mr. WARNER. Mr. President, I think the Democratic leader and I have
pretty well stated the case for the evening.
Mr. REID. Senator Schumer is near ready to offer his amendment. That
will require a vote tomorrow for sure. There are a couple of other
amendments we are working on.
Mr. WARNER. Might I inquire about the amendment of the Senator from
California?
Mr. REID. She has indicated that she will not be ready to vote
tonight. We are going to have to work on that in the morning. The
Senator from California has been working with our manager. We hope to
be able to work something out on that. We don't have that finished yet.
We also have explained to the Senator from Virginia that Senator Byrd
has a problem, and we are going to try to work that out.
Mr. WARNER. Mr. President, I am working on that problem. It is a very
legitimate request. I am working on that tonight.
Mr. REID. Until we get Senator Byrd's problem resolved, we can't have
time for final passage.
Mr. WARNER. The Senator has made that case clear. So far as I know, I
can say for my side, I know of no request at this time for a rollcall
vote. We will work through the amendments this evening.
Mr. LEVIN. Mr. President, will the Senator yield? Do we have a list
of all of the amendments on the Republican side?
Mr. WARNER. I think we are pretty near complete on that list. I have
indicated to my colleagues that by this time they should have brought
the amendments to the managers.
The PRESIDING OFFICER. Under the previous order, the Senator from
Washington is recognized.
Mrs. MURRAY. Mr. President, as many of my colleagues know, I have
come to the floor for 6 of the past 7 years to offer the Murray-Snowe
amendment to lift the restrictions on privately funded abortions for
our military women serving overseas. We have offered this amendment
virtually every year since 1996 with the hope that one day women in the
military would not be required to sacrifice their constitutional right
when they serve overseas.
Since 1996, this amendment has twice passed on the Senate floor only
to be killed during conference. This amendment has always been relevant
and germane, even in postcloture debate. The amendment simply ensures
access to safe and legal reproductive health care for our military
personnel. Access to safe and legal health care is certainly relevant
when discussing the Department of Defense authorization bill.
I find it extremely hard to understand how after these 7 years this
topic is suddenly no longer relevant. It does not make sense. I think
it is an outrage and an insult to the women who serve in our military.
I would never want to have to tell a woman in our Armed Forces who is
risking her life to serve our country overseas that her health care is
irrelevant in the Senate.
The intent of the Defense authorization bill is to ensure that our
military has the resources and support it needs to protect all of us.
The health of our female service members is certainly a key ingredient
in a successful military. Today, women are serving side by side in
combat situations and in hostile war zones. Women are a critical part
of our military. They serve in leadership roles, and they provide
outstanding service. Their health care is relevant. I don't know how
many of my colleagues could come to the floor and argue any
differently.
I thank the cosponsors of the amendment, including Senators Snowe,
Boxer, Cantwell, Collins, Schumer, Jeffords, and Corzine.
My amendment would eliminate the restrictions on privately funded
abortions only. It doesn't change conscience clauses for military
personnel. It doesn't require direct funding, and it would not result
in a huge new mission for military health care.
Under current restrictions, women who volunteer to serve their
country--and female military dependents--are not allowed to exercise
their legally guaranteed right simply because they are serving
overseas. These women are committed to protecting our rights as free
citizens. Yet they are denied one of the most basic rights accorded all
women in this country. Women depend on their base hospital and military
care providers to meet all of their health care needs. Singling out
abortion-related services could jeopardize a woman's health.
The truth is, women serving overseas have very few options when
facing a difficult pregnancy. They can seek care in a host country, but
few countries have the standard of health care that we take for granted
here at home. These women service members can seek leave--not medical
leave--and be transported back to the United States.
These are difficult options which put women's lives in jeopardy. That
is why retired GEN Claudia Kennedy, the Army's first woman three-star
general, supported my amendment. She has firsthand knowledge of women
who face this difficult experience, and she wrote to me about one of
those women. She told me:
[T]hat in a very vulnerable time, this American who was
serving her country overseas could not count on the Army to
give her the care she needed.

The impact of this unconstitutional restriction on women's health is
supported by the American College of Obstetricians and Gynecologists,
the American Medical Women's Association, Physicians for Reproductive
Choice and Health, and the National Partnership for Women and Families.

[[Page S6828]]

In the past, some have argued that allowing privately funded
abortions in military facilities overseas would be a huge burden that
the military couldn't meet.
I wish to point out that the previous administration endorsed my
amendment and saw no problems implementing this policy.
I also add that under current law the military is required to provide
abortion-related services when a woman's life is in jeopardy in the
case of rape or incest. To say that the military cannot provide this
service calls into question that ability to meet current law.
In the past, we have had concerns raised about objections from host
countries. Abortion is illegal in many countries, as is family planning
for unmarried women. In some countries, simply allowing them to drive
can violate local customs and laws.
I think the military has a long tradition of respecting the laws and
customs of host countries without delegating women to second-class
citizenship status or sacrificing our own proud history of equal
treatment under law. Current restrictions humiliate servicewomen by
forcing them to seek the approval of their commanding officer in order
to travel back to the United States for abortion services.
We know from a previous GAO report issued in May of 2002 that many
commanding officers ``have not been adequately trained about the
importance of women's basic health care.'' Department of Defense
officials say that lacking this understanding, some commanders may be
reluctant to allow active-duty members, both women and men, time away
from their duty stations to obtain health care services.
Many women are forced to seek care off the base or wait until leave
can be arranged without approval from a commanding officer.
Many women are forced to delay the procedure for several weeks until
they can travel to a location where safe and adequate care is
available.
I have to tell you, I do not see why lifting this offensive and
dangerous restriction now--this year--is not relevant to a Department
of Defense authorization bill. Isn't it our goal to provide the
resources and support for our military personnel? How can the health
and safety of women who serve in the military all of a sudden be called
not relevant?

I have been told that if I offer this amendment, the Chair is going
to rule it out of in order on the claim it is not relevant, so I have
no choice but to withdraw my amendment.
I do not know how we explain to military servicewomen that their
health care is not relevant or that supporting their access to safe and
legal reproductive health care is somehow now not part of the Defense
authorization bill.
This is a sad day for our country when women who are serving their
country overseas are told their health care is not relevant by the
Senate.
Mr. DORGAN. Will the Senator yield for a question?
Mrs. MURRAY. I am happy to yield for a question.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, I am asking the Senator from Washington to
yield for a question.
Frankly, I am surprised, and I think it is a travesty that you are
not able to offer your amendment. I do not understand on what
legislation this would be relevant if not this legislation. I know you
have offered it previously on the Defense authorization. I have voted
for it on the Defense authorization on previous occasions. And this
seems to me to be the same kind of trap we have discovered now with
respect to the amendment dealing with concurrent receipts for retired
veterans who also have been disabled who are prevented from collecting
both. We are told that is not relevant. My amendment to scrap the 2005
base closing round, we are told that is not relevant.
I wonder if there is any legislation on which these kinds of
amendments would be more relevant than the Defense authorization? It is
where they should be offered. It is the location of this debate. It is
where this debate must be held. Somehow we have gotten into this trap
of being told this is not relevant. Clearly, it is relevant.
So can the Senator from Washington tell me, is there another piece of
legislation where this would be more appropriately offered? I cannot
think of one.
Mrs. MURRAY. The Senator is absolutely correct.
There is no other piece of legislation that is before us where this
is relevant. In fact, I have offered this six times on the Department
of Defense authorization bill, even postcloture, and it was considered
relevant.
I am shocked and amazed that women are being told today they are not
relevant. I am furious that women are being told they are not relevant
when it comes to the Department of Defense, when it comes to their
health care, and when it comes to the Senate.
Mr. DORGAN. If the Senator will yield further for another question,
if you offered this postcloture on previous occasions--it relates to a
question that was asked yesterday--has the judgment about what is
relevant changed here in this Chamber? The answer to that, in my
judgment, is yes. In my judgment, this would have been relevant under
almost any other set of circumstances.
But I wonder if the Senator from Washington would agree with me that
we should never, ever again--I will never, ever again allow a unanimous
consent agreement on the floor of the Senate on an authorization bill
of this type to decide that we will restrict ourselves to relevant
amendments. If the definition of ``relevancy'' is reasonable and
thoughtful, then that is just fine with me, but in this case it has not
been.

It is a travesty of justice that the Senator from Washington is not
able to offer her amendment today. The same is true with concurrent
receipt, and the same is true with base closings. So I would say there
will not be a unanimous consent request that gets consent to say on the
next authorization bill we will limit ourselves only to relevant
amendments.
It is quite clear now the definition of ``relevancy'' has changed in
a way that disadvantages the Senator from Washington and others who
want to offer amendments that are clearly relevant to this bill and
have always been relevant to this bill, but now we are discovering, for
some reason, it has been ruled nonrelevant. I think that is a travesty.
I say to the Senator from Washington, would the Senator agree that
she would want to join those of us who object to these further
unanimous consent requests on future bills with respect to relevancy,
if this is the way ``relevancy,'' if this is the way ``relevant'' is
going to be defined here in the Senate?
Mrs. MURRAY. I hear the Senator, and I absolutely agree. And I will
join with any Senators who object to any bill coming up when the word
``relevant'' is being used.
I have been in public policy for almost two decades now, and
``relevancy'' and ``germaneness'' have meant specific things to all of
us, and we have offered relevant amendments, including the amendment I
meant to offer tonight, and they have always been relevant. They have
been relevant on this bill six times already, even postcloture.
It seems to me now we have a definition for ``relevancy'' that is
above the definition of ``germaneness,'' and that is simply
unbelievable to me. I concur with the Senator, the only thing we have
left is to not agree to any unanimous consent requests that use the
word ``relevancy.''
But I say to my colleague, it seems to me the word ``relevancy'' is
now putting a lot of people into being irrelevant: veterans, when it
comes to concurrent receipt; communities that are trying very hard to
keep stable, when it comes to base closures; and now women--we are all
irrelevant. I find that extremely upsetting.
Mrs. BOXER. Mr. President, will the Senator yield for a question?
Mrs. MURRAY. I am happy to yield to the Senator from California.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. I just want to say to my friend from North Dakota and my
friend from Washington State--who has been such a leader on women's
issues, family issues, and children's issues--and to my friend from
Illinois, who is in the Chamber, who I know is also concerned about
this--this is really the first time I have ever seen a circumstance
quite like this.
When the Senator from North Dakota says it is putting the Senator

[[Page S6829]]

from Washington at a disadvantage, I have a question for the Senator
from Washington.
When the Senator from North Dakota says she is put at a disadvantage,
let me just say it goes far beyond that. Who are being put at a
disadvantage here, I would say, are the women who serve in the Armed
Forces. My God, we lost them in Iraq. We all know the story of Jessica
Lynch. We all revere the men and women in uniform. And in this bill, we
know, unless my friend gets a chance--a chance--to remove a
restriction, a woman in the military who finds herself in a very
troubling situation, who wants to exercise her legal rights, a health
care right that is legal and constitutional--she cannot even use her
own money and have a safe abortion. This is the fact.

I say to my friend, yes, my friend is being inconvenienced, but I
know she stands up for the women in the military tonight. It is a very
sad night to hear that the most relevant of amendments that deals with
women in the military cannot be offered.
I say to my friend--because I will ask her a question--does she not
believe this is a slap from the Senate to the women who are serving so
bravely in uniform?
Mrs. MURRAY. The Senator from California is correct. This is a real
slap in the face to the women who serve us overseas in the military,
who are asked every single day to protect us, to fight for what we
believe in, to fight for our freedoms. They are being told they are
second-class citizens and, worse yet, they are irrelevant in the
Senate.
Mr. DURBIN. Will the Senator yield for a question?
Mrs. MURRAY. I am happy to.
Mr. DURBIN. Mr. President, I asked the Senator if she would yield for
a question.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. It is my understanding that you have not offered this
amendment at this point.
Mrs. MURRAY. I have not offered it yet. I am about to make a request
to do so.
Mr. DURBIN. I would like to ask, on your consent, to be added as a
cosponsor of this amendment, if that meets with your approval, first.
I would like to ask, initially, is it not true that this question of
relevancy has been directed to the Parliamentarian of the Senate?
Mrs. MURRAY. That is correct.
Mr. DURBIN. And you have submitted your amendment to the
Parliamentarian, and they have said it is not relevant to the bill?
Mrs. MURRAY. That is correct. We have submitted it to the
Parliamentarian, who told us it was not relevant. We came back and
worked to try to change the language. We were told it needed to touch
four corners. I don't have a clue what that means, but we were told it
would be ruled irrelevant.
Mr. DURBIN. You offered this amendment to this same bill on six
different occasions?
Mrs. MURRAY. That is correct.
Mr. DURBIN. It appears we either have a new rule or the rule has
changed when it comes to the Department of Defense authorization bill.
Mrs. MURRAY. The rules have definitely changed, I say to the Senator,
because I have offered this amendment postcloture and it has been
considered relevant before.
Mr. DURBIN. If I recall correctly--the Senator can correct me if I am
wrong--but postcloture there would even be a higher standard.
Mrs. MURRAY. That has always been my understanding of the issue of
germaneness and relevancy. So I am at odds with the definitions we have
been presented with at this time.
Mr. DURBIN. The Senator from North Dakota has made it clear, when we
tried to offer an amendment on the Base Closing Commission--which is
included in this bill, incidentally, and which was created by this
bill--it, too, has been judged irrelevant.
I would like to ask the Senator this question: If an amendment is
considered germane, does the Senator not agree with me that it, in most
interpretations, has passed the test of relevancy? Isn't that a lower
standard by parliamentary rule?
Mrs. MURRAY. I have always understood the definition of ``relevancy''
to be a lower standard than the issue of germaneness.
Mr. DURBIN. May I make a parliamentary inquiry of the Chair?
The PRESIDING OFFICER. The Senator will state his inquiry.
Mr. DURBIN. Would the Chair state for the record the standard that is
being used to determine the relevancy of amendments being offered?
Mr. WARNER. I object.
The PRESIDING OFFICER. Objection is not in order.
Mr. WARNER. I apologize to the Chair. I have six things going on at
one time.
Mr. DURBIN. I made a parliamentary inquiry.
The PRESIDING OFFICER. The Senator from Illinois has made a
parliamentary inquiry. The Chair is considering the inquiry. There is a
parliamentary inquiry pending.
This is the test of relevancy:

When relevancy of amendments is required by a unanimous
consent agreement, that test is broader than the germaneness
test as it is a subject matter test, and amendments that deal
with the subject matter of the bill to which this requirement
attaches are in order, provided they do not contain any
significant matter not dealt with in that bill.

Mr. DURBIN. May I ask a further inquiry of the Chair. Could he make
reference to what he has just read.
The PRESIDING OFFICER. From page 1362 of Riddick's Procedures,
footnote 352.
Mr. DURBIN. Might I ask, further parliamentary inquiry, do I
understand what the Chair has just said as a response to my inquiry
that the standard for relevance is higher than the standard of
germaneness?
The PRESIDING OFFICER. No, it is not.
Mr. DURBIN. So if this amendment has been found to be germane
postcloture with previous bills, it would suggest to me it obviously
has met the standard, at least the standard of relevance.
The PRESIDING OFFICER. The Chair would suggest the language in
previous bills is not exactly the same as the language in this bill.
Mrs. MURRAY. Mr. President, reclaiming my right to the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. I find that simply astounding. Department of Defense
bills are essentially language that changes for different military
programs, all kinds of things in the bills. But certainly the issue of
whether or not a woman has a right to have safe and legal health care
overseas when she is serving her country has been ruled as germane in
the past. It seems obviously pretty out of order and extraordinary that
that would be where we are tonight.
Let me just do this, because I think all of us agree this amendment
is one that has been considered on the bill before. It does deal with a
woman's ability to have safe health care. It is one that has been ruled
germane twice in postcloture times. I would just ask unanimous consent
that the rule on relevancy at this time be waived so I can offer the
amendment tonight, because I think it is important that we allow a
procedure that has been done many times before to continue under this
bill.
I ask unanimous consent to do that.
The PRESIDING OFFICER. Is there objection to waiving the unanimous
consent request?
Mr. WARNER. Objection from the Senator from Virginia.
The PRESIDING OFFICER. Objection is heard.
Mrs. MURRAY. Mr. President, I find that very troubling. I find it
troubling the Senate has now decided to change the definition of
relevancy we have operated under in the Senate as long as I have been
here. It appears very clear to me now that the issue of relevancy is a
much higher standard than the issue of germaneness. We have stepped
into a realm most of us are going to be very sorry we are in.

I again will say to my colleagues that having objected to waiving
this relevancy, having listened to how we have now changed the
definition of relevancy, what we are really doing is saying to women in
this country they are irrelevant. I find that to be very sad, Mr.
President.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. May I say to my distinguished colleague from Washington
that I recognize through the years she has been a steadfast proponent
for those women in the armed services faced with the difficult choice
you have

[[Page S6830]]

outlined to the Senate tonight. I express regret, but the distinguished
ranking member and myself have been, throughout the deliberations on
this bill, not acting in any way as the Supreme Court to overrule the
ruling of the Parliamentarian on these amendments. We have tried to be
fair, equitable on both sides. We have not waived one time. It is with
regret that I had to interpose this objection because I recognize the
merits of the amendment which you have had. You have done it now how
many years, Senator?
Mrs. MURRAY. Seven years.
Mr. WARNER. Seven years.
Mrs. MURRAY. Mr. President, will the Senator yield for a question?
Mr. WARNER. Yes, indeed.
Mrs. MURRAY. I ask the Senator from Virginia, what I am having
trouble understanding is why an amendment that has been considered
germane in the past tonight under the ruling is not considered
relevant. I would ask the Senator from Virginia if he is not also
troubled that we have now set a definition for relevancy that is higher
than the standard for germaneness that may indeed trouble us far into
the future?
Mr. WARNER. Mr. President, I respond to my colleague, with all due
respect, I will not try and engage in an evaluation of how the
Parliamentarian goes about the votes; that is, determining whether or
not each amendment is relevant. But I would say I do not recall in
years past the issue of relevancy having been raised on the Senator's
amendment. I stand to be corrected.
Mrs. MURRAY. Mr. President, if I could just respond to the Senator,
this amendment I am offering tonight in the past has been ruled in
postcloture as germane. I am now tonight being told it is not relevant.
Mr. WARNER. It depends on the content of the bill to which that
ruling was addressed.
Mrs. MURRAY. I would add this amendment has been offered seven times,
virtually every year since 1996, on this exact bill, the Department of
Defense authorization.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, let me try to understand this a bit, what
the circumstances are. My understanding is the Senator from Washington
has propounded a unanimous consent request that has been objected to
that would have allowed her to offer her amendment notwithstanding the
ruling on relevancy. My understanding is this amendment is now viewed
as nonrelevant to this bill, despite the fact it has been offered seven
times before. If it is nonrelevant to the Defense authorization bill, I
would like to ask the Chair what would be the circumstances in the
Senate from a parliamentary standpoint if the Senator from Washington
offered this amendment to the Defense appropriations bill? In a moment
I would like to get a response if I could because there are two bills
that come to the floor of the Senate that we know each year are going
to deal with the issue of defense. One is the Defense authorization
bill, and the other will be Defense appropriations. If this is deemed
nonrelevant to the Defense authorization bill, I would ask the
Presiding Officer whether the amendment could be offered to the Defense
appropriations bill without a point of order being made?
The PRESIDING OFFICER. It is not possible to prejudge a ruling when
the content of a bill is not before us.
Mr. DORGAN. Let me inquire further, if I might. Would this amendment,
based on the knowledge of the Parliamentarian about the amendment,
would this amendment be considered legislating on an appropriations
bill should it be offered to an appropriations bill?
The PRESIDING OFFICER. We do not have the amendment in front of us
because the Senator has not called it up.
Mr. DORGAN. To the extent the Office of the Parliamentarian has ruled
the amendment nonrelevant, my assumption is the Office of the
Parliamentarian has certainly understood the amendment, reviewed it,
and determined it to be nonrelevant.
If that is the case, if the Office of the Parliamentarian understands
the amendment, my question remains, if this amendment is offered during
consideration of Defense appropriations, would there be a point of
order against the amendment as legislating on an appropriations bill?
The PRESIDING OFFICER. It is probably a legislative amendment.
Mr. DORGAN. Mr. President, that means if it is a legislative
amendment on an appropriations bill, there would be a point of order
against it; is that the case?
The PRESIDING OFFICER. It is possible a point of order would lie.
Mr. DORGAN. So a point of order could be raised that would lie
against the amendment because it is then legislating on an
appropriations bill. If that is the case, as I understand the answer
from the Chair, we are in a circumstance where we have told the Senator
from Washington that her amendment dealing with an important issue--
clearly to the center of this bill on Defense--cannot be offered on the
Defense authorization bill because it is not relevant to the Defense
authorization bill.
Then the Senator would be told later, when she tries to offer it to
the Defense appropriations bill, this is legislating on a Defense
appropriations bill and a point of order would rise against it. Why?
Because she should have offered it to the authorization bill.
Can someone tell me whether that is not a Catch-22 for the Senator
from Washington and others? Have we not put her and others in a
circumstance where they are prevented from offering this amendment
under every circumstance? Isn't that the case? We say to her, you
cannot offer it on the authorization bill. So then she comes to the
Defense appropriations bill and offers it. The point of order is
raised, and the point of order says, you know what, you cannot offer it
on appropriations. You should have offered it on the authorization
bill.
That is what the Senator from Washington is going to be told. I just
ask the rhetorical question, Does anybody in the Chamber think that is
fair? Not me.
I know there wasn't a deliberate attempt for anybody to be unfair,
but I make the point that the consent request entered into with respect
to this issue of relevancy has put people in a position--especially
Senator Reid, myself, and Senator Murray from Washington on this
issue--that is pretty untenable. But that is the position we are in.
I think the way to get out of it is to understand that somehow these
things could be offered, or should be offered, and a unanimous consent
be allowed for these issues to be debated and voted on. I cannot
believe it would have been the intent of my colleague from Virginia, or
the ranking member from Michigan, to say we want to prevent an
amendment that has been offered seven times previously to this bill,
which we all understand is clearly relevant to the bill.
Again, I say as I said yesterday, the folks who understand this
process from our side were very surprised at the issue of relevancy and
how the rulings on relevancy occurred. I know yesterday during this
discussion a question was propounded by my colleague from Virginia, the
chairman, to the Presiding Officer to ask whether the standard of
relevancy has changed. And the answer was, no, it has not.

That is not accurate. It clearly has changed. My colleague from
Washington is evidence of that. If her amendment was germane
postcloture previously, then her amendment, by definition, had to have
been relevant postcloture. And if it is relevant then, and it is not
relevant now, the standard has changed.
I don't think that was the intention of the chairman or ranking
member with respect to her amendment--mine or any other amendment. I am
not asking or suggesting bad faith on anybody's part, but we have an
unintended consequence. If an unintended consequence says to the
Senator from Washington, I am sorry, you cannot offer your amendment on
the authorization bill, and when you try it later--as she will and
must--on the appropriations bill, she will be told she should have
offered it on the authorization bill, that puts her in a position that
is unfair.
I yield the floor.
Mr. DURBIN. Parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. DURBIN. Mr. President, I would like to ask for clarification
because I

[[Page S6831]]

think this is an important question. If you would provide a response to
the following parliamentary inquiry, it is my understanding--in fact, I
have the amendment before me that has been suggested by the Senator
from Washington. This is an amendment that relates to the use of
Department of Defense medical facilities, and it amends section 1093 of
title X of the U.S. Code, as amended.
Now, if the Chair would just take legislative notice of the bill, S.
1050, and turn to page 157, you will see title VII, ``Health Care.''
Now, if you turn to page 10, you will find in section 703 an
amendment--language within the authorization bill relative to extension
of authority to enter into personal service contracts for health care
services to be performed at locations outside medical treatment
facilities. It goes on to amend section 1091(a)(2) of title X. Here we
have an amendment relative to health care, relative to the medical
treatment facilities managed by the Department of Defense, which seeks
to amend section 1093.
Already in this provision of the bill, we amend section 1091. Can the
Chair tell me how we can amend the same section of the law relative to
medical treatment facilities, and the amendment being offered by the
Senator from Washington not be a relevant amendment? It is in the same
section relative to health care, on the subject of health care. It
relates to Defense medical facilities, as do many of the amendments
within that section.
Yet the Chair is telling us it is not relevant language to this
section of the pending bill, which the Senator from Washington seeks to
amend.
The PRESIDING OFFICER. The Chair is considering the inquiry.
The point is whether the issue presented by the Senator's amendment
is addressed in the bill, which it is not.
Mr. DURBIN. Further parliamentary inquiry.
The issue being addressed by the Senator from Washington is the
treatment afforded at Defense medical facilities. If the Chair will
note in section 703 of the bill, it relates to the treatment afforded
at Defense medical facilities. How much more relevant could this be?
The PRESIDING OFFICER. The advice given on this were preliminary
rulings, subject to further information, based upon information
available at the time the amendment was presented.
The Chair is not aware that this argument has ever been presented to
the Parliamentarian's Office. The burden would be on the sponsors to
make that case.
Mr. DURBIN. Further inquiry: If the Senator from Washington should
submit this amendment now, will it then be incumbent upon the Chair and
the Parliamentarian to rule on its relevancy?
The PRESIDING OFFICER. The ruling would only be made if the amendment
is challenged under the unanimous consent request. The Senator from
Washington--
Mr. LEVIN. Will the Senator yield?
Mr. DURBIN. Yes.
Mr. LEVIN. Mr. President, if this amendment is presented at this time
to the Parliamentarian, will we obtain a ruling as to whether or not it
is relevant?
Is there any reason why the request of the Parliamentarian, relative
to this amendment as to whether or not it is relevant, cannot be
responded to by the Parliamentarian at this time or at any time?
The PRESIDING OFFICER. If a ruling is requested, a ruling will be
issued.
Mr. LEVIN. I thank the Chair.
The PRESIDING OFFICER. The Senator from Washington.

Amendment No. 691

Mrs. MURRAY. Mr. President, I send my amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Washington [Mrs. Murray], for herself, Ms.
Snowe, Ms. Boxer, and Ms. Cantwell, proposes an amendment
numbered 691.

The amendment is as follows:

(Purpose: To restore a previous policy regarding restrictions on use of
Department of Defense facilities)

At the end of title VII, add the following:

SEC. 708. RESTORATION OF PREVIOUS POLICY REGARDING
RESTRICTIONS ON USE OF DEPARTMENT OF DEFENSE
MEDICAL FACILITIES.

Section 1093 of title 10, United States Code, is amended--
(1) by striking subsection (b); and
(2) in subsection (a), by striking ``Restriction on Use of
Funds.--''.

The PRESIDING OFFICER (Mr. Coleman). The Senator from Virginia.
Mr. WARNER. Mr. President, I suggest the absence of a quorum to allow
time in which the Parliamentarian can examine the amendment.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. REID. Mr. President, Senator Murray is waiting for a ruling from
the Chair on her parliamentary inquiry.
In the meantime, I ask unanimous consent that Senator Carper be
recognized to speak for up to 10 minutes, and that following his
speech, the Senator from Washington be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Delaware.
Mr. CARPER. Mr. President, I thank the assistant Democratic leader.
Mr. President, in considering the military priorities of our country,
we are addressing one of the most important challenges facing our
Nation and its Government. That challenge is to transform America's
military to meet the threats of this century the 21st century, and to
do so in an environment of increasingly severe budgetary constraints.
The spectrum of potential conflict in which America could find itself
engaged over the coming years is practically limitless. From fighting
major regional powers to pursuing shadowy bands of terrorists, the
missions our military must be ready to perform are many, and they are
varied.
Unfortunately, the resources available to us in preparing to meet
these challenges are not without limit.
What was the largest surplus in the history of this Government just 2
short years ago has given way to the largest deficit in our Nation's
history. And this has happened at a time when the demands on the
Federal budget are growing and will continue to grow.
Recent reports out of Iraq indicate that the task of post-war
reconstruction will be neither easy nor cheap. Recent events in Saudi
Arabia and Morocco indicate that the war on terrorism may still be in
its infancy.
There are also domestic priorities that demand attention. The
bipartisan education reform initiative passed in the first year of the
President's term has yet to be fully funded. There is a growing
recognition that our health care system is fraying at the seams. And
the baby boomers, my generation, are marching toward retirement. When
they get there, it will place unprecedented strains on Social Security
and Medicare.
Our present course is not sustainable. We will soon be asked to raise
the ceiling on the national debt by nearly $1 trillion. At the same
time, the administration is projecting that within 5 years funding for
defense will rise to more than 20 percent above cold-war levels. Even
at that high level, moreover, it is doubtful that the defense budget
could accommodate the full cost of the administration's plans as they
currently stand.
This is our dilemma. We cannot afford to forego military
transformation. The threats to our security are simply too great. But
neither can we afford to proceed without consideration to cost. After
all, it is our quality of life that the military is charged with
defending. It is that same quality of life that will eventually begin
to erode in the absence of a sense of fiscal balance.
What I want to talk about for a few minutes this evening is one of
the central components of military transformation. I want to talk both
about its importance and about some of the choices we can make to
address our security requirements in this area in a cost-effective
manner.
Strategic airlift will be one of the cornerstones of successful
military transformation. The imperative to transform our military is
driven by the necessity to project force faster, with

[[Page S6832]]

greater precision, and over greater distances. As President Bush stated
in his commencement address at the U.S. Naval Academy in May 2001,
America's future force will be ``defined less by size and more by
mobility and swiftness.''
In the wake of the cold war, the United States has closed two-thirds
of its forward operating bases. Yet the four services are all in the
process of speeding up the timeframe in which they expect to deploy
troops and equipment to the far corners of the globe.
The Army's stated goal, for example, is to deploy an Interim Brigade
Combat Team--complete with 3,500 personnel, 327 armored vehicles, 600
wheeled vehicles, air defense weapons, artillery, and engineering
equipment--anywhere in the world within 96 hours. Airlift is the only
means to accomplish this objective.
In March 2001, the Joint Chiefs of Staff completed a review of our
Nation's strategic airlift requirement. This study was completed before
September 11 and all that has flowed from that terrible day. Still, the
conclusion of that study was that the Nation's airlift requirement had
risen 10 percent sine the last study was conducted just 5 years before.
Many believe that the changed security environment post-September 11
has actually increased our strategic airlift requirement still farther.
We are requesting, as part of this bill, that a new review of the
strategic airlift requirement going forward be conducted. We expect
that what we will find is that the airlift requirement is higher than
the 54.5 million ton miles per day specified before September 11.
Regardless of whether the requirement has risen or not, however, the
fact remains that our present capacity falls short of the requirement
as it was spelled out just 2 years ago. The question we must answer,
therefore, is how will we maintain and how will we build a strategic
airlift fleet that will meet the relevant requirement and do so without
busting our budget even more. In other words, how do we provide cost-
effective strategic airlift for the 21st century?
Some of the Air Force have launched a campaign to retire more than
half of the Air Force's C-5 fleet over the next few years, specifically
those that date back to the 1970s, the C-5As. Maintenance problems,
particularly engine problems, have plagued the C-5As for years. The
solution for some in the Air Force is to simply get rid of them and to
rely primarily on the procurement of new aircraft to meet our growing
strategic airlift requirement.
In order to meet the new, higher requirement for strategic airlift in
the 21st century, we will certainly need to purchase new aircraft. The
Air Force is currently in the process of purchasing some 180 new C-17s.
I support this purchase. The C-17 is an excellent aircraft, and we are
excited that a squadron of 12 C-17 cargo aircraft will be stationed at
Dover Air Force Base in Delaware beginning in 2008.
Having said that, sending more than half of our Nation's C-5 fleet to
the ``boneyard'' makes no sense. The C-5 is, and will continue to be,
the workhorse of American airlift. The C-5 completed nearly 5,000
sorties during the recent Iraq war and delivered nearly half of the
cargo and troops into combat.
Moreover, a balance of C-5s and C-17s offers the Air Force an
advantageous mix of complementary capabilities. The C-5 can carry more,
and can carry farther. The C-17 is more maneuverable on the ground.
During the war in Afghanistan, much of the cargo was flown from the
continental United States to Europe in large loads aboard C-5s. The
cargo was then broken down into smaller loads and flown into theatre by
C-17s.
As a former naval flight officer who has known firsthand the
frustration of naval aircraft that had a propensity to break down, I
can empathize with the frustration that some in the Air Force feel with
respect to the C-5As chronically low mission-capable rates. But
scrapping the entire platform is not the answer.
The wings and the fuselages of both the C-5As and the C-5Bs have
useful lives--listen to this--of another 30 to 40 years. For the cost
of purchasing a single new C-17 cargo aircraft, three C-5s can be
outfitted with reliable new engines, modern hydraulics systems, and
landing gear components, plus a new avionics package and radios that
will bring C-5 cockpits into the 21st century.
All of these upgrades are off the shelf. They are readily available,
and they are capable of bringing the mission capable rates of the C-5s
in line with those of the C-17s.
Given the fact that one C-5 can haul 80 percent more cargo than one
C-17, the same dollar invested in modernizing C-5s produces more than
five times the airlift capacity of the same dollar invested in the
purchase of new C-17 aircraft.
A strategic airlift fleet with a full complement of C-5s and C-17s
offers the best of all worlds. Retaining the enormous cargo capacity of
our C-5s, both As and Bs, will make it easier to achieve the full
airlift requirement of our Armed Forces in the 21st century.
Maintaining a healthy balance of C-5s and C-17s will offer the Air
Force maximal operational flexibility. And taking full advantage of the
cost savings that comes from modernizing, as opposed to scrapping, the
C-5As will free-up resources to meet other Air Force priorities and
reduce our Federal deficit over the long run.
Choices that are more cost-effective by ratios of 5-to-1 are
precisely the kinds of choices we ought to be interested in making as
we seek to transform our military without burying our children in red
ink.
I want to take a moment, in closing, to thank a number of members of
the Armed Services Committee. I particularly thank Senators Warner,
Levin, Kennedy, and Talent for the work they have done to ensure that
we continue to capitalize on the contribution that the C-5 can make to
cost-effective strategic airlift in the 21st century. Besides calling
on the Air Mobility Command to look again at our Nation's airlift
requirement, this bill keeps C-5 modernization on track. In particular,
it specifies that 18 C-5Bs and 12 C-5As will be revamped with modern
avionics in fiscal year 2004.
This is a win--a win for our fighting men and women, and it is a win
for the American taxpayer.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I wish to commend our distinguished
colleague from Delaware. He has worked very diligently on this issue
since the first moment he joined the Senate. You have been very helpful
to the distinguished ranking member and myself in bringing these
matters to our attention and to other members of the committee. I think
the Department of the Air Force and indeed the whole Armed Forces that
are so heavily dependent on airlift owe you a debt of gratitude.
The PRESIDING OFFICER. Under the previous order, the Senator from
Washington is recognized.
Mr. LEVIN. Mr. President, will the Senator yield?
Mrs. MURRAY. I yield for 30 seconds.
Mr. LEVIN. I join in the commendation to the Senator of Delaware for
his tenacity in keeping airlift available.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, I understand the Senate is waiting for a
ruling from the Parliamentarian of the relevancy of the amendment I
sent to the desk and I ask if that ruling is ready.
The PRESIDING OFFICER. It is the opinion of the Chair, with the
additional information provided, the Senator's amendment is relevant.
The Democratic whip.
Mr. REID. Mr. President, I have had a conversation with the Senator
from Washington. She would be willing to enter into a reasonable time
agreement. She would want to complete that debate tomorrow, however, in
that the hour is late and she has spent so much time here already. I
would be happy to work with the two managers of the bill to come up
with a reasonable time she can debate this in the morning and have a
vote on it in the morning.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. My understanding is you are not making a request, you are
just advising the Chair and the Senate. I wish to, in courtesy, advise
you I know of at least one amendment in the second degree and there
could be two.
Mr. LEVIN. Would the Senator yield? Who has the floor?
The PRESIDING OFFICER. The Senator from Michigan.

[[Page S6833]]

Mr. LEVIN. I am wondering whether we will have the language of those
amendments or amendment this evening?
Mr. WARNER. Mr. President, I would have to inquire of the language of
the amendments.
Mr. LEVIN. Any second-degree amendment.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I would like to make two comments in
morning business, not on the bill. I want to leave it to the Senators
from Virginia and Michigan if there is anything they want to do on the
bill this evening.
Mr. WARNER. Mr. President, we are endeavoring to do a good deal of
work on the bill this evening. I don't know the duration of the time
the Senator wishes.
Mr. DURBIN. I ask for 5 minutes in morning business.
Mr. WARNER. As soon as we are able to conclude the matters relating
to the amendment of the Senator from Washington, I can better answer
the question.
Mr. President, I wish to advise my colleagues on our side we, of
course, had relied upon the previous ruling of the Parliamentarian.
Therefore, these amendments are not yet ready.
Mr. LEVIN. Would the Senator yield?
Mr. WARNER. Yes.
Mr. LEVIN. Do you expect they would be ready tonight if we are here
for an additional half hour?
Mr. WARNER. I think there is an opportunity they could be ready. We
are checking.
The PRESIDING OFFICER. The Democratic whip.
Mr. REID. We would be willing to enter into a time agreement if we
saw the amendments and they were reasonable and we thought we could do
that. But not having them, we can't do that. The Senator from
Washington, if there would have been an up-or-down amendment, would
have agreed to a 40-minute time limit evenly divided.
Mr. WARNER. Do I understand the distinguished leader to say 40
minutes equally divided?
Mr. REID. That is right. I would note we have very few amendments.
Senator Dodd has one. Senator Daschle has one. Senator Boxer has one we
have already discussed, and Senator Biden has one. We have very few
amendments. Some of these may be worked out by the managers. The
Daschle amendment, as we have indicated, would be 20 minutes evenly
divided. The Schumer amendment has been declared not relevant so we
can't take that up. The Boxer amendment, we agreed to a one-hour time
agreement on that. Both managers know what that amendment is. Senator
Biden has agreed to 30 minutes on his amendment if it is not agreed to.
Mr. WARNER. Mr. President, I am informed we have not seen the Boxer
amendment.
Mr. REID. Well, she was showing it to anybody who wanted to look at
it.
Mr. LEVIN. Mr. President, let us try to obtain a copy of that
amendment, if I could ask the Senator from Nevada.
Mr. WARNER. I think it would be best served if we put in a quorum
call so we can try and put the pieces together.
Mr. President, as I understand, the distinguished Senator from
Illinois wishes to address the Senate as in morning business for 7
minutes.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, my thanks to the Senators from Virginia
and Michigan for accommodating me. I thank the Parliamentarian. I have
been in a similar position in another legislative body. It is a tough
assignment. I thank them for their courtesy and diligence and the
ruling they have offered to us.
(The remarks of Mr. Durbin are printed in today's Record under
``Morning Business.'')
Mr. DURBIN. Mr. President, I am prepared to yield the floor, but I
would like to give the Senator from Virginia or any other Senator on
the floor an opportunity to claim the time. Otherwise, I will raise the
question of the presence of a quorum.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I have conferred with the two managers--I
was going to say more than I wanted to, but I will not say that, but I
conferred with the two managers often tonight, and it appears the
Senate will be best served by clearing a number of amendments that the
two managers have worked on for several days now. They have
approximately a dozen amendments. They would do that tonight.
I put this in the form of a unanimous consent request: that tomorrow
morning, when the Senate convenes, after the prayer and the pledge, we
would move to the Boxer amendment, which is a post-Iraq war contracting
matter, and that there would be 45 minutes of debate on that
amendment--30 minutes under the control of Senator Boxer, 15 minutes
under the control of Senator Warner--and in keeping with the usual
unanimous consent request for second-degree amendments that we have
done throughout the day; and that following that, we could move to
perhaps the Daschle amendment, perhaps the Dodd amendment.
We are really getting few amendments over here. We all recognize we
have to dispose of the relevant amendment that Senator Murray filed
this afternoon. And Senator Brownback, Senator Warner, and others will
work on that tonight to see what is contemplated regarding that
tomorrow.
So the only unanimous consent request I make tonight is that in the
morning we go to the Boxer amendment in keeping with the request I just
made.
Mr. WARNER. Mr. President, reserving the right to object, could I
have just another 3 minutes to determine if there is a problem on our
side with that? And I regret that I could not tell you before you
started.
Mr. REID. I suggest the absence of a quorum.
Mr. WARNER. Fine. Thank you.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I know colleagues and others are following
the proceedings on the floor tonight. We have been able to achieve
quite a good deal. As the distinguished Democratic leader mentioned, we
will proceed now to 12 amendments which have been cleared on both
sides.

Amendment No. 792

Mr. WARNER. Mr. President, on behalf of myself, I offer an amendment
which realigns funds during the committee markup for the Joint
Engineering Data Management Information and Control System from the
Navy procurement to the Navy research development, test and evaluation
accounts. I believe this amendment is cleared on the other side.
Mr. LEVIN. Mr. President, it is indeed cleared.
Mr. WARNER. I urge the Senate to adopt the amendment.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Virginia [Mr. Warner] proposes an
amendment numbered 792.

The amendment is as follows:

(Purpose: To correct the authorization of appropriations for the Joint
Engineering Data Management Information and Control System (JEDMICS) so
as to be provided for in Navy RDT&E (PE 0603739N) instead of Navy
procurement)

On page 25, between lines 11 and 12, insert the following:

SEC. 213. AMOUNT FOR JOINT ENGINEERING DATA MANAGEMENT
INFORMATION AND CONTROL SYSTEM.

(a) Navy RDT&E.--The amount authorized to be appropriated
under section 201(2) is hereby increased by $2,500,000. Such
amount may be available for the Joint Engineering Data
Management Information and Control System (JEDMICS).
(b) Navy Procurement.--The amount authorized to be
appropriated under section 102(a)(4) is hereby reduced by
$2,500,000, to be derived from the amount provided for the
Joint Engineering Data Management Information and Control
System (JEDMICS).

The PRESIDING OFFICER. Is there further debate on the amendment?
If not, without objection, the amendment is agreed to.

[[Page S6834]]

The amendment (No. 792) was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. LEVIN. Mr. President, I ask unanimous consent that the pending
amendment be set aside for the duration of this and all other
amendments which Senator Warner and I are offering this evening.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 793

Mr. LEVIN. Mr. President, on behalf of Senators Wyden, Collins,
Clinton, Byrd, and Lautenberg, I offer an amendment which requires a
report on contracting for the reconstruction of Iraq.
Mr. WARNER. Mr. President, this amendment has been cleared.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Wyden, Ms.
Collins, Mrs. Clinton, Mr. Byrd, and Mr. Lautenberg, proposes
an amendment numbered 793.

The amendment is as follows:

(Purpose: To provide for the reporting requirement regarding Iraq to
include a requirement to report noncompetitive contracting for the
reconstruction of the infrastructure of Iraq)

On page 273, between lines 20 and 21, insert the following:
(d) Reporting Requirement Relating to Noncompetitive
Contracting for the Reconstruction of Infrastructure of
Iraq.--(1) If a contract for the maintenance, rehabilitation,
construction, or repair of infrastructure in Iraq is entered
into under the oversight and direction of the Secretary of
Defense or the Office of Reconstruction and Humanitarian
Assistance in the Office of the Secretary of Defense without
full and open competition, the Secretary shall publish in the
Federal Register or Commerce Business Daily and otherwise
make available to the public, not later than 30 days after
the date on which the contract is entered into, the following
information:
(i) The amount of the contract.
(ii) A brief description of the scope of the contract.
(iii) A discussion of how the executive agency identified,
and solicited offers from, potential contractors to perform
the contract, together with a list of the potential
contractors that were issued solicitations for the offers.
(iv) The justification and approval documents on which was
based the determination to use procedures other than
procedures that provide for full and open competition.
(B) Subparagraph (A) does not apply to a contract entered
into more than one year after date of enactment.
(2)(A) The head of an executive agency may--
(i) withhold from publication and disclosure under
paragraph (1) any document that is classified for restricted
access in accordance with an Executive order in the interest
of national defense or foreign policy; and
(ii) redact any part so classified that is in a document
not so classified before publication and disclosure of the
document under paragraph (1).
(B) In any case in which the head of an executive agency
withholds information under subparagraph (A), the head of
such executive agency shall make available an unredacted
version of the document containing that information to the
chairman and ranking member of each of the following
committees of Congress:
(i) The Committee on Governmental Affairs of the Senate and
the Committee on Government Reform of the House of
Representatives.
(ii) The Committees on Appropriations of the Senate and the
House of Representatives.
(iii) Each committee that the head of the executive agency
determines has legislative jurisdiction for the operations of
such department or agency to which the information relates.
(3) This subsection shall apply to contracts entered into
on or after October 1, 2002, except that, in the case of a
contract entered into before the date of the enactment of
this Act, paragraph (1) shall be applied as if the contract
had been entered into on the date of the enactment of this
Act.
(4) Nothing in this subsection shall be construed as
affecting obligations to disclose United States Government
information under any other provision of law.
(5) In this subsection, the terms ``executive agency'' and
``full and open competition'' have the meanings given such
terms in section 4 of the Office of Federal Procurement
Policy Act (41 U.S.C. 403).

Ms. COLLINS. Mr. President, my colleague from Oregon, Senator Wyden,
and I have offered this amendment that will pull back the curtain on
government contracts to rebuild post-war Iraq, one of the most
ambitious reconstruction projects since World War II.
The government already has awarded numerous contracts towards this
purpose. These contracts provide for an enormous scope of goods and
services ranging from capital construction to the administration of key
air and sea port facilities to the rebuilding of Iraq's education and
health systems. One contract even provides for such fundamentals as
teaching local leaders about the basics of the democratic process.
In all, billions of Federal taxpayer dollars are being spent. It is
Congress's job to ensure that they are spent wisely and fairly.
Our amendment would ensure that the basic facts regarding these and
other contracts for the rebuilding of Iraq are publicly available. For
those contracts that have been awarded outside of the usual process of
full and open competition, our amendment would require that, within 30
days of entering the contract, the contract's price, the scope of the
work to be performed, the contractors asked to bid, and the criteria by
which they were chosen must be made known, through publication in the
Federal Register.
In addition, the agency head also would need to make publicly
available the justification for awarding the contract on a basis less
than the full and open competition standard.
These provisions have become necessary because of the way in which
Federal agencies contracting for goods and services in Iraq have been
awarding these contracts.
Not a single Iraq reconstruction contract has been awarded on the
basis of ``full and open competition'' embodied in the 1984 Competition
in Contracting Act, whereby interested parties are notified and given a
chance to bid. The rationale for this standard was not only to provide
basic fairness for all potential bidders, but also to reassure the
public that their tax dollars were being spent wisely and in the public
interest.
Instead, these contracts have either been awarded on the basis of
limited competition, where the bidders are handpicked, or, in some
cases, without any competition at all.
The agencies involved generally have singled out a small number of
bidders based on the agency's preconceived notions about the bidders'
ability to perform the contract. Such a process, we are told, was
necessitated by the short time frame in which the contracts had to be
planned and awarded.
Such a process, however, necessarily raises questions regarding
fundamental fairness and impartiality and whether tax money is being
spent in a responsible manner. Because we don't have all of the facts
regarding these contracts, speculation has arisen over their content,
their price tags, and the basis of their awards.
For example, I was distressed to learn that a sole source contract
entered into by the United States Army Corps of Engineers called for
much more work to be performed than was initially indicated. This is
because the Corps only released the information that it deemed
relevant. Under our amendment, the public will be able to judge for
itself whether the government was justified in awarding a contract
bundle on less than full competition. The public deserves no less.
At the same time, we have included in our amendment provisions to
ensure that classified material remains safe and is provided only to
congressional committees with oversight authority.
It is my hope that the publication of the key information in these
contracts will serve some of the same goals as the Competition in
Contracting Act, such as reassuring the public that reconstruction in
Iraq is being done in a fair manner and in furtherance of the public
interest.
Alternatively, keeping these justifications secret defeats the legal
safeguards that protect full and open competition. Further, it breeds
what may be unjustified fear that the contracting process is being run
for the benefit of a select few rather than the Iraqi people.
Ensuring that this information is available to the public will help
maintain confidence that our work in rebuilding Iraq is being
undertaken in a manner best calculated to advance the well-being of the
Iraqi people, and will help dispel criticisms that the process by which
these contracts are being awarded is unfair or unjustified.
I want to thank the distinguished chair and ranking member of the ASC

[[Page S6835]]

for working with Senator Wyden and me on this amendment, which I
understand will be made part of the manager's package.
The PRESIDING OFFICER. Is there further debate on the amendment?
If not, without objection, the amendment is agreed to.
The amendment (No. 793) was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 794

Mr. WARNER. Mr. President, on behalf of Senator McCain, I offer an
amendment which makes the necessary technical changes to the National
Call to Service Act which was enacted last year. This amendment, which
was requested by the Department of Defense, will enable DOD to make
payments for education benefits to volunteers under this program from
the DOD education benefits program. This amendment has been cleared on
the other side.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Virginia [Mr. Warner], for Mr. McCain,
proposes an amendment numbered 794.

The amendment is as follows:

(Purpose: To provide for the funding of education assistance enlistment
incentives to facilitate National service through Department of Defense
Education Benefits Fund)

On page 109, between lines 9 and 10, insert the following:

SEC. 535. FUNDING OF EDUCATION ASSISTANCE ENLISTMENT
INCENTIVES TO FACILITATE NATIONAL SERVICE
THROUGH DEPARTMENT OF DEFENSE EDUCATION
BENEFITS FUND.

(a) In General.--Subsection (j) of section 510 of title 10,
United States Code, is amended to read as follows:
``(j) Funding.--(1) Amounts for the payment of incentives
under paragraphs (1) and (2) of subsection (e) shall be
derived from amounts available to the Secretary of the
military department concerned for the payment of pay,
allowances and other expenses of the members of the armed
force concerned.
``(2) Amounts for the payment of incentives under
paragraphs (3) and (4) of subsection (e) shall be derived
from the Department of Defense Education Benefits Fund under
section 2006 of this title.''.
(b) Conforming Amendments.--Section 2006(b) of such title
is amended--
(1) in paragraph (1), by inserting ``paragraphs (3) and (4)
of section 510(e) and'' after ``Department of Defense
benefits under''; and
(2) in paragraph (2), by adding at the end the following
new subparagraph:
``(E) The present value of future benefits payable from the
Fund for educational assistance under paragraphs (3) and (4)
of section 510(e) of this title to persons who during such
period become entitled to such assistance.''.

Mr. WARNER. I urge adoption of the amendment.
Mr. LEVIN. Would the Presiding Officer hold for one moment.
The amendment is agreed to on this side.
The PRESIDING OFFICER. Is there further debate on the amendment.
If not, without objection, the amendment is agreed to.
The amendment (No. 794) was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 795

Mr. WARNER. Mr. President, on behalf of Senator Roberts, I offer an
amendment to enhance defense contracting opportunities for persons with
disabilities. I believe this amendment has been cleared on both sides.
Mr. LEVIN. The amendment has been cleared. I urge the Senate to adopt
it.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Virginia [Mr. Warner], for Mr. Roberts,
proposes an amendment numbered 795.

The amendment is as follows:

(Purpose: To enhance the defense contracting opportunities for persons
with disabilities)

On page 81, strike lines 12 and 13, and insert the
following:

SEC. 368. CONTRACTING WITH EMPLOYERS OF PERSONS WITH
DISABILITIES.

On page 82, between lines 19 and 20, insert the following:
(e) Demonstration Projects for Contractors Employing
Persons With Disabilities.--(1) The Secretary of Defense may
carry out two demonstration projects for the purpose of
providing opportunities for participation by severely
disabled individuals in the industries of manufacturing and
information technology.
(2) Under each demonstration project, the Secretary may
enter into one or more contracts with an eligible contractor
for each of fiscal years 2004 and 2005 for the acquisition
of--
(A) aerospace end items or components; or
(B) information technology products or services.
(3) The items, components, products, or services authorized
to be procured under paragraph (2) include--
(A) computer numerically-controlled machining and metal
fabrication;
(B) computer application development, testing, and support
in document management, microfilming, and imaging; and
(C) any other items, components, products, or services
described in paragraph (2) that are not described in
subparagraph (A) or (B).
(4) In this subsection:
(A) The term ``eligible contractor'' means a business
entity operated on a for-profit or nonprofit basis that--
(i) employs not more than 500 individuals;
(ii) employs severely disabled individuals at a rate that
averages not less than 33 percent of its total workforce over
a period prescribed by the Secretary;
(iii) employs each severely disabled individual in its
workforce generally on the basis of 40 hours per week;
(iv) pays not less than the minimum wage prescribed
pursuant to section 6 of the Fair Labor Standards Act of 1938
(29 U.S.C. 206) to the employees who are severely disabled
individuals;
(v) provides for its employees health insurance and a
retirement plan comparable to those provided for employees by
business entities of similar size in its industrial sector or
geographic region; and
(vi) has or can acquire a security clearance as necessary.
(B) The term ``severely disabled individual'' means an
individual with a disability (as defined in section 3 of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12102))
who has a severe physical or mental impairment that seriously
limits one or more functional capacities.

The PRESIDING OFFICER. Is there further debate on the amendment?
If not, without objection, the amendment is agreed to.
The amendment (No. 795) was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 759

Mr. LEVIN. Mr. President, on behalf of Senator Bill Nelson, I offer
an amendment that expresses the sense of the Senate that the Secretary
of Defense should authorize and publicize a reward of $1 million for
information leading to a conclusive resolution of the cases of missing
members of the Armed Forces.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Nelson of
Florida, proposes an amendment numbered 759.

Mr. LEVIN. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: Expressing the sense of the Senate that the Secretary of
Defense should disburse funds to reward the provision of information
leading to the resolution of the status of the members of the Armed
Forces of the United States who remain missing in action)

At the end of subtitle D of title X, add the following:

SEC. 1039. SENSE OF SENATE ON REWARD FOR INFORMATION LEADING
TO RESOLUTION OF STATUS OF MEMBERS OF THE ARMED
FORCES WHO REMAIN MISSING IN ACTION.

(a) Findings.--The Senate makes the following findings:
(1) The Department of Defense estimates that there are more
than 10,000 members of the Armed Forces and others who as a
result of activities during the Korean War or the Vietnam War
were placed in a missing status or a prisoner of war status,
or who were determined to have been killed in action although
the body was not recovered, and who remain unaccounted for.
(2) One member of the Armed Forces, Navy Captain Michael
Scott Speicher, remains missing in action from the first
Persian Gulf War, and there have been credible reports of him
being seen alive in Iraq in the years since his plane was
shot down on January 16, 1991.
(3) The United States should always pursue every lead and
leave no stone unturned to completely account for the fate of
its missing members of the Armed Forces.

[[Page S6836]]

(4) The Secretary of Defense has the authority to disburse
funds as a reward to individuals who provide information
leading to the conclusive resolution of cases of missing
members of the Armed Forces.
(b) Sense of Senate.--It is the sense of the Senate--
(1) that the Secretary of Defense should use the authority
available to the Secretary to disburse funds rewarding
individuals who provide information leading to the conclusive
resolution of the status of any missing member of the Armed
Forces; and
(2) to encourage the Secretary to authorize and publicize a
reward of $1,000,000 for information resolving the fate of
those members of the Armed Forces, such as Michael Scott
Speicher, who the Secretary has reason to believe may yet be
alive in captivity.

Mr. WARNER. Mr. President, I want to consult with my colleague about
this.
Senator Levin and I have read the text of the amendment. The text of
the amendment is quite clear as to what the intent was of the
proponent. We have no objection on this side.
The PRESIDING OFFICER. Is there further debate on the amendment.
If not, without objection, the amendment is agreed to.
The amendment (No. 759) was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 740

Mr. WARNER. Mr. President, on behalf of Senator Domenici, I offer an
amendment to provide military health care entitlement to Reserve
officers awaiting orders to active duty. It has been cleared on both
sides.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follow:

The Senator from Virginia, [Mr. Warner], for Mr. Domenici,
proposes an amendment numbered 740.

The amendment is as follows:

(Purpose: To provide entitlement to health care for reserve officers of
the Armed Forces pending orders to initial active duty following
commissioning)

At the appropriate place in title VII, insert the
following:

SEC. ____. ELIGIBILITY OF RESERVE OFFICERS FOR HEALTH CARE
PENDING ORDERS TO ACTIVE DUTY FOLLOWING
COMMISSIONING.

Section 1074(a) of title 10, United States Code, is
amended--
(1) by inserting ``(1)'' after ``(a)'';
(2) by striking ``who is on active duty'' and inserting
``described in paragraph (2)''; and
(3) by adding at the end the following new paragraph:
``(2) Members of the uniformed services referred to in
paragraph (1) are as follows:
``(A) A member of a uniformed service on active duty.
``(B) A member of a reserve component of a uniformed
service who has been commissioned as an officer if--
``(i) the member has requested orders to active duty for
the member's initial period of active duty following the
commissioning of the member as an officer;
``(ii) the request for orders has been approved;
``(iii) the orders are to be issued but have not been
issued; and
``(iv) the member does not have health care insurance and
is not covered by any other health benefits plan.''.

The PRESIDING OFFICER. Is there any further debate?
If not, without objection, the amendment is agreed to.
The amendment (No. 740) was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 796

Mr. LEVIN. Mr. President, on behalf of Senators Feinstein and
Stevens, I offer an amendment to prohibit funding from being used in
fiscal 2004 for research, development, test and evaluation,
procurement, or deployment of nuclear-tipped ballistic missile defense
intercepts.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mrs. Feinstein
and Mr. Stevens, proposes an amendment numbered 796.

The amendment is as follows:

(Purpose: To prohibit the use of funds for research, development, test,
and evaluation, procurement, or deployment of nuclear armed
interceptors in a missile defense system)

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

SEC. 225. PROHIBITION ON USE OF FUNDS FOR NUCLEAR ARMED
INTERCEPTORS IN MISSILE DEFENSE SYSTEMS.

No funds authorized to be appropriated for the Department
of Defense by this Act may be obligated or expended for
research, development, test, and evaluation, procurement, or
deployment of nuclear armed interceptors in a missile defense
system.

The PRESIDING OFFICER. Is there further debate?
If not, without objection, the amendment is agreed to.
The amendment (No. 796) was agreed to.
Mr. LEVIN. I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 700

Mr. WARNER. Mr. President, on behalf of Senator Lott, I offer an
amendment which would express the sense of the Senate that the Senate
strongly supports the Advanced Shipbuilding Enterprise of the National
Shipbuilding Research Program, and that the Secretary of Defense and
the Secretary of the Navy should continue to fund this program at a
sustaining level.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Virginia [Mr. Warner] proposes an
amendment numbered 700.

The amendment is as follows:

(Purpose: To express the sense of the Senate in support of the Advanced
Shipbuilding Enterprise of the National Shipbuilding Research Program)

On page 291, between lines 14 and 15, insert the following:

SEC. 1039. ADVANCED SHIPBUILDING ENTERPRISE.

(a) Findings.--Congress makes the following findings:
(1) The President's budget for fiscal year 2004, as
submitted to Congress, includes $10,300,000 for the Advanced
Shipbuilding Enterprise of the National Shipbuilding Research
Program.
(2) The Advanced Shipbuilding Enterprise is an innovative
program to encourage greater efficiency among shipyards in
the defense industrial base.
(3) The leaders of the Nation's shipbuilding industry have
embraced the Advanced Shipbuilding Enterprise as a method of
exploring and collaborating on innovation in shipbuilding and
ship repair that collectively benefits all manufacturers in
the industry.
(b) Sense of the Senate.--It is the sense of the Senate
that--
(1) the Senate strongly supports the innovative Advanced
Shipbuilding Enterprise of the National Shipbuilding Research
Program that has yielded new processes and techniques to
reduce the cost of building and repairing ships in the United
States;
(2) the Senate is concerned that the future-years defense
program submitted to Congress for fiscal year 2004 does not
reflect any funding for the Advanced Shipbuilding Enterprise
after fiscal year 2004; and
(3) the Secretary of Defense and the Secretary of the Navy
should continue funding the Advanced Shipbuilding Enterprise
at a sustaining level through the future-years defense
program to support subsequent rounds of research that reduce
the cost of designing, building, and repairing ships.

shipbuilding

Mr. LOTT. Mr. President, I first want to acknowledge the hard work
done by the Armed Services Committee and Senator Warner and his staff
on the fiscal year 2004 defense authorization bill. Having served on
this committee for many years, I know how intense the discussions are
in the committee and how difficult the decisions are when crafting a
bill this complex and so critical. I do, however, want to engage the
chairman on a subject of great national interest: Navy ship
construction.
Over the years, this country has seen a steady decline in not only
our naval ship force structure, but in the capacity to construct these
great warships. Instead of building the requisite 12 ships a year to
maintain our current and modest naval capability, we are merely
producing 6 to 7 per year. The erosion in our naval capability should
not continue. I know this is a subject of acute interest by Chairman
Warner, a former Secretary of the Navy, and would like to hear his
thoughts on the issue!
Mr. WARNER. The level of shipbuilding is clearly of concern to me.
The Navy is in transition, and we find ourselves building the last of
the older 20th century surface combatants, submarines, aircraft
carriers, and amphibious assault ships and transitioning to those ships
of the line for the 21st century. Understandably, there is a
development period we are involved in as

[[Page S6837]]

well as recapitalization. The committee chose to support the Navy's
proposals for DDX, LCS, LHA(R), LPD and CVN-21. These are the naval
vessels of the future.
Mr. BREAUX. As the Senator knows well, this transition period has a
substantial impact on the shipyards and their workers who will be asked
to construct these future vessels. After the decline in shipbuilding in
the last quarter century, our ability to build naval ships of all kinds
has been substantially reduced. During this period of transition, I am
concerned, as well as you, that the shipyards retain their engineers
and workers, so they may build the next generation of ships when these
ships are mature.
Mr. WARNER. They key here is balance during the transition period.
The ongoing global war on terrorism places enormous budgetary pressure
on the Defense bills. For example, we were certainly aware that the
LPD-17 design is in production, but at a very low rate. The committee
supported funding for the fiscal year 2004 ship. I also understand that
the Navy is attempting to accelerate production to allow procurement of
a ship in fiscal year 2005.
Ms. LANDRIEU. The LPD-17 is certainly an excellent example of the
dilemma posed in our Navy's shipbuilding program. I am hopeful that as
we move through the authorization process, some accommodation will be
found to move that shipbuilding program along. Certainly, this ship
class, if produced at greater levels can clear the decks, so to speak,
for the other, advanced ships, which are in development now.
Mr. WARNER. I acknowledge the Senator's comments and concerns.
The PRESIDING OFFICER. Is there further debate?
If not, without objection, the amendment is agreed to.
The amendment (No. 700) was agreed to.
Mr. WARNER. I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 779

Mr. WARNER. On behalf of Senator Allard, I offer an amendment on the
protection of the operational files of the National Security Agency
that would strike section 1035 of S. 1050 and replace it with this
amendment. It is cleared on both sides.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Virginia [Mr. Warner], for Mr. Allard,
proposes an amendment numbered 779.

The amendment is as follows:

(Purpose: To provide a substitute for section 1035, relating to the
protection of the operational files of the National Security Agency)

Strike section 1035 and insert the following:

SEC. 1035. PROTECTION OF OPERATIONAL FILES OF THE NATIONAL
SECURITY AGENCY.

(a) Consolidation of Current Provisions on Protection of
Operational Files.--The National Security Act of 1947 (50
U.S.C. 401 et seq.) is amended by transferring sections 105C
and 105D to the end of title VII and redesignating such
sections, as so transferred, as sections 703 and 704,
respectively.
(b) Protection of Operational Files of NSA.--Title VII of
such Act, as amended by subsection (a), is further amended by
adding at the end the following new section:

``operational files of the national security agency

``Sec. 705. (a) Exemption of Certain Operational Files From
Search, Review, Publication, or Disclosure.--(1) Operational
files of the National Security Agency (hereafter in this
section referred to as `NSA') may be exempted by the Director
of NSA, in coordination with the Director of Central
Intelligence, from the provisions of section 552 of title 5,
United States Code, which require publication, disclosure,
search, or review in connection therewith.
``(2)(A) In this section, the term `operational files'
means--
``(i) files of the Signals Intelligence Directorate, and
its successor organizations, which document the means by
which foreign intelligence or counterintelligence is
collected through technical systems; and
``(ii) files of the Research Associate Directorate, and its
successor organizations, which document the means by which
foreign intelligence or counterintelligence is collected
through scientific and technical systems.
``(B) Files which are the sole repository of disseminated
intelligence, and files that have been accessioned into NSA
Archives, or its successor organizations, are not operational
files.
``(3) Notwithstanding paragraph (1), exempted operational
files shall continue to be subject to search and review for
information concerning--
``(A) United States citizens or aliens lawfully admitted
for permanent residence who have requested information on
themselves pursuant to the provisions of section 552 or 552a
of title 5, United States Code;
``(B) any special activity the existence of which is not
exempt from disclosure under the provisions of section 552 of
title 5, United States Code; or
``(C) the specific subject matter of an investigation by
any of the following for any impropriety, or violation of
law, Executive order, or Presidential directive, in the
conduct of an intelligence activity:
``(i) The Committee on Armed Services and the Permanent
Select Committee on Intelligence of the House of
Representatives.
``(ii) The Committee on Armed Services and the Select
Committee on Intelligence of the Senate.
``(iii) The Intelligence Oversight Board.
``(iv) The Department of Justice.
``(v) The Office of General Counsel of NSA.
``(vi) The Office of the Inspector General of the
Department of Defense.
``(vii) The Office of the Director of NSA.
``(4)(A) Files that are not exempted under paragraph (1)
which contain information derived or disseminated from
exempted operational files shall be subject to search and
review.
``(B) The inclusion of information from exempted
operational files in files that are not exempted under
paragraph (1) shall not affect the exemption under paragraph
(1) of the originating operational files from search, review,
publication, or disclosure.
``(C) The declassification of some of the information
contained in exempted operational files shall not affect the
status of the operational file as being exempt from search,
review, publication, or disclosure.
``(D) Records from exempted operational files which have
been disseminated to and referenced in files that are not
exempted under paragraph (1), and which have been returned to
exempted operational files for sole retention shall be
subject to search and review.
``(5) The provisions of paragraph (1) may not be superseded
except by a provision of law which is enacted after the date
of the enactment of the National Defense Authorization Act
for Fiscal Year 2004, and which specifically cites and
repeals or modifies such provisions.
``(6)(A) Except as provided in subparagraph (B), whenever
any person who has requested agency records under section 552
of title 5, United States Code, alleges that NSA has withheld
records improperly because of failure to comply with any
provision of this section, judicial review shall be available
under the terms set forth in section 552(a)(4)(B) of title 5,
United States Code.
``(B) Judicial review shall not be available in the manner
provided for under subparagraph (A) as follows:
``(i) In any case in which information specifically
authorized under criteria established by an Executive order
to be kept secret in the interests of national defense or
foreign relations is filed with, or produced for, the court
by NSA, such information shall be examined ex parte, in
camera by the court.
``(ii) The court shall determine, to the fullest extent
practicable, the issues of fact based on sworn written
submissions of the parties.
``(iii) When a complainant alleges that requested records
are improperly withheld because of improper placement solely
in exempted operational files, the complainant shall support
such allegation with a sworn written submission based upon
personal knowledge or otherwise admissible evidence.
``(iv)(I) When a complainant alleges that requested records
were improperly withheld because of improper exemption of
operational files, NSA shall meet its burden under section
552(a)(4)(B) of title 5, United States Code, by demonstrating
to the court by sworn written submission that exempted
operational files likely to contain responsible records
currently perform the functions set forth in paragraph (2).
``(II) The court may not order NSA to review the content of
any exempted operational file or files in order to make the
demonstration required under subclause (I), unless the
complainant disputes NSA's showing with a sworn written
submission based on personal knowledge or otherwise
admissible evidence.
``(v) In proceedings under clauses (iii) and (iv), the
parties may not obtain discovery pursuant to rules 26 through
36 of the Federal Rules of Civil Procedure, except that
requests for admissions may be made pursuant to rules 26 and
36.
``(vi) If the court finds under this paragraph that NSA has
improperly withheld requested records because of failure to
comply with any provision of this subsection, the court shall
order NSA to search and review the appropriate exempted
operational file or files for the requested records and make
such records, or portions thereof, available in
accordance with the provisions of section 552 of title 5,
United States Code, and such order shall be the exclusive
remedy for failure to comply with this subsection.
``(vii) If at any time following the filing of a complaint
pursuant to this paragraph NSA agrees to search the
appropriate exempted operational file or files for the
requested records, the court shall dismiss the claim based
upon such complaint.
``(viii) Any information filed with, or produced for the
court pursuant to clauses (i) and (iv) shall be coordinated
with the Director of Central Intelligence before submission
to the court.
``(b) Decennial Review of Exempted Operational Files.--(1)
Not less than once every 10 years, the Director of the
National Security Agency and the Director of Central
Intelligence shall review the exemptions in

[[Page S6838]]

force under subsection (a)(1) to determine whether such
exemptions may be removed from a category of exempted files
or any portion thereof. The Director of Central Intelligence
must approve any determination to remove such exemptions.
``(2) The review required by paragraph (1) shall include
consideration of the historical value or other public
interest in the subject matter of a particular category of
files or portions thereof and the potential for declassifying
a significant part of the information contained therein.
``(3) A complainant that alleges that NSA has improperly
withheld records because of failure to comply with this
subsection may seek judicial review in the district court of
the United States of the district in which any of the parties
reside, or in the District of Columbia. In such a proceeding,
the court's review shall be limited to determining the
following:
``(A) Whether NSA has conducted the review required by
paragraph (1) before the expiration of the 10-year period
beginning on the date of the enactment of the National
Defense Authorization Act for Fiscal Year 2004 or before the
expiration of the 10-year period beginning on the date of the
most recent review.
``(B) Whether NSA, in fact, considered the criteria set
forth in paragraph (2) in conducting the required review.''.
(c) Conforming Amendments.--(1) Section 701(b) of the
National Security Act of 1947 (50 U.S.C. 431(b)) is amended
by striking ``For purposes of this title'' and inserting ``In
this section and section 702,''.
(2) Section 702(c) of such Act (50 U.S.C. 432(c)) is
amended by striking ``enactment of this title'' and inserting
``October 15, 1984,''.
(3)(A) The title heading for title VII of such Act is
amended to read as follows:

``TITLE VII--PROTECTION OF OPERATIONAL FILES''.

(B) The section heading for section 701 of such Act is
amended to read as follows:

``protection of operational files of the central intelligence agency''.

(C) The section heading for section 702 of such Act is
amended to read as follows:

``decennial review of exempted central intelligence agency operational
files.''.

(d) Clerical Amendments.--The table of contents for the
National Security Act of 1947 is amended--
(1) by striking the items relating to sections 105C and
105D; and
(2) by striking the items relating to title VII and
inserting the following new items:

``Title VII--Protection of Operational Files

``Sec. 701. Protection of operational files of the Central Intelligence
Agency.
``Sec. 702. Decennial review of exempted Central Intelligence Agency
operational files.
``Sec. 703. Protection of operational files of the National Imagery and
Mapping Agency.
``Sec. 704. Protection of operational files of the National
Reconnaissance Office.
``Sec. 705. Protection of operational files of the National Security
Agency.''.

The PRESIDING OFFICER. Is there further debate on the amendment?
If not, without objection, the amendment is agreed to.
The amendment (No. 779) was agreed to.
Mr. WARNER. I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 746, As Modified

Mr. LEVIN. Mr. President, on behalf of Senator Dodd, I offer an
amendment which requires the Army to study the use of a second source
of production for gears incorporated into CH-47 helicopter
transmissions.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Dodd,
proposes an amendment numbered 746, as modified.

The amendment is as follows:

(Purpose: To require an Army study regarding use of a second source of
production for gears incorporated into helicopter transmissions for CH-
47 helicopters)

On page 17, strike line 11 and insert the following:

SEC. 111. CH-47 HELICOPTER PROGRAM.

(a) Requirement for Study.--The Secretary of the Army shall
study the feasibility and the costs and benefits of providing
for the participation of a second source in the production of
gears for the helicopter transmissions incorporated into CH-
47 helicopters being procured by the Army with funds
authorized to be appropriated by this Act.
(b) Report.--Not later than 90 days after the date of the
enactment of this Act, the Secretary shall submit a report on
the results of the study to Congress.

The PRESIDING OFFICER. Is there further debate on the amendment?
If not, without objection, the amendment is agreed to.
The amendment (No. 746), as modified, was agreed to.
Mr. LEVIN. I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 784

Mr. WARNER. On behalf of Senator Chambliss, I offer an amendment to
require the National Imagery and Mapping Agency to provide a report on
certain imagery exploitation capabilities. It is cleared on both sides.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Virginia [Mr. Warner], for Mr. Chambliss,
proposes an amendment numbered 784.

The amendment is as follows:

(Purpose: To require a report on the efforts of the National
Geospatial-Intelligence Agency to utilize certain data extraction and
exploitation capabilities within the Commercial Joint Mapping Tool Kit
(C/JMTK))

On page 226, between the matter following line 14 and line
15, insert the following:
(c) Report on Utilization of Certain Data Extraction and
Exploitation Capabilities.--(1) Not later than 60 days after
the date of the enactment of this Act, the Director of the
National Geospatial-Intelligence Agency shall submit to the
appropriate committees of Congress a report on the status of
the efforts of the Agency to incorporate within the
Commercial Joint Mapping Tool Kit (C/JMTK) applications for
the rapid extraction and exploitation of three-dimensional
geospatial data from reconnaissance imagery.
(2) In this subsection, the term ``appropriate committees
of Congress'' means--
(A) the Committee on Armed Services, the Subcommittee on
Defense of the Committee on Appropriations, and the Select
Committee on Intelligence of the Senate; and
(B) the Committee on Armed Services, the Subcommittee on
Defense of the Committee on Appropriations, and the Permanent
Select Committee on Intelligence of the House of
Representatives.

The PRESIDING OFFICER. Is there further debate on the amendment.
If not, without objection, the amendment is agreed to.
The amendment (No. 784) was agreed to.
Mr. WARNER. I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 797

Mr. LEVIN. Mr. President, I offer an amendment on behalf of Senator
Lieberman that would provide for a Department of Defense strategy for
the management of the electromagnetic spectrum. I believe it is cleared
on both sides.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Lieberman,
proposes an amendment numbered 797.

The amendment is as follows:

(Purpose: To provide for a strategy for the Department of Defense for
the management of the electromagnetic spectrum)

At the end of subtitle D of title II, add the following:

SEC. 235. DEPARTMENT OF DEFENSE STRATEGY FOR MANAGEMENT OF
ELECTROMAGNETIC SPECTRUM.

(a) In General.--The Secretary of Defense shall--
(1) in accordance with subsection (b), develop a strategy
for the Department of Defense for the management of the
electromagnetic spectrum to improve spectrum access and high-
bandwidth connectivity to military assets.
(2) in accordance with subsection (c), communicate with
civilian departments and agencies of the Federal Government
in the development of the strategy identified in (a)(1).
(b) Strategy For Department of Defense Strategy for
Spectrum Management.--(1) Not later than September 1, 2004,
the Board shall develop a strategy for the Department of
Defense for the management of the electromagnetic spectrum in
order to ensure the development and use of spectrum-efficient
technologies to facilitate the availability of adequate
spectrum for both network-centric warfare. The strategy shall
include specific timelines, metrics, plans for implementation
including the implementation of technologies for the
efficient use of spectrum, and proposals for program funding.
(2) In developing the strategy, the Board shall consider
and take into account in the strategy the research and
development program carried out under section 234.
(3) The Board shall assist in updating the strategy
developed under paragraph (1) on a

[[Page S6839]]

biennial basis to address changes in circumstances.
(4) The Board shall communicate with other departments and
agencies of the Federal Government in the development of the
strategy described in subsection (a)(1), including
representatives of the military departments, the Federal
Communications Commission, the National Telecommunications
and Information Administration, the Department of Homeland
Security, the Federal Aviation Administration, and other
appropriate departments and agencies of the Federal
Government.
(c) Board Defined.--In this section, the term ``Board''
means the Board of Senior Acquisition Officials as defined in
section 822.

The PRESIDING OFFICER. Is there further debate on the amendment?
If not, without objection, the amendment is agreed to.
The amendment (No. 797) was agreed to.
Mr. LEVIN. I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 739

Mr. WARNER. Mr. President, on behalf of Senator Domenici, I offer an
amendment to authorize reimbursement for travel expenses of covered
beneficiaries of CHAMPUS for specialty care in order to cover
specialized dental care.
The amendment is cleared.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Virginia [Mr. Warner], for Mr. Domenici,
proposes an amendment numbered 739.

The amendment is as follows:

(Purpose: To expand reimbursement for travel expenses of covered
beneficiaries of CHAMPUS for specialty care in order to cover
specialized dental care)

At the appropriate place in title VII, insert the
following:

SEC. ____. REIMBURSEMENT OF COVERED BENEFICIARIES FOR CERTAIN
TRAVEL EXPENSES RELATING TO SPECIALIZED DENTAL
CARE.

Section 1074i of title 10, United States Code, is amended--
(1) by inserting ``(a) In General.--'' before ``In any
case''; and
(2) by adding at the end the following new subsection:
``(b) Specialty Care Providers.--For purposes of subsection
(a), the term `specialty care provider' includes a dental
specialist (including an oral surgeon, orthodontist,
prosthodontist, periodontist, endodontist, or pediatric
dentist).''.

The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 739) was agreed to.
Mr. WARNER. I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 798

Mr. WARNER. Mr. President, I offer an amendment that would strike
subsection (c) of section 2101 to authorize military construction
projects for the Army. It is cleared on both sides.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Virginia [Mr. Warner] proposes an
amendment numbered 798.

The amendment is as follows:

(Purpose: To strike subsection (c) of section 2101 relating to
unspecified worldwide military construction projects for the Army)

On page 322, strike line 8 and all that follows through
page 324, line 10.
On page 326, strike lines 1 through 3.
On page 328, line 21, strike ``(1), (2), and (3)'' and
insert ``(1) and (2)''.
The PRESIDING OFFICER. Is there further debate on the amendment?
If not, without objection, the amendment is agreed to.
The amendment (No. 798) was agreed to.
Mr. WARNER. I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WARNER. Mr. President, that concludes the total of cleared
amendments that we can work on tonight. Our staffs will continue to
work through the evening. Hopefully, another dozen or so will be ready
first thing in the morning. I thank my distinguished colleague for his
usual cooperation and advice.
Mr. LEVIN. I thank my good friend from Virginia. We are both in the
debt of the Presiding Officer, who has been patient through some long
delays. They have been essential.
Mr. WARNER. Our Parliamentarians have been put to the test and they
deserve a measure of recognition for a job well done. I thank the Chair
and the staff. If you think this has been a late night, wait until
tomorrow.
Mr. LEVIN. Something to look forward to.
Mr. WARNER. I believe we are making good progress on this bill. It is
my hope and, indeed, my expectation that we can complete this bill by
midday tomorrow. I know that my colleague from Michigan and I, together
with our respective leadership, are endeavoring to achieve that. When I
made reference to tomorrow night, it related to other matters of
legislation, not this bill.
Mr. LEVIN. A great sigh of relief.
Mr. WARNER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I want to say a few words about an
amendment that I had hoped to offer to help our troops and that has
strong bipartisan support. But the Parliamentarian says it doesn't
quite meet the relevance test under the consent agreement, so I will
offer it on another day.
The amendment is intended to recognize the enormous contributions to
our country by immigrants serving in the military. It gives immigrant
men and women in our Armed Forces more rapid naturalization, and it
establishes protections for their families if they are killed in
action.
In all our wars, immigrants have fought side by side and given their
lives to defend America's freedom and ideals. One out of every five
recipients of the Congressional Medal of Honor, the highest honor our
Nation bestows on our war heroes, has been an immigrant. Their bravery
is unequivocal proof that immigrants are as dedicated as any other
Americans to defending our country.
Today, 37,000 men and women in the Army, Navy, Marines, Air Force,
and Coast Guard are not yet citizens, but have the status of permanent
residents. Another 12,000 permanent residents are in the Reserves and
the National Guard. Sadly, 10 immigrant soldiers were killed in Iraq; 2
are missing; and 2 were POWs. The President did the right thing by
granting posthumous citizenship to those who died, but it is clear that
we can do more to ease the path to citizenship for all immigrants who
serve in our forces.
My amendment improves access to naturalization for permanent
residents in the military and it protects spouses, children, and
parents of soldiers killed in action by preserving their ability to
file for permanent residence in the United States.
Specifically, the amendment reduces from 3 to 2 the number of years
required for these immigrants to become naturalized citizens. It
exempts them from paying naturalization filing fees, and it enables
them to be naturalized while stationed abroad. Affordable and timely
naturalization is the least we can do for those who put their lives on
the line to defend our nation.
During times of war, recruiting needs are immediate and readiness is
essential. Even though the war in Iraq has ended, our commitment to
ending global terrorism will continue, and more of these brave men and
women will be called to active duty. Many of them are members of the
Selected Reserve--Reserve and National Guard members who may be called
up for active duty during a war or other national emergency. Many have
already been activated, and many more could be called up at a moment's
notice to defend our country and assist in military operations.

Over the years, Reserve and Guard units have often become full
partners with their active-duty counterparts. Their active-duty
colleagues cannot go to war without them. Being a member of the
Selected Reserves is nothing less than a continuing commitment to meet
very demanding standards, and they deserve recognition for their
bravery and sacrifice. The amendment allows permanent resident members
of

[[Page S6840]]

the Selected Reserves to expedite their naturalization applications
during war or military hostilities.
Finally, the amendment provides immigration protection to immediate
family members of soldiers killed in action. Grieving mothers, fathers,
spouses, and children would be given the opportunity to legalize their
immigration status and avoid deportation in the event of death of their
loved one serving in our military. We know the tragic losses endured by
these families, and it is unfair that they lose their immigration
status as well.
The provisions of the amendment are identical to those in S. 922, the
Naturalization and Family Protection for Military Members Act, which
has strong bipartisan support and is also endorsed by numerous veterans
organizations including: the Veterans of Foreign Wars, the Air Force
Sergeants Association, the Non-Commissioned Officers Association, and
the Blue Star Mothers of America.
The amendment is a tribute to the sacrifices that these future
Americans are already making now for their adopted country. They
deserve this important recognition and I look forward to working with
my colleagues to see that these provisions are enacted into law.
Mr. VOINOVICH. Mr. President, I rise today to express my
disappointment that the Senate is not able to act on my amendment to
the Defense Authorization bill: the NASA Workforce Flexibility Act.
NASA and DoD have a long history of collaboration on numerous programs
that are central to the success of each agency and the expertise NASA
provides DoD is critical to our national security.
For over a year, NASA has been discussing with us the impending
crisis within their workforce. In March, my Subcommittee on Oversight
of Government Management and the Federal Workforce held a hearing on
this very issue. Of great concern to me is the fact that 15 percent of
NASA's workforce currently is eligible to retire; that number climbs to
25 percent in just five short years. Also disconcerting is the fact
that scientists and engineers over age 60 outnumber those under age 30
by nearly three to one.
With so many experienced people eligible to retire in the next few
years, who knows how much institutional knowledge and expertise is
going to walk out the door? This creates substantial risk to NASA and
our national security.
During the war in Iraq, we saw some of the tremendous benefit our
advanced technology provides to our troops. Many people may not be
aware that NASA and DoD collaboration is central to providing for our
national security.
We have many examples in my own State of Ohio. As the former Mayor of
Cleveland and Governor of Ohio, I have seen firsthand the collaboration
between the NASA Glenn Research Center in Cleveland and Wright-
Patterson Air Force Base in Dayton.
In Ohio alone, NASA and DoD work together on projects that include:
Joint fuel cell research to be used in space applications, Army use of
Glenn Research Center expertise in testing helicopter rotor engines,
and Navy use of Glenn Research Center expertise in missile propulsion
program.
These joint efforts are not limited to Ohio; this collaboration
exists nationwide. At other Centers throughout the Nation DoD depends
on NASA facilities, such as its wind tunnels, for development and
testing of all military aircraft, including the Joint Strike Fighter;
DoD relies on NASA for technical assistance in investigating and
correcting DoD flight problems; the National Aerospace Initiative,
formed at the direction of the Presidential Commission on the Future of
Aerospace, is a joint DoD-NASA project to develop the future of
aerospace technology that is critical to national defense.
The American Helicopter Society awarded the 2002 Howard Hughes Award
to NASA's Langley Research Center. Established in 1977, the Howard
Hughes award is given in recognition of accomplishments in the
helicopter industry. NASA partnered with the Army, and working in
conjunction with academia and the private sector, developed what it
calls ``Tilt Rotor Aeroacoustics Code.'' This is the technology to
reduce the noise generated by helicopter rotors.
My amendment addresses NASA's current and future workforce needs. It
would direct NASA to work with OPM and its employees to develop an
agency-wide workforce plan.
In the highly competitive science and engineering fields, my
amendment would authorize NASA to offer enhanced recruitment and
relocation bonuses to attract and retain top talent. It also would
allow NASA to offer a mid-career individual in the private sector a
vacation package competitive with the private sector and comparable to
career federal employees. In addition, my amendment would establish a
competitive scholarship program for students in return for employment
at NASA.
Mr. President, this body took remarkable action last year when it
included in the creation of the Department of Homeland Security the
first major governmentwide reforms to the civil service in 25 years,
since 1978. That was a good first step, but we have much more work to
do. I am concerned that human capital remains on GAO's high-risk list
for 2003 throughout the federal government.
In such a critical area as national security, it is clear that the
Department of Defense needs NASA. And NASA needs workforce reform.
Mr. CORNYN. Mr. President, I rise today to say a few words regarding
the Defense Authorization Act.
On Saturday of last week, May 17, people all across our Nation
commemorated Armed Forces Day. As President Eisenhower wrote in 1953:
``It is fitting and proper that we devote one day each year to paying
special tribute to those whose constancy and courage constitute one of
the bulwarks guarding the freedom of this Nation and the peace of the
free world.''
I agree with that sentiment but I would also say that it is fitting
and proper to pay tribute to the heroism and sacrifice of our brave men
and women in the Armed Forces on each and every day.
We must always remember that our own freedom was not won without
cost, but bought and paid for by the sacrifices of generations that
have gone before. We must take every opportunity to honor these heroes
for their courage and their commitment to the dream that is freedom.
I know I speak for the people of my State of Texas, and for all
Americans, when I give thanks that the operation in Iraq has recently
reached such a swift conclusion, with so few coalition lives lost.
One in 10 active-duty military personnel call Texas their home, and
as a member of the Armed Services Committee, I am dedicated to looking
after their interests and the interests of all of our military
personnel. We must ensure that the United States military has the
training, the equipment, and the facilities they require to remain the
greatest fighting force the world has ever known, in times of war and
peace.
I support this legislation because it is focused on that goal. And I
would like to take this opportunity to thank the distinguished Senators
from Virginia and Michigan for their hard work and leadership as
chairman and ranking member of the Armed Services Committee.
As members of the committee, we have recommended a $17.9 billion
increase above the amount appropriated by the Congress last year. This
funding will enhance the ability of the Department of Defense to
fulfill its homeland defense responsibilities, and sustain the ability
of our Armed Forces to conduct military operations with the fewest
lives lost.
We also addressed a number of other defense priorities in this bill,
including a 3.7 percent across-the-board pay raise for all uniformed
service personnel, an increase in the family separation allowance from
$100 per month to $250 per month, and an increase in the special pay
rate for duty in imminent danger from $150 per month to $225 per month.
The only area where I do want to draw some distinctions between my
own position and the position of this bill concerns the F/A-22
aircraft. The committee's decision to decrease funding for the F/A-22
Raptor by $217 million, representing two fighters, simply does not make
sense to me.
The F/A-22 is our next generation fighter aircraft, and it will serve
to replace the aging fighters currently in

[[Page S6841]]

our inventory. President Bush requested funding for 22 Raptors, and I
believe we should fulfill that request. Reducing our funding in
response to the President's budget request will only raise questions
about our commitment to this program, unsettle the confidence of the
subcontractors and suppliers, and ultimately make the entire program
more expensive.
Overall, the committee has produced a good bill. These pay raises are
needed and deserved. The funding provides for much-needed support for
our military infrastructure and equipment. And I am proud to support
these measures.
I would also like to take this opportunity to thank Chairman Warner
for including language in the legislation which directs the Department
of Defense to determine if any additional measures can be taken to
assist the naturalization of qualified service members and their
families.
This language is consistent with the Military Citizenship Act, a bill
that I recently introduced, that will expedite the naturalization
process for the nearly 37,000 men and women serving in our Armed Forces
who are not U.S. citizens. I believe there is no better way to honor
the heroism and sacrifice of those who serve than to offer them the
American citizenship they deserve.
As we labor on this bill, we should take care to remember the
sacrifices--not just the sacrifices of the brave men and women who
fight on the battlefield, but also the sacrifices of the families they
leave behind.
I remember watching as the deployment was occurring from Camp
Lejeune, where a young mother with her child was saying goodbye to her
husband. I will never forget her words. She said: ``I used to think
that if he loved us, he would never leave us. But now I know that he is
leaving us because he loves us.''
We as a grateful Nation thank the brave men and women who serve in
uniform for the cause of freedom. We wish them all godspeed, and we
hope and pray for their swift return to the loving arms of their
families.
Mr. SUNUNU. Mr. President, I rise today to congratulate the Senator
from Virginia, Mr. Warner, the chairman of the Armed Services
Committee, and the Senator from Michigan, Mr. Levin, the ranking member
of the Armed Services Committee, for the work they have done to bring
before the Senate a Defense authorization bill that will serve as a
blueprint to ensure the U.S. Armed Forces have the resources they need
in the upcoming fiscal year and beyond.
The Department of Defense faces many challenges in carrying out its
various missions across the globe. This legislation authorizes critical
funds to make sure our troops have the weapons systems and munitions
they need to continue to do the outstanding work they do every day for
our freedom, allowing for $75.6 billion in procurement funding. The
legislation does right by these men and women and their families by
providing them with a pay raise of 3.7 percent. Moreover, it mandates a
$100 a month pay incentive for military personnel in North Korea,
increases the family separation allowance $150 a month, increases
hostile fire and imminent duty pay by an additional $175 a month, and
doubles the death gratuity retroactive to September 11, 2001.
S. 1050 not only addresses the short-term needs of the military but
gives equal consideration to the long-term challenges facing the
services. The $63.2 billion authorized in the bill for research and
development is critically needed to make sure our troops will continue
to have access to the most advanced equipment to keep them safe and one
step ahead of those who would do us harm. We have seen on countless
occasions over the last several months how investments in research and
development lead to a fighting force capable of unprecedented precision
and mobility, which saves lives and allows for decisive military
victories.
This legislation addresses some important nonfinancial policy issues
as well. S. 1050 strikes a balance between environmental protection and
the need to provide our troops with important training. It allows for
the examination and evaluation of weapons and countermeasure systems to
make sure current and future Presidents and military leaders have all
options available to them when making decisions pertaining to military
action and national security. The bill also provides tens of millions
of dollars to aid in homeland defense initiatives such as the Chemical
and Biological Installation/Force Protection Program, and the WMD civil
support teams.
I recognize this measure is not perfect and there are some funding
and policy provisions on which Senators may disagree. For example, I am
very concerned by the committee's decision to cut the President's
request for the procurement of 22 F/A-22 Raptors. Yet I know these and
other issues will continue to be addressed by both the committee and
the administration as this bill moves forward and should not be cause
to delay passage of this important piece of legislation.
I am pleased to support S. 1050, and I thank the chairman and ranking
member for their work.
Mr. VOINOVICH. Mr. President, in this important debate on the Fiscal
Year 2004 National Defense Authorization Act, I am deeply disappointed
that the Parliamentarian has ruled irrelevant the amendment which
Senator Collins and I planned to offer. Our amendment would establish
the National Security Personnel System for the more than 700,000
civilian employees of the Department of Defense. The impact of the
parliamentarian's ruling is that the Senate will be silent on one of
the most substantial modifications to civil service law in the last 25
years. This is most unfortunate.
There is absolutely no doubt in my mind that this amendment should be
considered by the Senate--if for no other reason than the House of
Representatives has already acted on a similar measure. Both the House
Government Reform Committee and the House Armed Services Committee
approved a version of the National Security Personnel System, and it
will be included in the Defense Authorization Act that the House sends
to Conference.
I remind my colleagues that a new human resources management system
for the Department of Defense will emerge from Conference. It will be
one in which the Senate as a whole has had no voice, and the first time
this chamber votes on it will be during the final passage of the
Defense Authorization Act later this year. This is regrettable.
I have worked on Federal Government personnel issues generally, and
Department of Defense personnel issues specifically, since I arrived in
the Senate 4 years ago.
In March 2001, the Subcommittee on Oversight of Government Management
held a hearing entitled, ``National Security Implications of the Human
Capital Crisis.'' This hearing is just one of 13 that have been held by
my Subcommittee on the Federal Government's human capital challenges.
Among our panel of distinguished witnesses that day was former
Defense Secretary James Schlesinger, a member of the U.S. Commission on
National Security in the 21st Century. Secretary Schlesinger discussed
a comprehensive evaluation on national security strategy and structure
that was undertaken by the Commission. Regarding human capital, the
Commission's final report concluded:

As it enters the 21st century, the United States finds
itself on the brink of an unprecedented crisis of competence
in government. The maintenance of American power in the world
depends on the quality of U.S. government personnel, civil
and military, at all levels. We must take immediate action in
the personnel area to ensure that the United States can meet
future challenges.

Secretary Schlesinger added further:

. . . it is the Commission's view that fixing the personnel
problem is a precondition for fixing virtually everything
else that needs repair in the institutional edifice of U.S.
national security policy.

Just last week, my Subcommittee held a field hearing in Ohio
entitled, ``An Overlooked Asset: the Defense Civilian Workforce.''
During this hearing, I heard testimony on the National Security
Personnel System from Dr. David Chu, the Under Secretary of Defense for
Personnel and Readiness, and the head of the U.S. General Accounting
Office, Comptroller General David Walker.
Dr. Chu testified that, ``the rigidities of the title 5 system of
personnel management make it difficult for our civilians to support the
military.'' He stated that the Defense Department's top three
priorities were hiring flexibilities, reform of the compensation
system, and bargaining at the national level with the Department's
unions.

[[Page S6842]]

Mr. Walker stated that ``We strongly support the concept of
modernizing Federal human capital policies within DOD and the Federal
Government at large,'' and ``the Federal personnel system is clearly
broken in critical respects.'' However, he also noted that the ``senior
civilian and military leaders have devoted `far less' attention to
civilian personnel challenges than the challenges of maintaining an
effective military,'' and that the Department needs to further develop
and integrate its departmentwide human capital strategies.
But even before these hearings in which the national security
establishment's personnel needs were outlined so clearly, I have been
working to improve the management of the Defense civilian workforce.
Many of the acute challenges confronting the Defense civilian workforce
were brought to my attention several years ago through conversations
with senior managers, both military and civilian, at Wright Patterson
Air Force Base in Dayton, Ohio.
When the Senate was considering the 2001 National Defense
Authorization Act in June 2000, Senator DeWine and I offered an
amendment that would provide the Defense Department the ability to
reshape its workforce through the use of early retirement and voluntary
separation incentives.
Securing passage of that relatively simple amendment was not easy. I
worked closely with the distinguished Chairman of the Armed Services
Committee, Senator John Warner, the distinguished Ranking Member of the
Armed Services Committee, Senator Carl Levin, and my distinguished
colleague on the Armed Services Committee, Senator James Inhofe, to
ensure the adoption of that modest reform.
I wish the Senate had built on this earlier reform and the broader
reforms that were included in the Homeland Security Act last year.
I would like to outline briefly what should be included in the
National Security Personnel System.
First, the system should feature the broad flexibilities that were
provided to the Department of Homeland Security. I believe that the
labor-management collaboration process that was mandated for that new
Department, and which would be replicated for the Defense Department,
is proving effective in ensuring employee participation in the
establishment of a new human resources system.
The Defense Department should use its flexibility to design and
implement a modern pay-banding and pay-for-performance system which
emphasizes accountability, as opposed to the current system in which
seniority and pay increases are based primarily on the passage of time.
In addition, the new National Security Personnel System must include
substantial hiring flexibility, broad workforce reshaping authorities,
and must grant the Department of Defense the ability to bargain with
its unions at the national level.
The new system also should provide the Secretary of Defense
additional flexibility in hiring personnel outside of the United States
on short notice, as well as additional benefits for certain Defense
personnel serving abroad.
I support retaining the Director of the Office of Personnel
Management as a strategic partner with the Secretary of Defense in the
establishment of this new personnel system, and I do not believe that
the Secretary should have ``sole, unreviewable'' authority over this
new system.
The provisions I just described will give the Defense Department the
authority to create a modern personnel system to meet the challenges of
the 21st century.
Despite the documented need for further significant reform of the
civil service, and the Defense Department's concerted and diligent
efforts in this area that culminated in the proposed National Security
Personnel System, the Senate apparently will take no action. Mr.
President, in this regard, the United States Senate has abrogated its
responsibility to the civilian employees of the Department of Defense.
Mr. NELSON of Florida. Mr. President, I rise today to speak in favor
of the National Defense Authorization Act for Fiscal Year 2004 and what
this bill does for our national security.
I am honored to be the ranking member on the Subcommittee on
Strategic Forces. I thank Senator Allard, the chairman of the
subcommittee, for his leadership and generous spirit of cooperation.
This bill accomplishes much that is good for America, and I am proud
to have been a part of shaping the direction of our current and future
security.
The Strategic Forces Subcommittee has had a good year with a number
of hearings on the difficult and complex issues that fall within the
subcommittee's jurisdiction. With just a few exceptions, the provisions
in the bill on the floor today are balanced and enjoy strong bipartisan
support.
In the space program area, an area of great interest to both Senator
Allard and myself, I note our strong support of the additional funds
provided for the GPS-3 satellite.
The Nation cannot afford to delay the important technological
advances that GPS-3 will provide.
The Defense Department wanted to delay this program, but this year's
budget request was put together long before the war in Iraq.
Given the performance of and the demand for the precision provided by
GPS in the war and U.S. reliance on GPS generally, the GPS-3 must be
accelerated. Hopefully, this bill will get this vital program back on
track.
The approach taken in the bill on missile defense is balanced. My
colleagues on this side of the aisle and I appreciate that this bill
addresses a number of our concerns and incorporates some of our
recommendations to strengthen our missile defense programs.
I fully support the provision in the bill that will provide Congress
important information on the funding required to actually procure, not
just research, our missile defense systems.
This provision, when enacted, will provide Congress and the American
people a window into the costs of our missile defense plans, and will
also help ensure that we know up front how much funding is required to
deploy future missile defense systems.

I also am pleased that the bill will restore a national missile
defense intercept test in fiscal year 2004. The administration has
decided to cancel 9 of 20 previously planned intercept tests for this
system. One of the cancelled tests was to have occurred in 2004.
This is of concern to me--I believe we need to test systems before we
deploy them. Restoration of the test in 2004 will substantially enhance
our knowledge of the missile defense system the President has decided
to field at the end of 2004. Adding this one test will increase the
number of full-up tests of the system between now and the fielding date
by 50 percent.
The bill also contains a requirement for the Department to report to
Congress on why the national missile defense test plan has changed so
radically. This is a positive step.
Unfortunately, the bill does not urge the administration to restore
the other eight cancelled tests, or require the administration to
notify Congress if it decides to cancel even more tests.
Congress has a modern tradition of using testing--developmental and
operational--as a critical element of its constitutional oversight
responsibility. We should not abandon this now.
The President plans to field a missile defense system in 2004, yet
that system is still years from being fully tested and proven. When
deployed in 2004 it is not clear how well the system would work if
called upon. Only a disciplined, fully funded, and rigorous test
program will determine that.
During the debate on this bill, I hope we can find a way to restore
some of the testing unwisely removed from the program.
One of the areas the committee bill does not address is the lack of
any yardstick with which to measure the developmental progress of our
missile defense programs. Essential management tools, common to any
technology program, are not in place for missile defense.
With the exception of the Patriot PAC-3 program, developed mostly
under President Clinton, no other missile defense programs have any
established standards by which to measure their progress in
development. Are we ahead or behind schedule? Are we over, at, or under
budget? Is the technology ready, or is there more to learn?

How can Congress effectively meet our constitutional duty in
oversight of

[[Page S6843]]

this extremely complex and expensive national effort if we do not have
an objective, scientifically based yardstick to measure our progress?
Americans know that before you buy a car, you would like to know its
fuel economy, power, load capacities, and whether it has a good
maintenance record. Buying a major weapon system is not different--no
matter how complex. Before the Department of Defense or Congress buys a
multibillion-dollar system, we, and the American people, should want to
know how well it should and does perform. For a missile defense
program, this means how reliably interceptors will launch, how many
missiles it should be able to shoot down, how many decoys it can deal
with, and so on.
The administration has no such standards for missile defense. At this
moment, neither Congress nor the American people know what we are
getting for our money in missile defense. Even for the ``limited''
system the administration plans to field in 2004, there is no
description of and commitment to the types of missiles it must or will
defend against, or how many decoys it can handle. I hope we can find
some way to develop some performance standards for our missile defense
program.
In the area of signals intelligence, I fully support the funding
increases for signals intelligence aircraft. These assets have played a
disproportionately large role in the war on terrorism and continue to
be heavily utilized. It is essential that we provide the critical
funding to sustain and improve these important aircraft.
Unmanned aerial vehicles have played a remarkable role in the wars in
Afghanistan and Iraq, as well as in the greater war on terrorism. This
is one reason that a number of Senators from both sides of the aisle
were disappointed with the Navy's decision not to buy the new Fire
Scout unmanned helicopters. The Fire Scout has performed well during
its development and holds significant promise for the future. I fully
support the additional $40 million provided for Fire Scout that should
allow production to start in 2004.

I also note my support on the provision that will focus the attention
of the National Nuclear Security Administration's efforts to address
the maintenance backlog at its facilities. The Department of Energy,
DOE, has been trapped in a death spiral of deferring maintenance for 20
years. We all hope that a provision in this bill brings a new
dedication to facilities management that ends the spiral.
Finally, one additional area in the bill that troubles me, and many
of our colleagues, is its approach to nuclear weapons.
It appears that the Bush administration is making a significant
change in U.S. nuclear weapons policy by blurring the distinction
between nuclear and nonnuclear weapons.
This blurring appears to be leading to a new and unsettling notion of
usable nuclear weapons, a possible resumption of nuclear weapons
testing, and an overall approach that would lend renewed credibility
and legitimacy to nuclear weapons at levels well below their
traditional strategic deterrence role. This bill supports those goals.
It is important that the United States maintain a strong nuclear
deterrent. But it is equally important for the United States to
maintain the longstanding policy that nuclear weapons are a weapon of
last resort--not just another weapon.
Today the United States sits firmly atop the moral high ground when
it comes to the development and proliferation of nuclear weapons. Our
leadership and commitment to nonproliferation is undisputed.
Just over the last few years, the United States has successfully
assisted the third and fourth largest nuclear weapons states, Ukraine
and Kazakhstan, to be signatories of the NPT as nonnuclear weapons
states.
The United States is working hard to reduce tensions and nuclear
risks between Pakistan and India. At the same time, we are locked in a
tough strategic challenge over nuclear weapons in North Korea.
With strong leadership we can continue making progress against the
proliferation of weapons of mass destruction, particularly nuclear
weapons. But we must continue to lead by example.
But we will fail if our leadership suggests to the world that we have
accepted the legitimacy of nuclear weapons as a realistic tactical
option.
I acknowledge that we have legitimate scientific interests in the
reliability and effectiveness of our nuclear arsenal and new
technologies that may improve safety or reduce costs. Members tend to
agree on these research interests. But Members, and the American
people, tend to divide over committing the Nation to programs that will
develop and deploy new weapons for purposes other than nuclear
deterrence.
We are entering dangerous territory here and must move forward
carefully, mindful of our global leadership, without illusions of those
threats that are most likely and most dangerous, and without
ideological blinders.
I will join with several of my colleagues later in a series of
amendments that will, if adopted, address some of these concerns. The
debate that lies ahead will be important to this bill and our national
security.
Mr. President, my thanks again to Senator Allard for his leadership
of our subcommittee this year, and to Senators Warner and Levin for
their leadership of the full committee. I look forward to the work we
will do together as we move this important bill to final passage.

____________________