Combating Military Counterfeits Act of 2011

Mr. President, I yield myself 20 minutes.

Mr. President, on behalf of the Senate Armed Services Committee, I am pleased to bring to the Senate the conference report on H.R. 1540, the National Defense Authorization Act for fiscal year 2012. This conference report, which was signed by all 26 Senate conferees, contains many provisions that are of critical importance to our troops. This will be the 50th consecutive year in which a National Defense Authorization Act has been enacted into law.

I thank all of the members and staff of the Senate Armed Services Committee--and especially our subcommittee chairs and our ranking members--for the hard work they have done to get us to this stage. Every year we take on tough issues and we work through them on a bipartisan basis, consistent with the traditions of our committee. This year was a particularly difficult one because of the severely condensed timeline for floor consideration and conference on the bill.

I particularly thank my friend Senator McCain, our ranking minority member, for his strong support throughout the process. I know both of us thank the chairman and ranking member of the House Armed Services Committee, Buck McKeon and Adam Smith, for their commitment to this bill and to the men and women of our Armed Forces.

The conference report we bring to the floor today authorizes $662 billion for national defense programs. While it authorizes $27 billion less than the President's budget request and $43 billion less than the amount appropriated for fiscal year 2011, I am confident this conference report, nonetheless, provides adequate support for the men and women of the Armed Forces and their families and provides them with the means they need to accomplish their missions.

This conference report contains many important provisions that will improve the quality of life of our men and women in uniform. It will provide needed support and assistance to our troops on the battlefield. It will make the investments we need to meet the challenges of the 21st century, and it will provide for needed reforms in the management of the Department of Defense.

I ask unanimous consent that a list of some of the more significant provisions be printed in the Record at the close of my remarks.

Probably the most discussed provision in the conference report is the provision relative to military detention for foreign al- Qaida terrorists. This provision was written to be doubly sure there is no interference with civilian interrogations and other law enforcement activities and to ensure that the President has the flexibility he needs to use the most appropriate tools in each case. The bill as passed in the Senate addressed this issue by including language that: No. 1, left it to the President to adopt procedures to determine who is a foreign al-Qaida terrorist and therefore subject to presumed military detention; No. 2, required that those procedures not interfere with ongoing intelligence, surveillance, or interrogations by civilian law enforcement; No. 3, left it to the executive branch to determine whether a military detainee who will be tried is tried by a civilian court or a military court; and No. 4, gave the executive branch broad waiver authority.

The conference report retains that language and adds additional assurances that there will be no interference with civilian interrogations or other law enforcement activities. In particular, the conferees added language that says the following:

Nothing in this section shall be construed to affect the

existing criminal enforcement and national security

authorities of the Federal Bureau of Investigation or any

other domestic law enforcement agency with respect to a

covered person, regardless of whether such covered person is

held in military custody.

It also modifies the waiver language to give the President, rather than the Secretary of Defense, the authority to waive the requirements of the provision.

Under the provision in the conference report, law enforcement agencies are not restrained in apprehending suspects or conducting any investigations or interrogations. If a suspect is apprehended and is in law enforcement custody, the suspect can be investigated and interrogated in accordance with existing procedures. If and when a determination is made that a suspect is a foreign al-Qaida terrorist, that person would be slated for transfer to military custody under rules written by the executive branch. Again, however, any ongoing interrogations are not to be interrupted, and the President also has a waiver authority. If the suspect is transferred to military custody, all existing law enforcement and national security tools remain available to the FBI and other law enforcement agencies, and even if the suspect is held in military custody, it would be up to the Attorney General, after consulting with the Secretary of Defense and the Director of National Intelligence, to determine whether the suspect will be tried in Federal court or before a military commission. The bill provides the Attorney General with broad discretion to ensure that whatever consultation is conducted does not impede operational judgments that may need to be made to pursue investigative leads, effect arrests or file charges.

The language in the Senate bill and in the conference report is intended to preserve the operational flexibility of law enforcement and national security professionals in the executive branch. Nothing in the language limits the President as to when he can waive the provision or for whom he can waive it.

For example, he is not required to wait for a coverage determination to be made before deciding to waive the requirements of the provision. Similarly, he is not precluded from waiving the provision with regard to more than one individual at a time--for example, with regard to a group of conspirators or potential codefendants.

In short, the waiver language in the conference report is broad enough to reflect circumstances in which it is in the national security interests of the United States for a President to waive the requirements of the provision with respect to a category of covered persons, if he so determines, in order to preserve the flexibility of counterterrorism professionals and operators to take expeditious action.

With the exception of those assurances, the detainee provisions in the conference report are largely unchanged from the provisions in the bill that was approved by the Senate on a 93-to-7 vote just 2 weeks ago. Those who say we have written into law a new authority to detain American citizens until the end of hostilities are wrong. Neither the Senate bill nor the conference report establishes new authority to detain American citizens--or anybody else.

The issue of indefinite detention arises from the capture of an enemy combatant at war. According to the law of war, an enemy combatant may be held until the end of hostilities. Can an American citizen be held as an enemy combatant? According to the law of war, an enemy combatant may be held until the end of hostilities. But, again, can an American citizen be held as an enemy combatant? I believe that if an American citizen joins a foreign army or a hostile force such as al-Qaida that has declared war and organized a war against us and attacks us, that person can be captured and detained as an enemy combatant under the law of war.

In 2004, the Supreme Court held in the Hamdi case that ``there is no bar to this Nation's holding one of its own citizens as an enemy combatant.''

The Court cited with approval its holding in the Quirin case, in which an earlier court held that ``citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of . . . the law of war.''

But despite that view of mine, which I clearly expressed on the Senate floor a couple weeks ago, neither the Senate bill nor the conference report takes a position on this issue. Both the Senate bill and the conference report include

the language of the Feinstein amendment, which we drafted together and passed 99 to 1. That amendment leaves this issue to the executive branch and the courts by providing the following:

Nothing in this section shall be construed to affect

existing law or authorities relating to the detention of

United States citizens, lawful resident aliens of the United

States, or any other persons who are captured or arrested in

the United States.

The more difficult issue for me--and I believe it goes to the heart of the concern of the detention policy--is the kind of war we are in with al-Qaida, and that issue is when does the detention end? In other words, when are the hostilities over? In this kind of nontraditional war, we are not likely to sign a peace treaty or receive a formal surrender or even reach an agreement on a cease-fire.

Under these circumstances, it is appropriate for us to provide greater procedural rights to enemy detainees than we might in a more traditional war. We have done so in this conference report. The conference report, for instance, requires periodic reviews of detainee cases in accordance with an executive order issued earlier this year to determine whether detainees pose a continuing threat or safely can be released. Under the conference report, enemy combatants who will be held in long-term military detention are told, for the first time, they will get a military judge and a military lawyer for their status determination.

The conference report includes many other important provisions.

It includes new sanctions against the financial sector of Iran, including the Central Bank of Iran. These sanctions would, among other actions, require foreign financial institutions to choose between maintaining ties with the U.S. financial system or doing business with the Central Bank of Iran.

It includes provisions addressing the problem of counterfeit parts that can undermine the performance of military weapons systems and endanger our men and women in uniform. This is one of the most important additional provisions we have in our bill; that is, the provisions relative to these counterfeit parts that are flooding our defense system with electronic parts that are counterfeited and come mainly from China. We were able to identify approximately 1,800 cases of suspect counterfeit electronic parts, covering more than 1 million individual parts, with most of them, again, coming from China. This conference report includes comprehensive reforms to keep counterfeit electronic parts out of the defense supply chain and provides proper accountability when suspect parts make it through that chain.

In particular, the conference report relative to this subject does the following:

It clarifies acquisition rules to ensure that the cost of replacement and rework that is required by the use of suspect counterfeit parts is paid by the contractor, not by the taxpayer.

It requires the Department of Defense and Department of Defense suppliers to purchase electronic parts from manufacturers and their authorized dealers or from trusted, certified suppliers.

It requires Department of Defense officials and Department of Defense contractors that become aware of counterfeit parts in the supply chain to provide written notification to the government.

It requires the Department of Defense and its largest contractors to establish systems and procedures to detect and avoid counterfeit parts.

It requires the Secretary of Homeland Security to consult with the Secretary of Defense on the sources of counterfeit electronic parts in the military supply chain and establish a risk-based program of enhanced inspection of imported electronic parts.

It authorizes Customs to share information from electronic parts inspected at the border with manufacturers to help determine whether the parts are counterfeit.

It strengthens criminal penalties for counterfeiting military goods or services.

We are very grateful for the support of Members of this body for that provision.

Relative to the strengthening of criminal penalties, I wish to add our thanks to Senator Whitehouse for his work on this subject, for his provisions relative to additional criminal penalties for counterfeiting military goods that are a part of this bill, and they are a very important part.

The conference report requires sound planning--this is another provision of this bill--and justification before we spend more money on troop realignment from Okinawa to Guam and on tour normalization in Korea. Those provisions follow detailed oversight that Senators Webb, McCain, and I have conducted.

On some other provisions: The conference report requires that the next lot of F-35 aircraft--lot 6--and all subsequent aircraft, be purchased under fixed-price contracts, with the contractor assuming full responsibility for any costs above the target cost specified in the contract.

Our conference report fences 75 percent of the money available for the Medium Extended Air Defense System--MEADS--until the Secretary of Defense submits a detailed plan to use those funds to close out the program or pay contract termination costs.

The conference report includes Senator Landrieu's bill to extend the Small Business Innovative Research--SBIR--Program for an additional 6 years. It has been about 6 years since we reauthorized this vitally important program, which provides a huge benefit to our small businesses so they can effectively participate in research programs that are funded by the Federal Government. In the defense arena, SBIR has successfully invested in innovative research and technologies that have contributed significantly to the expansion of the defense industrial base and the development of new military capabilities.

As to Pakistan, the conference report limits to 40 percent the amount of the Pakistan Counterinsurgency Capability Fund that can be obligated until the Secretary of Defense provides Congress with a strategy on the use of the fund and on enhancing Pakistan's efforts to counter the threat of improvised explosive devices, those IEDs which kill so many of our troops and so many civilians.

Finally, the Department of Defense has informed us it does not need an exemption from section 526 of the Energy Independence and Security Act of 2007 because that section does not apply to purchases at market prices from generally available fuel supplies and does not preclude the Department from purchasing any fuel it needs or expects to purchase in the foreseeable future.

We are in the final stages of withdrawing our combat troops from Iraq, but we continue to have almost 100,000 U.S. soldiers, sailors, airmen, and marines on the ground in Afghanistan. While there are issues on which we may disagree, we all know we must provide our troops the support they need as long as they remain in harm's way. The enactment of this conference report will improve the quality of life for our men and women in uniform. It will give them the tools they need to remain the most effective fighting force in the world. Most important of all, it will send an important message that we as a nation stand behind our troops and we deeply appreciate their service.

In conclusion, I would, once again, thank Senator McCain, all our Members, and our majority and minority staff, led by Rick DeBobes and Dave Morriss, for their hard work on this bill. We could not have done this without them.

I ask unanimous consent that a full list of our majority and minority staff, who gave so much of themselves and their families, be printed in the Record.

I yield the floor.

Exhibit 1

Selected Highlights of the National Defense Authorization Act for

Fiscal Year 2012

--Authorizes a 1.6 percent across-the-board pay raise for

all uniformed military personnel and extend over 30 types of

bonuses and special pays aimed at encouraging enlistment,

reenlistment, and continued service by active-duty and

reserve military personnel;

--Extends authorities needed to fairly compensate civilian

employees and highly qualified experts who are assigned to

work overseas in support of contingency operations;

--Clarifies provisions of the Uniform Code of Military

Justice relating to the offenses of rape, sexual assault, and

other sexual misconduct to address constitutional

deficiencies in the existing law;

--Extends the authority of U.S. Special Operations Forces

to provide support to regular forces, irregular forces, and

individuals aiding U.S. special operations to combat

terrorism;

--Freezes the Department's spending on contract services at

fiscal year 2010 levels, to ensure that cost reductions and

savings are spread across all components of the DOD

workforce;

--Authorizes the Department to void a contract in

Afghanistan, if the contractor or its employees are

determined to be actively working with the enemy to oppose

U.S. forces in that country;

--Implements cost-saving programs to address rapidly

escalating costs for the operation and support of weapon

systems, including costs incurred as a result of corrosion;

and

--Enhances the role of the National Guard by including the

Chief of the National Guard Bureau as a member of the Joint

Chiefs of Staff.

I suggest the absence of a quorum.

Madam President, I spoke at some length before, but I want to repeat one sentiment in the statement that has to do with Senator McCain and his staff. The way in which he and our staff work together is in the finest tradition of this body. Our committee has had that reputation. It is a well-earned, well-deserved reputation that we are able to work on a bipartisan basis.

Senator McCain continues in a great tradition on the Republican side, and I would hope I strive at least to do the same on our side. We have had some great leaders of our committee over the decades, and Senator McCain is one of those leaders in that tradition, and I want to say what a great pleasure it is to work with him.

I know our staffs work beautifully together, and we are grateful for that. The Senator was right in pointing out who we are doing this for-- it is the men and women in uniform--but we couldn't do that without our great staffs, and I know he joins me, and has already in his statement, in a tribute to our staffs.

I think one on our side.

While we are talking about rays of lightness, we thank Senator Hagan, our Presiding Officer, who is a member of our committee. She provides a ray of light--one of the many rays of light on our committee. I see her presiding and smiling over this effort, and I wanted to acknowledge that she is an important part of it and to recognize her contribution as well.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, section 1022(d) of the conference report states that ``nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.'' Would the Senator agree with me that this language is intended to ensure that the provision does not interfere with ongoing civilian interrogations and other law enforcement activities and that the President has the flexibility he needs to decide on the most appropriate law enforcement and intelligence tools for each individual case?

Section 1022 applies only to a person who is ``a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda.'' The statement of managers states that this language intentionally excluded the Taliban. Would the Senator agree with me that the requirements of section 1022--including the transfer restrictions applicable under that provision--do not apply to individuals detained by our forces in Afghanistan?

Madam President, I had not seen those remarks of Mr. Putin, but referring to his last comment, read by Senator McCain, I guess people would go nuts in the setting Senator McCain found himself in the Vietnam war. He probably is perhaps, only in that line, accurate that most people, indeed, could not have survived that experience. I know Senator McCain does not raise this matter, but those of us who work with him appreciate all he has done for this country and for this body. I wish we had a chance to straighten out Mr. Putin about Senator McCain. I don't think we will have that opportunity, but maybe his own people will do so in a free election someday.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I now ask unanimous consent that the following Senators be recognized for up to 4 minutes each to address the depot provisions in the bill, and at the end of their remarks Senator McCain and I be recognized to address the same issue. This was the order we were given. They may want to change it: Senator Sessions, Senator Chambliss, Senator Inhofe, Senator Shaheen, Senator Ayotte, and Senator Hagan.

Mr. President, I appreciate and I understand the Senators' concerns about this issue as they have been expressed here this afternoon. I also very much appreciate their understanding relative to the extremely short period for conference this year where we worked through hundreds of provisions with our House colleagues in about a week, a process that usually takes a month or more.

While I am proud of what we were able to accomplish in this bill as a whole, it was probably likely that some language would need more consideration because of the time constraints we were operating under. Before I continue, I want to state my appreciation to the Members who spoke here this afternoon and members of the Armed Services Committee. They make major contributions to this committee.

I listened carefully to what our colleagues have had to say about the depot maintenance issue. I believe their concerns are substantive and merit careful consideration from the Armed Services Committee. This is an issue that was brought to our conference in the House bill.

The depot maintenance provisions that were approved by the House last

May arose out of a congressionally mandated independent review of the statutes, regulations, and policies guiding depot maintenance performance and reporting. The House conferees then proposed modifications to their own provisions based on the results of a series of discussions with stakeholders held throughout the summer at the National Defense University. We were told this process was comprehensive, that all stakeholders were invited, and that the resulting recommendations were widely accepted by all interested parties.

In particular, we understood the Department of Defense, private industry, and the House Depot Caucus had reached consensus on the revised House language. While those statements were made in good faith, it turns out they were not accurate. A number of key players, including stakeholders in government, private industry, and labor, did not participate in the process at National Defense University and were apparently unaware of the results.

Senators with a strong interest in the issue were not aware of the modified House language that was presented in our conference until it was too late to consider changes. I am aware that the depot maintenance issue has long been a sensitive one to our Nation and to many of our Members, and that the precise words in these provisions matter. The existing statutes, regulations, and practices have served to sustain both core logistics capabilities and the defense industrial base over the last decade, so any changes need to be fully understood.

I understand there are a number of unanswered questions about the provisions in the conference report that could have significant effects. For example, first, the new language substitutes the term ``core depot level maintenance'' for the existing term ``core logistics.'' Does this change impact National Guard readiness, sustainment maintenance sites, and other DOD facilities that are not depots? Does the change impact requirements for supply chain management and other logistics functions that are not performed by depots?

Second, the new language changes the wording regarding modifications in the definition of core depot level maintenance. Does this change impact planned public-private competitions for modifications and upgrades programs? Does the change preserve the distinction between modifications and upgrades on the one hand and acquisition programs on the other? Is this an expansion of core functions that will be required to be performed in the public sector with an adverse impact on the defense industrial base?

Third, the new language changes the wording of the exclusion for commercial items. Is this a change to the existing exclusion or merely a recodification? Will it impact maintenance requirements for commercial derivative aircraft and other major defense systems that are based on commercial technology?

Fourth, the new language includes a waiver rather than an exemption from core requirements for nuclear aircraft carriers. Will the new language result in any change in requirements for the maintenance and modifications of nuclear aircraft carriers?

Fifth, the new language includes the authority to waive core requirements for any weapons system that is ``not an enduring element of the national defense strategy,'' rather than an exclusion for a workload that is ``no longer required for national defense reasons.'' Does this new language mean something different from the existing language? If so, will it change the balance of work between the depots and the private sector?

I am committed to have the Armed Services Committee revisit the modifications to the depot maintenance laws included in this conference report and to give full consideration to the concerns our Members have raised. Over the coming months we will engage with interested Members and their staffs to review the language in detail. Together we will reach out to interested parties through a process that will include a full committee hearing if we determine one is needed. We will then take action to repeal or modify anything that needs to be repealed or modified in these provisions during our consideration of next year's National Defense Authorization Act. Many of my colleagues heard Chairman Buck McKeon make a similar commitment at our final conference meeting.

During the next year, while this review process is underway, I join my colleagues in urging the Department of Defense to proceed with caution in implementing this legislation. In particular, I urge the Department to make as little change as possible in the status quo with regard to these functions during the next year. It would be unfortunate if the Department were to change significant functions from one form of performance to another this year only to be required to change the decision again the year later.

Our objective has always been and always will be to ensure the Nation's depot maintenance system is structured and supported in a manner that efficiently and effectively provides for the readiness of our Armed Forces and our national security. I know this is a critically important issue. I look forward to working with Senators over the next year to take the steps we have discussed here today.

I yield the floor.

Madam President, reserving the right to object--and I, of course, will not--how much time is left before our vote?

If the Senator will save me 30 seconds, I would appreciate it.

Madam President, let me first thank Senators Graham and Ayotte for their contributions this afternoon and long before this afternoon on this subject.

The best answer to some of the criticism we have heard this afternoon--the FBI has been successful. Why change it?--read the law, read the conference report.

Nothing in this section shall be construed to affect the

existing criminal enforcement and national security

authorities of the Federal Bureau of Investigation. . . .

It is flatout explicit in the law.

Something else we have heard: We are doing something for the first time--long-term custody for American citizens. Read the conference report:

Nothing in this section shall be con-

strued to affect existing law or authorities

relating to the detention of United States

citizens. . . .

I urge people to read our conference reports read the Senate bill, before they accept some of the arguments which have been made against this conference report.

Madam President, I ask unanimous consent that the statement of the Press Secretary for the President that was issued yesterday on behalf of the President be printed in the Record, including this line:

[W]e have concluded that the language does not--

The language in the conference report--

challenge or constrain the President's ability to collect telling intelligence, incapacitate dangerous terrorists, and protect the American people--

And the key words for many people--

and the President's senior advisors will not recommend a

veto.

Again, I want to thank all of my colleagues who participated in this debate.

I yield the floor.

The PRESIDING OFFICER (Ms. Klobuchar.) The question is on agreeing to the conference report.

I ask for the yeas and nays.

Mr. President, I rise today in strong opposition to several sections of the fiscal year 2012 Department of Defense authorization bill relating to detainees.

I have serious concerns regarding the detention provisions included in the final conference report. When this legislation was being discussed in the Senate, the Secretary of Defense, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation clearly stated that these provisions would undermine the ability of the government to bring suspected terrorists to justice. The language in the bill also raises significant issues regarding civil liberties, including the applicability of the indefinite detention provision to American citizens.

Section 1021 of the conference report provides the U.S. military with the authority to indefinitely detain, without trial, an individual suspected of involvement in hostilities against the United States. The ability to detain the person without charges could last until the ``end of hostilities''--a completely undefined period of time considering that we are confronting a long-term conflict with groups, such as al- Qaida, who will never sign a peace treaty ending the hostilities.

The final language does include an amendment offered by Senator Feinstein that states that the provision should not be construed as affecting existing law with respect to the detention of U.S. citizens, but this language simply restates that the law is what the law is. The problem is that the law is unsettled. If Congress is going to enact provisions authorizing the indefinite detention of a person without a trial, frankly, I believe the sensible approach is to be very clear about whether or not it is the intent of Congress to include American citizens within this category.

Another problematic provision is section 1022, which mandates that the military detain suspected members of al-Qaida, including those captured within the United States. As I previously mentioned, military and Federal law enforcement officials have argued that this provision will hamper their ability to bring suspected terrorists to justice by limiting the flexibility of civilian law enforcement and creating a completely new and untested framework for dealing with suspected terrorists.

Proponents of this provision have argued that this section will not interfere with the ability of civilian law enforcement to do their job. They point to the fact that the President may waive the requirement and that the President must draft procedures within 60 days to mitigate any problems associated with implementing this section.

First, with regard to the waiver, if civilian law enforcement agents capture a suspected terrorist, the need to obtain a Presidential waiver for continued civilian detention could disrupt interrogations and intelligence gathering. Second, if there is an acknowledgement that the statute could interfere with Federal law enforcement's ability to interrogate and prosecute a suspected terrorist, it would seem more appropriate to just address the underlying problems with the statute rather than task the administration with coming up with procedures to deal with these shortfalls.

Just yesterday, the Director of the FBI, Robert Mueller, in testimony before the Senate Judiciary Committee, stated that the revised language did not fully address his concerns about the negative impact the military detention provision would have in interfering with the work of investigators.

The bottom line is that this section muddies the water and is completely unnecessary. The administration already has the discretion to prosecute foreign terrorists in civilian court or in military tribunals. We should maintain this flexibility to ensure the government is able to aggressively pursue terrorists in the forum that is the most effective in each specific case.

Lastly, I would like to briefly comment on the various provisions in the conference report aimed at limiting the ability of the administration to close the detention facility in Guantanamo Bay. It has been about 10 years since the Bush administration established the facility and its closure is long overdue.

As a recent article by Scott Shane of the New York Times pointed out, the government spends around $800,000 a year to house each of the 171 remaining prisoners at the military facility at Guantanamo. This is despite the fact that our Federal prison system has a strong record of safely holding individuals convicted of terrorism-related offenses-- there are currently 362 of these individuals within the custody of the Bureau of Prisons.

Mr. President, I ask unanimous consent that the article be printed in the Congressional Record following my remarks.

It is unfortunate that Congress continues to put in place restrictions preventing the transfer of inmates and the closure of the facility. I believe our Nation's handling of detainees will not be viewed kindly by history, and I look forward to the day we are able to close this regrettable chapter.

I supported an amendment offered by Senator Mark Udall to remove all of the detainee provisions from the Senate bill. Unfortunately, the measure was not adopted. It was my hope that these matters would be dealt with as the legislative process moved forward, and I am disappointed that efforts to adequately address these concerns were unsuccessful. I will continue to support efforts to revise these provisions as Congress discusses detainee matters in the future.

Exhibit 1

[From the New York Times, Dec. 10, 2011]

Beyond Guantanamo, a Web of Prisons for Terrorism Inmates

(By Scott Shane)

Washington.--It is the other Guantanamo, an archipelago of

federal prisons that stretches across the country, hidden

away on back roads. Today, it houses far more men convicted

in terrorism cases than the shrunken population of the prison

in Cuba that has generated so much debate.

An aggressive prosecution strategy, aimed at prevention as

much as punishment, has sent away scores of people. They

serve long sentences, often in restrictive, Muslim-majority

units, under intensive monitoring by prison officers. Their

world is spare.

Among them is Ismail Royer, serving 20 years for helping

friends go to an extremist training camp in Pakistan. In a

letter from the highest-security prison in the United States,

Mr. Royer describes his remarkable neighbors at twice-a-week

outdoor exercise sessions, each prisoner alone in his own

wire cage under the Colorado sky. ``That's really the only

interaction I have with other inmates,'' he wrote from the

federal Supermax, 100 miles south of Denver.

There is Richard Reid, the shoe bomber, Mr. Royer wrote.

Terry Nichols, who conspired to blow up the Oklahoma City

federal building. Ahmed Ressam, the would-be ``millennium

bomber,'' who plotted to attack Los Angeles International

Airport. And Eric Rudolph, who bombed abortion clinics and

the 1996 Summer Olympics in Atlanta.

In recent weeks, Congress has reignited an old debate, with

some arguing that only military justice is appropriate for

terrorist suspects. But military tribunals have proved

excruciatingly slow and imprisonment at Guantanamo hugely

costly--$800,000 per inmate a year, compared with $25,000 in

federal prison.

The criminal justice system, meanwhile, has absorbed the

surge of terrorism cases since 2001 without calamity, and

without the international criticism that Guantanamo has

attracted for holding prisoners without trial. A decade after

the Sept. 11 attacks, an examination of how the prisons have

handled the challenge of extremist violence reveals some

striking facts:

--Big numbers. Today, 171 prisoners remain at Guantanamo.

As of Oct. 1, the federal Bureau of Prisons reported that it

was holding 362 people convicted in terrorism-related cases,

269 with what the bureau calls a

connection to international terrorism--up from just 50 in

2000. An additional 93 inmates have a connection to domestic

terrorism.

--Lengthy sentences. Terrorists who plotted to massacre

Americans are likely to die in prison. Faisal Shahzad, who

tried to set off a car bomb in Times Square in 2010, is

serving a sentence of life without parole at the Supermax, as

are Zacarias Moussaoui, a Qaeda operative arrested in 2001,

and Mr. Reid, the shoe bomber, among others. But many inmates

whose conduct fell far short of outright terrorism are

serving sentences of a decade or more, the result of a

calculated prevention strategy to sideline radicals well

before they could initiate deadly plots.

--Special units. Since 2006, the Bureau of Prisons has

moved many of those convicted in terrorism cases to two

special units that severely restrict visits and phone calls.

But in creating what are Muslim-dominated units, prison

officials have inadvertently fostered a sense of solidarity

and defiance, and set off a long-running legal dispute over

limits on group prayer. Officials have warned in court

filings about the danger of radicalization, but the Bureau of

Prisons has nothing comparable to the deradicalization

programs instituted in many countries.

--Quiet releases. More than 300 prisoners have completed

their sentences and been freed since 2001. Their convictions

involved not outright violence but ``material support'' for a

terrorist group; financial or document fraud; weapons

violations; and a range of other crimes. About half are

foreign citizens and were deported; the Americans have

blended into communities around the country, refusing news

media interviews and avoiding attention.

--Rare recidivism. By contrast with the record at

Guantanamo, where the Defense Department says that about 25

percent of those released are known or suspected of

subsequently joining militant groups, it appears

extraordinarily rare for the federal prison inmates with past

terrorist ties to plot violence after their release. The

government keeps a close eye on them: prison intelligence

officers report regularly to the Justice Department on

visitors, letters and phone calls of inmates linked to

terrorism. Before the prisoners are freed, F.B.I. agents

typically interview them, and probation officers track them

for years.

Both the Obama administration and Republicans in Congress

often cite the threat of homegrown terrorism. But the Bureau

of Prisons has proven remarkably resistant to outside

scrutiny of the inmates it houses, who might offer a unique

window on the problem.

In 2009, a group of scholars proposed interviewing people

imprisoned in terrorism cases about how they took that path.

The Department of Homeland Security approved the proposal and

offered financing. But the Bureau of Prisons refused to grant

access, saying the project would require too much staff time.

``There's a huge national debate about how dangerous these

people are,'' said Gary LaFree, director of a national

terrorism study center at the University of Maryland, who was

lead author of the proposal. ``I just think, as a citizen,

somebody ought to be studying this.''

The Bureau of Prisons would not make any officials

available for an interview with The New York Times, and

wardens at three prisons refused to permit a reporter to

visit inmates. But e-mails and letters from inmates give a

rare, if narrow, look at their hidden world.

Paying the Price

Consider the case of Randall Todd Royer, 38, a Missouri-

born Muslim convert who goes by Ismail. Before 9/11, he was a

young Islamic activist with the Council on American-Islamic

Relations and the Muslim American Society, meeting with

members of Congress and visiting the Clinton White House.

Today he is nearly eight years into a 20-year prison

sentence. He pleaded guilty in 2004 to helping several

American friends go to a training camp for Lashkar-e-Taiba,

an extremist group fighting Indian rule in Kashmir. The

organization was later designated a terrorist group by the

United States--and is blamed for the Mumbai massacre in

2008--but prosecutors maintained in 2004 that the friends

intended to go on to Afghanistan and fight American troops

alongside the Taliban.

Mr. Royer had fought briefly with the Bosnian Muslims

against their Serbian neighbors in the mid-1990s, when NATO,

too, backed the Bosnians. He trained at a Lashkar-e-Taiba

camp himself. And in 2001, he was stopped by Virginia police

with an AK-47 and ammunition in his car.

But he adamantly denies that he would ever scheme to kill

Americans, and there is no evidence that he did so. Before

sentencing, he wrote the judge a 30-page letter admitting,

``I crossed the line and, in my ignorance and phenomenally

poor judgment, broke the law.'' In grand jury testimony, he

expressed regret about not objecting during a meeting, just

after the Sept. 11 attacks, in which his friends discussed

joining the Taliban.

``Unfortunately, I didn't come out and clearly say that's

not what any of us should be about,'' he said.

Prosecutors call Mr. Royer ``an inveterate liar'' in court

papers in another case, asserting that he has given

contradictory accounts of the meeting after Sept. 11. Mr.

Royer says he has been truthful.

Whatever the facts, he is paying the price. His 20-year

sentence was the statutory minimum under a 2004 plea deal he

reluctantly took, fearing that a trial might end in a life

term. His wife divorced him and remarried; he has seen his

four young children only through glass since 2006, when the

Bureau of Prisons moved him to a restrictive new unit in

Indiana for inmates with the terrorism label. After an

altercation with another inmate who he said was bullying

others, he was moved in 2010 to the Supermax in Colorado.

He is barred from using e-mail and permitted only three 15-

minute phone calls a month--recently increased from two, a

move that Mr. Royer hopes may portend his being moved to a

prison closer to his children. His letters are reflective,

sometimes self-critical, frequently dropping allusions to his

omnivorous reading. His flirtation with violent Islam and his

incarceration, he says, have not poisoned him against his own

country.

``You asked what I think of the U.S.; that is an

extraordinarily complex question,'' Mr. Royer wrote in one

letter consisting of 27 pages of neat handwriting. ``I can

say I was born in Missouri, I love that land and its people,

I love the Mississippi, I love my family and my cousins, I

love my Germanic ethnic heritage and people, I love the

English language, I love the American people--my people.

He said he believed some American foreign policy positions

had been ``needlessly antagonistic'' but added, ``Nothing the

U.S. did justified the 9/11 attacks.''

Mr. Royer rejected the notion that the United States was at

war with Islam. ``Conflict between the U.S. and Muslims is

neither inevitable nor beneficial or in anyone's interest,''

he wrote. ``Actually, I suppose it is in the interest of

fanatics on both sides, but their interests run counter to

everyone else's.'' He added an erudite footnote: `` `Les

extremites se touchent' (the extremes meet)--Blaise Pascal.''

He expressed frustration that the Bureau of Prisons appears

to view him as an extremist, despite what he describes as his

campaign against extremism in discussions with other inmates

and prison sermons at Friday Prayer, ``which they surely have

recordings of.''

``I have gotten into vehement debates, not to mention civil

conversations, with other inmates from the day I was arrested

until today, about the dangers and evils of extremism and

terrorism,'' Mr. Royer wrote in a yearlong correspondence

with a reporter. ``Can they not figure out who I am?''

A Scorched-Earth Approach

In 2004, prosecutors believed they knew who Mr. Royer was:

one of a group of young Virginians under the influence of a

radical cleric, Ali al-Timimi, whose members played paintball

to practice for jihad and were on a path toward extremist

violence. After Sept. 11, federal prosecutors took a

scorched-earth approach to any crime with even a hint of a

terrorism connection, and judges and juries went along.

In the Virginia jihad case, for instance, prosecutors used

the Neutrality Act, a little-used law dating to 1794 that

prohibits Americans from fighting against a nation at peace

with the United States. Prosecutors combined that law with

weapons statutes that impose a mandatory minimum sentence in

a strategy to get the longest prison terms, with breaks for

some defendants who cooperated, said Paul J. McNulty, then

the United States attorney overseeing the case.

``We were doing all we could to prevent the next attack,''

Mr. McNulty said.

``It was a deterrence strategy and a show of strength,''

said Karen J. Greenberg, a law professor at Fordham

University who has overseen the most thorough independent

analysis of terrorism prosecutions. ``The attitude of the

government was: Every step you take toward terrorism, no

matter how small, will be punished severely.''

About 40 percent of terrorism cases since the Sept. 11

attacks have relied on informants, by the count of the Center

on Law and Security at New York University, which Ms.

Greenberg headed until earlier this year. In such cases, the

F.B.I. has trolled for radicals and then tested whether they

were willing to plot mayhem--again, a preemptive strategy

intended to ferret out potential terrorists. But in some

cases prosecutors have been accused of overreaching.

Yassin M. Aref, for instance, was a Kurdish immigrant from

Iraq and the imam of an Albany mosque when he agreed to serve

as witness to a loan between an acquaintance and another man,

actually an informant posing as a supporter of a Pakistani

terrorist group, Jaish-e-Muhammad. The ostensible purpose of

the loan was to buy a missile to kill the Pakistani

ambassador to the United Nations. Mr. Aref's involvement was

peripheral--but he was convicted of conspiring to aid a

terrorist group and got a 15-year sentence.

That was a typical punishment, according to the Center on

Law and Security, which has studied the issue. Of 204 people

charged with what it calls serious jihadist crimes since the

Sept. 11 attacks, 87 percent were convicted and got an

average sentence of 14 years, according to a September report

from the center.

Federal officials say the government's zero-tolerance

approach to any conduct touching on terrorism is an important

reason there has been no repeat of Sept. 11. Lengthy

sentences for marginal offenders have been criticized by some

rights advocates as deeply unfair--but they have sent an

unmistakable message to young men drawn to the rhetoric of

violent jihad.

The strategy has also sent scores of Muslim men to federal

prisons.

Special Units

After news reports in 2006 that three men imprisoned in the

1993 World Trade Center bombing had sent letters to a Spanish

terrorist cell, the Bureau of Prisons created two special

wards, called Communication Management Units, or C.M.U.'s.

The units, which opened at federal prisons in Terre Haute,

Ind., in 2006 and Marion, Ill., in 2008, have set off

litigation and controversy, chiefly because critics say they

impose especially restrictive rules on Muslim inmates, who

are in the majority.

The C.M.U.'s? You mean the Muslim Management Units?'' said

Ibrahim Hooper, a spokesman for the Council on American-

Islamic Relations.

The units currently hold about 80 inmates. The rules for

visitors--who are allowed no physical contact with inmates--

and the strict monitoring of mail, e-mail and phone calls are

intended both to prevent inmates from radicalizing others and

to rule out plotting from behind bars.

A Bureau of Prisons spokeswoman, Traci L. Billingsley, said

in an e-mail that the units were not created for any

religious group but were ``necessary to ensure the safety,

security and orderly operation of correctional facilities,

and protection of the public.''

An unintended consequence of creating the C.M.U.'s is a

continuing conflict between Muslim inmates and guards, mainly

over the inmates' demand for collective prayer beyond the

authorized hourlong group prayer on Fridays. The clash is

described in hundreds of pages of court filings in a lawsuit.

In one affidavit, a prison official in Terre Haute describes

``signs of radicalization'' in the unit, saying one inmate's

language showed ``defiance to authority, and a sense of being

incarcerated because of Islam.''

One 2010 written protest obtained by The New York Times,

listing grievances ranging from the no-contact visiting rules

to guards ``mocking, disrespecting and disrupting'' Friday

Prayer, was signed by 17 Muslim prisoners in the Terre Haute

Communication Management Unit. They included members of the

so-called Virginia jihad case of which Mr. Royer was part;

the Lackawanna Six, Buffalo-area Yemeni Americans who

traveled to a Qaeda camp in Afghanistan; Kevin James, who

formed a radical Muslim group in prison and plotted to attack

military facilities in Los Angeles; and John Walker Lindh,

the so-called American Taliban.

An affidavit signed by Mr. Lindh, who is serving 20 years

after admitting to fighting for the Taliban, complained that

a correctional officer greeted male Muslim inmates with

``Good morning, ladies.'' (``No ladies were in the area,''

Mr. Lindh writes.) Prison officials say in court papers that

Mr. Lindh has repeatedly challenged guards and violated

rules.

Unlike those at the Supermax, inmates in the segregated

units have access to e-mail, and some were willing to answer

questions. Mr. Lindh, whose father, Frank Lindh, said his son

believed the news media falsely labeled him a terrorist, was

not. In reply to a reporter's letter requesting an interview,

he sent only a photocopy of the sole of a tennis shoe. Since

shoe bottoms are considered offensive in many cultures, his

answer appeared to be an emphatic no.

There is some evidence that the Bureau of Prisons has

assigned Muslims with no clear terrorist connection to the

C.M.U.'s. Avon Twitty, a Muslim who spent 27 years in prison

for a 1982 street murder, was sent to the Terre Haute unit in

2007. When he challenged the assignment, he was told in

writing that he was a ``member of an international terrorist

organization,'' though no organization was named and there

appears to be no public evidence for the assertion.

Mr. Twitty, working for a home improvement company and

teaching at a Washington mosque since his release in January,

said he believed the real reason was to quash his complaints

about what he believed were miscalculations of time off for

good behavior for numerous inmates. ``They had to shut me

up,'' he said.

Another former inmate at the Marion C.M.U., Andy Stepanian,

an animal rights activist, said a guard once told him he was

``a balancer''--a non-Muslim placed in the unit to rebut

claims of religious bias. Mr. Stepanian said the creation of

the predominantly Muslim units could backfire, adding to the

feeling that Islam is under attack.

``I think it's a fair assessment that these men will leave

with a more intensified belief that the U.S. is at war with

Islam,'' said Mr. Stepanian, 33, who now works for a

Princeton publisher. ``The place reeked of it,'' he said,

describing clashes over restrictions on prayer and some

guards' hostility to Islam.

Yet Mr. Stepanian also said he found the ``family

atmosphere'' and camaraderie of inmates at the unit a welcome

change from the threatening tone of his previous medium-

security prison, where he said prisoners without a gang to

protect them were ``food for the sharks.'' When he arrived at

the C.M.U., he said, he found on his bed a pair of shower

slippers and a bag of non-animal-based food that Muslim

inmates had collected after hearing a vegan was joining the

unit.

He was wary. ``I thought they were trying to indoctrinate

me,'' he said. ``They never tried.'' The consensus of the

inmates, he said, ``was that 9/11 was not Islam.'' ``These

guys were not lunatics,'' he said. ``They wanted to be back

with their families.''

Reflection

It may be too early to judge recidivism for those

imprisoned in terrorism cases after Sept. 11; those who are

already out are mostly defendants whose crimes were less

serious or who cooperated with the authorities. Justice

Department officials and outside experts could identify only

a handful of cases in which released inmates had been

rearrested, a rate of relapse far below that for most federal

inmates or for Guantanamo releases.

For example, Mohammed Mansour Jabarah, a Kuwaiti Canadian

who plotted with Al Qaeda to attack American embassies in

Singapore and Manila, pleaded guilty in 2002 and began to

work as an F.B.I. informant. But F.B.I. agents soon

discovered he was secretly plotting to kill them--and he was

sentenced to life in prison.

Nearly all of these ex-convicts, however, lie low and steer

clear of militancy, often under the watchful eye of family,

mosque and community, lawyers and advocates say. A dozen

former inmates declined to be interviewed, saying that to be

associated publicly with a terrorism case could derail new

jobs and lives. As for Mr. Royer, he is approaching only the

midpoint of his 20-year sentence.

Did he get what he deserved? Chris Heffelfinger, a

terrorism analyst and author of ``Radical Islam in America,''

did a detailed study of the Virginia jihad case, and

concluded that Mr. Royer's sentence was perhaps double what

his crime merited. But he said the prosecution was warranted

and probably prevented at least some of the men Mr. Royer

assisted from joining the Taliban.

``I think a strong law enforcement response to cases like

this is appropriate nine times out of 10,'' Mr. Heffelfinger

said. Mr. Royer himself, in his long presentencing letter to

Judge Leonie M. Brinkema, said he understood why he had been

arrested. ``I realize that the government has a legitimate

interest in protecting the public from terrorism,'' he wrote,

``and that in this post-9/11 environment, it must take all

reasonable precautions.''

Today, Mr. Royer's only battle is to serve out his sentence

in a less restrictive prison nearer his children. In what he

called in a letter ``a heroic sacrifice,'' his parents, Ray

and Nancy Royer, moved from Missouri to Virginia to be close

to their son's children, now aged 8 to 12.

``I found it necessary to be a surrogate father,'' said Ray

Royer, 70, a commercial photographer by trade, in an

interview at the retirement community outside Washington

where he and his wife now live. When his son, who still goes

by Randy in the family, converted to Islam at the age of 18,

his parents did not object. Later, when he headed to Bosnia,

they chalked it up to his active social conscience.

``Religion is a personal thing,'' the elder Mr. Royer said.

``He'd never been in trouble.''

Ray Royer was at his son's Virginia apartment in 2003 when

the F.B.I. knocked at 5 a.m., put him in handcuffs and took

him away. Now, years later, he alternates between defending

his son and expressing dismay at what Randy got himself into.

``He did help his buddies get to L.E.T.,'' or Lashkar-e-

Taiba, the Pakistani militant group later designated as a

terrorist organization. ``He admitted to it. He should pay

the price.'' Still, he added, ``maybe he deserved five years

or so. Not 20.''

Ray Royer sat at his home computer one recent evening,

looking through a folder called ``Randy Pics''--photographs

tracing his son's life from childhood, to fatherhood, to

prison.

``He loved his family,'' the father said of his son. ``Why

would he put this cause ahead of his family? I still don't

really know what happened. I'm still trying to figure it

out.''

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I fully support the conference report and the national defense authorization bill for fiscal year 2012. This is the 50th year the Congress will pass this, and I am now confident this bill will be signed into law by the President of the United States.

It is an important piece of legislation. I appreciate the participation of all Members, as we went through this bill in a relatively short period of time. There certainly was a lot of participation by almost every Member.

I am most appreciative, of course, of Senator Levin, whom I have had the honor of serving with for many years. Quite often we have spirited discussions on various issues, but my admiration and appreciation for his leadership is very large. He is a man of incredible patience--a quality some accuse me of lacking, I think correctly.

Senator Levin and his staff and our staff work very closely together throughout the year as we bring forth this Defense authorization bill. Obviously this bill provides for defense policy guidance and funding that is vital to our national security, provides the clearest indication to our men and women in uniform that the Congress cares about them and their families.

In testament to the importance of this legislation, as I mentioned, we have passed a defense authorization bill every year since 1961.

Let me remind my colleagues of the hard work that went into this bill. The bill is a product of 11 months of legislative effort in the Senate, 71 hearings and meetings on the full range of national security priorities. We reported our bill out of the committee with a 26-to-0 vote. We debated nearly 40 hours, disposed of 139 amendments, and the bill was overwhelmingly passed 93 to 7. After Senate passage on December 1, our staffs have worked around the clock for 9 days to put this together.

As Senator Levin mentioned, it authorizes $662.4 billion for national defense, which is $26.6 billion less than the President's request. It authorizes $530 billion for the base budget for the Department of Defense, and it goes on. We authorize a 6-percent increase in funding over last year's request for our special operations forces, who play a lead role in counterterrorism operations. We authorize over $2.4 billion to counter improvised explosive device activities. The IEDs still plague the men and women who are serving in Afghanistan.

Let me also mention some noteworthy provisions in this legislation.

The conference report includes strong, unambiguous language that recognizes that the war on terror extends to us at home and that we must address it as such. The language the Senate adopted regarding detainees recognizes both that we must treat enemy combatants who seek to do us harm as such and that we must be able to gain as much information from such individuals as possible regarding their plans to wage war against our citizens--I want to emphasize--without violating the rules of war, without violating the Geneva Conventions, without engaging in torture or waterboarding or any of the kinds of techniques that have stained America's honor in the 21st century.

I strongly believe the detainee provisions in the bill are constitutional and in no way infringe upon the rights of law-abiding Americans. Unfortunately, rarely in my time have I seen legislation so consistently misunderstood and misrepresented as these detainee provisions. The hyperbole used by both the left and the right regarding this language is false and misleading.

Let me be clear. The language in this bill will not affect any Americans engaging in the pursuits of their constitutional rights. The language does recognize that those people who seek to wage war against the United States will be stopped, and we will use all ethical, moral, and legal methods to do so.

I am very pleased that the administration has finally recognized that the language we have adopted merits the President's signature and will soon be signed into law. While we have made some technical changes to the detainee provisions, they remain substantially the same as passed by the Senate Armed Services Committee.

The Congress, in strong bipartisan majorities, especially in the Committee on Armed Services, is deeply concerned by the administration's flawed handling of detainees in the fight against terrorism.

It was Congress that took up this vital national security issue and drafted all the versions of these provisions and led the negotiations on all of the major compromises. Yes, we listened to the administration's concerns, as we should, and we took many of them into account. Unfortunately, the administration has fought these provisions every step of the way. They tried to have these provisions stripped from the Senate bill as a condition for bringing it to the floor for debate. When that did not work, they tried to have these provisions dropped from the bill through amendments on the floor. When that did not work, they urged the conferees to drop these provisions in conference or at least water them down into nothingness. Again and again, the administration failed. So for them now to try to claim credit for these provisions flies in the face of the historical record. Facts are stubborn, and when it comes to these detainee provisions, the fact is this: Congress has led and defined the debate, and the administration has finally conceded to that reality.

Let's establish once again what these detainee provisions do and do not do.

They would, among other things, reaffirm the military's existing authority to detain individuals captured in the course of hostilities conducted pursuant to the authorization of the use of military force.

The ``authority to detain provision'' in the conference report confirms that nothing in this section of the bill should be ``construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.'' There could be nothing clearer than that statement.

This confirmation of the intent of the bill was inserted as a result of floor debate and negotiations with the Senator from California, Mrs. Feinstein, to make absolutely clear what Chairman Levin and I and members of the committee who have supported this legislation have said throughout--that this provision does not and is not intended to change the existing state of the law with regard to detention of U.S. citizens. This section simply restates the authority to detain what has already been upheld by the Federal courts. We are not expanding or limiting the authority to detain as established by the 2001 authorization for the use of military force.

The conference report also includes a provision requiring military detention for foreign al-Qaida terrorists who attack the United States--something this administration has been not only hesitant but completely unwilling to even consider until this legislation highlighted the inconsistency between claiming the authority to kill an al-Qaida member with drones overseas but not being willing to hold a captured al-Qaida member in military custody in the United States, even in a situation where the al-Qaida terrorist had penetrated our defenses and had carried out or attempted an attack inside the United States.

The authority to hold al-Qaida members in military custody, while completely consistent with the law of war that applies to enemy combatants, is not a straitjacket but is as flexible as the President desires to make it.

While we in Congress have given the President a statutory authority to use military custody for al-Qaida members as a tool to ensure that we are able to obtain timely, actionable intelligence, the President can exercise a broad national security waiver to this requirement--a broad national security waiver. Most important, this provision requiring military detention explicitly excludes U.S. citizens and lawful resident aliens.

The military custody provision in the final compromise authorizes the transfer of any detainee to civilian custody for trial in civilian court and leaves it up to the President to establish procedures for determining how and when persons determined to be subject to military custody would be transferred. The provision adopted in the conference report requires that such determination must not interfere with ongoing intelligence, surveillance, or interrogation operations.

All of this flexibility was added to the bill even before we began negotiations with the White House to make it clear that the intent of the Senate's provisions was not to tie the administration's hands but to give them additional means to defeat the most serious type of threat from al-Qaida to our country. The result of these Senate modifications to the original form of the provisions ensures that the executive branch has complete flexibility in how it first determines and then how it applies military custody for al-Qaida members who are captured after having attacked the United States or while planning or attempting such an attack.

Moreover, after meeting with FBI Director Robert Mueller, the Senate conferees added language in conference in response to his concerns about the impact on FBI operations confirming that nothing in this provision may be ``construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation, or any other domestic law enforcement agency, with regard to a covered person, regardless whether such covered person is held in military custody.''

It is the intent of the Senate conferees, in agreement with House colleagues on a bipartisan basis, that the FBI continue to execute the full range of its investigative and counterterrorism responsibilities and that any shift to military custody will be an administrative measure that does not limit in any way the FBI's authority.

I acknowledge that these issues were very controversial with some Members. These provisions were debated extensively--as thoroughly as any matter I have seen in recent memory--but I believe we have addressed in a positive way and have been responsive to concerns raised by the administration. Indeed, the Senate made changes both on the floor and during conference to ensure that the intent of the provisions was fully understood by the administration and others even before negotiations over the final form of the text began.

In many ways, as Chairman Levin has pointed out in many of his public statements and speeches on these detainee provisions, rarely has such misinformation, speculation, and outright misrepresentation been greater over what a bill actually does compared to what some from the left and right claim it does than has been the case with these detainee provisions. Whether 2012 campaign politics played a role in the characterization of these provisions or whether this was simply a case of not fully understanding the intent of the authors of these provisions I will leave to others to decide.

I point out again that I think my friend from Michigan Senator Levin displayed a great deal of courage in formulating what he thought was best for our Nation's security.

Regardless of the motivation that may have colored the debate until now, I believe that, by any responsible reading, these provisions will not impair the flexibility of the President or national security officials in protecting the United States and its citizens. The military custody provision, which has been the focus of much of this debate, provides flexibility to use either a civilian track or a military track for custody and eventual trial and leaves the details of implementation in the hands of the executive branch, as it is appropriate to do so. It preserves the current state of the law as it applies to the rights of U.S. citizens and lawful resident aliens.

In terms of FBI authority to conduct investigations and interrogations, as well as use other instruments of the investigative and criminal process, these provisions preserve all of the FBI's role and authority under existing law.

The conference report also includes, virtually unchanged, the Senate provision requiring a plan to normalize U.S. defense cooperation with Georgia and the sale of defensive weapons. U.S. defense cooperation with the Republic of Georgia has been stalled ever since Russia invaded that country 3 years ago. While there has been slow and minor progress to enable Georgia's armed forces to deploy to Afghanistan--which they have done in greater numbers than most of our NATO allies--precious little has been done to strengthen Georgia's ability to defend its government, people, and territory.

This provision would require the Secretary of Defense, in consultation with the Secretary of State, to develop a plan for the normalization of our defense cooperation with Georgia, especially the reestablishment of U.S. sales of defensive weapons. It puts the Congress on record as demanding a more normal U.S. defense relationship with Georgia, particularly on defensive arms sales.

The conference report includes a strong and important provision to sanction the Central Bank of Iran, to curtail Iran's ability to buy and sell petroleum through its Central Bank, and to prevent foreign financial institutions that deal with the Central Bank of Iran from continuing their access to the U.S. financial system. This provision, which was adopted on the Senate floor by a vote of 100 to 0, and the attempted assassination of the Saudi Ambassador here in Washington, DC, had a very positive and forceful effect on this bill being enacted by the Senate. This provision would force foreign financial institutions to make an important choice: Do they want to deal with the U.S. economy or with Iran's Central Bank?

The Treasury Department urged the conferees to make a series of changes to this provision, some of which would have narrowed its scope and weakened

it. We rejected that course of action. We made some minor technical changes but kept the provision as the authors, Senators Menendez and Kirk, intended. The conferees did, however, provide the Treasury Department the ability to more effectively implement this legislation by imposing strict conditions on foreign financial institutions that maintain ties to the Central Bank of Iran.

The conference report directs the Secretary of Defense to pause further spending on Guam in support of the relocation of 8,500 U.S. marines from Okinawa until Congress and the administration have had an opportunity to review and assess the impact of an estimated $20 billion spending initiative on Guam in the context of the full range of our national interests in the Pacific region. This pause will allow Congress to ensure that the taxpayer funds invested in overseas military force posture and basing will afford us the best opportunity to continue our strong alliances in the region, while pursuing new arrangements with emerging partners that support security and economic development.

The final agreed-upon provision includes a requirement for an independent study to offer views and suggestions from a range of regional experts on current and emerging U.S. national security interests in the Pacific and options for the realignment of U.S. military forces in the region. The conference report would restrict the use of $33 million in operation and maintenance funds for items on Guam that do not directly support military requirements, such as civilian schoolbuses, the construction of museums, and mental health facilities.

This provision should not be interpreted as a lack of U.S. commitment to realignment. The President has stated that we are shifting a lot of our attention to the Pacific region, and we understand the importance of the Pacific region in the 21st century.

Finally, the conference report includes a provision to require that the contract for the sixth slot of ``low-rate initial production'' for the Joint Strike Fighter be executed on a firm fixed-price basis. The Pentagon has thus far failed to incentivize the prime contractor to control costs. So a tougher measure, as embodied in the report, is warranted.

While I would have preferred the original Senate position that would have made the fixed-price requirement apply to the fifth lot currently being negotiated, I strongly support this provision. The chairman and I are committed to a close monitoring of this weapons system. We understand its importance. We also understand that the kinds of cost overruns that have characterized this system cannot be continued.

I am gratified that there are no earmarks in this bill. Unfortunately, it still contains over $1.4 billion in spending that was never requested by the President or by our military and civilian leaders in the Pentagon. Examples of funding authorized by this conference report include $255 million for additional M-1 tank upgrades the Army didn't want in order to keep the M-1 production line hot despite no compelling need to upgrade more tanks at this time; $325 million for Army National Guard and Reserve equipment not requested by the Army; $8.5 million for an Air Force R&D program called the Metals Affordability Initiative that the Air Force didn't consider a high enough priority to fund; $30 million for an industrial base innovation fund that the Pentagon didn't ask for; $200 million for the Rapid Innovation Program--created by Congress in last year's Defense authorization bill--that the Pentagon never asked for and which has about $439 million in funds left over from last year it hasn't figured out how to spend.

The bottom line is this: Congress will pump over $1.4 billion into things the Pentagon never requested and didn't think were a priority. The American taxpayers are not fooled by this exercise, and they have long ago lost patience with it. For all the many good things this conference report did, we still fell short of providing only the most essential needs and priorities of the Department of Defense as identified by our civilian and military leaders. A total of $1.4 billion is real money and could make an enormous difference to many Americans if properly applied to real priorities.

Those criticisms aside, as we look forward to the holidays ahead, I want all Senators to think about whom this report is really for--the men and women of our Armed Forces, who have served our Nation so bravely and so selflessly during the past 10 years of war. We owe it to them to pass this bill to demonstrate our support for them and the burden they carry for all of us and to show in a concrete way that the American people and the Congress stand with them and appreciate what they do for us. Passing this bill is really the very least we can do for so many who are willing to give all they have to defend us and our great country.

Finally, I thank Chairman Levin and Chairman McKeon and Ranking Member Smith for their dedication and cooperation in getting through the conference in a rapid but comprehensive and collegial manner. It is an honor to work with Senator Levin on such an important cause for the American people and for our men and women serving around the world in the Department of Defense, who risk their lives for us every day. They deserve positive action and your vote on this conference report.

I urge my colleagues to vote for the conference report of the fiscal year 2012 national defense authorization bill.

Madam President, I say to my friend from Michigan, I guess in our many years together we have seen the ups and downs and back and forth, but during our more than a quarter of a century of service we have always seen the bill coming to fruition and we have carried on in that tradition.

I wish also to point out to my colleagues, in a rather drab and dreary landscape of gridlock and acrimony, it is kind of nice to show that every once in a while there is a little ray of sunshine. So I hope we have been able to provide it for our colleagues, and I look forward to a unanimous, if not near unanimous, vote on the part of this body.

I hope if there are other colleagues who wish to come and speak on the bill--I know we have planned a colloquy on a provision of the bill concerning depots--so, hopefully, our colleagues who are very concerned about that issue might want to arrange to come to the floor so we can dispose of that.

I don't know of any other except, I think, Senator Udall, who wishes to come.

I happen to know for a fact that Senator Hagan is a strong defender of the men and women who serve her State, which has a very large military presence. I know they are very appreciative of her advocacy and service.

Before we get too hokey around here, maybe we should suggest the absence of a quorum.

Yes. That was the intention of the provision we wrote in committee, and it has been clarified by the addition of subsection (d). The statement of managers specifically states that the law enforcement and national security tools that are not affected by the provision include, but are not limited to, grand jury subpoenas, national security letters, and actions pursuant to the Foreign Intelligence Surveillance Act.

Yes. Our forces in Afghanistan can continue to transfer detainees to the host nation in accordance with existing agreements. This provision does not apply to battlefield transfers in--Afghanistan.

Madam President, for the benefit of my colleagues, there is a bit of interesting news today. When the demonstrations began in Moscow, I tweeted--I am a big believer in tweets--and said, ``Dear Vlad, the Arab Spring is coming to a neighborhood near you.''

Apparently, Mr. Putin was not amused, because an Associated Press headline read: ``Putin rejects any redo of fraud-tainted vote.'' The article also mentioned he was apparently on a program where he answered some questions. To quote the article:

The harsh comments and his insistence that the December 4

election was valid will likely fuel anger and may draw even

bigger crowds of protest later this month.

Putin also lashed out at U.S. Senator John McCain, who had

goaded him with a Twitter post saying ``the Arab Spring is

coming to a neighborhood near you.''

Quoting Putin now, the article continues:

``He has the blood of peaceful civilians on his hands, and

he can't live without the kind of disgusting, repulsive

scenes like the killing of Gadhafi,'' Putin said, referring

to McCain's role as a combat pilot and prisoner of war in

Vietnam.

He went on to say:

``Mr. McCain was captured and they kept him not just in

prison, but in a pit for several years,'' he said. ``Anyone

(in his place) would go nuts.''

I know my friend from Michigan may think there is some veracity to the last sentence from Putin's comments, but I would mention that, in the context of the National Defense bill, in my view, the reset with Russia has not gone as we had hoped and it is an argument for some missile defense provisions in this bill in particular.

I think the reason why Mr. Putin reacted in the way he did is that I believe he has been shaken, as he should have been, by the massive demonstrations that have taken place in Moscow and other cities in Russia. It will be very interesting on December 24 to see how large or whether there will be demonstrations concerning a government that in many ways has turned into a cryptocracy, and the abuse of human rights, including the case of Mr. Magnitsky, who died in prison; and Mr. Khodorkovsky, who was again sentenced to more time in prison, and what Mr. Khodorkovsky and others have described as a death sentence.

These are very interesting times in which we live, and the world is a very interesting place. I think it argues for the United States of America to maintain its defenses, as we have in the consideration of this bill.

Mr. President, I join the chairman in the acknowledgment that many Members of the Senate have concerns with both the process and substance of the changes adopted in the Defense authorization conference report regarding statutes for depot activities in the Department of Defense. The protection of a core logistics capability within the Department has been a very controversial issue for many years, as the Department's depot enterprise employs over 77,000 personnel with an annual operating budget exceeding $30 billion. As we draw down from two wars which have consumed so much in resources and equipment, there will be much concern and debate about the continued workload and jobs at depots, shipyards, and arsenals, particularly in light of declining defense budgets.

I agree this debate and deliberation should have included all interested parties. While I support legislation that would have the clear intent of improving the effectiveness and efficiency of the Department's industrial activities, I was not and am not in support of moving forward on changes that have not been addressed with all members of the committee. The concerns expressed to us by Senator Inhofe, Senator Chambliss, Senator Collins, Senator Ayotte, Senator Shaheen, and others need to be reviewed in an open and transparent process.

As to the substance of the concerns, from what I can tell, there are opinions on the impact of these two provisions on both sides of the issue--from private industry and from the depots and their government civilian workers and unions.

I am aware some are very concerned that the changes in the conference report will upset the balance currently maintained between public and private performance of these activities, which could affect readiness. Changes to the definition of depot-level maintenance and repair have the potential to result in the shift of workload at shipyards. Changes to this provision should not be construed to restrict competition or to create any incentive to favor the public or the private sector as it relates to acquisition programs.

The narrowing of the statutes from core logistics to corps depot- level maintenance could be interpreted as congressional intent to eliminate the identification of core activities in the defense supply chain affecting arsenals and ammunition plants.

On the other hand, the inclusion of an expansive waiver provided to the Secretary of Defense to waive core requirements is very unsettling for every depot activity. Such a waiver could move significant amounts of depot work to the private sector.

Revisions to the definitions of ``commercial items'' to be exempted from core determinations could have an immediate detrimental impact to those depots that work on commercially available items of equipment, such as engines and transmissions of ground combat vehicles.

So many depots that do this sort of work are concerned about the impact. I agree we need to fully understand the impacts, real and unintended, from the implementation of these provisions. We will need to work closely with the Department of Defense to ensure that whatever changes or repeals we make are in the best interests of our military with the priority placed on readiness as well as efficiency of operations and fiscal responsibility.

I support the chairman and commit to giving this issue focused attention in the year ahead to ensure the measures taken in this year's bill are the right outcome for the Department of Defense and the taxpayers.

I yield the floor.

Mr. President, the Senate today will pass the National Defense Authorization Act for the coming fiscal year. This vote is historic as Congress has enacted a national defense authorization act every year for the past half century. I commend the Senate for maintaining this steadfast support for our armed services, but this legislation will be remembered for reasons both bad and good. I regret the decision of the House and Senate conferees to include unnecessary and potentially harmful provisions related to the detention of terrorist suspects. However, I strongly support measures in the conference report that will empower the National Guard within the Department of Defense, enhance protections for military victims of sexual violence, increase transparency by limiting unnecessary exclusions from the Freedom of Information Act, improve mental health outreach to members of the National Guard and Reserves, and make many other changes to strengthen our national defense and take care of our men and women in uniform.

I continue to strongly oppose the detention related provisions in this conference report, which I believe are unwise and unnecessary. These provisions undermine our Nation's fundamental principles of due process and civil liberties and inject operational uncertainty into our counterterrorism efforts in a way that I believe harms our national security.

I strongly oppose section 1021 of this conference report, which statutorily authorizes indefinite detention. I am fundamentally opposed to indefinite detention and certainly when the detainee is a U.S. citizen held without charge. Indefinite detention contradicts the most basic principles of law that I subscribed to when I was a prosecutor, and it severely weakens our credibility when we criticize other governments for engaging in similar conduct.

Supporters of this measure will argue that this language simply codifies the status quo. That is not good enough. I am not satisfied with the status quo. Under no circumstances should the United States of America have a policy of indefinite detention. I fought against Bush administration policies that left us in the situation we face now, with indefinite detention being the de facto administration policy. And I strongly opposed President Obama's executive Order on detention when it was announced last March because it contemplated, if not outright endorsed, indefinite detention.

This is not a partisan issue for me. I have opposed indefinite detention no matter which party holds the keys to the jailhouse. I fought to preserve habeas corpus review for those detained at Guantanamo Bay because I believe that the United States must uphold the principles of due process and should only deprive a person of their liberty subject to judicial review.

Today, I joined Senator Feinstein, Senator Lee, and others to introduce a bill titled the Due Process Guarantee Act. This bill will make clear that neither an authorization to use military force nor a declaration of war confer unfettered authority to the executive branch to hold Americans in indefinite detention. In the 2004 Supreme Court opinion in Hamdi v. Rumsfeld, Justice Sandra Day O'Connor stated unequivocally: ``We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.'' It is stunning to me that sponsors of the underlying Senate bill argued for the indefinite detention of U.S. citizens at Guantanamo Bay. We must make clear that our laws do not stand for such a proposition. We are a nation of laws, and we must adhere vigilantly to the principles of our Constitution. I urge all Senators to support this bipartisan effort to protect American values and cosponsor the Due Process Guarantee Act.

I am also deeply troubled by the mandatory military detention requirements included in section 1022 of this conference report. In the fight against al-Qaida and other terrorist threats, we should give our intelligence, military, and law enforcement professionals all the tools they need, not limit those tools. But limiting them is exactly what this conference report does. Secretary Panetta has stated unequivocally that ``[t]his provision restrains the Executive Branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.'' Requiring terrorism suspects to be held only in military custody and limiting the available options in the field is unwise and unnecessary.

Supporters of the conference report claim that concerns about the mandatory military detention section are ``red herrings.'' They claim that they have modified the legislation in ways that give the President the flexibility he needs to apply the provisions without impeding investigations or undermining operations in the field. The changes are totally inadequate. The Statement of Administration Position, SAP, calls the mandatory military detention section ``unnecessary, untested, and legally controversial.'' The SAP goes on to state that ``applying this military custody requirement to individuals inside the United States . . . would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.''

Some supporters of the conference report also claim that the national security waiver provision is ``a mile wide'' and provides the administration with sufficient flexibility. The intelligence professionals who work every day to keep our Nation safe disagree. The Director of National Intelligence, James R. Clapper, wrote to Senator Feinstein that the ``detention provisions, even with the proposed waivers, would introduce unnecessary rigidity at a time when our intelligence, military, and law enforcement professionals are working more closely than ever to defend our nation effectively and quickly from terrorist attacks.''

As chairman of the Judiciary Committee, I am particularly concerned

that this provision fails to acknowledge or appreciate the vital role that law enforcement and the courts play in our counterterrorism efforts. In light of the hundreds of successful prosecutions of terrorism defendants in Federal courts, why would we want to remove this option from the table? As Jeh Johnson, the Pentagon's top lawyer, said recently, the Federal courts are ``well equipped to handle the prosecution of dangerous domestic and international terrorists,'' and ``the military is not the only answer.'' I could not agree more.

The implementation procedures required in the legislation are simply not enough to alleviate the potential for problems in the field. As Secretary Panetta stated in his recent letter to Senator Levin, this provision may ``needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.'' No one in the military, intelligence community, or law enforcement has asked for this provision, and rather than strengthening our national security, it makes us less safe.

During floor debate over the Senate bill, FBI Director Mueller wrote that the mandatory military provision would adversely affect the Bureau's ability to conduct counterterrorism investigations and inject ``a substantial element of uncertainty'' into its operations. He argued that the provision fails to take into account ``the reality of a counterterrorism investigation.'' The conference report modified the mandatory military detention section to preserve the existing law enforcement and national security authorities of the FBI, but the effect of that new language remains unclear. At our Judiciary Committee hearing on December 14, the FBI Director stated that the modified text ``does not give me a clear path to certainty as to what is going to happen when arrests are made in a particular case.'' The FBI Director is particularly concerned with how the legislation will affect the Bureau's ability to gain the cooperation of suspects. The FBI has a long and successful track record in the cultivation and use of cooperating witnesses. But as Director Muller stated, ``The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.'' I cannot understand why the authors of this conference continue to insist upon language that will undermine the FBI in its use of this critical counterterrorism authority.

The language in the detention subtitle of this conference report is the product of a process that has lacked transparency from the start. These measures directly affect law enforcement, detention, and terrorism matters that have traditionally been subject to the jurisdiction of the Senate Judiciary Committee and the Senate Select Committee on Intelligence, but neither committee was consulted about these provisions in July when the legislation was first considered by the Armed Services Committee, nor was either committee consulted earlier this month when it was modified. I also can see no reason why these provisions were rushed through the committee without the input of the Defense Department and Federal intelligence and law enforcement agencies that will be directly affected if this language is enacted. On issues of such national significance, the American people deserve an open and transparent process.

Supporters of the detention provisions in the conference report continue to argue that such measures are needed because, they claim, ``we are a nation at war.'' That does not mean that we should be a nation without laws or a nation that does not adhere to the principles of our Constitution. We should prosecute those who commit crimes and terrorist acts and sentence them to long terms in prison. The Department of Justice has prosecuted more than 440 terrorists since September 11, 2001. We have a very strong record and nothing to fear from choosing a course that upholds American values and the rule of law. That is why I also oppose some of onerous funding and certification restrictions that make it virtually impossible to transfer individuals out of Guantanamo or to prosecute individuals detained there in Federal courts.

I also strongly oppose section 1029 of the conference report, which requires the Attorney General to consult with the Director of National Intelligence and Secretary of Defense before seeking an indictment of certain terrorism suspects. This provision was not considered or debated by the Senate and certainly not by the Senate Judiciary Committee, which I chair. I oppose this provision because it needlessly undermines the authority of the Attorney General and is an unprecedented infringement on the prosecutorial independence of the Department of Justice.

Regrettably, the detention language in this conference report remains fundamentally flawed. The detainee provisions will codify a practice of indefinite detention that has no place in the justice system of any democracy. They will cause further damage to our reputation as a nation that respects the fundamental right of due process, harm the efforts of intelligence and law enforcement officials in the field, and may limit their ability to track down terrorists and bring them to justice. My support for the Defense bill should not be construed as support for its detention provisions, which I oppose in the strongest possible terms.

Instead, my support for the bill reflects the inclusion of the National Guard Empowerment Act, a bill I drafted with Senator Lindsey Graham, as an amendment to its underlying text. The Guard empowerment provisions have been understandably overshadowed by the debate on other, more contentious provisions in the bill, but I nevertheless believe that these provisions will set the stage for dramatic changes to our military force structure in the years to come.

Beginning in May, a new national security consensus quietly formed in Congress around an issue at the core of our national security. Seventy- one senators from both parties steadily added their support to S. 1025, the bill that Senator Graham and I called Guard Empowerment II. The provisions of our bill built upon the first Guard empowerment bill that I introduced with Senator Kit Bond of Missouri. That measure became law in 2008 and elevated the Chief of the National Guard Bureau to the rank of four-star general. This year's bill had as its headlining provision an effort to make the Chief a statutory member of the Joint Chiefs of Staff. Despite the vociferous opposition of Active component generals in the Pentagon--including all six sitting Joint Chiefs of Staff--a bipartisan congressional consensus formed around S. 1025 and Guard empowerment. I was pleased that the Senate included its provisions in our version of the National Defense Authorization Act late last month and that the conferees retained a majority of those provisions in the conference report.

The new consensus on the National Guard comes as the budget debates of this Congress have fractured the Cold War national security consensus of the last half century. While those fractures were an inevitable outcome of the end of the Soviet empire, what will replace the Cold War consensus remains unclear. Some Members of Congress argue for diplomatic and military retrenchment from every corner of the globe back to Fortress America. Others believe that we must expand, not shrink, our international footprint. Yet nearly everyone agrees that budgetary factors must mean a change in the way the Pentagon does business--and that change cannot wait.

The seeds of that change were sown a decade ago. In the days and weeks following 9/11, the former ``strategic reserve'' became, of necessity, fully operational. The National Guard and Reserve components, once a Cold War failsafe, were called into regular rotation in the wars in Iraq and Afghanistan. Our country simply could not field the forces we needed without calling on the Guard and Reserve. Simultaneously, America experienced domestic disasters on an unprecedented scale. In each situation, the President called on the National Guard as the military first responders to help citizens in need. Today, the metamorphosis from a strategic reserve to an operational reserve is complete.

Yet entrenched bureaucratic interests still resist what most Americans now accept as an accomplished fact. The Joint Chiefs fought our efforts to bring the Chief of the Guard Bureau into the ``Tank'' not because they misunderstand the value of the Guard and

Reserve, but precisely because they fear that value proposition may threaten the size and budget of their Active components in the years to come.

Nevertheless the Active component must shrink, both as a consequence of our current budgetary reality and to reflect the constitutional vision the Framers had of a small standing Army augmented by a larger cadre of citizen soldiers. Simultaneously, the Guard and Reserve must grow so that those cuts to the Active force can be quickly and easily reversed if the circumstances demand it. Just a year ago, no one predicted our operations to oust Muammar Qadhafi. In a world where military needs change day by day, we must not hollow out the force. To avoid that outcome in a period of austere budgets, we must depend more and more on the National Guard and Reserve.

To that end, the conferees included section 512 in this Defense bill which adds the Chief of the National Guard Bureau to the Joint Chiefs of Staff. It also reinforces the duties and responsibilities of the Chief as listed in 10 U.S.C. Sec. 10502 in accordance with the listing of responsibilities of the Chief already in that section. This provision is historic and will dramatically improve the advice that the President and Secretary of Defense receive on matters of national security and the defense budget.

Section 511, ``Leadership of the National Guard Bureau,'' reestablishes the Vice Chief of the National Guard Bureau as a lieutenant general and excludes the positions of the Chief and the Vice Chief of the National Guard Bureau from limitations on the number of general and flag officers in the Department of Defense. Reinstating the Deputy position at the National Guard Bureau will give the Chief flexibility at a time when he sorely needs it and providing a third star for the position will give it more institutional clout.

Section 515 implements the outcomes of a negotiation between the Council of Governors and the Department of Defense by authorizing the President to order the Federal Reserve component to Active Duty to provide assistance in response to a major disaster or emergency. In addition to authorizing a Reserve forces callup for domestic disasters and emergencies, it codifies the dual-status title 10 and title 32 commander as the usual and customary command relationship for military operations inside the United States, a key victory for Federal-State integration of military command and control.

Section 518, ``Consideration of Reserve Component Officers for Appointment to Certain Command Positions,'' is a modified version of a provision of S. 1025 which would have reserved the positions of commander, Army North, and commander, Air Force North, for National Guard officers with an emphasis on the consideration of current and former adjutants general. Instead, the section requires that Guard and Reserve officers be considered for these positions whenever they are vacant.

Section 1085, ``Use of State Partnership Program Funds for Certain Purposes,'' includes a limited authorization of the State Partnership Program which is the major vehicle for the National Guard of the States to participate in international security assistance and capacity building missions at the request of the State Department chief of mission and geographic combatant commander.

Last but certainly not least, section 1080A, ``Report on Costs of Units of the Reserve Components and the Active Components of the Armed Forces,'' institutes the ``similar unit'' cost report proposed by S. 1025 with some added detail and while retaining the Comptroller General evaluation of the Department's report. That last requirement is important to keep the Department of Defense honest in its assumptions and analysis leading to conclusions about the relative cost of Active and Reserve units.

The Reserve component cost report will undergird efforts by the Senate National Guard Caucus in the years to come. While it has long been common knowledge that the National Guard and Reserves are cheaper to maintain in dwell than Active-Duty Forces, the report will prove that colloquial wisdom and bolster the arguments of the Congress in a future push to reduce the size of the Active component as we draw down from Iraq and Afghanistan while growing the size of the Reserve components.

I am also pleased that the conferees included my language to narrow the Freedom of Information Act, FOIA, exemption in the bill for Department of Defense critical infrastructure security information. This improvement adds a public interest balancing test requiring that the Secretary of Defense consider whether the public interest in the disclosure of this information outweighs the government's need to withhold the information when evaluating FOIA requests. The addition of this measure to the National Defense Authorization Act will help ensure that FOIA remains a viable tool for access to Department of Defense information that impacts the health and safety of the American public.

As I said at the outset, this National Defense Authorization Act will be remembered both for changing our process of detaining and prosecuting suspected terrorists and for empowering the National Guard. I continue to oppose the changes the act will make to our counterterrorism legal regime. But I nevertheless support how the act will improve the sourcing and fielding of military forces in the years to come. I will look to fix the former and further improve the latter in future legislation.

Mr. President, I ask unanimous consent that the time for debate on the conference report to accompany H.R. 1540 be extended until 4 p.m., with all other provisions of the previous order remaining in effect; further, that at 4 p.m., the Senate proceed to a vote on the adoption of the conference report; that upon the disposition of the conference report and H.

Con. Res. 92, the Senate resume executive session and the consideration of the Christen nomination, as provided under the previous order.

Mr. President, with this agreement, there will be two votes at 4 p.m. The first will be on the adoption of the Defense authorization conference report and the second vote on the confirmation of the nomination of Morgan Christen to be U.S. Circuit Judge for the Ninth Circuit.

Mr. President, I rise today to discuss the National Defense Authorization Act conference report now pending before the Senate.

I thank my colleague from Colorado, Senator Udall, as well as my colleague from California, Senator Feinstein, for engaging in a spirited and important--perhaps historic--debate during the consideration of this authorization bill on the floor of the Senate. I especially thank Senator Feinstein. It was a pleasure to work with her to insert language which I think moved us closer to a position she and I both share concerning the language in this important bill.

I have the highest respect for the chairman and the ranking member of this committee, Senators Levin and McCain, who have worked diligently and hard on a bill which has become a hallmark of congressional activity each and every year, particularly in the Senate. It takes a special effort for them to produce an authorization bill of this complexity and challenge. They do it without fail and they do it in a bipartisan fashion.

For those critics of Congress--and there are many--who look at this bill, you can see the best of the Senate in terms of the effort and the professionalism these two gentlemen apply, along with the entire committee, in bringing this bill to the floor.

This bill does a number of good things for our troops and for my home State of Illinois, and I am thankful to the chairman and the ranking member for those provisions. There is important language about public- private partnerships regarding the U.S. Army that will have special value at the Rock Island Arsenal, where some of the most dedicated and competent civilian individuals continue to serve this country's national security, meeting the highest levels of standards and conduct and performance. They will have a chance to continue to do that work, and it is important they continue to have that chance in this weak economy when so many people are struggling to find jobs.

The legislation provides the Chief of the National Guard with an equal seat at the table with the Joint Chiefs of Staff to ensure the needs of our brave Army and Air National Guard personnel are heard at the highest levels. It makes it easier for reserve units to access mental health services by providing that access during drill weekends. It also provides our men and women in uniform with a much deserved pay increase, which is imperative in light of their heroic service and the state of our economy today.

I must say, though, there are provisions within this bill which still concern me relative to the treatment and detention of terrorism suspects.

First, we need to agree on the starting point, and the starting point should be clear on both sides of the aisle. There are those who threaten the United States, those who would use terrorist tactics to kill innocent people, as they did on 9/11. We are fortunate, through the good leadership of President George W. Bush and President Obama, that we have been spared another attack since 9/11, but vigilance is required if we are to continue to keep this country safe. That is a bipartisan mission. It is shared by every Member of Congress, regardless of their political affiliation.

We salute the men and women in uniform, first, for all the work and bravery they have put into that effort, but quickly behind them we will add so many others in our law enforcement community; for example, those individuals at every level--Federal, State and local--who are engaged in keeping America safe. We salute the executive branch in its entirety, including the Department of Homeland Security, the White House, the National Security Advisors, and all of those who have made this a successful effort.

The obvious question we have to ask ourselves is this: If for 10 years we have been safe as a nation, why is this bill changing the way we detain and treat terrorism suspects?

I will tell you there has been an ongoing effort by several members of this committee and Senate to change the basic approach to dealing with terrorism, to create a presumption that terrorist suspects would be treated first subject to military detention and their cases then considered before military tribunals.

This, in and of itself, is not a bad idea. It could be right, under certain circumstances, but it does raise a question: If to this point in time we have been able to keep America safe using the Department of Justice, law enforcement, and the courts of our land, together with military tribunals, why are we changing?

The record is pretty clear. Since 9/11, more than 400 terrorism suspects have been successfully prosecuted in the courts of America. These are individuals who have been subjected to FBI investigation, they have been read their Miranda rights, they have been tried in our courts in the same manner as those accused of crimes are tried every single day, and they have been found guilty--400 of them--during the same interval that 6--6--have been tried by military tribunals.

Overwhelmingly, our criminal court system has been successful in keeping America safe, but that is not good enough for many Members of the Senate. They are still bound and determined to push more of them into the military tribunal system for no good reason. These people who have been tried successfully when accused of terrorism have been safely incarcerated in the Federal penitentiaries across America, including in my home State of Illinois at the Marion Federal Prison. Not one suggestion has been made that the communities surrounding these prisons nor the prisoners themselves are under any threat. What we have instead is this presumption that isn't borne by the facts or by our experience.

I voted for the Senate version of this bill with the hope that the Members of the Senate and House who were negotiating the final bill would remove some of the detainee provisions that concern me. I want to acknowledge that the conference committee did make some positive changes. But I continue to have serious concerns because provisions in the bill would limit the flexibility of any President in combatting terrorism, create uncertainty for law enforcement, intelligence, and defense officials regarding how they handle suspected terrorists, and raise serious constitutional concerns.

I am especially concerned about section 1022 in the conference report. This provision would, for the first time in American history, require our military to take custody of certain terrorism suspects in the United States. Our most senior defense and intelligence officials have raised serious concerns about this provision. FBI Director Robert Mueller strongly objects to the military custody requirement. For those who need reminding, Robert Mueller served as a Federal judge in California and was appointed to this position as head of the FBI by Republican President George W. Bush. He has been retained in that office by Democratic President Barack Obama. I believe he is a consummate professional who has dedicated his life, at least in the last 10 years-plus, to keeping America safe. I trust his judgment. I respect his integrity.

In a letter to the Senate, Director Mueller says the bill will ``inhibit our ability to convince covered arrestees to cooperate immediately, and provide criminal intelligence.''

He was asked after the conference report whether the changes absolved any of his concerns, and he said he was still concerned. I will go to that in a moment. Director Mueller concluded that the provision I am raising ``introduces a substantial element of uncertainty as to what procedures are to be followed in the course of a terrorism investigation in the United States.''

Considering the source of this concern, the Director of the Federal Bureau of Investigation who has been responsible ultimately for the successful prosecution of 400 suspected terrorists, we should take his concerns to heart.

The Justice Department, which then prosecutes terrorism suspects, shares

Director Mueller's concerns. Here is what they said:

Rather than provide new tools and flexibility for FBI

operators and our intelligence professionals, this

legislation creates new procedures and paperwork for FBI

agents, intelligence lawyers and counter-terrorism

prosecutors who have conducted hundreds of successful

terrorism investigations and prevented numerous attacks

inside this country over the past decade.

The supporters of this legislation have responded to these concerns by pointing to the fact that the bill allows the Secretary of Defense to waive the military custody requirement. But the Justice Department says the administrative burdens of obtaining a waiver could hinder ongoing counterterrorism operations. Here is how they explained it:

While the legislation proposes a waiver in certain

circumstances to address these concerns, this proposal

inserts confusion and bureaucracy when FBI agents and

counter-terrorism prosecutors are making split-second

decisions. In a rapidly developing situation--like that

involving Najibullah Zazi traveling to New York in September

2009 to bomb the subway system--they need to be completely

focused on incapacitating the terrorist suspect and gathering

critical intelligence about his plans.

The authors of this legislation say they made changes to the military custody requirement to respond to these concerns raised by Director Mueller and the Department of Justice. But in my view, these changes don't go nearly far enough. They continue to create uncertainty and impose administrative burdens on our counterterrorism professionals whom we depend on to keep us safe.

The changes in the legislation do not change the fundamental premise. They create a presumption that a terrorism suspect arrested in the United States should be transferred to military custody, despite the fact--despite the fact--that the Federal Bureau of Investigation has kept America safe since 9/11.

I am not alone in my feelings. This morning, an editorial in the Washington Post said:

[These provisions]--while less extreme--are still

unnecessary and unwise. . . . [L]awmakers have . . .

introduced confusion in the form of directives that threaten

to bollix up law enforcement and military personnel when they

most need to be decisive.

Why in the world would we create uncertainty and bureaucracy when, with every second that ticks away, American lives can be in danger?

Just yesterday in the Senate Judiciary Committee, FBI Director Robert Mueller testified he is still deeply concerned about section 1022, despite the changes made in this conference report. Here is what Director Mueller said:

Given the statute the way it is now, it does not give me a

clear path to certainty as to what is going to happen when

arrests are made in a particular case. The possibility looms

that we will lose opportunities to obtain cooperation from

the persons in the past that we've been fairly successful in

gaining.

That, in and of itself, should give pause to every member of the Senate. When we consider this objection from the Director of the Federal Bureau of Investigation, the lead official charged with combatting terrorism in the United States, shouldn't we take Director Mueller's concerns to heart? Do we want the FBI to have uncertainty the next time they stop and detain a suspected terrorist in the United States?

I want to address another provision, section 1021. I was very concerned that the original version of the legislation would, for the first time in history, authorize indefinite detention in the United States. But we have agreed, on a bipartisan basis, to include language in the bill offered by Senator Feinstein that makes it clear this bill does not change existing detention authority in any way. What it means is, the Supreme Court will make the decision who can and cannot be detained indefinitely without trial, not the Senate.

I believe the Constitution does not authorize indefinite detention in the United States. Some of my colleagues see it differently. They claim the Hamdi decision upheld indefinite detention. It didn't. Hamdi was captured in Afghanistan, not in the United States. Justice O'Connor, the author of the opinion, carefully stated the Hamdi decision was limited to ``individuals who fought against the United States in Afghanistan as part of the Taliban.''

Some of my colleagues also cited the Padilla case, claiming it is a precedent for the indefinite detention of U.S. citizens captured in the United States. But look at what happened in the Padilla case. Padilla is a U.S. citizen who was placed in U.S. custody. The Fourth Circuit Court of Appeals, one of the most conservative in the land, upheld his military detention. But then, before the Supreme Court had the chance to review the Fourth Circuit's decision, George W. Bush's administration transferred him out of military custody, prosecuting him in an article III criminal court. To this day, the Supreme Court has never ruled on the question of whether it is constitutional to indefinitely detain a U.S. citizen captured in the United States. That decision must be decided by the Supreme Court, not by the Senate, thanks to the Feinstein amendment.

I support the inclusion of the Feinstein amendment in this bill. I continue to believe there is no need for this provision overall and that it should have been removed.

I also continue to oppose provisions in the conference report that limit the administration's ability to close the Guantanamo Bay detention facility. Section 1027 of this legislation provides that no detainee held at Guantanamo can be transferred to the United States even for the purpose of holding him incarcerated for the rest of his life in a Federal supermaximum security facility.

There is absolutely no reason for this prohibition. Section 1026 of this legislation provides clearly that the government may not construct or modify any facility in the United States for the purpose of holding a Guantanamo Bay detainee.

Let me bring this closer to home. We have offered for sale in the State of Illinois a prison built by our State that has not been used or opened in its entirety. The Federal Bureau of Prisons has stated they are interested in purchasing it because of the overcrowded conditions in many Federal prisons. We would, of course, like to see that done-- not just for the revenue that would come to the State of Illinois but because it would create jobs in my State.

In the course of deliberating it, controversy arose as to whether Guantanamo detainees would be placed in this prison. Initially, the administration said they would, and I supported them. But ultimately it became clear that there was opposition to going forward with this purchase of the Illinois prison if there was any likelihood Guantanamo detainees would be incarcerated at this prison. We have now made it clear--and I wish to make it clear for the record--that despite my personal views on this issue, I believe the law is clear that the Thomson Prison, once under Federal jurisdiction, will not house Guantanamo detainees. That has been a stated policy. It is now going to be a matter of law in this Defense authorization. Regardless of my personal feelings on the subject, it is the governing law, and I will not try to change the situation of Thomson in any way as long as I serve in the Senate when it comes to this important issue.

Unfortunately, some of my colleagues--whom I disagree with--are determined to keep Guantanamo open at all costs. I disagree. When we consider the expense of detention at Guantanamo and the reputation of that facility, I believe the President was right, initially, when he talked about the fact that we needed to, at some point, bring detention at Guantanamo to a close. My feelings are not only shared by the President but also by GEN Colin Powell; former Republican Secretaries of State James Baker, Henry Kissinger, and Condoleezza Rice; former Defense Secretary Robert Gates; ADM Mike Mullen; and, GEN David Petraeus.

There is great irony here. For 8 long years during the previous Republican administration, Republicans on the floor argued time and again that it was inappropriate--some said even unconstitutional--for Congress to ask basic questions about the Bush administration's policies on issues such as Iraq, torture, waterboarding, and warrantless wiretapping. Time and again, we were told Congress should defer to President Bush, our Commander in Chief. Let me give one example.

My friend Senator Lindsey Graham of South Carolina, on September 19, 2007, said:

The last thing we need in any war is to have the ability of

535 people who are worried about the next election to be able

to micromanage how you fight the war. This is not only

micromanagement, this is a constitutional shift of power.

With a Democratic President, obviously some of my colleagues have had a change of heart. They think it is not only appropriate but urgent for Congress to limit this President's authority to combat terrorism, despite the success we have had since 9/11 under President Bush and President Obama keeping America safe. This is a clear political double standard. It is unnecessary. Look at the track record.

Since 9/11, our counterterrorism professionals have prevented another attack on the United States, and more than 400 terrorists have successfully been prosecuted and convicted in Federal courts. Here are just a few of them: Umar Faruk Abdulmutallab, the Underwear Bomber; Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing; Omar Abdel-Rahman, the so-called Blind Sheik; the 20th 9/11 hijacker, Zacarias Moussaoui; and Richard Reid, the Shoe Bomber--all prosecuted in the criminal courts of this land successfully and safely incarcerated in our Federal prisons. Something which many on the other side refuse to acknowledge, and argue is impossible, has, in fact, happened over and over again over 400 times.

Why do we want to change this system when it is working so well to keep America safe?

The fact that these detainee provisions have caused so many disagreements and such heated debate demonstrates the danger of enacting them into law. We shouldn't impose this kind of uncertainty on law enforcement, defense, and intelligence who are working to protect America. We should not limit the flexibility of the administration to respond to suspected terrorists in the most effective way, and we should not raise serious constitutional questions by requiring the military to detain people in the United States.

I have a letter from the Agents Association of the Federal Bureau of Investigation, dated December 7, 2011, raising many of the same issues which I have raised. I will say we contacted the Agents Association after the conference and asked them their reaction, and they said they still stood behind their statements of December 7, 2011. I ask unanimous consent to have printed in the Record this letter.

Mr. President, I have a press report that was released today relative to the testimony of Director Robert Mueller of the FBI, which I referenced in my speech. So that his statement will be reported more fully at this point, I ask unanimous consent to have printed in the Record the press report from Politico.

I yield the floor.