National Defense Authorization Act for Fiscal Year 2012

Mr. President, on behalf of the Senate Armed Services Committee, I am pleased to bring S. 1867, the National Defense Authorization Act for fiscal year 2012, to the Senate floor. The Armed Services Committee approved the bill by a unanimous vote of 26 to 0. This is the 50th consecutive year that our committee has reported a defense authorization act. Every previous bill has been enacted into law.

I would like to thank all of the members and the staff of the Senate Armed Services Committee for the commitment they have shown to the best interests of our men and women in uniform as we have developed this legislation. Every year, we take on tough issues, and we work through them on a bipartisan basis consistent with the traditions of our committee. I particularly thank Senator McCain, our ranking minority member, for his strong support throughout the process. The unanimous committee vote in favor of this legislation would not have been possible without his cooperation and support.

We were delayed in getting this year's bill to the Senate floor by two issues that have arisen since the time the Armed Services Committee approved the first version of this bill, S. 1253, in late June.

First, Congress enacted the Budget Control Act of 2011, which mandated deep reductions in discretionary spending, including defense spending. The initial bill reported by the Armed Services Committee would have cut the President's budget request for national defense programs by more than $6 billion. The Budget Control Act, which was adopted after our initial bill was reported, requires an additional $21 billion in reductions.

Second, the administration and others expressed misgivings about the detainee provisions in the initial bill, although the provisions in our initial bill represented a bipartisan compromise that was approved by the committee on a 25-to-1 vote. Many of these concerns were based on misinterpretations of the language in that bill; nonetheless, we have worked hard to address these concerns.

First, relative to the additional $21 billion in budget cuts, we consulted closely with the Department of Defense before identifying these cuts. We believe the reductions we decided upon can be accomplished without an adverse impact on our troops or their vital mission, and without significant increase in risks to our national security.

The committee report which accompanied the initial bill, Senate Report 112-26, did not address these cuts but is otherwise applicable to this bill as well. So the new cuts are not addressed in that Senate report because these new reductions came after that Senate report was made.

For this reason, I ask unanimous consent that a summary of the cuts be printed in the Record immediately following my statement.

Second, the new bill would modify the detainee provisions to address concerns and misconceptions about the provisions in our initial bill. In particular, the new bill first modifies section 1031 of the bill, as requested by the administration, to assure that the provision that provides a statutory basis for the detention of individuals captured in the course of hostilities conducted pursuant to the 2001 authorization for use of military force, the AUMF, to make sure that those provisions and that statutory basis are consistent with the existing authority that has been upheld in the courts and neither limits nor expands the scope of the activities authorized by the AUMF.

It also modifies sections 1033 and 1034 of the bill, as requested by the administration, to impose 1-year restrictions rather than permanent limitations on the transfer of Gitmo detainees to foreign countries and on the use of Department of Defense funds to build facilities in the United States to house detainees who are currently at Gitmo.

We were unable to agree to the administration's proposal to strike section 1032, the provision that requires military detention of certain al-Qaida terrorists subject to a national security waiver. We did, however, adopt a number of changes to the provision. In particular, we modified the provision so that it clarifies that the President gets to decide who makes the determinations in coverage, how they are made and when they are made, ensuring that executive branch officials will have flexibility to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.

Second, we clarify that there is no interruption of ongoing surveillance and intelligence-gathering activities or of ongoing law enforcement interrogation sessions. There have been misstatements, misimpressions, and misinterpretations of the provisions of our bill relative to those issues. We clarify them to make sure it is clearly understood by this body and the American people that--repeating, it is the executive branch, it is determined by the President, the people he appoints who will make determinations of coverage, how they are made, when they are made, so that it ensures the flexibility that the executive branch wants to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.

It has been suggested that ongoing surveillance and intelligence- gathering activities by law enforcement people would be interrupted, or that their interrogation might be interrupted. It is very explicitly clear in this bill that there is no such interruption, there is no such interrogation session interruption or surveillance interruption or intelligence-gathering activities interruption. The process to make sure that doesn't happen is in the President's hands.

The administration officials reviewed the draft language for this provision the day before our markup and recommended additional changes. We were able to accommodate those recommendations, except for the administration request that the provision apply only to detainees who are captured overseas. There is a good reason for that. But even here, the difference is relatively modest, because the provision already excludes all U.S. citizens. It also excludes all lawful residents of the United States, except to the extent permitted by the Constitution. The only covered persons left are those who are illegally in this country or who arrive as tourists or on some other short-term basis, and that is a small remaining category, but an important one, because it includes the terrorists who clandestinely arrive in the United States with the objective of attacking military or other targets here.

Contrary to some statements I have seen in the press, the detainee provisions in our bill do not include new authority for the permanent detention of suspected terrorists. Rather, the bill uses language provided by the administration to codify existing authority that was adopted by both the Bush administration and the Obama administration and that has been upheld in the Federal courts.

Moreover, the bill requires for the first time that any detainee who will be held in long-term military custody anywhere in the world would have access to a process that includes a military judge and a military lawyer.

I want to repeat that. For the first time, this bill provides that, in determining a detainee's status, the detainee will have access to a lawyer and to a military judge. That is not the case now. Nor would the bill preclude the trial of terrorists in civilian courts, as some have erroneously asserted. As a matter of fact, it is the contrary. The bill expressly authorizes the transfer of any military detainee for trial in the civilian courts at any time. An amendment that eliminated that authority was defeated in the Armed Services Committee on a bipartisan 19-to-7 vote during the markup of the initial bill.

The bill would not require the interruption of ongoing surveillance operations or ongoing law enforcement interrogations of suspected terrorists, as some have incorrectly asserted. The opposite is the case, as I have said, because we have included language in the bill that specifically precludes those possibilities.

The bill also provides that the President, not Congress, will decide who makes determinations of whether a detained person is in the narrow class covered, and the President will decide how and when these determinations are made.

The bill would not require that al-Qaida terrorists who are captured on American soil be transferred to military custody, because it includes an easily effectuated national security waiver. With this waiver authority, executive branch officials may keep any detainee in civilian custody or move any detainee to civilian custody if they choose to do so.

That provision provides the executive branch flexibility to choose the most appropriate course of action for al-Qaida terrorists whom we capture, including detention in civilian custody. That was the intent of the original language, and it has been clarified in the bill before us. I recognize that the administration remains unsatisfied with this provision, but we have gone a long way to address their concerns.

What about the dollar provisions in this bill? The bill we bring to the floor today would authorize $662 billion for national defense programs--$27 billion less than the President's budget request, and $43 billion less than the amount appropriated for fiscal year 2011. I am pleased we were able to find these savings without reducing our strong commitment to the men and women of our Armed Forces and their families, and without undermining their ability to accomplish their important national security missions. In this time of fiscal problems for our Nation, every budget must be closely examined to identify savings, and the Department of Defense budget is no exception.

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

First and foremost, the bill before us continues the increases in compensation and quality of life our service men and women and their families deserve as they face the hardships imposed by continuing military operations around the world.

For example, the bill would authorize 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.

The bill provides that annual increases in TRICARE Prime enrollment fees in future years will not exceed the percentage increase in retired pay. The bill authorizes $30 million in supplemental impact aid and related education programs for the children of servicemembers. The bill authorizes service Secretaries to carry out programs to provide servicemembers with job training and employment skills training to help prepare them for the transition to private sector employment. It authorizes the service Secretaries to waive maximum age limitations to enable certain highly qualified enlisted members who served in Iraq or Afghanistan to enter the military service academies.

The bill also includes important funding and authorities needed to provide our troops the equipment and support they will continue to need as long as they remain on the battlefield in Iraq and Afghanistan.

For example, the bill fully funds the President's request for $3.2 billion for the development, testing, production, and sustainment of the MRAP vehicles and new MRAP all-terrain vehicles, which are needed to protect our troops against improvised explosive devices.

The bill authorizes $11.2 billion to train and equip the Afghan National Army and the Afghan police, the funding level recommended by the commander of U.S. Central Command after consultation with the commander of U.S. and coalition forces in Afghanistan. The purpose here is to grow the capability of those Afghan security forces to prepare them to take over increased responsibility for Afghanistan's security as we begin reductions in U.S. forces.

The bill provides $400 million for the Commanders' Emergency Response Program in Afghanistan and $400 million for the Afghanistan Infrastructure Fund to support projects that enhance the counterinsurgency campaign.

The bill extends the authority of the Department of Defense to conduct a program for the reintegration of former insurgent fighters into Afghan society.

The bill establishes a new Joint Urgent Operational Needs Fund to allow the Department to rapidly field new systems in response to urgent operational needs identified on the battlefield, and it provides the Central Command--CENTCOM--commander new

contracting authorities needed to stop the flow of money through U.S. contracts to persons who are actively opposing U.S. forces in Afghanistan.

The bill also contains a number of provisions that will help improve the management of the Department of Defense and other Federal agencies. For example, the bill would address shortcomings in the Department of Defense's management of operating and support costs, which are estimated to constitute 70 percent of the lifecycle costs of major weapons systems.

The bill freezes DOD spending on contract services at fiscal year 2010 levels and requires the Department of Defense to take a number of commonsense steps to achieve savings in this area.

The bill adds $32 million for the Department of Defense's corrosion prevention and control and requires implementation of the recommendations of a recently congressionally mandated report on corrosion control on the F-22 and F-35 programs.

The bill improves the management of defense business systems by strengthening the authority of the Department of Defense's chief management officers in the investment review process and ensures that this process covers existing systems as well as new ones.

The bill also adds $43 million to enable the Department of Defense IG to provide more effective oversight and to help identify waste, fraud, and abuse in defense programs, especially in the area of procurement.

In light of the budget constraints we face this year, the committee worked hard to keep funding increases of any kind to a minimum. We added the following items: $66 million for unfunded requirements identified by military leaders, $90 million for investments in programs such as the DOD IG and corrosion control that have high payback rates, $63 million for critical investments in intelligence and cyber security improvements, $497 million for increased funding needed to ensure the efficient execution of ongoing Department of Defense programs, and $270 million for a handful of broad-based competitive programs needed to help us keep our leadership in military technology.

I continue to believe it would be wrong for us to give up the power of the purse given Congress in the Constitution. I don't believe the executive branch has a monopoly on good ideas. In fact, I think we are more often receptive to creative new ideas that can lead to advances in the national defense than the defense bureaucracy is. Nonetheless, there are no earmarks in this bill.

Finally, I would like to discuss four major issues in the bill that were the subject of extended debate in the course of our markup this year.

First, this bill includes provisions that would require sound planning and justification before we spend more money for Marine Corps realignment from Okinawa to Guam and on tour normalization in Korea. These provisions follow detailed oversight that Senators Webb, McCain, and I have conducted over the past years. In particular, the bill prohibits the expenditure of funds for Marine Corps realignment from Okinawa to Guam until we receive an updated force laydown and a master plan detailing construction costs and schedule of all projects necessary to carry it out.

The bill requires the Department of Defense to study moving Marine Corps aviation assets currently at Marine Corps Air Station Futenma to Kadena Air Base, and the feasibility of relocating some or all Air Force assets currently at Kadena Air Base, rather than building a replacement facility at Camp Schwab that is unrealistic and unaffordable.

The bill prohibits the obligation of funds for tour normalization on the Korean Peninsula until the Secretary of the Army provides Congress with a master plan, including all costs and schedule projections to complete the program, and the Director of Cost Assessment and Program Evaluation performs an analysis of alternatives justifying the operational need.

The Department of Defense current plans for Okinawa, Guam, and Korea were developed years ago in a different fiscal environment and are projected to cost billions of dollars more than anticipated. At a time of tight budgets, we owe it to the Department of Defense and to the taxpayers to insist on a close examination and strong justification before we proceed.

Second, the committee adopted an amendment to strike all funding for the Medium Extended Air Defense System, MEADS. In February, the Department of Defense announced that after investing more than $1.5 billion in the MEADS Program, the program remained a high risk and the additional funding needed to field the system was unaffordable. However, the Department declined to terminate the program because the memorandum of understanding with our allies on which the program is based commits us to continued funding even if we withdraw from the program. For this reason, the Department requested over $400 million in funding for the continued development of a system that it has no intention of fielding. The committee amendment eliminates this funding. We recognize that under the memorandum of understanding, our decision not to fund this program could require the United States to pay for a program in which it is no longer a participant. However, the committee concluded that the course proposed by the Department is untenable and that the Department should explore all options with our allies before continuing to fund a program which we no longer need.

Third, our committee members share both a deep concern about the rising cost of the Joint Strike Fighter Program, on which we are now projected to spend more than $1 trillion--which includes operation and sustainment costs--and a strong belief that the Department of Defense must take stronger action to contain these costs.

The committee unanimously adopted an amendment requiring that the next JSF contract be entered on a fixed-price basis and that the contractor assume full responsibility for all costs above the target cost specified in the contract. This amendment puts the contractor on notice that we have lost patience with continued overruns on the program and we are determined to protect the taxpayer from further cost increases, without unnecessarily jeopardizing the heavy investment we have already made in the program by prematurely terminating the program. Senator McCain has taken, really, the active lead in this effort, and it is a very critically important effort for our taxpayers.

Finally, the bill includes a bipartisan compromise regarding detainee matters--as I have made reference to before--that would address a series of important issues that relate to detainees. It is worth summarizing the detainee-related provisions in the bill.

First, the bipartisan compromise would codify the military's existing detention authority, as stated by both the administration of President Bush and the administration of President Obama and approved in the courts.

Second, the bill would require military detention for a core group of detainees who are part of al-Qaida--or an associated force that acts in coordination with or pursuant to the direction of al-Qaida--and who participate in planning or carrying out attacks or attempted attacks against the United States or its coalition partners. That is a defined core group of detainees.

This provision includes a national security waiver and includes language expressly authorizing the transfer of detainees for trial in civilian courts. It continues the conditions on the transfer of Gitmo detainees to foreign countries, including certification requirements to be met before a transfer may take place. Contrary to what some have said, this provision does not prohibit transfers from Gitmo. In fact, it is less restrictive of such transfers than legislation passed in the last Congress and signed by the President. In particular, this year's provision includes a national security waiver that is designed to address concerns expressed by the Secretary of Defense about a similar restriction which was included in last year's authorization and appropriations act.

The bill contains the same limitation on the use of Department of Defense funds to build facilities in the United States to house Gitmo detainees that has been included in past authorization and appropriations acts. This provision applies only to Department of Defense funds. It does not prohibit the use of Department of Justice funds that might be needed in connection with a

transfer for the purpose of a criminal trial, and it does not prohibit the closure of Gitmo.

The provision requires the Department of Defense to issue procedures addressing ambiguities in the review process established for Gitmo detainees. The provision clarifies but does not overturn the Executive order issued by the President earlier this year.

The provisions require the Department of Defense to establish procedures for determining the status of detainees, including, as I indicated before, for the first time, a military judge and a military lawyer for a detainee who will be held in long-term military custody.

The bill clarifies procedures for guilty pleas in trials by military commission. This provision would require a separate trial on the penalty, with a unanimous verdict needed to impose the death penalty. So while a death penalty could be imposed by a commission, the detainee would have no assurance of that result, for those detainees who want that assurance so they can make themselves martyrs.

As I have already indicated, these provisions have been substantially modified as a result of extensive discussion with administration officials. We did not make every change requested by the administration, although we adopted many of them--probably most of them--and made additional changes to address specific concerns raised by administration officials.

Mr. President, as we are here today, we have over 96,000 U.S. soldiers, sailors, airmen, and marines on the ground in Afghanistan, with 23,000 more remaining in Iraq. While there are issues on which we may disagree, we all know we must provide our troops with the support they need as long as they remain in harm's way.

Senate action on the national defense authorization bill for fiscal year 2012 will improve the quality of life of 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 them and appreciate their service.

We look forward to working with our colleagues to promptly pass this important legislation. And as I yield the floor, I again want to thank Senator McCain and all the members of our committee for their hard work on this bill, as well as our staffs for their extraordinary capability. But I want to thank personally Senator McCain for everything he has done to make it possible for us to get to the floor at this time.

Exhibit 1

Summary of $21 Billion in Additional Cuts Resulting From Second Markup

of National Defense Authorization Act for Fiscal Year 2012

Airland Subcommittee

Army Programs: The bill would cut an additional $2.8

billion in Army Procurement and $800 million in RDTE. This

includes over $1 billion in reductions proposed by the Army,

and over $2 billion for programs that had unjustified or

excessive growth, misaligned schedules, fact of life changes

including terminations, or other management challenges. These

recommended reductions include $518.7 million for the Joint

Tactical Radio System, $224.0 million for Warfighter

Information Network-Tactical, $172.5 million for Ground

Soldier System-Nett Warrior, and $157.3 for HMMWV

recapitalization programs. The bill would also transfer over

$600 million from the base request to the overseas

contingency operations accounts for capabilities directly or

closely related with military operations in Iraq and

Afghanistan such as increased ISR, mine protected vehicles,

armoring kits, and base defense and force protection systems.

Navy Programs: The bill would cut an additional $724.5

million in Navy Procurement and $55.9 million in RDTE. This

includes $532.1 million for programs that had unjustified or

excessive growth, misaligned schedules, fact of life changes

including terminations, or other management challenges. These

recommended reductions include $163.5 million for the E-2D

Advanced Hawkeye, $159.9 million for spares and repair parts,

$69.9 million for AMRAAM, and $99.7 million for the F/A-18E/F

Hornet.

Air Force Programs: The bill would cut an additional $910.2

million in Air Force Procurement and $596.0 million in RDTE

for programs that had unjustified or excessive growth,

misaligned schedules, fact of life changes including

terminations, or other management challenges. These

recommended reductions include $145 million for the A-10,

$120 million for AFNET, $103 million for initial spares and

repair parts, and $101 million for the AMRAAM. The bill would

also transfer $87.2 million from the base request to the

overseas contingency operations accounts for activities

directly or closely related with military operations in Iraq

and Afghanistan such as war consumables.

Emerging Threats and Capabilities Subcommittee

Program Delays and Under-Execution: The bill would reduce

funding for science and technology and information technology

by $216 million due to excessive program growth and program

delays; reduce funding for U.S. Special Operations Command by

$135 million due to unjustified growth and items already

funded in recent reprogramming actions; reduce funding for

counter-drug programs by $128 million based on a DOD

assessment that this funding is excess to need; reduce

funding for counter-proliferation programs by $43 million due

to slow execution; reduce funding for the Joint IED Defeat

Organization (JIEDDO) by $85 million based on unjustified

program growth; and reduce funding for the Chemical and

Biological Defense Program by $40 million due to under-

execution and program delays.

Personnel Subcommittee

Military Personnel Funding: The bill would reduce funding

for military personnel by $100.6 million, by taking an

additional $42.6 million in unobligated balances and using

updated CBO estimates for savings attributable to a change in

the calculation of hostile fire pay.

Defense Health Care: The bill includes a $330.0 million cut

to private sector care under the Defense Health Program,

based on an assessment of historical under execution rates

for private sector care.

Military Spouse Career Advancement Accounts (MyCAA): The

bill reduces funding for the program by $120 million. This

reduction was offered by the Department of Defense because

although the President's budget request included $190 million

for the program, DOD has indicated that as a result of its

redesign of the MyCAA program, only $70 million is needed for

execution in fiscal year 2012.

Readiness Subcommittee

Military Construction: The bill would cut an additional

$527 million in military construction funding. This includes

three domestic projects valued at $83.1 million, the largest

of which the Technology Center's Third Floor Fit Out, valued

at $54.6 million does not need funding because NSA has

indicated that it has sufficient unobligated balances to

complete the project. The balance of the cuts are for: (1)

overseas military construction projects in areas that are

subject to an ongoing strategic review (including five

projects in EUCOM valued at $179.6 million); (2) planning and

design funds rendered unnecessary due to previous cuts; and

(3) programs that are not fully budgeted for in the FYDP.

Operation and Maintenance: The bill would cut an

additional $3.1 billion in operation and maintenance funding.

This includes $1.5 billion in reductions proposed by the

military services; $315 million for ammunition account cuts

based on inefficient ammunition management and

recommendations from the military services; $294 million for

excess growth in service contractors and civilian employees;

and $258 million in the OCO accounts for a transfer of Coast

Guard support to the Department of Homeland Security.

Transfers to Overseas Contingency Operations Funding: The

bill would transfer to OCO accounts $4.9 billion of operation

and maintenance funding for activities closely associated

with military operations in Iraq and Afghanistan, including

MRAP vehicle sustainment, body armor sustainment, overseas

security guards, theater security packages, depot maintenance

and readiness funding in support of combat operations, and

CENTCOM headquarters public affairs. Most of these activities

have previously been funded from OCO accounts.

Seapower Subcommittee

Navy Programs: The bill would cut an additional $234.4

million in Navy Procurement and $496.7 million in RDTE for

programs that had unjustified or excessive growth, misaligned

schedules, fact of life changes including terminations and a

Navy-requested realignment of the VXX Presidential Helicopter

program, or other management challenges. The recommended

reductions include $120 million for JTRS, $70 million for the

Future Unmanned Carrier-Based Strike System, $63 million for

ship contract design and live fire T&E, and $58 million for

the Standard Missile.

Marine Corps Programs: The bill would make additional

reductions of $101.0 million in Procurement, Marine Corps due

to slow program execution or contract award delays.

Air Force Programs: The bill would cut an additional $108.6

million in Air Force Procurement for unnecessary post

production funding for the C-17 program and $45.9 million in

RDTE for programs that had contract delays or where the

programs were being re-phased.

Strategic Subcommittee

Space: The bill would reduce funding for space programs by

$233 million due to slow execution in the development of the

Family of Advanced Line of Sight Terminals (FAB-T) used in

conjunction with the Advanced Extremely High Frequency (AEHF)

satellite system; by $300 million by dropping authorization

for the long term lease of a commercial satellite by the

Defense Information

Systems Agency due to a lack of an analysis of alternatives;

and by $105 million in connection with delays in contract

awards associated with GPS systems under development.

Department of Energy: The bill would reduce funding for

environmental cleanup at former atomic weapons production

sites by $356 million due to slow program execution; reduce

the NNSA nonproliferation program by $168 million due to cost

overruns for a pit disassembly facility to produce mixed

oxide fuel, which is now developing a new program base line;

and for NNSA program management by $45 million due to an

excessive rate of growth.

Missile Defense: The bill would reduce funding by $55

million for the procurement of Standard Missile-3 Block IB

missiles due to a test failure which requires an

investigation, correction, and retest, delaying production

(an additional $260 million of funding would be moved from

procurement to the R&D account to facilitate the fixes); and

reduce funding for the Terminal High Altitude Area Defense

(THAAD) missile defense system by $120 million to reflect the

reality of slower production rates due to delays in the

program. A few joint or Army programs would be reduced by $47

million for under-execution.

Intelligence Funding: The bill includes a number of

reductions to the Military Intelligence Program because of

late contract awards, slow execution rates, program delays,

and changes in programs since mark-up; it also includes

reduced funding for the National Intelligence Program

reflecting cuts agreed to by the two intelligence committees.

General Provisions

Troop Reductions in Afghanistan: The bill would reduce OCO

funding by $5.0 billion due to the President's decision to

withdraw the 33,000 U.S. surge force from Afghanistan, with

10,000 to be withdrawn by December 2011 and the remaining

23,000 to be withdrawn by next summer. The Department of

Defense has informed us that the $5.0 billion is no longer

needed as a result of the planned Afghanistan troop

reduction.

Afghanistan Security Forces Fund: The bill would reduce

funding for the Afghanistan Security Forces Fund (ASFF) to

$11.2 billion, a $1.6 billion reduction from the President's

request. The Commander, U.S. Central Command, has determined

that FY2012 ASFF funding can be reduced by $1.6 billion

because of efficiencies and cost avoidances achieved by the

NATO Training Mission in Afghanistan in its plans for

building and sustaining the Afghan Army and Police.

Amendment No. 1092

(Purpose: To bolster the detection and avoidance of counterfeit

electronic parts)

Mr. Levin. Mr. President, pursuant to a unanimous consent request which was previously entered into on this matter, I send to the desk an amendment on behalf of myself and Senator McCain.

I ask unanimous consent that further reading of the amendment be dispensed with.

Mr. President, I call for regular order with respect to the amendment.

Is it now pending first in line?

I thank the Presiding Officer, and I want to make one quick comment about this amendment.

This is a bipartisan amendment that addresses the massive issue created by counterfeit parts getting into the defense supply system. It is something our staffs have investigated heavily.

Senator McCain and I are introducing this bipartisan amendment. We hope it has strong support in this Senate. It will address a critically important issue we have now seen in the defense supply system with millions of counterfeit parts--mainly from China--getting into our defense system and threatening the security of our troops, the effectiveness of their mission, and costing the taxpayers a heck of a lot of money.

I agree with my friend from Arizona. We literally worked months to get to the first reduction which was in our original bill. Then when the Congress adopted the Deficit Reduction Act, which required additional reductions, these are very difficult decisions to make because they in many cases will increase risks which we don't want to increase but nonetheless have got to accept some additional degree of risk on some of our programs in order to do the fiscally responsible thing. I agree with my friend.

These cuts that would result from sequestration are massive not just in defense but also in nondefense discretionary areas. The purpose of that threat is to hopefully prevent it from taking place, as with any other kind of a sword of Damocles held over people's heads--our heads--that if we don't reach some kind of an agreement with our special committee, the group of 12 that is working so hard to come up with a reduction that will meet the requirements of the bill, we would then have a sequestration, across-the-board cuts, which are not the rational way to budget, are massive, Draconian--to use the word which the Senator from Arizona quoted. And that is true in both defense and nondefense. But, again, the purpose of having that sequestration process in place is, hopefully, an incentive so that it doesn't take place.

That is always our hope. It doesn't work out the way we wish frequently, but it is always our hope that the way it should work--at least theoretically--around here is that should be what the appropriators do.

That has not worked out that way in I don't know how many recent years. The Senator and I have had some discussions about that. When I first got here, many years ago, that was an issue which had not been resolved. But I think what the Senator sets out is the hope that the appropriators would look at our authorizations and follow our authorizations.

Let me thank my friend from Arizona for his great work on this bill and the way in which he and our members, our brothers and sisters on the committee, including the Presiding Officer, worked so well together on a bipartisan basis and the way our staffs worked together. We are now in a position where we can consider amendments, as the Senator from Arizona said, pending the receipt of amendments for our consideration.

I yield the floor.

Madam President, I thank the Senator from Arizona. I very briefly described this amendment before, but I will take a few minutes now to describe it in some greater length because it is very significant. It is going to totally change the way we buy replacement parts for our weapons systems to avoid the absurdity that we have so many counterfeit parts, including used parts, where we need new parts on these weapons systems.

The investigative staff of our committee looked at just a slice of the Defense chain for getting replacement parts. In that one slice of that supply chain, they identified 1,800 examples of where counterfeit parts were in our weapons systems. There were 1,800 different examples, but they involve millions of parts.

What happens here is that these used computers that originate from China, which are called e-waste, are sent back to China where they are pulled apart. The electronic parts are then washed, frequently in a stream--and there are pictures of these parts being washed in streams-- dried out in the open, and then they go mainly to one place in China, Shantou. The surfaces of these parts are then sanded down, new surfaces are put on them, and a number is placed on them to make them look like new parts. Then, those parts, through various ways, get into the supply chain. That is what we have to stop.

This is dangerous for our troops. It jeopardizes their missions. We believe we are losing approximately 11,000 American jobs that would be making these parts if they weren't counterfeited overseas. That is just one estimate by the Semiconductor Industry Association. Our semiconductor manufacturers suffer about $7.5 billion in lost revenue. So there is a safety issue and a mission threat issue here, first and foremost, but this is also an unnecessary and unfair blow to the American economy and to American jobs.

This is what this amendment does. We are requiring the Secretary of Homeland Security to establish a program of enhanced inspection of electronic parts imported from any country that is determined by the Secretary of Defense to be a significant source of counterfeit parts in the DOD supply chain.

This amendment requires the Department of Defense and its suppliers to purchase electronic parts from original equipment manufacturers and their authorized dealers, or from trusted suppliers who meet established standards for detecting and avoiding counterfeit parts. It establishes requirements for notification, inspection, testing, and authentication of electronic parts that are not available from such suppliers.

It requires the Department of Defense and DOD contractors who become aware of counterfeit parts in the supply chain to provide written notification to the Department of Defense inspector general, the contracting officer, and the Government-Industry Data Exchange Program--GIDEP--or a similar program designated by the Secretary of Defense.

The amendment would authorize Customs to share information with original component manufacturers from electronic parts inspected at the border to the extent needed to determine whether an item is a counterfeit.

It requires large Department of Defense contractors to establish systems for detecting and avoiding counterfeit parts in their supply chains, and it authorizes the reduction of contract payments to contractors who fail to develop adequate systems.

The amendment requires the Department of Defense to adopt policies and procedures for detecting and avoiding counterfeit parts in its own direct purchases, and for assessing and acting upon reports of counterfeit parts from Department of Defense officials and DOD contractors.

The amendment authorizes the suspension and debarment of contractors who repeatedly fail to detect and avoid counterfeit parts or otherwise fail to exercise due diligence in the detection and avoidance of counterfeit parts.

The amendment also includes a bill Senator Whitehouse introduced that was passed out of the Judiciary Committee to toughen criminal sentences for counterfeiting military goods or services.

Finally, the amendment requires the Department of Defense to define the term ``counterfeit part'' which is a critical and long overdue step toward getting a handle on the problem.

We also make it clear that it is the supplier of the counterfeit part who is going to pay for its replacement, and not the taxpayers of the United States.

This amendment touches the jurisdiction of two or three other committees, so we have sent this amendment to the other committees to try to clear this amendment. The Judiciary Committee is one, and I think Homeland Security is another, and I believe the Finance Committee is the third. We are hoping we can get prompt, positive response, but obviously we want to make sure those other committees are consulted and that they concur. If not, we would have to then make changes in the amendment, probably, in order to accommodate what those concerns are. But there are some jurisdictional issues here which we are currently working out.

I had an opportunity this morning, with Senator McCain, to talk to Senator Leahy, who was before our committee introducing a nominee, to alert him to the fact that we had this amendment which touched on the jurisdiction of his committee. I hope by now the language of the amendment has been shared with the staffs of those three committees-- and I think I have them all--but we intend to do exactly that.

Surely.

Well, we do need to consult with those committees. That is underway. I am hopeful the committees and their leaders will take a prompt look at this and see if there is any problem with the language from the perspective of their committees.

That is correct.

Mr. President, first, let me thank the Senator from New Hampshire for not only her comments about the committee work and myself and Senator McCain personally, but I want to tell her, and tell anyone within the sound of my voice, what a valuable member of our committee she is. She is someone who is there all the time, and I very much value the input she gives to us because of her regular presence at our hearings and our meetings. So I thank her for that as well as her comments.

I also thank her for this amendment. It is a good amendment. I understand from my staff, and from what the Senator said as well, there was a hearing held specifically on this subject, and that Senator Reed, as chairman, made a commitment to hold that hearing, as I understand it. He is a cosponsor of the amendment of Senator Ayotte. As far as I can see, it is a good amendment, a sound amendment, and it does what Senator McCain said, as well as what the Senator from New Hampshire has said. It avoids spending money on something we can't afford to spend money on.

I don't know of any objection on this side, and I support the amendment.

I don't know of an objection on this side. As far as I am concerned, if there is no further debate, the Presiding Officer can put the question.

Mr. President, I move to reconsider the vote.

Would the Senator yield for a question?

We explicitly wrote into this bill the following language: that the procedures providing for the determination that somebody is an Al-Qaida terrorist or related, affiliated one is not required to be implemented until after the conclusion of the interrogation session, which is ongoing at the time the determination is made.

Is the Senator familiar with that language which explicitly says that the President will adopt the procedures--whatever procedures the President determines--to make sure there is no interference with an ongoing interrogation by the civilians as it appears in section 2(c) on page 363? Is the Senator familiar with that?

Is it not true, however, that the language which is in this bill that I just read clearly provides there will not be any interference with an interrogation session, that those procedures are to be determined by the President, and that it explicitly says there will not be any interference with the interrogation and the procedures will guarantee there will not be? That is the point of this language.

I don't understand how the statement could be made that this language in this bill interferes with the interrogation by civilian authorities and the FBI when the very language here says they will not interfere with that interrogation. I wonder if the Senator could explain to me his agreement with the Senator from Illinois that something in this bill would result in an interference with an interrogation.

I do appreciate the Senator's response. I have one other question, and that has to do with an American citizen who is captured in the United States and the application of the custody pending a Presidential waiver to such a person. I wonder whether the Senator is familiar with the fact that the language which precluded the application of section 1031 to American citizens was in the bill we originally approved in the Armed Services Committee, and the administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section.

Is the Senator familiar with the fact that it was the administration which asked us to remove the very language which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois?

I thank my friend.

Reserving the right to object, and I don't object because that is the way we should proceed, going back and forth, and usually we do that informally. I don't know whether there may be implications because I don't know who will be speaking.

Mr. President, I have no objection.

I wonder if we can amend the unanimous consent agreement. There is nobody that I know of on this side at the moment who wants to speak in support of the amendment, so I am wondering if it would be agreeable to the ranking member to have two Members on his side go and then two Members on our side, should that occur.

In that case, I note the absence of a quorum.

I don't want you to agree if you think it is not fair.

I am in opposition to the amendment. I want to be fair.

No. Yield the floor.

You had two, I believe. You were the second, I think.

If we did not have somebody here, we were going to do it two at a time.

Madam President, first, let me thank Senator Whitehouse for the extraordinary effort he has made to go after counterfeit parts. We have incorporated his legislation in our legislation. It is a critically important part of our legislation. But his leadership has been early, often, and strong on this issue, and we commend and thank him for it. Hopefully, when this amendment gets passed, there will be a recognition of the critical role the Senator from Rhode Island played. It is an ongoing saga to stop counterfeiting coming in, mainly from China. This is a major effort to stem that flow.

Madam President, I wonder if the Senator from California might offer those amendments right now and call them up so we can get a vote on them. We are trying to vote on amendments, and I am wondering if she could call up one of those amendments, we could debate it, and then vote on it.

Which amendment is the larger one?

Is that one of the three?

Which was the larger of the three; can the Senator describe it for us?

Which is the one currently being reviewed, if the Senator is able to share that with us.

I thank the Senator.

That helps. I thank the Senator.

Will the Senator yield for a question?

The Christmas Day Bomber, I believe he was taken off that plane in Detroit, he was interrogated by the FBI; is that correct?

There was nothing wrong with that. That was the choice of the executive branch. It worked here.

We make it flexible. This is something which I heard today from the supporters of this amendment. They want flexibility.

That is exactly what we provide in this amendment. That is the question Senator McCain just asked: If this administration or any administration decides that they want to provide the civilians with opportunity to interrogate, for whatever length of time they want, they are going to set the procedures under this language in our bill; is that not correct? The President will determine the procedures. If he wants those procedures to be civilian control until some point, that is going to be up to the President. We may disagree with that or not.

There are Members of our body who very strongly disagree with that.

But that is not who is going to decide. We are not going to make the decision that the person is going to be given or not given civilian interrogation. That decision is going to be made by a President who sets the procedures for interrogation and will decide whether to provide a waiver; is that correct?

I would think it would be a very bad policy.

Not necessarily. I think there are occasions where the civilian interrogation may be actually more workable.

That is correct--indefinitely. But how long that lasts is a procedure the President is going to determine.

Under military custody, yes.

That is correct, providing flexibility which we should provide in order for the executive branch to have what they want, which is the flexibility. There, I think, many of our colleagues believe there is too much flexibility. But whether that is right or----

But whether they are right or wrong, the facts are in this bill there is flexibility. It is carefully laid out. The President will lay out the procedures and notify the Congress of those procedures. But the point is, we do provide the very flexibility that the President of the United States has sought. We give them that flexibility, and it seems to me for the characterization of this bill to be that there is no flexibility, that somebody must go into military detention, is inaccurate. We ought to debate policy, but we should not debate what the words of a bill are.

One other thing. Is it not correct that when it is said, as the Senator from California did, that this provision has unprecedented and new authority for indefinite detention of American citizens without trial, that as a matter of fact we had in section 1031, in the bill filed months ago, language which would have exempted American citizens? It was the administration that wrote 1031 the way it is now and has approved of that language; is that not correct?

I am sorry?

And believes they have that authority.

The Senator is correct. The Senator has led the way to have this kind of additional protection for those prisoners. There is greater protection in this bill because of that review process than there is without this bill.

If I could, one other question, because the Senator is an expert on this subject. Is it also not true for the first time in terms of determining whether a person is, in fact, somebody who needs to be detained under the law of war--for the first time when that determination is made, that person is entitled to a lawyer and entitled to a military judge?

And it is the law for the first time; is that not correct?

Would the Senator yield?

In addition to providing in this bill that the determination as to whether somebody is al-Qaida is to be made through procedures which the President will adopt, No. 1, which is flexibility.

Mr. President, I ask unanimous consent to engage in a brief colloquy with the chairman, Senator Levin.

First of all, I wish to thank the Chairman for the long years of work we have had together. This is the culmination of this year's work which is coming to the floor after great difficulty and a lot of obstacles. I want to thank the Senator again for the spirit of bipartisanship, which is a long tradition in the committee which was practiced by our predecessors. Obviously, we know on occasion that we have differences of views, and sometimes we--especially I--express those in perhaps a passionate manner. But the fact is, at the end of the day, we continue to come together and work together for the good of this Nation's security.

The reason I ask the Senator is because I think our colleagues ought to understand the context of this bill. First of all, it is a new bill, and it has a reduction of some $20 billion in authorization in order to keep with the Budget Control Act, a total now of a $27 billion reduction, which is a significant amount of money. It seems to me our colleagues should understand this $9.8 billion cut in defense procurement, $3.5 billion cut in research, development, test, and evaluation, $1.6 billion cut in military construction, $6.7 billion in overseas--these are significant reductions already in what we had originally envisioned as necessary for our Nation's defense capability.

I would ask the chairman, these are painful decisions we had to make. For those who somehow believe it is business as usual in the Department of Defense and on the Defense authorization, it simply is not correct. We have already made significant reductions, I ask my colleague.

Could I ask my colleague, also, two more points. One is that we also have planned for an additional well over $400 billion reductions in the next decade, and those will again entail at some point an increase in risk. So in that context, I would appreciate again an expression of the chairman's view of a Draconian cut that would take place as a result of sequestration. The Secretary of Defense has testified before our committee of the ``devastating effects,'' as have our military leaders.

Finally, I would ask the chairman, we have met the requirements of the Appropriations Committee with this additional $20 billion reduction in this ``new'' legislation. Then it seems it would be only appropriate that the Appropriations Committee meet the provisions of authorization that are in the authorization bill.

In other words, I am told there are some differences in the Appropriations Committee's bill as far as what the authorizing committee's responsibilities are. I hope the Appropriations Committee would address those differences in deference to our role as authorizers.

I thank the Senator from Michigan.

I finally wish to comment. I am more than hoping. I intend to identify those areas of difference between the authorizing committee and the Appropriations Committee, and fully expect the appropriating committee--unless there is some overriding reason--to conform with the authorization bill.

Again, I thank Senator Levin and his staff for the work we are doing. And I thank the leadership. I thank Senator Reid for bringing the bill to the floor. I know he has a lot of important priorities, but I believe it is very important that we continue an over half-century tradition of the Senate taking up, passing, and then finally seeing enacted into law the Defense authorization bill.

I think it is a valid statement to say that there is no greater priority the people's representatives have than to take every measure we can possible to ensure the security of our Nation and the men and women who serve in it. This legislation is the result of literally thousands of hours of discussion, debate, hearings, input to make sure we do the very best job we can to protect our Nation.

As I mentioned earlier, with the committee's action earlier this week we have ensured that our authorization top line of $526 billion for the base Defense budget complies with the budget allocation levels adopted by the Senate Appropriations Committee for fiscal year 2012.

We have worked with the administration over the past several weeks to address their concerns with the detainee provisions in our bill. We understand the administration is still not satisfied with the committee work. We have made many clarifications, modifications at the request of the administration to the detainee provisions as they were reported from the committee in June. As a result, we were able to report out the bill again this week with an overwhelming bipartisan vote of 26 to 0.

We will be glad to continue our discussions with the administration. I am grateful the administration reached out to us and that because of that discussion in negotiations with Mr. Brennan and others from the White House we were able to make some changes. I regret they haven't been sufficient to overcome their objections, but we will continue to work with them. This is a very important issue.

Obviously, our collective goal is to make sure that members of terrorist organizations, specifically al-Qaida, do not return to the fight, and that we make sure we are able to treat al-Qaida members who are captured in keeping with international law, but at the same time in keeping with the priority interests of America's national security. So I understand there will be an amendment on that issue or amendments. We look forward to debating and discussing that aspect.

Whatever additional concerns that may remain with the detainee provisions should be dealt with, as they will be, through debate and amendment. But, importantly, all of the aspects of this bill are of such vital importance to supporting the men and women of our Armed Forces and their families. We have already started to work on amendments that we know our colleagues are preparing to offer on this bill, and I encourage all my colleagues to file their germane amendments as quickly as possible.

Obviously, I repeat, the legislation is extremely important to our Nation's defense and the men and women in uniform. I know all of my colleagues appreciate that fact.

I would hope that this year, unlike in recent previous years, we will not add to this bill policy riders that are not relevant to the bill.

The committee bill before the Senate is the culmination of 11 months of hard work conducted through 71 hearings and meetings this year on the full range of national security priorities and issues. This tradition of deliberative review and oversight is typical of what the Defense authorization bill has provided our Nation's military for over 50 years, without fail. The committee's priorities this year and every year start with our bipartisan commitment to improve the quality of life for the men and women of the all-volunteer force--active duty, National Guard, and Reserves--and their families, through fair pay, improved policies, benefits commensurate with the sacrifices of their service, and by addressing the needs of the wounded, ill, and injured servicemembers and their families.

To do these things, this bill authorizes a 1.6-percent across-the- board pay raise for all members of the uniformed services, authorizes pay incentives for recruitment and retention of our most highly skilled and highly sought-after men and women, and improves the Uniformed Code of Military Justice to more effectively respond to accusations of certain types of misconduct. This bill provides essential resources, training, technology, equipment, and force protection our military needs to succeed in their missions, including authorizing a 6-percent increase in funding for our enormously important professional and dedicated special operations forces who play such a large role in our counterterrorism operations worldwide, and over $2.4 billion for the Department of Defense counter-improvised explosive device activities. I cannot overemphasize the importance of the timely funding of these counter-IED funds given the increase in the use of this kind of attack against our troops, first in Iraq and now in Afghanistan.

The bill enhances the capability of our military and that of our allies to conduct counterinsurgency operations, including the authority to provide support to those aiding U.S. Special Operations in combating terrorism in Yemen and East Africa, authorization of $400 million for the Commanders Emergency Response Program--known as CERP--in Afghanistan, and authorization of $11.1 billion to train and equip the Afghan security forces for the security of the Afghan people.

The bill strengthens and accelerates nuclear nonproliferation programs while maintaining a credible nuclear deterrent, reducing the number of nuclear weapons, and ensuring the safety, security, and reliability of the nuclear stockpile, the delivery systems, and the nuclear infrastructure. In this regard, the bill authorizes $1.1 billion to continue development of the Ohio-class submarine replacement program to modernize the sea-based leg of the nuclear triad of delivery platforms. It improves our ability to counter nontraditional threats, focusing on terrorism and cyber warfare; in part by requiring DOD to acquire and incorporate capabilities for discovering previously unknown cyber attacks and establishing a new Joint Urgent Operational Need Fund to allow the Department to rapidly field new systems in response to battlefield requirements. It authorizes DOD to immediately void a contract if a contractor has been determined by the commander, U.S. Center Command, to be actively opposing U.S. forces in Afghanistan.

A related provision would provide enhanced audit authority to assist in the enforcement of this provision. It authorizes over $13 billion for new construction of critical facility projects that have a direct impact on the readiness and operations of our military while also providing much needed construction jobs in a struggling economy.

In contrast to these enhancements and new authorities, the committee also had to make some very difficult decisions. The President's budget request of $553 billion was cut by nearly $27 billion in recognition of the difficult budget situation our country faces. These difficult funding reductions include: $10 billion cut in the operation and maintenance accounts for the military services used to fund readiness and training activities. This was done mainly by scaling back the growth in service contracts while also reducing certain accounts for daily operating activities and training; a $9.8 billion cut in defense procurement accounts for programs that had more money than could be efficiently put under contract this year and programs that were not able to meet production milestones; a $3.5 billion cut in the research, development, test and evaluation accounts by examining the performance of hundreds of programs and

identifying those that showed excessive cost growth or a lack of performance; $1.6 billion in cuts in military construction projects, mostly at overseas locations, to allow for a review of our U.S. military force posture worldwide. In addition, the bill cuts $6.7 billion from the President's budget request of $118 billion for overseas contingency operations, known as OCO, due to a forecast of reduced operations in Afghanistan during 2012.

These cuts are the first step in what will be an extremely critical debate on the right amount of defense spending over the next 10 years. We will need to make some very difficult decisions that will undoubtedly increase risk as we decide whether to continue or terminate costly and, in some cases, troubled and overdue programs. We will need an informed and honest debate on which defense requirements and capabilities most effectively and efficiently protect the full range of our Nation's interests.

As such, this committee's review and curtailment of troubled, wasteful or unnecessary programs is not only essential to ensure proper stewardship of taxpayer funds but also stays true to the intent of preserving funds for war fighter priorities. Along these lines, this bill proposes to cut: $452 million for the Enhanced Medium Altitude Reconnaissance and Surveillance System due to program delays; $192 million from related Brigade Combat Team Modernization projects due to a program termination by the Army; $200 million for the Joint Tactical Radio System due to program delays; $406 million for the Medium Extended Air Defense Systems, known as MEADS, which is a high-risk joint program for air defense with Germany and Italy which the Army has decided not to deploy operationally; $519 million for the Joint Tactical Radio System, called JTRS, as a result of program execution and cost concerns; $244 million for Warfighter Information Network- Tactical; $173 million for Ground Soldier System-Net Warrior; $157 million for HMMWV recapitalization programs; $108 million for unnecessary postproduction funding for the C-17 Program; $233 million due to slow execution in the development of the family of Advanced Line Of Sight Terminals used in conjunction with the Advanced Extremely High Frequency Satellite System; $300 million by curtailing authority for long-term lease of a commercial satellite by the Defense Information Systems Agency due to a lack of an analysis of alternatives; $105 million in connection with delays in contract awards associated with GPS systems under development.

Even after this long list of cuts to troubled programs, I would have liked to have done more.

I wish to point out that in the days when we were increasing defense spending, it was one thing not to be in sync with the appropriations committee. In the days of reductions in defense spending, it is absolutely vital that the Appropriations Committee follow the guidance and authorization of the authorizing committee. I intend to do everything in my power to make sure that happens.

An example of what I would have liked to have seen more of is the Joint Strike Fighter or the F-35 Programs. I offered an amendment during the committee's markup that would have put the program on a 1- year probation if the costs under the fixed-price contract for the fourth lot of early production aircraft grew by more than 10 percent over their target cost by the end of the year. My goal was to send a strong, simple, and powerful message to the Pentagon and to Lockheed Martin, a message that we will no longer continue down the road of excessive cost growth and schedule slips on this program just because other alternatives are hard to come by.

We now are faced with a prospect of the first $1 trillion weapons system in history, which it certainly was not originally designed to be.

As it turned out, the amendment did not go forward as a result of a tie vote in committee. An alternative provision offered by Chairman Levin will instead require that the fifth lot of early production F-35 aircraft be procured under a fixed-price contract and that Lockheed Martin bear the entire responsibility for any cost overrun other than certain limited costs needed to make specific changes that the government requests. Because I feel it is essential to use fix-price contracts for large Pentagon weapons programs, I supported the chairman's amendment during the markup and I support it now.

Today, as we speak, the Pentagon is negotiating with Lockheed Martin on who will bear the cost of changes to the design and manufacturing of the aircraft that could come down the road as a result of thousands of hours of flight testing that lie ahead. In this sense, the excessive overlap between development and production that is called concurrency is now coming home to roost. The Defense Department quite rightly says it will not sign any contract for the next lot until Lockheed Martin agrees to pay a reasonable share of these concurrency costs, and Lockheed Martin doesn't want to bear the risk of new discoveries.

Let me be clear. I strongly support the Department of Defense position. I think it reflects exactly the congressional view reflected in our markup. As we agree to buy more early production jets while most of the development testing has yet to be done, Lockheed Martin must be held increasingly accountable for cost overruns that come as a result of wringing out necessary changes in the design and manufacturing process for this incredibly expensive aircraft.

How does this legislation affect pending negotiations? It means on the next production lot, Congress expects the Department to negotiate a fixed-price contract that requires Lockheed Martin to assume an increased share of any cost overruns. It requires a ceiling price for that lot that is lower than the previous contract for the last lot purchased. It ensures a shared responsibility for reasonable concurrency cost increases.

In other words, the deal we negotiate on this next production lot must be at least as good, if not better, than the deal we negotiated under the previous one. Otherwise, we are moving in the wrong direction and it will only be a matter of time before the American people and the U.S. Congress lose faith in the F-35 Program, which is already the most expensive weapons program in the history of this country.

I look forward to having the opportunity to address this and other significant national security policies related to detainee policies, cyber operations, Iranian aggression, Pakistan, acquisition reform, and the way we buy space programs and launch services, further limiting the use of fixed-price contracts for procurement, reducing the cost of military health care, counterfeit parts, and the future of our military in the face of major budget reductions.

On the issue of counterfeit parts, I commend the initiative of the chairman to address this critical issue. The proliferation of counterfeit parts threatens the safety of our men and women in uniform, our national security, and our economy. We cannot risk a ballistic missile interceptor missing its target or a helicopter pilot unable to fire his or her weapons or display units failing in aircraft cockpits or any other system failure, all because of a counterfeit electronic part. Nor can we keep affording the hundreds of thousands, even millions, of dollars to fix the systems they penetrate.

Our committee has been conducting an investigation for the past year, and we will have an amendment--there is one already pending--as a result of this outstanding work.

I also plan to offer amendments that will start us on the course of an updated plan for U.S. military forces in the Pacific theater. The current plan to move 8,700 marines, 9,000 family members from their current bases on Okinawa to Guam is now estimated to require spending between $18 and $23 billion on Guam to build up its capabilities as a permanent base. This is an increase of well over $10 billion from the original estimate. I believe the pricetag will continue to rise. As a result, I, along with Chairman Levin and Senator Webb and other colleagues, view this program as unworkable, unaffordable, and an unnecessary strain on the relations between our government and the Government of Japan. Recognizing this strain, both the Armed Services Committee and the Military Construction and Veterans Affairs' Committee of the Appropriations Committee have stopped funding Guam

military construction projects until the Department of Defense provides a master plan and considers alternatives that may provide the needed Marine forward presence at much less expense.

Let's face it, we simply are at a level we cannot afford under the present plan. I also understand our relations with Japan are very important in this whole move. We cannot send a signal that America is leaving the area. In fact, I was very pleased to see the agreement the President of the United States signed with the Prime Minister of Australia just yesterday that provides for a joint operating base in Australia. But we must understand the delicacy of our relations with the Government and people of Japan, especially in the time of rising concern about some of the behavior that has been exhibited by the Chinese.

I believe we need to take advantage of this pause to convene a congressional commission of experts in Asian affairs, with multilateral input, to review our national security interests in the Pacific region over the next 30 years and charter that commission to propose a posture for our military forces that will both strengthen our traditional alliances while offering opportunities for cooperative efforts with emerging partners and allies to solidify our mutual interests in the region.

In the face of the doubt about the scope and timing of the Pacific realignments, we also need to ensure that this pause in potentially unnecessary spending is extended in 2012 to the use of defense funds to activities that have no direct impact on military functions or missions on Guam, such as the purchase of civilian school buses and an artifact repository and a mental health clinic on Guam. While these projects may have legitimate value to the Government of Guam to address current needs for citizens of Guam, they simply are not my idea of top defense priorities in the fiscal environment we face.

In addition, despite the efforts of Congress to ban earmarks and special interest projects, this bill contains almost $850 million in authorizations of funding for items and programs not requested by the administration. The full Senate needs to consider the merits of these unrequested spending items and to determine whether they are top defense priorities in today's fiscal environment.

The bill also cuts $330 million for private sector care under the Defense Health Program, based on an assessment of historical underexecution rates. This is the first step in an important progress in helping the Department of Defense control spiralling health care costs. It is the other challenges we face in this bill where we could have and should have done more.

Secretary Panetta, speaking at the Woodrow Wilson Center, said:

The fiscal reality facing us means we also have to look at

the growth in personnel costs, which are a major driver of

budget growth and are, simply put, on an unsustainable

course.

The Secretary concludes:

If we fail to address [these costs], then we won't be able

to afford the training and equipment our troops need in order

to succeed on the battlefield.

Providing the Department with the authority to adjust Tricare PRIME enrollment fees based on a realistic index of national health expenditures per capita, as the administration requested, would have been the right thing to do. Instead, this bill limits all future enrollment fee increases to the cost-of-living adjustment for military retired pay.

Military retirees and their families deserve the best possible care and nothing less in return for a career of military service. But we cannot ignore the fact that health care costs will undermine the combat capability and training and readiness of our military if we don't begin to control the cost growth now. Our committee report reflects the desire of the committee to review options for phasing in more realistic future adjustments beginning in fiscal year 2014, and that is exactly what we must do.

I wish to emphasize a point here. I am solemnly aware of the commitment this Nation has made to the men and women who have served in the military regarding health care and benefits. This Nation has made promises for many years and has endeavored to keep those promises. But we are faced with a set of dire circumstances regarding the long-term viability of entitlement programs that threatens to undermine a whole range of promises we have made to every American.

I am also keenly aware that in this unprecedented fiscal crisis facing this country, providing for our national defense is the most important responsibility that our or any government has. It is our Nation's insurance policy. And in a world that is more complex and threatening than I have ever seen, we cannot allow arbitrary budget arithmetic to drive our defense strategy in spending. We have to look at every program to determine what risks we can afford to take without risking the lives and welfare of those brave young Americans who volunteered to serve in the military.

As such, some of the defense cuts being discussed--particularly as a result of sequestration--would do grave harm to our military and our Nation's security. The immediate impact of a sequester, according to Secretary Panetta, who previously served as chairman of the House Budget Committee and Chief of Staff to President Bill Clinton, could be a 23-percent across-the-board cut to our Nation's defense programs. Shipbuilding and construction contracts would have to be curtailed. Civilian personnel and contractors would have to be furloughed. The end results of these cuts after 10 years would be ``the smallest ground force since 1940, the smallest number of ships since 1915, and the smallest Air Force in its history.'' The United States would face ``substantial risk of not being able to meet our defense needs.''

Defense spending is not what is sinking this country into fiscal crisis, and if the Congress and the President act on that flawed assumption, they will create a situation that is truly unaffordable-- the decline of U.S. military power and a hollow military. We cannot let this happen. Despite a significant decline in defense spending, the growing threats we face around the world demand a strong and resolute U.S. military that continues as the first line of protection for peace, freedom, justice, and democracy around the world.

I have had the privilege of a long career in public service, but in all my years I don't think I have ever seen a geopolitical environment as complex and as multidimensional as the one we face today. This will only increase in the years to come. The rise of China is one of the most seminal events in world history, but it is not an isolated occurrence. Other nations across the Asia-Pacific--most notably India-- are also growing rapidly and using their newfound wealth to enhance their comprehensive national power, especially new military capabilities.

The challenge for the United States is this: How do we, as a historic Pacific power, use the next few years--despite the necessary cuts that will have to be made in our defense spending--to make smart, strategic investments that set us up to shape the future of the coming Pacific century? That means a more geographically dispersed and operationally resilient regional force posture. It means developing new operational concepts, such as the Defense Department's AirSea Battle concept, which aims to enable us to operate effectively in an anti-access and area- denial environment. It means taking advantage of the many opportunities we face to enhance the capabilities and interoperability of our alliances and partnerships. And perhaps most of all, it means making some difficult and at times painful choices about where we can go, what we do, and what we can do without. We all must take responsibility for these choices.

When we talk about our increasing focus on the Asia-Pacific region, what this does not mean and cannot mean is a lack of commitment to the broader Middle East. After all, the United States still has a capacity to do at least two things at once, and we cannot afford to allow that to change.

The Middle East and north Africa are undergoing perhaps the most consequential period of upheaval since the collapse of the Ottoman Empire. Governments with long patterns of authoritarian control--some of them our partners--are falling under the popular pressure of millions of citizens who desire dignity, freedom, and opportunity. Our old and dear ally Israel faces a more tumultuous and potentially threatening position than it has in decades. At the same time, new regional

leaders, such as Turkey and Qatar and the UAE, are playing a more confident and assertive role in shaping the events of the region despite the failure of leadership that led us to the full withdrawal of U.S. troops in Iraq. The success of that country remains a critical national security interest of the United States. We must remain committed to Iraq's success and stability. And all the while, the Iranian regime continues to threaten the security of the region and that of the United States.

Amid all of these complicated and important global trends, it is absolutely vital that the Members of this body be allowed to engage in a fulsome and serious debate about the vital national security interests contained in this bill. I hope there will be a generous opportunity to offer amendments and debate them. I am confident we can do this while still moving diligently and quickly along.

We have given the majority leader the commitment that we will work to ensure Senate consideration of this bill on an expedited basis. This Chamber must have the opportunity to complete this bill and then send it to the conference with the House. We need to have a conference report before the end of the year.

We cannot continue to place critical authorizations in appropriations bills or continuing resolutions because we cannot get the Defense authorization bill done in a timely manner. As an example, this bill includes extensions for several important counternarcotics authorities that expired at the end of fiscal year 2011. The expiration of these authorities has had a direct impact on DOD efforts to combat illicit trafficking networks where proceeds often directly fund the activities of terrorists and other criminal organizations that pose a significant threat to U.S. security interests. Timely passage of the Defense authorization bill will ensure that these counternarcotics missions can continue in places such as Afghanistan, Colombia, and along our southern border.

I, for one, am not proud of the 9-percent approval rating in the performance of Congress determined by various polls. They are right--we need to do more for the American people. I hope we can reverse this downward trend in our approval by tackling the critical national security challenges facing this country in an efficient and effective manner.

I look forward to working with Senator Levin to pass this bill as quickly as possible and get it into law for the benefit of our military and our country. I would ask our colleagues--as we usually do--to get their amendments to us so we can have them considered and have as prompt action as possible on them.

I yield the floor.

Madam President, what is the pending business before the Senate?

I think that is the Levin-McCain amendment.

I would like to discuss that amendment. This amendment is a result of the effort made by our committee staff and other members of the committee to identify a very serious problem that can affect our Nation's security; that is, the counterfeiting of critical components that end up in our defense systems--in some cases, helicopters; in some cases, aircraft; in some cases, missiles--literally every high-tech aspect of our Nation's defense systems.

We traced, in hearings under Senator Levin's leadership, the way in which, through different shell companies, these parts that originate in China that are counterfeit end up, through various establishments and then by our major parts suppliers, in our weapons systems. There already have been occasions where there have been system failures, and there have also been situations which have inhibited or reduced readiness and further capabilities. So far, thank God, it has not resulted in any casualties or deaths, but there is very little doubt that this counterfeiting poses a serious threat. According to our findings, some 70 percent of these counterfeit parts come from China.

It has to be stopped. We don't know, to tell my colleagues the truth, if all the parts of this amendment will stop it because it is a huge money-making business, but I think this initial amendment will move us in the right direction to try to bring at least under some control the flow of these counterfeit parts into our Nation's defense.

So I hope that with the help of my colleagues we could adopt this amendment as rapidly as possible and move on to the next one. I know of no one who objects to it. I know there are other members of the committee who were involved in the examination of this situation, and perhaps they would like to come and speak on it. But I would recommend to the chairman that we move on this amendment as quickly as possible.

Madam President, will the Senator yield for a question?

Is it not also true that as the Senator mentioned, and I wish to emphasize, that Senator Whitehouse's Combating Counterfeiting Military Act is a part of this bill, so that would hopefully satisfy at least the Judiciary Committee? I see the distinguished Senator from Iowa here. He does not intend to address this issue, but I hope we can get the committees of jurisdiction involved in this as quickly as possible. I think this is an issue we should not delay too much longer.

If the chairman will further yield briefly, so we will not voice vote this until we get the signoff of the relevant committees; is that correct?

I suggest the absence of a quorum.

Will the Senator yield for a question?

Is it correct that the U.S. Air Force not only supports this but considers it one of their very high priorities?

In these times of very difficult budgetary decisions that are having to be made, is it not true also the President's budget in 2011 had included a plan to retire 17 C-5As in 2011 and 5 in 2012?

May I ask if any State where these aircraft are presently stationed would lose that mission or whether the older C-5s would convert to new C-17s? Is that pretty much the conclusion the Senator would draw from the Air Force plan?

I thank the Senator from New Hampshire, and I hope we can dispose of this amendment. I don't know if a recorded vote would be required by any of the Members, but I hope we can voice vote it.

Is it true we are trying to clear the amendment on both sides at the moment?

I ask the Chair to put it to a vote.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I ask for regular order.

Mr. President, it is my understanding that the Senator from Colorado, Mr. Udall, is coming over to propose an amendment and I hope that will happen momentarily and I hope Members will be prepared with other amendments that we can dispose of this afternoon.

I yield the floor.

Will the Senator state his question.

I would say it is important that all voices be heard.

Mr. President, for the sake and the accommodation of the schedules of my colleagues, I ask unanimous consent that following my remarks and whoever the speaker is on the other side designated by the chairman, Senator Ayotte be recognized, and then after a speaker from the other side, if necessary, Senator Chambliss, followed by a speaker on the other side, followed by Senator Graham. I do that because of the time constraints of my colleagues. So I ask unanimous consent and agreement from the Senator from Michigan.

Sure. I yield to the Senator from Vermont.

I thank my friend from Michigan. I do that for the convenience of my colleagues because I know there will also be others coming to speak on this important issue.

I wish to point out that the Senator from South Carolina--a member of the National Guard, one of the major authors of the Detainee Treatment Act, and a person who has tried hundreds of cases in military courts-- brings a degree of knowledge and expertise on this issue.

The Senator from New Hampshire served as attorney general of her State for a number of years. She understands the Miranda rights. She has been a student and leader on this issue of detainee treatment.

Also, of course, Senator Chambliss, in his role as the Republican leader on the Intelligence Committee, has a deep and longstanding involvement on detainee issues and the requirements for making our Nation safe.

I will be fairly brief except to say that by any judgment, the President's policy, the President's strategy, the President's movements concerning detainees have been a total and abysmal failure. If the President of the United States would have had a coherent policy that made any sense whatsoever to anyone, we would not have had to act in the Senate Armed Services Committee.

Let me point out a couple of facts. The President of the United States campaigned saying that he would close Guantanamo Bay. Guantanamo Bay remains open. The President of the United States also said we would have detainees tried in civilian as well as military courts, and that was a position he has held.

So they had a great idea: Let's take Khalid Shaikh Mohammed to New York City. That was a great idea. Let's have $300 million in security costs while they have a trial of one of the most notorious international criminals. Obviously, that one got the support it deserved.

Thanks to the release policy of Guantanamo, 27 percent of the detainees of Guantanamo who have been released are back in the fight, trying to kill Americans--only this time they have a red badge of courage and a degree of legitimacy because they spent time in Guantanamo Bay. Leaders of al-Qaida have been released from Guantanamo Bay under this administration. They were released under the Bush administration as well, to be fair, but we didn't know at that time how many of them would return to the fight. Some of the leaders in Yemen whom we are speaking about who are now doing everything they can to kill Americans were released from Guantanamo Bay. That can't be viewed as a successful policy. Thirty individuals in Guantanamo today are citizens of Yemen. We can't release them, obviously, back to Yemen.

So now what do we do in order not to have people go to Guantanamo Bay? We are now using U.S. naval ships to detain suspected terrorists. For 60 days, they kept a suspected al-Qaida member on board a ship. Now, when I support the construction of more Navy ships, I have a lot of missions in mind. Serving as a detainment facility for suspected terrorists is not one of them.

The Underwear Bomber was Mirandized 50 minutes into custody, and the Senator from Illinois forgot to mention that several weeks went by before the Underwear Bomber's family came and convinced him to cooperate. Suppose there had been an impending attack on the United States of America during the 50 minutes in captivity before he was Mirandized. Most Americans don't believe al-Qaida members should be Mirandized, as the Senator from New Hampshire, who has had a lot of experience with individuals who have exercised their Miranda rights, will point out.

So the administration policy has been a complete failure. What we are trying to do in this legislation--and we have tried and tried again to satisfy many of the concerns the administration has, including, I would point out, doing certain things such as making this legislation only for 1 year--not permanent but only for 1 year--and we have put into this legislation a national security waiver which is a mile wide. If the President of the United States decides that an individual should be given a trial in civilian court, he has a waiver that all he has to do is exercise. So I am not exactly sure why the administration feels so strongly about a 1-year restriction, with a national security waiver that is a mile wide. We made a couple of other changes at the request of the administration. So I can only assume that

somehow this has some sort of political implications--and I don't say that lightly--as most of the actions concerning this whole detainee issue seem to be driven by.

So there were hearings held in the Senate Armed Services Committee. There was input from different sources. The Senator from Michigan has been fair and objective on this issue, and I am very appreciative of that. The vote in the Senate Armed Services Committee was, I believe, 26 to 0.

We feel very strongly that these provisions in this bill are necessary to keep Americans secure. We want to stop more than one out of every four of these detainees going back into the fight. We want to make sure the military court system applies here to people who are noncitizens and known members of al-Qaida. All of it seems to me to make perfect sense.

So obviously the administration ratcheted up the stakes today with a threat of a veto. I hope they are not serious about it. There is too much in this bill that is important to this Nation's defense.

I yield the floor.

That is not agreeable to me. I would say that they have the ability to walk over here if they are interested.

I would agree to that, but it is not fair.

You know it is not fair. If you have a speaker, bring them up.

I agree.

I think what the chairman meant was, there would be two if----

Yes. I think it is the other side's turn.

Madam President, could I just add my words of appreciation, along with those of the chairman, for Senator Whitehouse's hard work on this very important issue.

I yield the floor.

I am a little puzzled. Maybe the Senator from South Carolina has a response to this. Perhaps Chairman Levin does. We did give a national security waiver, which is very generous, in that the President just has to certify that it is in the national interest.

Why does he think that would not be acceptable if there were a case where an individual would be held by civilian authorities rather than military authorities?

Everyone we capture may not be as stupid as the couple who waived their Miranda rights. One of them is going to be pretty smart and certainly not waive their Miranda rights. Wouldn't that make sense over time?

If this bill is enacted.

To kind of summarize this issue for our colleagues, we believe an al-Qaida operative is an enemy combatant and, therefore, the assumption should be that that enemy combatant should be under military custody whether it be in the United States or any place else?

I would argue especially in the United States since that poses the greatest threat. However, with our assumption that that person should be held under military custody, we still give a very wide waiver in case there are extenuating circumstances.

In other words, we are saying that we assume an al-Qaida operative, or a suspected al-Qaida operative, is an enemy combatant wherever they are on Earth and, therefore, they should be under military custody unless there is some reason that the President determines otherwise.

The counterargument we are hearing, in summary, is that because that al-Qaida operative is apprehended in the United States, therefore, they should fall under civil authority, thereby negating the assumption that he is an enemy combatant; he is a common criminal. This is a very important principle in this discussion we are having.

How do you treat a suspected al-Qaida terrorist who wants to, in the case of the Underwear Bomber, blow up a plane with 100 some-odd passengers on it? Shouldn't that person be treated as an enemy combatant and, therefore, subject to all of the rules of military people who are under the supervision of the military? Isn't that what we are debating here? The ACLU and the left, with all due respect, feel that person should be--first of all, that al-Qaida operatives should be treated under our criminal system rather than treated as an enemy combatant who wants to do great harm to the United States of America. Is that an accurate description of what we are talking about here?

Madam President, one, I would like to begin by thanking Senators Levin and McCain. I don't know how long Senator Levin and I have been working on this together--it seems like forever--trying to get a detainee policy in a post-9/11 world that the courts will accept and that lives within our values. I have just been thinking throughout the years about the journey we have taken--beginning with the Bush administration--where the idea of indefinite detention of unlawful enemy combatants originated by executive order.

I do believe, since 9/11, we have been in a state of undeclared war with organizations such as al-Qaida. The Congress created legislation early on--right after the attacks of 9/11--allowing the President to use military force against al-Qaida. Part of being able to engage someone militarily is to detain those we capture. But that has been years ago. This is the first time Congress has spoken since the early days of the war.

We tried during the Bush administration to work with the Bush people to create a law of war detention system by statute. We had a problem there. They felt the executive order was the way to go. I have always believed when the Congress and the White House work together, the courts appreciate it as being a more collaborative process. So we went from sort of one extreme--to where we had military commissions that were almost legislating a conviction--to a better product, and the end product was the 2009 bill we worked on with Senator Levin that got almost 80 votes. So we have come a long way.

About the detention issue. Here is what I have been trying to accomplish for years. I wish to make sure we understand the difference between fighting a war and fighting a crime. When it comes to al-Qaida operatives, whether they are captured in the United States or overseas, the first thing we should be doing as a nation is trying to find out what that person knows about the attack in question or future attacks. When we capture an enemy prisoner, the first thing our military does is turn the person over to the military intelligence community for questioning.

I am of the belief that we have the ability to question people under the law of war without congressional authorization. But when the Congress acts, it is better for us all. So in this bill, working with Senators Levin and McCain, we have, as a body, said the President--this President and all future Presidents--will have the ability to detain a member of al-Qaida and other allied organizations, regardless of where they are captured in the world, and hold them as an enemy combatant.

Under the law of war, when we capture an enemy prisoner, there is no magic date we have to let them go. The problem with this war, unlike other wars, is there will not be a definable end. We had 400,000 German prisoners in military prisons inside the United States during World War II. We weren't going to let those folks go if they had been in jail 1 year. Not one of them got to go see a Federal judge saying: Let me out of here.

Under the law of war of our military, the executive branch of government has the authority to protect the Nation, and courts have not interfered with that 200-year right.

What is different about this war? There are no capitals to conquer, there is no air force to shoot down or navy to sink. So we have people who don't wear uniforms who are roaming the globe, and they don't have a home country, they have a home idea, and we are fighting an ideology. Sometimes they make it to our soil and sometimes they don't.

So here is what we are trying to do. We are trying to create a hybrid system, for lack of a better word. If you captured an al-Qaida member overseas in Afghanistan, Iraq, or Yemen, it is clear that they have no constitutional right to petition a judge in the United States: Let me go.

When we put people in Guantanamo Bay, the Bush administration argued that prison wasn't subject to legal review by our courts. And in the Hamdi case involving a U.S. citizen captured in Afghanistan, the Supreme Court held that we could hold an American citizen as an enemy combatant. They suggested to the Bush administration a procedure to ratify that decision. They pointed to an Army regulation, 190--I can't remember the number--and we tried to come up with a procedure that would allow us some due process as a nation for an enemy combatant, including an American citizen.

In the Boumediene case, the Court said: Wait a minute. We are going to allow a habeas petition by those held as enemy combatants--American citizens or non-American citizens--if they are at Guantanamo Bay because we have control over that facility. That is part of the United States in terms of our legal infrastructure.

So the law of the land is that if you are captured overseas, even if you are an American citizen, you can be held as an enemy combatant and questioned by our military with no right to proceed to a criminal venue. It is not a choice to try them or let them go. You can hold an unlawful enemy combatant for an indefinite period of time just like you could hold any other enemy prisoner in any other war. But what we have done differently in this war is we have said: Our courts will review the military's decision to declare you as an enemy combatant in a habeas procedure--not a criminal trial but a habeas procedure--as to whether there is sufficient evidence to label you as an unlawful enemy combatant.

So, to my colleagues on the other side, the law of the land by the Supreme Court is that an American citizen can be held as an enemy combatant. Like every other enemy combatant, they have habeas rights, but they don't have the right to say: Try me in a civilian court or military commission court, because when we capture someone, the goal is to gather intelligence.

The Christmas Day Bomber, the Times Square case--the reason many of us want military custody from the outset is that under domestic criminal law, other than a very narrow public safety exception, we don't have the right under criminal law to hold someone for an indefinite period of time without providing them a lawyer and telling them what their legal rights are or charging them in a court of law. And let me say, as a military lawyer, I would never want that to be the case. I don't want to change our domestic criminal system to allow us to grab someone and hold them indefinitely, pending criminal charges, without the right to a lawyer, the right to remain silent being presented to the defendant, and presentment to court, because that is what criminal law is all about. Under military law, whether it is here at home or abroad, you can hold someone suspected of being an enemy agent, enemy prisoner, and you can interrogate them humanely and lawfully--and we have good laws now governing interrogation procedures--without having to present them to a court. That is the difference between intelligence gathering and fighting a crime.

The Padilla case was an American citizen captured inside the United States. He was held for about 4 years in Charleston Naval Brig, and the Fourth Circuit Court of Appeals ruled that, yes, an American citizen captured within the United States can be held as an unlawful enemy combatant, but they have the right to counsel when it comes to presenting their habeas case. They don't have the ability to tell the interrogator and the military: I don't want to talk to you now. I want my lawyer.

When you are talking to a military interrogator or the FBI or the CIA trying to gather intelligence, you don't have a right to remain silent, you don't have a right to a lawyer because we are trying to defend ourselves against an enemy bent on our destruction. The day we decide to treat you as a common criminal, even a terrorist suspect, all those civilian rights attach.

So this bill is trying to create a process that if you are captured in the United States, this legislation says

that you will be presumptively put in military custody because that is the only way we can hold you and interrogate you because under domestic criminal law, that is not available, nor should it be.

There is a waiver provision here. If the administration believes that military custody is not the right way to go, they can waive that. But the day you turn someone over to civilian authorities for the purpose of prosecution, you have a very limited window to gather intelligence because all the criminal rules apply. And what we are trying to do is to make sure we can defend ourselves and not overly criminalize the war. That is why this is so important.

As to the White House concerns--they wanted to have that flexibility without any statutory involvement--I believe this will serve the Nation well long after President Obama leaves office. I don't know who the next President will be, but I do believe this: We will be under threat and siege by an enemy bent on our destruction.

So if you believe, as I do, that we are at war but it is a different kind of war, please give your Nation--our Nation--the ability to defend us. And the best way to be safe in the war on terror is to gather good intelligence and hit them and stop them before they hit you because they could care less about dying. So intelligence gathering is the way to keep us safe.

Most enemy prisoners captured in traditional wars never go to court. The last thing I am worried about is how you prosecute these guys. The first thing I worry about is, what do they know, and what is coming our way?

So the provisions of 1032 apply to captures within the United States. And we are saying that when an al-Qaida operative suspected of being involved in a terrorist act--a very limited class of cases, by the way--is captured on our soil, we would like them to be in military custody from the get-go. But we have provisions that say: You don't have to make that decision or interrupt an interrogation. There is a window of time in which you can deal with the case without having to make the waiver. We are not impeding interrogations, and we are not saying you have to stay in military custody forever because we give this administration and future administrations the flexibility to waive that provision if it makes sense.

To the Christmas Day Bomber--he was read his Miranda rights within an hour, his family was involved, and it turned out that he pled guilty. I am not a professional interrogator, but I do know this: You don't read an enemy prisoner their rights when you capture them on the battlefield in a war. The question is, Is the United States part of the battlefield? That is really what this is about. Are we going to allow the enemy to get here, and all of a sudden all the rules change because they made it to our homeland? I would argue that the closer they are to us, the more we want to know. So it would be an absurd outcome that if somehow the enemy could find a way to get to our homeland, all the rules change because if you capture one of these guys in Yemen, nobody is suggesting you have to give them a lawyer.

Well, when you get to the United States, what we are suggesting is that we have a legal system that understands the difference between fighting a war and fighting a crime, and if you are suspected of being an al-Qaida member, citizen or not, we are going to find out what you know through lawful interrogation techniques. That has to be done under the military system because civilian domestic criminal law doesn't allow that to be done.

That is what we created here--a bifurcated system with waivers. If we don't have this in place, we are going to lose intelligence and our Nation is going to be at risk. People are going to get killed if we lose good intelligence.

So, to me, the idea of reading someone their Miranda rights doesn't make a lot of sense, but you have the flexibility to do that, if you choose, out in the field. You just have to get a waiver. So when you capture somebody on the homeland, I don't want our people to think that you have to give them a lawyer and read them their rights and that you can't question them about what they know about attacks against our homeland. That is dumb. That doesn't make us a better people, that makes us less safe. Let's put them in military custody, with the right to waive that. Let's give our interrogators plenty of time to find out what is going on. Then we will make a decision about where to prosecute.

I believe Federal courts have a role in the war on terror. There have been plenty of cases involving terrorism that went to Federal court where you had a good outcome. There have been cases going to Federal court where you had less than a stellar outcome. The key is, if you are holding an enemy combatant for 4 or 5 years under the law of war, I don't think it makes sense to put them in civilian court. You should put them in military commissions. And we are talking about people we have been holding for a period of time because we looked at them as a military threat, not as a common criminal.

So the provisions in 1032 are good law that will stand the test of time. It will allow us on our homeland to do what we can do overseas. Wouldn't it be odd not to be able to protect yourself because the enemy got to the United States less than you could if you captured them overseas?

Now let's talk a little bit about American citizens. There are a few people--and I give them credit for having passionate, honest-held beliefs that the President of the United States doesn't have the authority to designate an American citizen who has now joined al- Qaida--to issue an order to kill him--this al-Awlaki guy who was in Yemen. The bottom line is, the President, through a legal process we created years ago, made a determination that an American citizen has joined the enemy forces, and he issued an order through a legal process that says: If you find this guy, you can capture or kill him.

Now, wouldn't it be odd if you had a law that says you can kill somebody, but when you capture them, you can't hold them for a very long time, you can't indefinitely detain them? Well, death is pretty indefinite. So if you can kill a guy, why in the world can't you hold them and interrogate them to find out what they know about this attack or future attacks?

So let's be consistent. It makes sense to me that if an American citizen wants to join al-Qaida, they are no longer our friend, they are our enemy. And if the evidence is solid and it has gone through a legal process and this President or any other President determined that an American citizen is now operating abroad trying to harm us, joining al- Qaida, I believe they have the absolute legal and moral authority to identify that person as a threat to the United States; kill or capture. And if you don't agree with me, fine. I think about 80 percent of my fellow citizens do. It would be absurd not to be able to have that ability. Citizenship is something to be respected. It is something to be cherished. It is not a ``get out of jail free'' card when you turn on your fellow citizens.

So at the end of the day, we have a system in place now that I am very proud of.

To Senator Levin, we have negotiated and we have compromised because the administration had some legitimate concerns. They had some legitimate concerns about Congress overly mandating how you detain, interrogate, and try prisoners. What we have come up with is the balance I have been seeking for 5 years. If you capture someone in the United States, you start with the presumption that you are going to gather intelligence in a lawful manner and prosecution is a secondary concern. We give the executive branch the ability to waive that requirement, and we have conditions on that requirement that will not interrupt an interrogation.

But we need to let this President know, and every other President, that if you capture someone in the homeland, on our soil--American citizen or not--who is a member of al-Qaida, you do not have to give them a lawyer or read them the rights automatically. You can treat them as a military threat under military custody, just like if you captured them overseas.

So this provision that Senators Levin, McCain Ayotte, and all of us have worked on makes perfect sense to me. It is a balance between protecting our homeland, living within our values, and giving the executive branch the flexibility they need to protect us, but just using good old-fashioned common

sense. Under domestic criminal law, you cannot hold someone indefinitely without giving them a lawyer or reading them their rights, nor should you. But under military law, if you have evidence that the person is a military threat, you don't have to give them a lawyer. That makes no sense whether you capture them here or overseas.

Everyone held as an unlawful enemy combatant has the right to access our Federal courts. Under this bill, it is not just one time you get to go to court. We create an annual review process so that if you are held as an enemy combatant in military prison or civilian prison, you will get an annual review. We don't want you to go into a black legal hole. We don't want an enemy combatant determination to be a de facto life sentence.

I am proud of this work product. We go further than what the courts require. The courts require a habeas review of any person held as an enemy combatant. But at the end of the day, we say you have an annual review.

That requirement is for people captured in the United States, held at Gitmo. It doesn't apply to people held in Afghanistan. Thank God it doesn't. But in circumstances where someone is captured in the United States, held at Guantanamo Bay, every person will have their day in court to challenge the status of enemy combatant, and if they are going to be held indefinitely, they are going to get an annual review process as to whether it makes sense to hold them for 1 year.

Again, I wish to emphasize in war we do not have to let people go who are a danger. Most of these cases are intel cases. We are not fighting a crime, we are fighting a war. If the intelligence is good enough to convince a Federal judge that this person is a military threat, why in God's name would you want to let him go because of the passage of time? Our message to al-Qaida recruits is don't join al-Qaida because you could get killed or wind up dying in jail. Isn't that the message we want to send? Why in the world would we require our Nation to release somebody when the evidence presented to a Federal judge is convincing enough for him to sign off on what the military determined at an arbitrary point in time? That doesn't make us better people. It would make us less safe.

This bill is a very sound, balanced work product, and I will stand by it, I will fight for it, and I respect those who may disagree. But why did we take out the language Senator Levin wanted me to put in about an American citizen could not be held indefinitely if caught in the homeland? The administration asked us to do that. Why did they ask us to do that? It makes perfect sense. If American citizens have joined the enemy and we captured them at home, we want to make sure we know what they are up to, and we do not want to be required, under our law, to turn them over to a criminal court, where you have to provide them a lawyer at an arbitrary point in time. So the administration was probably right to take this out.

Simply stated, if you are an American citizen and you want to join al-Qaida: Bad decision; you could get killed or you could spend the rest of your life in military prison as a military threat or you could wind up in an article 3 court and maybe get the death penalty. I want people to know there is a downside to joining the enemy. I want to give our country the tools we need as a nation to fight an enemy and do it within our values. I don't want to waterboard people, but I don't want the only interrogation tool to be the Army Field Manual, online where anybody can read it. I wish to make sure everybody has a chance to say: I am not an enemy combatant. But I don't want to criminalize the war by capturing somebody on our soil and saying: You have a right to remain silent, when we would never read that right and present that to them if we captured them overseas.

We want to make sure we can gather intelligence, whether we capture them at home or abroad, whether they are an American citizen or not, if there is evidence they have joined al-Qaida.

To my colleagues, if you join al-Qaida, no matter where you join, no matter where you take up arms against the United States, we have every right in the world to treat you as a military threat. People who have joined al-Qaida are not members of a mob. They are not trying to enrich themselves. They are trying to put the world into darkness. Our laws need to distinguish the difference between a guy who robbed a liquor store and somebody who wants to blow up an airplane over Detroit or blow up innocent people in Times Square. If you do not understand that difference and if you do not have a legal system that can recognize that difference, then we have failed the American people.

This is a good work product. It has strong bipartisan support. We worked with the administration. But we are in a long war where a lot is at stake. I have tried to be as reasonable as I know how to be, and this work product is the best effort of a lot of well-meaning people, Republicans and Democrats. I will defend it. If you want to keep arguing about it, some people suggested we will talk a long time about this--yes, we will talk a long time about this. We will have a good discussion among ourselves as to whether an al-Qaida operative caught in the United States gets more rights than if we caught him overseas. We will have an argument among ourselves as to whether our military should be able to gather intelligence to protect us, regardless of where the person is captured, and the question for the nation is: Is America part of the battlefield? You better believe it is part of the battlefield. This is where they want to come. This is where they want to hurt us the most. If they make it here, they should not get more rights than they would get if they attacked us overseas.

They should not be tortured because it is about us, not about them. The reason I don't want to torture anybody is because I like being an American. I think it makes us stronger than our enemies. There are ways to get good intelligence from the enemy without having to mimic their behavior. I do believe the military's work product should be judged and reviewed in Federal court in a reasoned way. That is part of this legislation. I do not want anybody to be sitting in jail forever without some review process so that one day maybe they could get out.

But here is what I will not tolerate. I will not criminalize what is a war. I will not put this Nation in the box of having captured a terrorist, when the evidence is solid that we know they are part of the enemy trying to kill us and say we have to give them a lawyer or let them go because of the passage of time. That makes no sense.

Senator Levin, Senator McCain, this is a product we should be proud of. We should fight for it, and we are going to fight. If you want to make it a long fight, it will be a long fight. We are not giving up.

Yes.

Right.

The only answer I can give to Senator McCain is that there is a legitimate concern about encroaching on executive power. I have that concern. The executive branch is the lead agency in this war. They are the lead agency when it comes to prosecuting crime. But what I am trying to do, along with his help and that of Senator Levin, is to create statutory authority for this President and future Presidents that will serve the Nation well.

Congress has been too quiet and too silent. During the Bush years, we did not assert ourselves enough. We let things go. We were reluctant to get involved. Now we are involved in a constructive way.

What we have said as a Congress, if this bill passes, is that the executive branch has flexibility, but the Congress of the United States--which has powers when it comes to war--believes that an al- Qaida operative, those associated with al-Qaida, should be initially held in military custody because we are trying to gather intelligence. As I tried to

explain, if you turn them over to civilian authorities for law enforcement purposes, then the whole process of intelligence gathering stops. You have to read Miranda rights. There is a very limited public safety exception. We allow a waiver if that is in the best interests of our national security. We have requirements in the bill not to impede interrogation. That is why we are doing this, because we want a process that will allow us to deal with people caught in the United States in a consistent way from administration to administration and understand the distinction between gathering intelligence to defend yourself in a war and prosecuting a crime.

The Senator is absolutely right. The flexibility of whether to Mirandize somebody exists. I don't know what is the best way. I do believe the best start is to take the Christmas Day Bomber off the plane and interrogate him in terms of what he knows about future attacks, how he planned this attack, and worry about prosecution in a secondary fashion. The only way you can do that is through a military custody intelligence-gathering process.

At the end of the day, I do believe it makes a lot of sense for the Congress to weigh in. We have not done it before. We have balanced this out. The administration's concerns have been met as much as I know how to meet them, and I am very proud of the work product.

Yes, I believe so.

Nothing wrong with that.

Exactly.

That is contract. If I might continue the conversation for a minute, if you don't mind. Would the Senator agree with me that if we all of a sudden required our soldiers to read Miranda warnings to an al-Qaida operative caught in Afghanistan, people would think we were crazy?

OK. What if we have the very same person who made it out of Afghanistan and makes it to America. I think most people would want us to gather intelligence to find out what is coming next. Would the Senator agree with me, if you put someone in civilian control for the purpose of prosecution, intelligence gathering becomes very difficult?

OK. Fair enough. But does the Senator agree with me that you cannot indefinitely hold someone under domestic criminal law without presenting them to court or reading them Miranda rights?

Right. But here is the point we are going to make. Some of us believe that presentment to a court and a Miranda warning may not be the best way to go, in terms of gathering intelligence. Under military custody for intelligence gathering there is no right to remain silent; does the Senator agree with that?

So we are starting the game with military custody but for the reasons the Senator just said--and they may be good reasons, to say that is not the right way to go--they can go down another path. That is all we are trying to do. Because there is a sort of a gap when it comes to someone caught in the United States. We are trying to provide clarity, what to do with an al-Qaida member caught in the United States, to create flexibility but start the process with intelligence gathering because, in the United States, if you hold someone, under the law enforcement model, caught in the United States, you have to read them their rights. You have to present them to court.

If they are in military custody, you don't have to do that. But what system fits the situation best should be left to the executive branch. We are just creating an avenue for military custody that can be waived.

Oh, yes, they are over here. There are plenty of them.

That is absolutely correct. Let's talk about indefinite detention and what it means. When someone is captured as a member of al-Qaida--the Bush administration has had people at Guantanamo Bay for years. They are being held under the law of war. Does the Senator agree with that?

The Bush administration has had prisoners held at Guantanamo Bay for years now who have not been prosecuted. They are held under the law of war.

The Obama administration has continued to hold at least 48 under that same theory.

I believe they are right. All the Congress is saying to the President--this one and future Presidents--is we agree with you, that if the person is a member of al-Qaida or an affiliated group, you can hold them as an enemy combatant without the requirement to let them go at an arbitrary point in time, but under the law, if they are at Guantanamo Bay or captured in the United States, they have a

habeas right to appeal that determination to a judge.

Under our bill, does the Senator agree with me, we have done more than that? We have created an annual review process so the person being indefinitely held will have some due process every year?

Right. And we should do that.

Let me tell the Senator how he is dead right. I offered an amendment to the first bill we put on the table here on the floor about this, and I had a requirement of a military lawyer being given to the respondent at a combat status review tribunal. Every person being held as an enemy combatant by our military gets a combat status review tribunal. We are saying that tribunal has to be chaired by a military judge, and we are saying they can access a lawyer. That, to me, is a welcomed change.

The Obama administration and the Bush administration decided to put the military judge requirement in place. But this now is a statutory requirement, so the next President is going to be bound to do that. We are trying to create a process to allow a status tribunal hearing to be done in a more due-process friendly fashion. We require a judge and we provide access to counsel. To me that is a giant step forward.

For the first time it is now not the whim of the administration. It will be the law of the land.

If this bill is enacted.

That is correct.

Yes, with one caveat. There is a line of thinking that we should be using Federal courts exclusively, that military commissions are not appropriate in any circumstance, and that we should be using the law enforcement model once we deal with an al-Qaida operative, particularly here in the United States.

What we are saying in this legislation is that the battlefield includes our own homeland. So that argument being made by the ACLU, I think, will bear that because most Americans feel we are not dealing with somebody who robbed a liquor store. These people present a military threat, and we should be able to gather intelligence in a lawful way.

The administration's concern was, are we overstepping Executive power. I have, quite frankly, said I am concerned about that. Peter was concerned about that; Dave was concerned about that; I have been concerned about that because I don't believe you can have 535 attorneys general or commanders in chief.

What we did to accommodate that concern is what the Senator from Arizona said, we started out with a military custody requirement that can be waived and the procedures to be waived are in the hands of the executive branch. As Senator Levin has indicated, this, to me, is very flexible and is so flexible that I feel very good about it.

If it were a mandate to put everybody in military custody and try them in military commissions, even though I think that is the best thing to do, I would object, because the flexibility to make those decisions needs to be had in the executive branch. There may be a time when an article 3 court is better than a military commission court for an al-Qaida operative. I don't want the Congress to say article 3 courts could never be used. I don't want the Congress to say military commissions are bad. We now have a good military commission system. We have a process where the homeland is part of the battlefield. The individual being captured on our homeland can be held to gather intelligence under military law. And if somebody is smarter than us and believes that is not the right model, they can change the model.

That is the best we can do, and that is the best I am going to do because I am very worried that in the future we are going to lock ourselves down into policies that would have an absurd outcome that if you made it to America, we cannot gather intelligence, which would be crazy. There is no good reason for that.

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

Mr. President, as a member of the Senate Armed Services Committee and as the ranking member of the Readiness Subcommittee, I wish to speak for a few moments and comment on the National Defense Authorization Act.

I will begin by thanking the majority leader for honoring his commitment to bring the National Defense Authorization Act to the floor for debate, amendment, and passage. As Leader Reid pointed out this morning, this would have been the first time in a half century in which we would not have passed a national defense authorization bill. In the midst of two wars, with our brave sons and daughters and husbands and wives fighting in Iraq and Afghanistan, with our country facing a serious threat from radical Islamist terrorists, that would have been unacceptable.

I very much thank Chairman Levin and Ranking Member McCain for their leadership. In this era that has been characterized by gridlock and partisanship in Washington, the Armed Services Committee has represented a welcome exception. The Senate Armed Services Committee has a long-enjoyed, well-deserved reputation for professionalism and bipartisanship as we work across party lines to support our troops and their families who sacrifice so much for our country to keep us safe.

This bipartisan spirit is reflected by the fact that the Armed Services Committee unanimously reported the initial Defense authorization bill out of committee this summer, and did so again this week, after reducing the authorization levels consistent with the requirements we need to meet, in light of the fiscal crisis our country faces, and after revising the detainee compromise to take into consideration some of the administration's concerns.

This year, once again, the quality of Senator Levin's and Senator McCain's leadership is reflected in the quality of the legislation the Armed Services Committee has produced. This bill will ensure that our war fighters have what they need to accomplish their missions, protect themselves, and defend our country.

I am especially proud of the work of the Readiness Subcommittee. It has been a pleasure to work with Chairman McCaskill. Our committee made significant, well-informed reductions that achieve taxpayer savings without endangering our military readiness.

However, going forward, I wish to raise one issue. We have to guard against excessive cuts to our readiness accounts that will leave our troops and our Nation less prepared for future contingencies. In light of the supercommittee meeting in Washington, we have to come to an agreement to avoid what Secretary Panetta has described as catastrophic and a deep concern for our national security if those sequestration cuts occur.

I am particularly pleased key provisions of the Brown-Ayotte ``no contracting with the enemy'' legislation are included in the bill. This provision will make it easier for the Defense Department, contracting officials in Central Command area operations, to void contracts with contractors that, unfortunately, in some instances, have funneled taxpayer dollars to our enemies.

Let me conclude by saying that, again, I very much appreciate the leadership and bipartisan nature of the work done on the Armed Services Committee. This is a very important bill that I am very glad we are going to take up and fully debate in the Senate. I certainly urge my colleagues to pass this bill.

Amendment No. 1065

Mr. President, I ask unanimous consent to set aside the pending amendment and call up amendment No. 1065.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, the amendment I have just offered to the Defense authorization bill is an amendment that Senator Reed from Rhode Island is joining me in sponsoring.

The amendment itself would allow the Air Force to reduce its strategic airlift aircraft inventory to what they need to meet our readiness needs. It would save $1.2 billion of taxpayer money in the next few years, without compromising the readiness we need to protect our Nation.

Our Nation's strategic air fleet provides global air mobility to the U.S. military. As GEN Raymond Johns, commander of the Air Force Air Mobility Command, said in his statement in a hearing before the Armed Services Committee, where we had this amendment addressed:

The strategic airlift is a national asset allowing America

to deliver hope, to fuel the fight, and to save lives

anywhere in the world within hours of getting the call.

In order to meet this need, the United States uses C-5s and C-17s as their strategic airlift capability, and current Federal law sets the Air Force's minimum number of strategic aircraft at 316. However, the Air Force and the administration--when the Department of Defense submitted their budget request, they made very clear that we don't need to keep the minimum requirement at 316 to meet the needs of our country; that only a minimum requirement of 301 aircraft are needed to meet the strategic airlift capacity requirements of our country. The requirement to maintain the bottom-line limit of 316 is a situation where Congress is requiring the Air Force to maintain planes it does not need to protect the readiness of our country. So it was the Air Force that wanted this amendment to be brought forward to ensure we can save taxpayer dollars--over $1 billion.

This is very important at a time when we are asking our military, as a result of the Budget Control Act, over the next 10 years, to reduce spending by close to $450 billion. So they have to look at areas where we are spending money we don't need or where we are maintaining assets we do not need to meet our readiness.

That is why I brought this amendment forward. It is a commonsense amendment that I am so pleased Senator Reed has joined me on. I hope my colleagues will support it in this time of great fiscal challenges. But the need remains ever present to protect our national security against those who would want to harm Americans and our allies for what we believe in.

We have to allow the Air Force and our Armed Forces to make sensible decisions on where they need to put resources to protect our country. That is what this amendment does. I will say we had a full hearing in the subcommittee of the Armed Services Committee on the strategic airlift aircraft requirement. The military testified uniformly that reducing the number of the strategic airlift from 316 to 301 would put us in a very strong position to meet every contingency that we can anticipate going forward, including multiple contingencies around the world, as well as homeland events.

This area has been studied very carefully. It will allow us to continue to

protect our country, but again, will save $1.2 billion in taxpayer money over the next few years.

I urge my colleagues to support this amendment.

I will yield to the Senator.

Yes, this is a very high priority of the Air Force, because in this difficult time when they are making reductions, this is an area where they can meet our national security needs. Yet Congress has actually asked the Air Force to maintain more planes than it needs. So this is a commonsense provision that is very important to our Air Force.

Yes. Actually, this amendment I am bringing forward is consistent with the administration's budget request they submitted for the Congress's consideration. So this is a situation where, after a careful hearing we had before a subcommittee of the Armed Services Committee, and after the administration had submitted its request, and after the Air Force asked for this, it makes complete sense that we would allow them to reduce this strategic airlift capacity.

This is not going to be a diminishment for States. This is just going to be a right-sizing of the fleet.

What I am concerned about is if we don't pass amendments such as this, where the administration has asked for it, where all of the data supports that we don't need to keep the level at 316, and where we can save $1.2 billion by doing it, how can we then ask our military to make significant reductions if we don't allow them to take such commonsense action such as this?

I thank the Senator.

I thank the chairman.

Madam President, I rise in opposition to the amendment offered by the Senator from Colorado to strike the detainee provisions from the defense authorization markup--provisions that were agreed upon on an overwhelming bipartisan basis in the Armed Services Committee.

I would like to start first by revisiting the history of this and where we are because the reason the Armed Services Committee, in the first place, thought it was very important we discuss this issue in committee and address it is that having participated in hearings over the course of months and months in the Armed Services Committee, there has been witness after witness from our Defense Department who has come in and our military leaders with whom we have been talking about the detention policy and asking

them very important questions about where we are and how we are going to ensure that our military and intelligence community has the tools they need to protect America, and also asking them about this issue of detainees and how we are treating them.

Because one of the important facts my esteemed colleague from Georgia, as well as the ranking member, Senator McCain, mentioned, is that we have a recidivism rate of 27 percent from Guantanamo--those who have reengaged our soldiers again and are back in theater. I was very concerned about this in the Armed Services Committee. That caused, over a series of months, us to ask about the administration's detainee policy.

I just want to share some of the comments that were made over that period of time in February. Secretary Michael Vickers said the administration is in the final stages of revising or establishing its detention policy.

Now, that was 8 months ago, and we are now 10 years into this war. In April I questioned GEN Carter Ham, the Commander of Africa Command, about what we would do if we captured a member of al-Qaida in Africa. Do you know what he told me. He said, ``We would need some lawyerly help on answering that one.''

So this is an area that cried out for clarification on a bipartisan basis because it is so important to ensure that while we remain at war with terrorists that we have the right policies in place to protect Americans. That is why the Armed Services Committee worked very hard.

I thank the chairman of the committee, Chairman Levin, for his diligent work, along with other members of the committee for coming forward with this provision--that the Senator from Colorado is seeking to strike--as well as the ranking member, Senator McCain.

What ended up happening is, we brought forward a compromise that passed overwhelmingly out of committee originally in June. In fact, it passed out 25 to 1, and then the administration raised some concerns about it. In reaction to those concerns, I know the chairman of the Armed Services Committee, as well as the ranking member and some others of us, including myself, sat down with members of the administration to hear out their concerns and to try to accommodate their concerns while still making sure we had a policy that would give proper guidance, would protect Americans, and would fundamentally deal with this issue of making sure, in the first instance, that we reaffirmed our authority that we are at war with al-Qaida post 9/11; second, reaffirming that when we are at war the presumption is military custody because the priority has to be gathering intelligence to protect our country; and then, third, those who are released from Guantanamo, making sure there is a standard in place so they cannot reengage back into the battle to harm our troops, our partners, and our allies.

In that process, that is how this provision was derived that Senator Udall from Colorado seeks to strike with his amendment. If we were to eliminate these provisions, we would be putting our country in a position where these important issues are not being addressed, and they need to be addressed just based on what we have heard from our military leadership over many months in the Armed Services Committee.

So I would also echo what Senator Chambliss, who is the vice chairman of the Intelligence Committee, said. This is an issue that has been thoroughly discussed in this body and cries out for passage in the Defense Authorization Act. I want to point out a couple of very important parts to this. Now, I am someone who, on the recent appropriations bill, the CJS appropriations bill, brought an amendment that would have provided for military commissions trials for members of al-Qaida and associated forces who have committed an attack against us or our coalition partners because I am deeply concerned that this administration has been treating these types of cases as common criminal cases.

When I brought that amendment forward, it did not pass this body. I feel very strongly that the policy should be that we treat these cases for what they are, military cases, because we remain at war and our priorities should be to gather intelligence. But I point out the fact that after my amendment lost, I sat down with the chairman of the Armed Services Committee, the ranking member, and the administration to hear out their concerns.

So while this amendment--I would have gone further in my amendment-- addresses many of the objections that were raised--in fact, I think all of the objections which were raised to the amendment I brought to the floor from the other side; that is, we have given the administration flexibility to make the decision on whether they believe it is appropriate, based on national security concerns, which has to be the primary concern and consideration of how to treat those who have committed an attack on our country who are members of al-Qaida or associated forces, and also who are not members of this country, so who are foreign citizens and are seeking to attack our country or have attacked our country in a way that the administration can decide it is best to handle them in a civilian court or a military system.

So all of the objections that were raised to my amendment--I stand by my amendment--but they are addressed in this compromise. And to hear the objection to it, that there is not flexibility, it is very clear that is just not true when you look at the language in this amendment because we adjusted the amendment to address the administration's concerns to say no interrogation will be interrupted based upon this amendment; that interrogations have to be the priority, and we are giving the administration maximum flexibility under this amendment.

So I do not understand why there are such objections continuing when this is as a result of a very good, strong good-faith effort to address any operational concerns that were raised based on the amendment I brought and even based on the prior language which, in my view, I think was very sufficient.

I want to point out something that is very important. In the course of the discussions we had with the administration on section 1031, which we have heard cited as a section that could be used to detain Americans indefinitely, this section was changed based on feedback from the administration. In fact, the administration asked us to actually strike a provision in it that would have said American citizens--it did not apply to American citizens, and, in fact, had to comply with the Constitution of the United States.

So I am a little bit apoplectic to understand why the administration is raising an objection about something they actually asked to be removed on a section they told us they were satisfied with and based on revisions that we made that they wanted. We said we would be happy to make these accommodations because we wanted to make sure we got this right.

So on that section, I do not understand why we are in a position where the Senator from Colorado is trying to remove it--the administration is objecting to it--when we took the language they gave us and incorporated it directly into the National Defense Authorization Act.

One point I think is being lost: So why is it that this amendment creates an initial presumption for military custody? This is the most important point. The priority has to be in protecting American citizens by gaining available intelligence to protect our country. The esteemed Senator from Illinois cited the case of the so-called Christmas Day or Underwear Bomber as an example of how cases have worked well.

Well, I think it is important to appreciate the facts of that case. This is a situation where the underwear bomber is caught with the explosives strapped to him, where there are hundreds of witnesses on the plane, and they were able to make their case in the absence of any interrogation or confession. What ended up happening is he was questioned at the scene for about 50 minutes? Then he was read his Miranda rights, one of those being: You have the right to remain silent.

Let's think about that for a second. We would want to tell terrorists: You have you have the right to remain silent. Common sense will tell you telling a terrorist they have the right to remain silent is counter to what we need to do to protect Americans. We do not want them to remain silent, we

want them to tell us everything they know. But continuing on with that case, the only reason he reengaged in providing information for our country is because his parents intervened. Weeks later, his parents convinced him he should cooperate with us; that he should provide information and tell us what he knew.

If our interrogation policy for people who commit attacks on our country is going to be, well, we hope a parent comes and intervenes to help us get information that will protect Americans, I think we are in trouble if that is our intelligence-gathering procedure.

So I wanted to point out, since that case is cited as an example by the Senator from Colorado and the Senator from Illinois as to why this section should be struck, if anything, I think that case points out why we need guidance in this area and why it is very important the priority be on gathering intelligence.

That is what this amendment does. It gives the administration sufficient flexibility, based on concerns they raised, operational concerns. If the FBI is conducting an interrogation, they do not have to stop it because of anything in this provision. That is very clear.

If the administration wants to treat someone in a civilian court, even though I do not think they should versus a military commission who is a member of al-Qaida who has attacked our country, that waiver is in here. That flexibility is in here.

This was a reasonable compromise where people like me who would have gone a lot further did not get what we wanted. But what we did do is get a very strong bipartisan compromise that came out of this committee overwhelmingly. When we had a vote at the beginning of the week, and the Senator from Colorado raised the very same amendment to strike this provision, it was rejected overwhelmingly on a bipartisan basis.

So I hope this Chamber will also overwhelmingly reject striking this very important provision from the National Defense Authorization Act.

Again, we cannot be in a position where we spend the next year in the Armed Services Committee again hearing from our military leaders: The administration is still in the final stages of revising or establishing its detention policy. I certainly do not want to hear again from one of our generals, when I ask him about our detention policy and what we are going to do with terrorists: I would need some lawyerly help in answering that one.

This amendment gives us the guidance we need. I would ask my colleagues to reject striking it from the authorization.

I yield the floor.

Madam President, I view the detention provisions of this bill as real pernicious, as an attack on the Executive power of the President, and contrary to the best interests of this Nation. So I rise to express my strong opposition to three specific detention provisions in the Defense authorization bill.

There was some discussion on the Senate floor that the Intelligence Committee had reviewed these. This is not true. I would like to read a letter that I sent to the majority leader that was signed by every Democratic member of the Intelligence Committee on October 21.

We write as members of the Senate Judiciary Committee--

Because there were some Judiciary Committee members on this.

and the Senate Select Committee on Intelligence, to express

our grave concern with subtitle D, titled Defense Matters of

title 10 of S. 1253, the National Defense Authorization Act

for Fiscal Year 2012. We support the majority of provisions

in the bill which further national security and are of great

importance. But we cannot support these controversial

detention positions.

Then we go on to say--and I will not read the whole letter. I will put the whole letter in the Record.

The executive branch must have the flexibility to consider

various options for handling terrorism cases, including the

ability to prosecute terrorists for violations of U.S. law in

Federal criminal court.

Yet, taken together, sections 1031 and 1032 of subtitle (d)

are unprecedented and require more rigorous scrutiny by

Congress. Section 1031 needs to be reviewed to consider

whether it is consistent with the September 18, 2001,

authorization for use of military force, especially because

it would authorize the indefinite detention of American

citizens without charge or trial . . .

I will stop reading here, but again, I want to emphasize this point. We are talking about the indefinite detention of American citizens without charge or trial. We have not done this at least since World War II when we incarcerated Japanese Americans. This is a very serious thing we are doing. People should understand its impact.

I want to outline the provisions in the Armed Services bill that would further militarize our counterterrorism efforts and ignore the testimony and recommendations of virtually all national security and counterterrorism officials and experts. We have heard from the Secretary of Defense, the Attorney General, the general counsel of the Defense Department, and John Brennan, the Assistant to the President for Homeland Security and Counterterrorism. Every one of them opposes these provisions. They have to carry them out. They are the professionals responsible for so doing. Yet, we are going to countermand them?

The first problematic provision, section 1032, requires mandatory military custody with no consideration of the details of individual cases. The bill mandates military detention of any non-U.S. citizen who is a member of al-Qaida, or an associated force, whatever that may be, and who planned or carried out an attack, or attempted attack, on this country or abroad. Here is the problem: The Armed Services Committee ignores the administration's request to have this provision apply only to detainees captured overseas. Therefore, any noncitizen al-Qaida operative captured in the United States would be automatically turned over to military custody.

Military custody for captured terrorists may make sense in some cases, but certainly not all. Requiring it in every case could harm our Nation's ability to investigate and respond to terrorist threats and create major operational hurdles. For example, the FBI has 56 local field offices around the country. It is staffed with agents who can arrest, interrogate, and detain. The military does not. As has been the policy of Republican and Democratic Presidents before and after 9/11, the decision about where to hold a prospective terrorist should be based on the facts of each case, and should be made by national security professionals in the executive branch.

In a letter, Secretary Panetta said this week that this provision ``restrains the executive branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.''

He added that the bill as written ``. . . may needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.''

This is the man who ran the CIA and is now running the Department of Defense, and we are going to ignore him? Are we saying it doesn't make any difference what he says? I am not part of that school of thought. I think what he says does make a difference.

I ask unanimous consent to have Secretary Panetta's November 15 letter printed in the Record.

Let me explain why this proposal is bad policy.

Consider the case of Najibullah Zazi. He was arrested in September of 2009 as part of an al-Qaida conspiracy to carry out suicide bombings of the New York City subway system. The FBI arrested Zazi after they had followed him on a 24/7 basis. He began providing useful intelligence to the FBI once captured.

If the mandatory military custody in the Armed Services bill were law, all of the surveillance activities, all of what the FBI did would be in jeopardy. Instead of interrogating him about his coconspirators, or where he had hidden other bombs, the FBI would have squandered valuable time determining whether Zazi was a member or part of al-Qaida or an ``associated force.'' Requiring law enforcement and national security professionals to determine whether an individual meets a specific legal definition adds a delay--most people would have to admit this. Also a waiver process takes time as it proceeds through the President and Secretary of Defense, both of whom believe it unduly complicates the ability to immediately interrogate an individual or prevent another attack.

Suppose a terrorist such as Zazi were forced into mandatory military custody. Then the government could also have been forced to split up codefendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy in the same legal system.

Zazi was a permanent legal resident. His coconspirators were both U.S. citizens. They would be prosecuted on terrorist charges in Federal criminal court, but Zazi himself would be transferred to military custody. Two different detention and prosecution systems would play out and could well complicate a unified prosecution.

Incidentally, in the Zazi case, prosecutors have obtained convictions against six individuals, including guilty pleas from Zazi, who faces life in Federal prison without parole.

What could be better than that? If it is not broke, don't fix it. What is happening now isn't broke. That is the point.

Guess what. I try to do my homework, I read the intelligence, and I try to know what is happening. It is working. The government has its act together. Now arbitrarily this is going to change because there is a predilection of some people in this body that the military must do it all--if they cannot do it all, a part of it. But what this does is essentially militarize certain criminal terrorist acts in the United States. I have a real problem with that. I don't understand why Congress would want to jeopardize successful terrorism prosecutions.

The former speaker was talking about Farouq Abdulmutallab, better known as the Underwear Bomber, from Christmas Day in 2009. Abdulmutallab was brought into custody in Detroit after failing to detonate a bomb on Northwest Flight 253. He was interrogated almost immediately by FBI special agents. And he talked.

Some critics contend that Abdulmutallab stopped talking later that day because he was Mirandized. That happens to be correct, at least temporarily. But what these critics don't mention is that he likely would have been even less forthcoming to military interrogators.

It was FBI agents who traveled to Abdulmutallab's home in Nigeria and persuaded family members to come to Detroit to assist them in getting him to talk. The situation would have been very different under Section 1032. Under the pending legislation, it would have been military personnel who were attempting to enlist prominent Nigerians to assist in their interrogation, and Abdulmutallab would have been classified as an enemy combatant and held in a military facility and, therefore, his family would not be inclined to cooperate. This is we have been told on the Intelligence Committee.

For the record, Umar Farouq Abdulmutallab pleaded guilty to all charges last month in a Federal criminal court in Michigan and will likely spend his life behind bars. What can be better than that? Where can the military commission come close to that effort? In fact, they can't. They had 6 cases, minor sentences, or released, plus 300 to 400 convictions in Federal Court.

To conclude on this mandatory military custody provision, the Defense Department has made clear it does not want the responsibility to take these terrorists into mandatory military custody. But do we know better? I don't think so.

The Department of Justice has said that approximately one-third of terrorists charged in Federal Court in 2010 would be subject to mandatory military detention, absent a waiver from the Secretary of Defense.

The administration contends that the mandatory military custody is unwise because our allies will not extradite terrorist suspects to the United States for interrogation and prosecution--or even provide evidence about suspected terrorists--if they will be sent to a military brig or Guantanamo.

Finally, the military isn't trained or equipped for this mission-- they have plenty to do as it is--but the Department of Justice is.

As John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, said in March:

Terrorists arrested inside the United States will, as

always, be processed exclusively through our criminal justice

system. As they should be.

I agree.

The alternative would be inconsistent with our values and

our adherence to the rule of law. Our military does not

patrol our streets or enforce our laws in this country. Nor

should it.

I could add that our military doesn't spend its resources and expertise surveilling terrorists in the U.S. like Najibullah Zazi, as the FBI did, to know his every move, to know where he bought the chemicals, to know the amount of chemicals, to know what backpacks they had, and to follow him to New York. It makes no sense to me to have to transfer that jurisdiction.

The second problematic provision imposes burdensome restrictions to transfer detainees out of Guantanamo, section 1033. This provision essentially establishes a de facto ban on transfers of detainees out of Gitmo, even for the purpose of prosecution in U.S. courts or another country.

The provision requires the Secretary of Defense to make a series of certifications that are unreasonable--and, candidly, unknowable--before any detainee is transferred out of Gitmo.

Again, here is an example: The administration proposed eliminating the requirement that the Secretary of Defense certify that the foreign country where the detainee will be sent is not ``facing a threat that is likely to substantially affect its ability to exercise control over the individual.''

How can the Secretary of Defense certify that--facing a threat that is likely to not just affect, but substantially affect, its ability to exercise control over the individual? What does it mean for a nation to ``exercise control'' over a former Gitmo detainee? Does he have to be in custody? Can he have an ankle bracelet? Is he remanded to his home? Is he in some county facility somewhere? What does it mean?

The Secretary of Defense must also certify, in writing, that there is virtually no chance that the person being transferred out of American custody would turn against the United States once resettled.

I agree with the sentiment, but as it is written, this is another impossible condition to satisfy.

The administration tried to work with the Armed Services Committee to make this section more workable, but the input by professionals in the defense, law enforcement, and intelligence communities, quite frankly, was rejected.

The committee didn't address the concerns of the administration except to limit these restrictions to 1 year.

In his November 15 letter, Secretary Panetta wrote he was troubled this section remains essentially unchanged and that none of the administration's concerns or suggestions for the provision were adopted. This in itself is a concern. The views of the professionals who do this day in and day out should be considered. Congress is not on the streets, we are not shadowing terrorists, we are not putting together intelligence. So I find this just terribly imperious.

The third problematic detention provision reverses the interagency process of detention reviews for those detained at Guantanamo.

Let me begin by saying I support detention of terrorists under the law of war. There must be a way to hold people who would, if free, take up arms against us. But detention without charge, perhaps forever, is a power that must be subject to serious review to ensure it is applied correctly and that we are only holding people--in some cases for decades--with cause and careful consideration and review.

Incidentally, this would apply to U.S. citizens. Do we want to go home and tell the people of America we are going to hold them, if such a situation comes up, without any thorough and considered review? It is just not the American way.

In March, the President issued an executive order that laid out the process for reviewing each detainee's case to make sure indefinite detention continues to be an appropriate and preferred course. Section 1035 essentially reverses the interagency process created by the President's order.

Let me just say a few things about this process. The Secretary of Defense is in charge of the decision. He is allowed to reject the findings of an interagency review board that includes a senior official from the State Department, the Department of Defense, the Justice Department, DHS, the Office of the Director of National Intelligence, and the Office of the Chairman of the Joint Chiefs of Staff. They, together, review a case of a person who could be held forever without trial, without charge. They can deliberate on the kind of threat this individual continues.

There are people who are in Guantanamo--or I should say who were in Guantanamo--who were simply in the wrong place at the wrong time. That is possible for an American as well. Everything we are all about is to see that the system is a just system. This is not just and particularly not for a U.S. citizen. I don't care who they are, they have certain rights under the Constitution as a U.S. citizen.

Why should we place the Department of Defense above the unified judgment of five other departments on what is, at its heart, a question about the legality of continued detention, the assessment of the threat a detainee poses, and the options available to handle that individual?

Secretary Panetta is not requesting new authority in this section. Again, reading from the Secretary's November 15 letter, he says:

Section 1035 shifts to the Department of Defense

responsibility for what has been a consensus-driven

interagency process that was informed by the advice and views

of counterterrorism professionals from across the Government.

We see no compelling reason--and certainly none has been

expressed in our discussions to date--to upset a

collaborative, interagency approach that has served our

national security so well over the past few years.

Let me conclude by saying I support the vast majority of provisions in this authorization. The bill improves our national security and it is essential to meet our commitment to the men and women of our Armed Forces. I understand all that, and I have voted for virtually every Defense authorization bill. But I intend to continue to oppose these three detention policy provisions.

I have not made up my mind, candidly, how I will vote on this bill. I guess maybe I see things a little differently than many in this body, because one of the things I have learned in my time here is the importance of the U.S. Constitution--and I have had 18 years on the Judiciary Committee--and what it means to have due process of law, and that means for everybody. That is for the poorest person on the street, the wealthiest person or whoever it is. Criminals are entitled to due process of law.

How can we do this? It may not stand the test of constitutionality. But be that as it may, despite having raised these concerns months ago and offered suggestions to address them, this bill does very little to resolve my three principal concerns and those of the administration about mandatory military custody and the possibility this bill will create operational confusion and problems in the field.

I look forward to the debate. Candidly, I hope sides haven't hardened. The three amendments I will offer will--one will strike the language, one will insert the word ``abroad,'' in section 1032, and one will carry with it the administration's proposal. I hope there will be the opportunity to offer these amendments.

I can't think of anything more serious that we are doing, and I must tell you a lot of effort has gone into putting the FBI in a position by creating a huge intelligence operation within the Federal Bureau of Investigation to be able to deal with terrorist threats in this country. We also have a Department of Homeland Security to do that as well. To now say the military is going to take over in certain situations is going to end up unworkable, if, in fact, this becomes the law and I hope it will not.

I thank the Chair, and I yield the floor.

I only found out this bill was coming up this morning, so the administration is reviewing the largest amendment at the present time.

The other two amendments, we may already have filed those.

We have filed those, but I would prefer to wait until we have the larger amendment, which is being reviewed by the administration, and then I will be making a decision as to which I want to go with.

This is the amendment currently being reviewed by the administration.

Yes.

There are several amendments.

This essentially would strike the detention provisions

and replace them with proposals from the executive branch. It reflects what the White House offered to Senators Levin and McCain as compromise language on the detention provisions to address the opposition raised by the administration.

I have more to say, but I am not sure.